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[2002] NSWCCA 18
appellant. Leave to appeal was granted and the appeal allowed. The sentences imposed on counts four and five were quashed. In their place, the Court imposed concurrent imprisonment terms of three years and...
Andrews's sentence appeal succeeded because the Court had evidence that she had provided significant assistance to the authorities after her original sentence. Her later conduct included making a statement about her co-offenders and rejecting a request to give false evidence. The Court considered this assistance, along with other personal circumstances and the likely effect of custody, and reduced the sentences on two counts. It rejected her other grounds of appeal. The judgment does not set out how later courts treated the decision.
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Regina v Andrews [2002] NSWCCA 18 concerned an application for leave to appeal against sentence, heard by the New South Wales Court of Criminal Appeal on 1 February 2002. Grove J gave the substantive judgment. Ipp AJA and Dowd J agreed ([1], [31]–[33]).
No linked legislation citations have been extracted yet.
Andrews was sentenced on six counts: four counts of being an accessory after the fact to robbery, and two robbery counts on which the Crown alleged that she was a principal in the second degree ([3]). The offending occurred between 22 December 1999 and 19 January 2000. Adam Dudgeon committed robberies at retail outlets, while Andrews frequently drove him to the locations ([5]–[6]). She sometimes received part of the proceeds, including drugs, and on some occasions her ten-year-old daughter was with her ([8]). She had also given police false explanations when stopped in her vehicle ([7]).
The District Court imposed fixed terms of twelve months on each of the four accessory counts. Those terms had expired by the time of the appeal. On the two robbery counts, the sentences were concurrent terms of four years and six months, with a non-parole period of two years, commencing on 4 December 2000 ([9]–[10]). Andrews appealed the severity of those sentences.
At the original sentencing, Andrews indicated that she might give evidence to assist the Crown in proceedings against Dudgeon and her de facto husband, Douglas. The sentencing judge treated that prospect as uncertain. The judge noted that Andrews had not yet made a formal statement and that family and psychological circumstances might make the assistance impractical ([22]). Later, in January 2001, she made a full statement to police implicating both co-offenders. Dudgeon also sent letters asking her to provide false evidence to help him escape justice. Andrews refused and handed the letters to authorities ([23]–[24]).
The Crown consented to information about those later events being put before the Court ([21]). Grove J considered it reasonable to conclude that the co-offenders' later guilty pleas were very much inspired by Andrews's offer to assist and her conduct ([25]). The Court allowed the appeal and substituted concurrent terms of three years and six months on counts four and five, with a non-parole period of one year and six months ([30]).
The central distinction was between an offer of assistance that remained uncertain at sentence and assistance later demonstrated by concrete conduct. At sentence, the judge had only Andrews's indication that she was prepared to assist, and expressly treated it as a possibility rather than a settled commitment ([22]). By the appeal, the Court had evidence of a full statement, her refusal to support Dudgeon's attempt to obtain false evidence, and her decision to hand the letters to authorities ([23]–[24]).
Grove J considered that the sentencing judge could not fully appreciate the commitment Andrews would ultimately show because the later events had not yet occurred ([23]). The Court did not rely simply on the fact that Andrews had offered to help. It examined what she actually did and the apparent consequences. In particular, it considered that the co-offenders' guilty pleas were very much inspired by her offer and conduct ([25]). The judgment therefore links the sentence reduction to demonstrated assistance and its assessed significance, rather than to an unfulfilled promise.
The Court also considered other circumstances when resentencing. Grove J referred to steps towards rehabilitation, family circumstances, promises of future rectitude, and affidavits from Andrews and her mother ([26]). He agreed with the sentencing judge that special circumstances justified a reduced non-parole period ([27]). The judgment also records evidence that Andrews had been attacked in custody, and the Court considered it reasonable to infer that this might have been connected with her assistance to the Crown ([28]). Grove J assessed that her custody was likely to be more onerous than the sentencing judge had anticipated ([29]).
These factors informed the Court's substituted sentence, but the judgment does not assign a separate numerical discount to each one. Nor does it say that any single factor automatically requires a reduction. It gives a fact-specific account of why the assistance ground succeeded and why, after considering the other circumstances, reduced sentences were appropriate in this appeal ([26]–[30]).
The Court separately rejected the other grounds. It did not find error merely because the sentencing judge had not specifically referred to the voluntary disclosure: the sentences were considered to show that the disclosure had received proper weight ([12]–[13]). On the guilty-plea discount, Grove J cited R v Thomson & Ors [2000] 49 NSWLR 383 for the proposition that failure to quantify a discount does not, by itself, establish error ([14]). He also rejected the comparisons with Dudgeon and Douglas, whose roles and extent of involvement differed ([15]–[17]). Finally, the sentencing judge had expressly said that Andrews's earlier nineteen days in custody would be taken into account, so the failure to backdate did not establish error in this case ([18]–[20]).
The judgment provides a limited account of the legal position before Andrews. Its only cited decision is R v Thomson & Ors [2000] 49 NSWLR 383, cited at [14]. Grove J relied on it for the proposition that an unquantified guilty-plea discount does not, without more, establish error. Andrews does not reproduce the full reasoning in Thomson or discuss a wider body of sentencing authorities.
The judgment's contribution, on its facts, is its treatment of assistance that became concrete after sentence. The original sentencing judge could assess only the uncertain offer then made. The appeal court had further information, placed before it by consent, showing what Andrews later did ([21]–[25]). It considered that later conduct when reassessing sentence and substituted new terms ([26]–[30]). The decision therefore illustrates an appellate court considering material about post-sentence assistance when that material is before it in the appeal.
The text does not formulate a general test for when post-sentence assistance will justify resentencing. It does not specify a required level of assistance, identify a standard measure of value, or explain what procedural requirements would apply in other cases. Its reasoning is tied to the particular facts, including the Crown's consent to the material, the content of the assistance, the co-offenders' pleas, and the personal circumstances relevant to sentence.
No later judgments or legal sources are supplied here. Accordingly, this analysis cannot establish whether subsequent courts followed, distinguished, confined or otherwise treated Andrews. The heading does not imply a claim about later legal development: the supplied judgment itself contains no later-treatment history.
At [21], Grove J records that the Crown consented to information about events after sentence being put before the Court. In plain English, the Court was not deciding the appeal solely on the material available to the original sentencing judge. It considered agreed information about what Andrews did later.
At [23], Grove J says that later events showed the sentencing judge could not fully appreciate Andrews's commitment. This explains why the appeal court's assessment differed from the assessment possible at sentence. It is not a criticism that the sentencing judge ignored established assistance: the judge had described the offer as uncertain at the time ([22]).
At [24], the Court treats Andrews's response to Dudgeon's letters as important. She did not provide false evidence and instead gave the letters to authorities. In ordinary language, the Court regarded her actions as evidence that her offer to assist was genuine and was carried through when tested.
At [25], Grove J links Andrews's offer and conduct to the co-offenders' guilty pleas, saying it was reasonable to conclude the pleas were very much inspired by those matters. This is the Court's assessment of the practical value of the assistance on the record before it. The wording is an inference made by the Court, not a statement that Andrews alone caused the pleas.
At [29], the Court identifies likely additional hardship in custody, possibly connected to her assistance. The judgment says that her period in custody was likely to be more onerous than the sentencing judge had expected. It presents that as part of the overall sentencing reassessment, not as a separate rule.
At [30], Grove J sets out the orders: leave granted, appeal allowed, the sentences on counts four and five quashed, and concurrent substituted sentences imposed. The new terms were three years and six months, with a non-parole period of one year and six months from 4 December 2000, expiring on 3 June 2002.
The closest factual pattern in Andrews is a sentence appeal in which an offender's assistance was uncertain at the original sentencing, but later events provide evidence of actual assistance. Here, the applicant made a statement implicating co-offenders, rejected a request to provide false evidence, and handed the request letters to authorities ([22]–[24]). The Crown consented to the post-sentence information being placed before the appeal court ([21]).
The decision is also factually associated with evidence that the assistance may have affected the co-offenders' decisions to plead guilty ([25]). The Court considered this when judging the assistance's significance. A situation involving only an unfulfilled promise would not match the material feature that Grove J emphasised: subsequent events had demonstrated Andrews's commitment.
Other circumstances formed part of the overall resentencing assessment. These included rehabilitation, family circumstances, prospects of future rectitude and likely additional hardship in custody ([26]–[29]). The judgment does not say that those circumstances alone would produce the same result.
The case should not be read as establishing an automatic outcome whenever a person assists authorities after sentence. It does not state that every later statement or act of cooperation warrants a sentence reduction. Nor does it supply a formula for valuing assistance or a complete account of the applicable appeal principles. Its reasoning is an example of how the Court treated the particular evidence and circumstances before it.
The supplied judgment does not cite any decision that post-dates Andrews, and it contains no account of subsequent judicial treatment. The only case cited is R v Thomson & Ors [2000] 49 NSWLR 383, which predates Andrews and is cited for the limited proposition concerning an unquantified guilty-plea discount ([14]).
It would therefore be unsupported to say, on this material alone, that Andrews was followed, applied, distinguished, criticised or overruled by later courts. To assess later treatment, a researcher would need to consult subsequent judgments and reliable case citators. This section reports the limits of the supplied source, rather than inferring a later history.
Several matters remain unresolved by the judgment's text. First, it does not define what amount or type of assistance is sufficient for appellate resentencing. Andrews's assistance involved a full statement, refusal to provide false evidence, transfer of the letters to authorities, and an apparent connection with the co-offenders' guilty pleas ([23]–[25]). The Court did not identify which of these features was essential, or whether a different combination would suffice.
Second, the judgment does not set out a general procedure for presenting post-sentence assistance on appeal. It records that the Crown consented to the information being put before the Court ([21]), but does not discuss what would happen if the parties disputed the evidence or its significance.
Third, the decision does not explain how to measure the value of assistance or how that value should be reflected in a sentence. The substituted sentence is stated, but the Court does not quantify a separate reduction attributable to assistance, rehabilitation, family circumstances, or the likely additional hardship in custody ([26]–[30]).
Fourth, the judgment gives only a brief explanation of the special circumstances finding and says Grove J reached the same conclusion as the sentencing judge ([27]). The supplied text does not set out the full reasoning behind that finding.
Finally, later treatment cannot be assessed from this judgment alone. The text provides no post-2002 authorities, so any account of how the precedent developed would require additional legal sources.
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CITATION : Regina v Andrews [2002] NSWCCA 18 FILE NUMBER(S) : CCA 60853/00 HEARING DATE(S) : Friday 1 February 2002 JUDGMENT DATE : 1 February 2002
PARTIES : Regina v Tracey Marie Andrews JUDGMENT OF : Ipp AJA at 31; Grove J at 2; Dowd J at 32
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0452 LOWER COURT JUDICIAL Shillington DCJ OFFICER :
COUNSEL : P.J.P. Power (Crown) H.L. Cox (Appellant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Appellant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - ASSISTANCE TO AUTHORITIES - CONSENT OF CROWN TO TENDER OF INFORMATION SHOWING VALUE OF ASSISTANCE GREATER THAN COULD HAVE BEEN APPRECIATED AT TIME OF SENTENCE - PARTICULAR CIRCUMSTANCES - RESENTENCE APPROPRIATE CASES CITED: R v Thomson & Ors [2000] 49 NSWLR 383 DECISION : APPEAL ALLOWED; APPELLANT RESENTENCED
IN THE COURT OF CRIMINAL APPEAL 60853/00
IPP AJA GROVE J DOWD J
Friday 1 February 2002 REGINA v TRACEY MARIE ANDREWS Judgment 1 IPP AJA: I will ask Grove J to give the first judgment. 2 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Shillington DCJ in the Newcastle District Court on 12 December 2000. 3 The applicant had appeared for sentence upon six counts, four of them charging her with being an accessory after the fact to robbery and two counts charging robbery, in each of which the Crown case was that she was a principal in the second degree. 4 The facts of the offences followed a fairly standard pattern. A man called Adam Dudgeon, recently released from prison, came to reside with the applicant, her de facto husband and her children. During this residence it appears that an affair took place between the applicant and the man Dudgeon, and she came to be somewhat influenced by him. 5 A spate of offences occurred, the first on 22 December 1999 and the last on 19 January 2000. The offences followed, as I have said, a general pattern. They were robberies of retail outlets, including chicken stores, bakeries, and pizza parlours, and one attack upon a liquor store. 6 The applicant was involved frequently as the driver of the vehicle which came to the place of the offence. Dudgeon entered the premises to commit the actual offences, often disguising himself with a balaclava. 7 The facts also reveal that on occasions the applicant was actually stopped by police in her vehicle, and gave explanations which were false, but which at the time satisfied police investigators. 8 It can also be remarked that on the occasions of some offences she was accompanied by children, specifically by her ten year old daughter. The applicant received shares of the proceeds, sometimes by way of a distribution of some drugs, which she was at the time using. As I have said, it is not necessary to detail the whole six of the offences. 9 His Honour imposed sentences of fixed terms of twelve months imprisonment on each of the four counts charging that the applicant was an accessory after the fact to robbery. Those sentences have been fully served and are now expired. 10 On the two counts of robbery in which, as I have mentioned, the applicant was alleged to be a principal in the second degree, his Honour imposed imprisonment terms concurrent for four years and six months, with a non-parole period of two years. Those sentences are currently being served, and the applicant's earliest date of eligibility for release to parole is 3 December 2002. 11 On behalf of the applicant a number of arguments were presented, principally by way of very full written submissions. As I am of the view that one of those grounds is made out, it is appropriate to deal relatively briefly with the others. 12 The applicant complained that the learned sentencing judge did not sufficiently take into account the applicant's voluntary disclosures of guilt. These disclosures followed a second interview by police. I have already referred to the occasions when she was stopped whilst virtually in flight from the offences, and the same situation pertained to her first formal interview, but shortly thereafter, in a second interview, she did make full disclosure. 13 It is true that his Honour did not make specific reference to the voluntary disclosure of guilt. However, the very objective mildness of the sentences imposed is strongly indicative of the circumstance that his Honour gave full weight and measure to such a matter. 14 It was argued that his Honour did not quantify the discount which he gave for the pleas of guilty by the applicant. Again, that statement, standing alone, is literally accurate. However, as appears from the case of R v Thomson & Ors [2000] 49 NSWLR 383, error is not established simply because a discount is not quantified. Again having regard to the sentences imposed, it is manifest that his Honour gave full and proper weight to such considerations. 15 It was also argued that the applicant harbours a justifiable sense of grievance having regard to sentences imposed upon co-offenders. Dudgeon, who as I have mentioned carried out the actual offences, was effectively sentenced to imprisonment for seven years, with a non-parole period of five and a half years. The comparison that is sought to be made, as I understand the submission, is between that sentence and the sentences imposed upon the applicant. 16 The applicant was not herself without prior record. It is true that the involvement of Dudgeon was much more serious than her involvement. On the other hand, it is a matter of simple arithmetic that his non-parole period is some two and a half times that imposed upon her. I cannot as a matter of assessment perceive that any sense of grievance harboured by her on this basis is justifiable. 17 Mention was made of sentences imposed upon her de facto husband, a man called Douglas. He received imprisonment for three and a half years, with a non-parole period of eighteen months, but it should be pointed out that he was involved in only two of the offences. There were other circumstances which were dealt with by the sentencing judge, who was aware of other sentences which had by this point been imposed, and again I am unable to assess any sense of grievance harboured by the applicant as being justifiable. 18 The final matter which I regard is unsustainable is a complaint that his Honour did not backdate the sentence which he directed to commence from 4 December 2000, that is to say, the date upon which the applicant was placed in custody by his Honour. She had been in custody for some nineteen days after arrest, prior to being granted bail in the Supreme Court. 19 His Honour expressly said that he would take into account that she had been in custody for some nineteen days before she was bailed, and for my part, I see no reason to express any scepticism about his Honour's expressed statement to that effect. It is true that statements in this Court have encouraged judges to backdate sentences in order to enable there to be clarity about matters being taken into account, but it does not demonstrate error for a judge not to do so. 20 Accordingly, I am of the view that none of those grounds are made out. 21 However, I turn to the final ground, which I have indicated I regard as having been sustained. This relates to the value of assistance to authority which in the event, has been given by the applicant. By consent of the Crown, there has been put before the Court certain information, to which I will later refer, concerning events subsequent to his Honour's sentence. 22 At the time of sentence the applicant gave evidence. It appears that then, for the first time, and to the apparent surprise of the advocate then representing her, she indicated that she was prepared to give evidence to assist the Crown in any proceedings against her co-offenders. His Honour dealt with the matter in these terms: "There has been some indication in your evidence, and this apparently has been the first formal indication, that you are prepared to assist in the forthcoming trials of the principals Dudgeon and your de facto husband Tony Douglas. It seems somewhat problematical as to whether that in fact is really the situation. You have certainly had the opportunity of making formal statements for use by the prosecuting authorities. You say that you had thought about it prior to your absconding and had even discussed the matter in general terms with Ms Zahra, who appears for you today. As nothing direct has resulted from those discussions, and although you have yourself said in your evidence that you are prepared to give that kind of assistance, one could understand that ultimately that may not be the position, particularly as one of those involved is the father of your children. Ms Zahra herself has realistically suggested that because of your psychological situation it may not be practical for you to give that assistance. However, there is the possibility that you will do so, and I have taken that matter into account." 23 Subsequent events have shown that it was not possible for his Honour to fully appreciate the commitment offered by the applicant. In January 2001 the applicant made a full statement to police authorities, which was incriminating of her two co-offenders. 24 More significant than that, in my view, was the circumstance that the co-offender Dudgeon on several occasions wrote from his position in custody to the applicant, and without reciting the entirety of the content of his letters, it suffices to observe that he proposed to the applicant that she should provide him with false evidence in order to enable him to escape justice. Not only did the applicant decline so to do, but she very properly handed over those letters to authorities. 25 I think it is reasonable to conclude that the subsequent pleas of guilty by Dudgeon and by Douglas were very much inspired by the offer of the applicant to give evidence on behalf of the Crown, and by her conduct which I have just described. 26 That ground having been made out, it is appropriate for this Court to consider the matter of sentence and possible re-sentence. I have already observed that in my view the sentences imposed by the learned District Court judge were mild indeed. Nevertheless, there is before the Court information concerning the steps towards rehabilitation which the applicant has taken. I also think it appropriate to take into account the family circumstances, the promises of future rectitude, and the other matters which are set out in lengthy affidavits by both the applicant and her mother. 27 The learned sentencing judge found there were special circumstances justifying the reduction of the non-parole period component of the sentence, and for reasons identical to him, I would reach the same conclusion. 28 There is one further matter to which reference should be made. There is evidence before the Court that whilst in custody the applicant has herself been the subject of some attack. It is reasonable to conclude that that attack may itself have been inspired by information becoming available that she has given assistance to the Crown of the type that I have indicated. 29 The consequence is therefore that it is likely that the applicant's period in custody will be more onerous than his Honour had expected at the time he was imposing sentence, when the matter of assistance needed to be dealt with as a mere and somewhat faint possibility, as his Honour indicated. In my view the offences were serious, but nevertheless, having regard to the findings that I would make, there should be a reduction in favour of the applicant. 30 I would therefore grant the application for leave to appeal and allow the appeal, and quash the sentences imposed upon counts four and five in the indictment. In lieu thereof, on each count, to be served concurrently, I would sentence the applicant to imprisonment for three years and six months, to date from 4 December 2000, and I would specify a non-parole period of one year and six months to commence upon the date just expressed and to expire on 3 June 2002. The applicant would therefore be eligible for release to parole on 3 June 2002. 31 IPP AJA: I agree. 32 DOWD J: I also agree. 33 IPP AJA: The orders of the Court will accordingly be as proposed by Grove J.
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Regina
Andrews
Leave to appeal was granted and the appeal allowed. The sentences imposed on counts four and five were quashed. In their place, the Court imposed concurrent imprisonment terms of three years and six months, dating from 4 December 2000, with a non-parole period of one year and six months, expiring on 3 June 2002 ([30], [33]).