REGINA v. COUPE [2001] NSWCCA 112

COUNSEL : Crown: C.K. Maxwell, QC. App: In person SOLICITORS : Crown: S.E. O'Connor App: In person CATCHWORDS : Criminal law - sentence - appeal - proportion of non-parole period to total sentence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED: N/A DECISION : Application for leave to appeal granted; appeal upheld; applicant sentenced to four and a half years imprisonment to commence 22.10.99 and to expire 21.4.04; there shall be a non-parole period of two and a half years to commence 22.10.99 and to expire 21.4.02

No. 60340 of 2000 CORAM: GREG JAMES, J. SMART, AJ. WEDNESDAY 28 MARCH 2001

1 GREG JAMES, J: This is an application for leave to appeal against the severity of a sentence imposed in the District Court of New South Wales on the applicant for the crime of aggravated break, enter and steal, the circumstance of aggravation being that the crime was accompanied by the infliction of corporal violence. The maximum penalty is 20 years imprisonment. The applicant was sentenced for that crime to four and a half years imprisonment commencing on 22 October 1999 and expiring on 21 April 2004. A non-parole period was imposed of three years commencing on 22 October 1999 and expiring on 21 October 2002. 2 The facts fell within a quite narrow compass and were succinctly referred to by the learned trial judge in his remarks on sentence. He also referred to three further break, enter and stealing matters that the applicant sought to have taken into account on a Form 1, and which his Honour did take into account. 3 The applicant went to the home of the victim, entered it and was rifling through the possessions of the family when she was approached by the householder and her daughter. There was a scuffle. In the process of that scuffle, the applicant came to cause to the victim some minor bruising, lacerations and, what his Honour described as, a minor wound which occasioned, what might be described as, a sore cheek. The applicant had, whilst in the dwelling, assembled from the various places in the house some $50 in cash, a Tag watch, a pair of Ray Ban sunglasses, $US1 note, and a Maglite torch. 4 The applicant was restrained by the family at the scene until the police arrived and took her away. She pleaded guilty. His Honour gave the applicant full discount for that plea but, of course, as his Honour pointed out, the plea was in the context of her being caught, absolutely red-handed. 5 Before passing to the other matters his Honour noted, I should record that we have received from the applicant very full and detailed written submissions. Those submissions advert to the events that apparently followed the applicant and the householder being in the scuffle to which I have referred. They relate to, in particular, the son of the householder attending at the scene and releasing two pit bull terriers into the yard, apparently to assist in detaining her. 6 There was, in the materials provided by the applicant, reference by her to the use of a screwdriver or the asserted use of a screwdriver towards those animals and a suggestion that it might have been thought by his Honour that she had threatened the householders. 7 An examination of his Honour's remarks on sentence dissipates entirely any such concern. There is no suggestion in any findings of his Honour of any finding of that kind adverse to the applicant, nor indeed would it have been open to his Honour on that charge to have had regard to such matters as aggravating the offence absent proof beyond reasonable doubt of those matters or admission of them by the applicant. 8 His Honour, when he came to pass sentence, did have regard to the applicant's prior criminal record. That record is, on any view of it, appalling. His Honour expressed the content of it this way:- "I note that her record stretches over many, many pages. In the time that has been available to me I have counted 82 matters where there has been a finding of guilt or she has been convicted. The present matters add an extra four to that list, making it 86. Amongst the matters in the past have been 17 breaking, entering and stealing offences and the present four (which) make 21."

9 His Honour was of the view that the record precluded the extension of leniency to the applicant. However, he noted that whilst in prison her behaviour and conduct had been satisfactory and she had been productive. He noted also that her prior personal circumstances had been tragic, leading to her having commenced to use illegal drugs at the age of 12. He further noted she had attempted from time to time to achieve rehabilitation but, coming forward for sentence at the age of 34 years, had never been able to maintain a drug free existence for any lengthy period. Although, in this regard, his Honour noted, and I summarise his views, that, from the material in the Probation and Parole report and the two psychiatric reports before him, there was a genuine willingness on the applicant's part to seek to put aside her drug dependency. 10 In regard to the tragic circumstances of her earlier life, to which his Honour had referred, he found that she had had a very bad life. In that regard I apprehend that his Honour was talking about the way life had treated the applicant, rather than how she had treated others. He referred to the abusive treatment of her when she was a child by men, the death of her husband in tragic circumstances, and the, then, impending death of her mother. He found in her favour that she had probably turned to drugs because of the problems of her background. 11 His Honour was of the view that she would require a great deal of professional help to put her drug-ridden background behind her, but his Honour was also of the view that notwithstanding the strong desire quite honestly held by her to put drugs behind her by going into a residential rehabilitation program, that it would be impossible for him, in the light of her record in particular, and in the light of the fact that the offence for which she came forward for sentence was a more serious offence, incorporating an element of violence, compared to those she previously had on her record, to avoid passing a substantial custodial sentence, and permitting her immediately to enter a rehabilitation programme. 12 His Honour found, it appears, special circumstances. Although there was no express finding to that effect in his Honour's remarks, there was reference in argument to varying the proportion provided for in the Crimes (Sentencing Procedure) Act. His Honour imposed the sentence in a way that suggested she had been given the benefit of special circumstances since he altered the customary statutory proportions. 13 His Honour recommended to the Parole Board that she be placed under conditions, including conditions that she enter into a full-time rehabilitation institution on her release on parole and noted his expectation that she would be released immediately following the end of the non-parole period. 14 In the written submissions that the applicant has filed, there are extensive arguments put in support of a number of individual grounds. These include, under ground one, that his Honour erred in failing to structure a sentence recognising the existence of special circumstances and the report of the psychiatrists. To that ground I will return in a moment. 15 Ground two asserted that his Honour failed to take into account mitigating circumstances. The mitigating circumstances there referred to seem to suggest that the applicant would not have acted with violence had the two dogs not been released into the yard. 16 That ground appears to mistake the violence that was the nub of this offence. It was not the threat to the dogs or the wielding of the screwdriver that was the aggravating circumstance in this charge, but the scuffle with the householder. Of course, that does mean that the objective criminality involved was considerably less than if the applicant had threatened either the persons there, or the dogs present with actual physical harm from the use of the screwdriver. 17 The applicant, in particular, under that ground further drew attention to the fact that her prior offences did not contain such elements of violence, so that what occurred on this occasion should be treated as exceptional. Nonetheless, I am of the view that his Honour did take into account the mitigating circumstances and, as I have said, he did not make any finding adverse to the applicant in respect of the use of the screwdriver or the making of threats. 18 It was also asserted that his Honour described the charges of break, enter and steal with aggravation in terms bearing comparison with offences of armed robbery and home invasion. Shortly, although reference was made to statistics supplied by the Judicial Commission, it is to be noted that the passage in his Honour's reasons does not fall into the error the applicant asserted, in his Honour's description of the offence in argument. In that passage his Honour, in an exchange with the applicant's solicitor, referred to the matters of armed robbery, and home invasion, and said:- "In reference to what might have occurred if she hit that woman just a little bit harder, 25. If she had done her serious physical injury as a result of that blow, and that is not hard, it would have been 25 years, so they equated it to the most serious robberies in the State. MR WHITBY: Robbery with aggravation. HIS HONOUR: Armed robbery, yes, it has been equated now with armed robbery. This kind of home invasion and fighting the householder is regarded by the Legislature to be so serious as to warrant 25 years penal servitude, which, if you do not take any discount with a record like hers, could expect 14 or 15 years, but it is not that one, it is the one down from that which is 20 years, but even so it is a very serious offence ." (emphasis added)

19 The highlighted words make it very clear that his Honour was placing the offence with which the applicant was charged in its proper context in the hierarchy of criminal offences. I see in that passage, and in his Honour's assessment of the objective facts, having regard to what I had said earlier concerning no finding adverse to the applicant relating to the use of the screwdriver, and the making of threats, no sign of his Honour falling into appellable error. 20 I now return to the first ground of appeal. In respect of that ground, the applicant referred to the psychologist's report and to decisions of the court in somewhat similar circumstances, emphasising where rehabilitation might be in prospect, the importance of that rehabilitation. It seems that his Honour must have accepted something to that effect, in finding that the proportion of non-parole period to total sentence should be varied. His Honour made reference to her willingness to undergo rehabilitation and in his recommendation gave effect to that willingness in recognising that full-time rehabilitation would appear to offer some prospect. 21 Having regard to that matter, and having regard to the effect of the total sentence in the light of the non-parole period his Honour imposed, I have concluded that in that limited respect this ground of appeal is made out. It seems that in the light of all the circumstances to which I have referred, the non-parole period his Honour imposed exceeded that which was appropriate in the circumstances he found and that the appropriate course would be to maintain the recommendations that his Honour made, but to vary the non-parole period he imposed by reducing that period by a period of six months so as to expire on 21 April 2002. Otherwise I consider that the sentence should stand. 22 The orders that I would propose therefore are:- 1. The application for leave to appeal be granted. 2. The appeal be upheld. 3. The applicant be sentenced to four and a half years imprisonment to commence on 22 October 1999 and to expire on 21 April 2004 4. There be in respect of that period of imprisonment a non-parole period of two and a half years commencing on 22 October 1999 and expiring on 21 April 2002. 23 As was made by the trial judge, there should be a recommendation to the Parole Board that the applicant be placed under conditions one to nine, which are the general conditions of good behaviour, employment and residency; and also conditions 14 and 16, which relate to giving power to the parole officer to order that the applicant enter into a full-time rehabilitation institution for her drug addiction problems during her parole period, should that be required. 24 SMART, J: I agree. 25 GREG JAMES, J: The orders and recommendations will be as I proposed. *******

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