19 In that case, where the appellant had been found guilty by a jury of the offence under s 33B and pleaded guilty to 2 other property offences and asked that 5 associated summary offences be taken into account, an effective total sentence of 4 years 1 month was imposed, including a minimum term of 2½ years, cumulative upon a 9 month fixed term.
20 The judgment provides no details of the subjective features apart from a reference to the Sentencing Judge having said that he regarded the appellants as warranting a degree of leniency and noting prospects of rehabilitation; see also R -v-Hutchinson [2000] NSWCCA 113, where a sentence of 4 ½ years, including 2 ½ years minimum term, following a plea of guilty at the commencement of the trial to an offence under section 33B, was undisturbed, but in that case the appellant had an extensive criminal and driving record and I refer also to the remarks of Smart AJ in R -v- Bazzi [1999] NSWCCA 346 at [11]:
"One of the objects of section 33B when it was introduced into the Crimes Act 1900 in 1989 was to provide protection to the police and others who lawfully detain those reasonably suspected of committing an offence."
21 In his Remarks on Sentence, his Honour, referring to the offence under s 33B, said:
"That of course is a serious offence, a very serious offence.
Ordinarily, these offences would be offences (which) would attract a custodial sentence",
but although R -v- Hamilton had been brought to his Honour's attention, he did not refer to it in terms, nor to any of the other cases.
22 To say an offence is "serious", or "very serious", is one thing, but his Honour failed to make reference to why this offence under s 33B was so serious, namely, the need to support police in carrying out their duties for the protection of the whole community.
23 In addition, in his Remarks on Sentence, his Honour failed to make any specific reference to the need for general deterrence. Although one might assume, as an experienced Judge, his Honour had the need for general deterrence in mind, in this case, he clearly allowed this consideration to be overlooked on account of the subjective features. It is, therefore, appropriate, that I turn to those subjective features.
24 The respondent was the elder of her mother's 2 children and grew up in the Liverpool area. Her mother's de facto relationship with the respondent's father broke up about 2 years after the respondent's birth.
25 Her mother then married about 2 years later and the marriage lasted for 7 years, after which her mother had a number of same sex and heterosexual short-term relationships, until she was murdered by her latest partner with whom she had recently broken up in 1986 when the respondent was 14 years old, and when she had returned to their former premises to recover her furniture.
26 She claims that she was sexually abused by a number of family members and such abuse, and the traumatic effect of her mother's murder, was confirmed to the Probation and Parole Service by her grandmother, and is noted in the Pre-Sentence Report.
27 The respondent then went to live with her grandmother but, having attended 4 different high schools and having completed her School Certificate, she left school part-way through Year 11 and at the same time left her grandmother's house, and lived on the streets for about 2 years, engaging in prostitution during that time although, during that period, she also had employment at McDonalds, the Pack and Saddle, and as a process worker at Rainfords.
28 She married in 1989 and there are 2 children, one of whom suffers from ADHD. The marriage broke up in 1997 and the respondent claims, and this is not disputed, that during the latter part of that relationship her husband became emotionally and physically abusive towards her, and the family was apparently subject to a lot of professional intervention because of the level of dysfunction.
29 When they separated, her husband obtained custody of 1 child and the respondent of the other, but she lost custody of that child shortly before the events giving rise to the present charges.
30 She then had an 18 month same sex relationship with the alleged co-offender, Sanders, who was also violent and unpredictable. The respondent had been using cannabis from age 12, until she stopped earlier this year, and she was also using heroin during 1997 and 1998, up to the time of her arrest; but she apparently dried out during the month in goal and has not used it since.
31 Apart from the employment already mentioned, she has also had a number of other positions, in particular, during 1999, after her arrest but before her trial, she worked at El Prima Italian Restaurant and received excellent work and personal references from her employer, who, in particular, noted that he had seen a change in her during the previous couple of months due to a change in her lifestyle.
32 Then, in February 2000, she commenced a two-year full-time diploma of business studies course at the Liverpool College of TAFE and there was before the Sentencing Judge a reference describing her as a regular attender, a good and attentive student whose tests and assignments were on time, and the teacher expressed the view that she would have no trouble in finding full-time employment of her choice after completing the course.
33 As already noted, the offences, particularly the offence under s 33B, were serious and the objective gravity of that offence and, to a lesser degree, of the others, in my view called for a full-time custodial sentence, and his Honour was in error in failing to impose such a sentence.
34 This was a case of a young woman who had had an unsettled, troubled and traumatic childhood and youth including sexual abuse and the murder of her mother at the age of 14 years. She had become involved with criminal associates and the use of illegal drugs which culminated in the commission of these offences which, with one exception, were her first offences.
35 Apart from 1 month in custody before being admitted to bail, she had never been in custody. She was not the instigator or principal of the offences and none of the other offenders had been prosecuted. She had severed her association with her criminal associates including the partner, Sanders, and had given up the use of heroin and cannabis. She had engaged in employment and was in the course of undertaking, with persistence and success, a TAFE course which would better equip her for full-time lawful employment.
36 This was not a case where the respondent or her psychologist were merely suggesting a desire for, or prospect of, rehabilitation. Rehabilitation was already under way and there was considerable force in the Sentencing Judge's Remarks that it would be extraordinarily unfortunate if she were to be put in goal where she could not complete that course which would lead to employment and open up a new and lawful chapter in her life.
37 These were, in the circumstances, proper considerations to be taken into account, but I nevertheless consider that the objective gravity of the offences, particularly the s 33B offence, called for a full-time custodial sentence, and this Court should intervene.
38 However, when this Court does intervene in Crown appeals, it has a wide discretion and it is necessary and appropriate to take into account the principle of double jeopardy, the delay that has necessarily occurred since she was first sentenced, and events which have happened in the meantime.
39 In the present case, the applicant has completed 100 hours of community service which the Department considers is all that is required. It was not, but she has already done an extra 16 hours and acknowledges that the order should have been for 200 hours.
40 An affidavit has been filed setting out her progress since then. The person in charge of the place where she has done the community service speaks highly of her performance, and this is of significance because he is a former police inspector and is aware of the offences she committed and therefore realises the importance of protecting police against such offences.
41 She has, in addition, given evidence for the Crown in a prosecution against one of the alleged co-offenders, Andrew Ingram, in proceedings in which he was convicted of 1 count of stealing a motor vehicle. This was not related to the offence in which she was involved, but in relation to another offence. It is still significant in that it indicates, or further demonstrates, a break with her former criminal associates.
42 She has served the month in goal before being admitted to bail to which I have already referred, and although she has discontinued the full-time course at TAFE, this is because she has been engaged in paid employment to pay off her debts.
43 Therefore, although, as I have already indicated, I consider the learned Sentencing Judge fell into error in not imposing a full-time custodial sentence of some severity for the offence under s 33B, I consider that the circumstances of this case are wholly exceptional and, having taken into account the principles of double jeopardy, the fact that she has completed 100 hours community service and done extra hours as well, that she has assisted police and the Crown in giving evidence against a former associate, the time served in custody before being admitted to bail, and the evidence of her continued rehabilitation, I consider that this is a case where it is not necessary or appropriate to impose a full-time custodial sentence at this time, and that a sentence to be served by way of periodic detention would be sufficient.
44 In relation to the 4 other offences, that is, the 2 offences involving the theft of motor vehicles and the 2 break enter and steals, I would propose that the Crown Appeal be dismissed and the 100 hours community service that she has already served be attributed to those offences.
45 In relation to the sentence of 100 hours community service for the offence under s 33B, I propose that the Crown appeal be allowed, the sentence quashed and in lieu thereof that the respondent be imprisoned for 18 months with a non-parole period of 12 months and that the sentence be served by way of periodic detention. Arrangements will have to be made to determine when and where she is to report.
46 WOOD CJ AT CL. I announce my agreement with the proposed orders and the reason for them announced by Dunford J.
47 CARRUTHERS. I also agree.
48 WOOD CJ AT CL. The sentence imposed below for the s 33B offence is quashed and in lieu thereof the respondent is sentenced to 18 months imprisonment with a non-parole period of 12 months, that sentence to be served by periodic detention and the respondent is directed to report to the Norma Parker Centre at Parramatta, to commence that sentence on 6 December next.
49 DUNFORD J. Otherwise, the appeal is dismissed in respect of the other sentences.
o0o