R v . WASSON

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0195 FILE NUMBER(S) : LOWER COURT English DCJ (Taree) JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60075 of 2004

BRYSON JA JAMES J KIRBY J

3 August 2004 REGINA v TRACEY LEE WASSON Judgment 1 BRYSON JA: The applicant seeks leave to appeal against the sentence imposed upon her by her Honour Judge English in the District Court at Taree on Friday 29 August 2003. The offence charged was conspiracy under the Common Law: conspiring with Brendan William Fensom and Bradley Scott Lewis on 20 November 2002 to dishonestly obtain the benefit of $20,800 for Bradley Scott Lewis by deception, by falsely reporting to the police that a motor vehicle owned by Lewis was stolen, with the intention of destroying the motor vehicle and dishonestly making a claim for compensation on the insurer. Conspiracy is an offence for which no maximum term of imprisonment is prescribed by law. The substantive offence to which the conspiracy related is the offence of "obtaining money etc by deception" under s.178BA of the Crimes Act 1900, the maximum penalty for which is five years' imprisonment. 2 Pursuant to the conspiracy the applicant and Fensom removed the vehicle from a car park and Lewis falsely reported that it had been stolen. The offence was discovered by chance less than an hour later when police stopped the vehicle for a random breath test. The applicant made substantial admissions in an electronically recorded interview within the next few hours. An Information was laid on 1 April 2003, the applicant was arrested on 1 May 2003 on warrant and she then obtained bail. She indicated that she would plead guilty on the first occasion she was brought before Taree Local Court. Later she was committed for sentence to Taree District Court under s.51A of the Justices Act 1900. 3 Her Honour Judge English heard evidence and submissions on sentence on 25 August 2003 relating to all three parties to the conspiracy, who all pleaded guilty. On 29 August 2003 her Honour made remarks on sentence and sentenced the applicant to imprisonment for two years to commence on 29 July 2003 and to expire on 28 July 2005. Her Honour set a non-parole period of 18 months to commence on 29 July 2003 and to expire on 28 January 2005. Her Honour imposed the same sentence on Lewis; with the minor variation that the term of two years commenced on 29 August 2003, as did the non-parole period, which was to expire on 28 February 2005. Her Honour sentenced Fensom to a term of imprisonment of 18 months and imposed a non-parole period of 13½ months. 4 Her Honour acted on the view that the applicant had earlier spent one month in custody for this offence; this was based on misinformation to the effect that the appellant was arrested on 1 April 2003 and bailed on 1 May 2003, whereas in fact she was arrested and bailed on 1 May 2003. Except in this respect the sentences imposed on the applicant and Lewis were the same. While passing sentence her Honour observed of the applicant: Whilst I find you are the mastermind behind the scheme it would not have been carried out had Mr Lewis not actively participated to the extent that he did and for that reason I have had regard to the issue of parity. 5 The parity thus apparently achieved was later disturbed when on 5 December 2003 the Court of Criminal Appeal (Hidden J, Smart AJ) allowed an appeal by Lewis and in lieu sentenced him to imprisonment for 12 months commencing on 29 August 2003 with a non-parole period of 16 weeks expiring on 18 December 2003 on which date he was to be released on parole: R. v. Lewis [2003] NSWCCA 375. Their Honours made observations on the relative degree of criminality between Lewis and the applicant which should not influence the view we now take. Their Honours acted on the view that there was a big difference in subjective features of Lewis and the applicant's situations and said at [12]: On the issue of due proportion [Lewis] has a justifiable sense of grievance. The sentence imposed does not reflect his strong subjective features. 6 The first ground of appeal contended for was that her Honour erred in law in that her Honour failed to give an appropriate allowance for the plea of guilty. 7 There is little reference to the pleas of guilty of the applicant and of the co-offenders in her Honour's remarks on sentence. In relation to the applicant her Honour said: I am unable to find that she is either remorseful or contrite, other than to the extent that her plea of guilty shows some contrition and has public utility.

Otherwise there is no exposition of the impact which the plea of guilty, the time at which it was made and its utilitarian value had on the process of reasoning. It could be said that the contrition displayed by the plea was qualified by the fortuitous early discovery by police of the offence. Nevertheless the plea in fact had utilitarian value as it was made at the first opportunity which arose. 8 The passage which I have set out shows that the learned Judge did take the plea into account as relevant to contrition; and it should not be concluded that the plea was not given weight. Overall considerations related to the length of the sentence actually imposed, with which I deal later, taken with the explicit reference to the public utility of the plea, seem to me to show that some discount for the plea of guilty probably entered into her Honour's considerations. However it is unfortunate that her Honour did not respond to the encouragement offered by the observations of Spigelman CJ in R. v. Thomson (2000) 49 NSWLR 383 at page 419 para [160] to quantify the effect of the plea on the sentence or in some other way to give an indication of the part taken by the plea in the Judge's reasoning process. There is no statement in her Honour's reasons showing whether some discount, expressed in percentage terms or otherwise, was taken into consideration, or whether there were in her Honour's view reasons why no such discount should be applied. 9 As Spigelman CJ's observations show, it is not an error to omit such a statement, and whether or not such a statement should be included in sentencing reasons is a matter for determination of the sentencing Judge. However overall the slight nature of the reference to the plea and its timing is unfortunate when an endeavour is made to review her Honour's decision. It is reasonable to take the view that the weight accorded to the plea and its timing was not very great; but that is not the only view available and I do not know what view her Honour took. On a reasonable view the utilitarian advantages of the plea of guilty called for more consideration than a slight reference to it in the context of contrition, and I am at a disadvantage in not knowing what led to her Honour's not making an explicit discount in the reasoning process underlying the sentence. There may have been some discount, and it is not an error not to articulate a discount in terms of a percentage; but I do not know what the reasoning process was, and I do not have the advantage of transparency of the process in this respect. I am left to address the contention that her Honour failed to give an appropriate allowance for the plea of guilty on very general considerations. 10 The second ground of appeal contended for was: Her Honour failed to have proper regard to those matters relevant to special circumstances pursuant to s.44 of the Crimes (Sentencing Procedure) Act 1999 … 11 As the offence was committed before 1st February 2003, section 44 has effect in the form in which it was first enacted and not in the substituted form inserted by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, which commenced on 1st February 2003; see Sched.2 Pt.7 cl.45 inserted by that amendment. Subsection 44(2) provides: (2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

The sentence imposed on the applicant conforms with subs.44(2) as the non-parole period is three-quarters of the term of the sentence. 12 It is desirable that a sentencing Judge refer directly to consideration given to whether there are special circumstances; see R v Jenkins [1999] NSWCCA 110 and earlier cases referred to by Simpson J at [39]; it is not necessarily an error not to make such reference; R v. Mason [2000] NSWCCA 207 at [21] (Sully J). There is no reference to the question of special circumstances in relation to the applicant or as far as I can see in relation to any of the offenders in Judge English's remarks on sentence. It was contended that given the combination of the applicant's mature age and the probability that an extended period of supervision following release from custody would assist her rehabilitation, special circumstances ought to have been considered and a finding of special circumstances ought to have been made. 13 The applicant's record of previous convictions includes a number of offences of various kinds, including one conviction for an offence which was frankly dishonest: stealing property in a dwelling house in 1999, for which a fine was imposed, and a number of convictions relating to driving offences, among them several for driving while her licence was cancelled or while she was a disqualified driver. In 2000 she was sentenced to one month's imprisonment for driving while disqualified; in 2001 she was convicted of several driving offences including driving while disqualified and required to perform 300 hours of community service. She was also convicted in 2003 of driving while disqualified and imprisoned for two months; this offence occurred later in time than the conspiracy charged. 14 Much of the material in the character references and testimonials had a claim to consideration as indications favourable to the applicant. Her criminal convictions came at unusual times in her life history, in that apart from one driving offence at the age of about 25, all of them occurred when she was 33 years of age or older, and this was explained, credibly, as related to life disturbance in a marriage breakdown. She was the primary carer of her 15-year-old son. Character evidence showed that she had performed very well under the community service order, making a positive contribution in the work of Port Macquarie Sea Rescue Group Inc, and continuing to do so after the obligation had ended. This shows that the applicant is capable of constructive action in a purposeful and structured activity managed by others. She continued to participate fully and enthusiastically in the Port Macquarie Sea Rescue Group Inc after completing community service there. She has worked and studied. These favourable indications, however, must be taken with the nature of her participation in the conspiracy, which over-shadows them and refutes the contention that the applicant has turned her life around. 15 Further attention to the applicant's rehabilitation is quite appropriate, in view of past indications of good results from community service. In my opinion the circumstances referred to do not constitute special circumstances in the context of a decision under s.44 whether or not six months, or some longer period of her sentence should be available for supervision on parole. In the context set by s.44 the subject of special circumstances is not in my opinion opened up for consideration by any of the facts relating to the applicant which were put forward for consideration: I see no element in them which takes them out of the general provision to the effect that one quarter of the term of a sentence of imprisonment is to be available for parole. There is no reason to conclude that one quarter of the term of the sentence, the normal proportion contemplated by s.44, will not be adequate or should be varied. Although there would have been advantages in the learned Judge's stating her Honour's view on the question of special circumstances, there was, in my opinion, no error. 16 The third ground of appeal was: Her Honour failed to observe procedural fairness in the manner in which she dealt with the applicant's case specifically as to the treatment of character evidence and subjective matters generally. 17 Her Honour observed to the effect that two testimonials or character references which were tendered did not address the offence of conspiracy which was under consideration, and that they appeared to have been prepared for a less serious charge which had been dealt with in the Local Court not long before. Of Ms Hodgson, who gave oral character evidence, the learned Judge made observations which show that her Honour found the appraisal made by the witness unimpressive, in particular the witness's evidence that since the applicant and her co-offender Fensom had become a couple their attitudes had changed dramatically and they had been a positive influence on each other. Her Honour said: I find that to be an extraordinary statement in view of the fact that Ms Wasson positively influenced Mr Fensom to commit this crime.

This was a relevant and strong reason for not accepting the witness's evidence. 18 It was contended that as a matter of procedural fairness the learned Judge should have given an indication of an intention either to reject the references, including the evidence of Ms Hodgson, or not to place weight upon them; that such intention should have been communicated to the applicant's representative so as to give an opportunity to address it. It was contended that if that opportunity had been given, a previously unsuccessful application for an adjournment to obtain a pre-sentence report might have been renewed. The applicant's counsel referred to consideration given to questions of procedural fairness in relation to the views taken by Mason CJ and Brennan J on the question of law in Pantorno v. R (1989) 166 CLR 466 at 473, and also to Champion v. R (1992) 64 A Crim R 244 at 256-257 and to Parker v. DPP (1992) 28 NSWLR 282 at 296. 19 In my view there is no substance in the contention that there was a failure to accord procedural fairness in these respects. It should be plain to litigants generally that when evidence is put before a Court it is submitted to adjudication, and the prospect that it may not be found convincing is quite evident and needs no warning. This was particularly true in the present case where the weakness in Ms Hodgson's appraisal of the applicant's life situation was plainly open to the interpretation made by her Honour; and was also true where the testimonials or references did not address the impact of participation in a fraudulent conspiracy on the views of the character referees. The outcome of her Honour's consideration of this evidence cannot have been surprising and should not reasonably have been unexpected. In my view this ground should be rejected. 20 The fourth ground of appeal was: The sentence imposed was manifestly excessive.

In support of this ground counsel referred to the maximum penalty for the substantive offence under s.178BA of the Crimes Act 1900 which is five years. Counsel produced a table of comparative cases; these cases were convictions under s.178BA and did not relate to convictions for conspiracy. It was contended that while there was a degree of planning inherent in the nature of a charge of conspiracy, overall the offence was of the lower order for offences of this type. Counsel referred to the fact that the applicant's previous convictions for the most part related to driving, and included only two prior matters of dishonesty. To my reading only one earlier conviction can be strictly said to be an offence of dishonesty. There are significant elements of social irresponsibility in driving while one's licence is cancelled or while disqualified, and also in using an unregistered and an uninsured vehicle. 21 An offence against s.178BA is of course serious enough, but a conspiracy involving three persons is significantly more serious, and the applicant played the principal part in the conspiracy. Judge English's expression was that the applicant was the mastermind. This was not an indication that the conspiracy was well planned, but that the applicant took the prime position in its planning. Although the conspiracy was defeated very soon by fortuitous intervention by police who were acting for a different purpose, and the participants revealed the events to the police fairly readily, there had been a real likelihood that the conspiracy might have succeeded and that a significant sum of money might have been diverted from the insurance company. The applicant was the leading spirit in a coldly fraudulent conspiracy directed to dishonestly obtaining a significant sum of money, exhibiting criminality of a significantly higher scale than had been shown in her earlier record. 22 It seems possible from Judge English's brief reference to parity in the context of Mr Lewis that consideration of parity may have caused her Honour to rate down the sentence which she might have otherwise imposed on the applicant. However that may be, it would not be in my opinion be a correct conclusion that the sentence imposed was excessive in the circumstances. When regard is given to the nature of the offence, its circumstances including the applicant's leading part in it, the favourable personal circumstances which appear from the character references, the plea of guilty made at the first opportunity, and to minor considerations being the apparent allowance for parity and the slightly favourable influence of the misinformation about the period spent in custody, the sentence imposed is well within the range of sentences which could be imposed in a sound exercise of discretion. I am not of opinion that any other sentence than that actually passed is warranted in law and should have been passed; see Criminal Appeal Act 1912 subs.6(3). In my opinion leave to appeal should be granted and the appeal should be dismissed. 23 JAMES J: I have had the advantage of reading in draft the judgments of Bryson JA and Kirby J. I agree generally with the judgment of Bryson JA, subject to the qualification that, with respect to the second ground of appeal and the question of special circumstances, I agree with Kirby J. I agree with the orders proposed by Bryson JA. 24 KIRBY J: I have had the advantage of reading the judgment of Bryson JA in draft. I agree with the order proposed, that the appeal should be dismissed. For the reasons his Honour gives, I agree that there was no error in respect of grounds 1, 3 and 4. However, in respect of ground 2, I have reached the same conclusion by a slightly different path. 25 The Act in s44(2) makes provision for the ratio between the non parole period and the full term of the sentence. At the time of the offences, the section was in the following form: "44(2) The non parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision." 26 Where the material presented on sentence is capable of being regarded as giving rise to special circumstances, the sentencing Judge should deal with the issue under s44(2), exercising his or her discretion to vary or not to vary the statutory ratio. 27 If the Judge fails to deal with that issue there is error. The Judge will not have taken into account a material consideration in his or her determination (House v The King (1936) 55 CLR 499 at 505). The appellate Court must then resentence. In doing so, it must determine whether special circumstances should be found, and the statutory ratio varied. 28 Where the remarks on sentence are silent as to the issue arising under s44(2), not mentioning special circumstances, and where the sentence is simply divided in accordance with the statutory ratio, an issue arises as to whether the Judge in fact exercised the discretion under s44(2). The remarks themselves, although not using the words "special circumstances", may make it clear that the issue was in the Judge's mind. Alternatively, submissions made shortly before the sentence was passed, may enable the Court to comfortably draw that inference. 29 Here the evidence tendered on sentence was, according to the applicant, capable of being regarded as amounting to special circumstances, namely the applicant's mature age, she having led a relatively blameless life until the break-down of her marriage at the age of 33, and her work with the Port Macquarie Sea Rescue Group. It was suggested that she may benefit from an extended period of supervision. 30 In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of matters capable of constituting special circumstances. The material before her Honour was capable of being so regarded, in the sense that it raised the question of whether there should be a finding of special circumstances. 31 Neither the remarks on sentence, nor the submissions made by counsel before sentence advert to the issue of special circumstances. The sentence her Honour imposed was divided according to the statutory ratio. The same was true in respect of the sentences imposed upon co-offenders. The proper inference, I believe, was that the issue of special circumstances was not addressed. There was therefore error and the need for this Court to resentence. 32 Addressing that issue, I am not persuaded, however, that the circumstances identified by the applicant should be regarded as special circumstances. I would therefore not disturb the statutory ratio. **********

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