Regina v Ingram

Court of Criminal Appeal (NSW)|2002-09-27|Before: Buddin J, Smart AJ

The applicant ran across the road to the Heritage Hotel and went behind a building. He opened the bag and from a small leather purse removed some cash. Two people, one of whom had witnessed the offence grabbed the offender and held him until the police arrived. On their arrival the applicant complained of shortness of breath and appeared to be having fits. He was treated at Cessnock Hospital. Whilst there he moved something inside his pants. He was searched and $900 in $50 notes was located.

During a recorded police interview he admitted he took the handbag. He claimed that he was unaware that the victim fell to the ground. Later, in the interview he conceded that he knew the victim had fallen down. He said that he did not count the money and did not know where the outstanding money was. As a result of the offence the victim suffered cuts and scratches to her hands and arms. Her arms and shoulders were also sore due to the handbag being wrenched from her grip. The applicant told the police he was going to use the money to pay his bills. The applicant also told the police: "Just that I can't believe that I did it. It was a split second thing. I so wish that I didn't and now look at its consequences now. An old lady is hurt. It is not right. It's not right at all."

The Form 1 offences were as follows: 7/8/2000 Obtain money by deception Dishonestly obtained $100 by falsely declaring ownership of a VCR (video cassette recorder)

30/10/2000 Obtain money by deception Dishonestly obtained $90 by falsely declaring ownership of a VCR

9/11/2000 Broke and entered a dwelling house and stole a VCR

9/11/2000 Obtain money by deception. Dishonestly obtained $80 by falsely declaring ownership of a VCR These offences, particularly the break, enter and steal were serious instances of dishonesty.

The applicant was born on 3 November 1979 and was thus 21 years of age at the time of the commission of the offence. In January and June 1998 he was convicted of driving offences, some being moderately serious. In March 1999 he was fined for resisting an officer in the execution of his duty. In December 1999 he was fined for driving whilst disqualified and also for possessing a prohibited drug. In June 2000 he was fined for shoplifting. In December 2000 he was convicted of driving whilst disqualified and possessing a prohibited drug. At the date of sentencing he was serving a sentence of 4 months imprisonment for reckless driving. His criminal history did not include any offence even approaching the gravity of the robbery. He was also on a bond.

The applicant gave evidence before the judge who accepted the applicant's evidence. His partner also gave evidence. They had had a daughter. The partner said that that had led to a big change in the applicant.

The applicant had been a heroin user and said that at the time of the offence he was still using drugs "really badly". Since his arrest he had not used any drugs other than methadone. The judge thought that the applicant's expressions of remorse were genuine and that the offence was committed on the spur of the moment to obtain money to feed the applicant's drug habit. The judge was satisfied that the applicant had remained drug free, apart from methadone, since he went into custody.

The judge relied on the report of a psychologist, Ms Barbara Aldridge. She diagnosed the applicant as suffering from dysthymia and borderline personality disorder. She thought that the applicant was a very emotional and depressed young man who was missing his partner and baby tremendously. She commented: "It is not really surprising that a boy who had such vast experience of failure and who is chronically depressed turned to drugs."

Ms Aldridge thought the applicant needed extensive counselling. She described the applicant as a misguided and miserable young man rather than a truly criminal type.

The judge thought that there must be some connection between the applicant's borderline personality disorder and his drug use. The judge accepted that the applicant was not essentially a true criminal type.

The judge took into account that the applicant entered his plea at the first available opportunity. The judge thought that the trial would not have been a long one and that the utilitarian value of the plea was in the order of 12½ to 15 per cent. The judge noted that, in addition, by his plea the applicant had obviated the need for the victim to give evidence at trial. The judge also took into account the genuine and profound remorse and contrition of the applicant, the very positive steps he had taken towards rehabilitation, that the offence was not premeditated, that it was somewhat out of character and, to a very limited extent the cost to the offender's family of any period of incarceration.

The judge then took into account the offences on the Form 1 and correctly treated the offence of break, enter and steal as a serious offence. He reminded himself of the objective seriousness of the subject robbery.

The judge correctly found special circumstances in the need to rehabilitate the applicant and the positive signs in this regard and his need for a longer than normal period of supervision. The judge started the sentence from 25 September 2001, which meant that the sentences for some 7 offences including that for the reckless driving would be served concurrently with the sentence under challenge.

The applicant submitted that the judge had erred in only allowing a discount of 12.5 to 15 per cent for the utilitarian value of the plea of guilty. He submitted that the judge had taken into account the strength of the Crown case in assessing the discount. I am not persuaded that the judge did this. Nor am I persuaded that it was wrong to take into account that any trial would have probably been short. That bears upon the utilitarian value of the plea. The judge did have regard to the very early plea and the earlier admissions. In the circumstances a discount of 12½ to 15 per cent was inadequate.

It was further submitted that when consideration was given to: (a) the maximum sentence available was 14 years

(d) the guideline in R v Henry 46 NSWLR 346 of 4 to 5 years for armed robbery an offence which carries a maximum sentence of 20 years.

a sentence of 3 years 6 months taking into account the offences on the Form 1 was manifestly excessive.

The judge's careful remarks on sentence were comprehensive and he treated the applicant with considerable sympathy while not losing sight of the objective gravity of the offences before him. The error exposed would not lead me to intervene as the ultimate sentence was correct on the materials before the judge. The offences taken into account were significant and called for an additional penalty to be imposed on the robbery offence. I also have taken them into account.

However, on this application further facts have emerged. The judge proceeded on the basis that the applicant would serve his sentence in normal custodial conditions. On the day following the imposition of the judge's sentence an article appeared in the Newcastle Herald which related the facts of the present case. The applicant was assaulted that day by other inmates in prison and had to be taken to Cessnock Hospital where he received treatment. He suffered bruising to the face, chest, back, buttocks and thighs. He was then placed on protection for his own safety. Contrary to the expectations of the judge the applicant is serving his sentence in harsher conditions. On account of this fact a small adjustment should be made to the head sentence and the non-parole period. Greater adjustment would lead to an inadequate sentence.

I propose the following orders: (1) Leave to appeal against sentence granted.

(2) Appeal allowed. Sentence quashed. In lieu thereof the applicant is sentenced to imprisonment for 3 years commencing on 25 September 2001 and expiring on 24 September 2004 with a non-parole period of 15 months to expire on 24 December 2002 on which day the applicant is to be released on parole. 20. BUDDIN J: I agree. The orders will be as proposed by Smart AJ. (Counsel confirmed that the orders occasioned no difficulty and were arithmetically correct)

BUDDIN J (To applicant) Do you understand what has happened?

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Regina v Ingram [2002] NSWCCA 398 FILE NUMBER(S) : CCA 60937/01 HEARING DATE(S) : 27 September 2002 JUDGMENT DATE : 27 September 2002

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