Regina v Lawrence

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70043/03 FILE NUMBER(S) : LOWER COURT Newman AJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2025

McCOLL JA HOWIE J BUDDIN J

TUESDAY 23 NOVEMBER 2004 REGINA v WENDY OLIVE LAWRENCE Judgment 1 McCOLL JA: I agree with Howie J. 2 HOWIE J: On 24 November 2003 the applicant was arraigned before Newman AJ on an indictment containing 2 counts: the first a charge of stealing from the person contrary to s 94 of the Crimes Act, the second a charge that she had provided false information to police with the intention to hinder an investigation of a serious indictable offence contrary to s 315 of the Crimes Act. The applicant pleaded guilty to both charges and was sentenced by Newman AJ as follows: (i) In respect of the first count and taking into account an offence on a form 1 to imprisonment for a fixed term of 2 years

(ii) In respect of the second count a sentence of 5 years imprisonment with a non-parole period of 3 years. 3 Both sentences commenced on 2 October 2002. The offence for the first count was, therefore, to be served totally concurrent with the sentence imposed on the second count. The non-parole period of 3 years commenced on 2 October 2002 and expires on 1 October 2005, the date upon which the applicant will be eligible to be release to parole. 4 The applicant seeks leave to appeal against the sentences imposed but in submissions sought to restrict the appeal to a consideration only of the sentence imposed for the second count. There are two grounds of appeal: the first contends that his Honour erred in his assessment of the objective criminality of the offence in the second count and the second that the sentencing judge gave insufficient weight to the applicant's plea of guilty and her expressions of remorse and contrition. 5 There was little dispute as to the factual basis on which the applicant was to be sentenced and the facts can be stated relatively briefly. At the time of the commission of the offences the applicant was living in a de facto relationship with a man named Andrew Frew. Also residing in the same housing complex was a man called Peter Laitinen, who I shall refer to as the deceased. On 2 October the deceased was walking in a laneway near his home when the applicant and Frew approached him. Frew began to abuse the deceased because he believed that the deceased had in some way indicated that he was attracted to the applicant. I should note that Frew suffered from a mental illness. 6 Frew approached the deceased who, either because Frew pushed him or because he tripped whilst trying to escape from him, fell heavily to the ground. Frew then commenced to kick and punch the deceased to his head and upper body area. As a result of this attack the deceased was lying severely injured and unconscious on the roadway when the applicant, who had been standing nearby and witnessed the attack, approached the deceased and took from him a mobile phone and a carton of milk. The applicant and Frew then walked towards their unit and on the way the applicant partially buried the mobile phone in a garden bed. She had taken it from the deceased intending to sell it. 7 Police and emergency services were summoned by neighbours and attended the scene where they found the deceased unconscious and having difficulty breathing. He was conveyed to hospital. 8 About an hour later, police attended the unit where the applicant and Frew resided. On answering the door and being told by police why they were there, the applicant said, "My boyfriend has been assaulted. Two guys beat him up around the corner just before you guys got here". Frew at that time was seen by police lying on a mattress with what appeared to be fresh injuries to the back of his knuckles and a graze to his torso and right forearm. When asked by police how he obtained these injuries, Frew said that two people jumped him and bashed him. The applicant added her support to this account. Police then arrested Frew. The applicant insisted upon accompanying Frew to the police station where they both refused to answer questions put to them by police. The applicant was then charged with an offence of concealing a serious indictable offence. 9 Later that evening police executed a search warrant at the apartment while the applicant was present. She maintained to police the version that had earlier been given by Frew: that two unknown assailants had attacked him and she made a statement to this effect recorded on the video during the course of the search. She made this statement notwithstanding that the police had cautioned her. During the search the police found the mobile phone partially buried in the garden. 10 During the morning of the next day, 3 October, the deceased died without recovering consciousness. Shortly thereafter both the applicant and Frew were charged with the murder of the deceased. Frew subsequently pleaded guilty to manslaughter before Justice Newman and the Crown accepted that plea in full satisfaction of the charge of murder. The Crown then chose not to proceed with the charge of murder against the applicant and she was thereupon arraigned on the charges for which she was sentenced. 11 When she appeared before Newman AJ the applicant asked him to take into account a matter on the Form 1 under the provisions of the Criminal Procedure Act. That offence was a charge of affray alleged to have occurred on 16 August 2002. The applicant had been on bail for this charge when she committed the two offences for which she was sentenced. She was also on bail at the time for another offence for which she was convicted and sentenced after receiving the sentences that are the subject of this appeal. 12 The facts of that matter on the form 1 can also be stated briefly. Again both the applicant and Frew were involved. On 16 August 2002 an argument developed between persons at premises in Warrawong as to the repayment of a deposit of fifty dollars for the purchase of a dog. Two of the disputants left the premises without the money they sought and a short time later returned with the applicant and Frew. A further argument took place during which Frew threw a coffee cup in the direction of the victim resulting in him receiving lacerations and cuts to his face. During the course of this altercation, three windows of the premises were smashed before the applicant, Frew and the others left the area. 13 The applicant was at the time of sentence aged 42. Newman AJ described the applicant as having a "very significant criminal record" and found that there was nothing in her antecedents that would cause the Court to exercise any leniency in sentencing her. She had a criminal record dating back to 1979 and it included offences of dishonesty and violence both to persons and property. She has been sentenced to short periods of imprisonment, the last in December 2002 for offences of dishonesty. 14 Newman AJ had regard to a pre-sentence report and a report from a forensic psychologist, Ms Watson. His Honour found this material indicated that the applicant came from a deprived background and acknowledged that was to take into account the "privations of the applicant's earlier life in the manner suggested by Wood CJ in both Fernando and Morgan". His Honour had earlier in his remarks referred to R v Fernando (1990) 276 A Crim R 58 and had quoted from the judgment of Wood CJ in R v Morgan (2003) 57 NSWLR 533. His Honour found that there were special circumstances in determining the length of the non-parole period based upon the considerations discussed in these two decisions. 15 The first ground of appeal contends that his Honour erred in his assessment of the objective seriousness of the offence contained in the second count in the indictment. Newman AJ stated that, when the objective facts are analysed, they revealed "very serious breaches of the criminal law". His Honour said:

"As far as the charge of hindering investigation is concerned. The fact that she so wholeheartedly supported the bogus accounts of how Frew received his injuries is in my view a breach of the law at the top end of criminal culpability in relation to this offence. I say this particularly because the investigation was one involving unlawful homicide. The prisoner, because she had been present when the homicide took place, was well aware of its circumstances. Admittedly she was covering up her own involvement of the offence at the time but her actions in endeavouring to divert the police investigation into a very serious crime places her criminality under the relevant section at a very high level.

I do not regard her actions as being in any way less than those of the prisoner Derbas who was dealt with by the Court of Criminal Appeal on 5 March 2003; see R v Derbas [2003]) NSWCCA 44." 16 Mr Hamill SC takes issue with both his Honour's general assessment of the objective seriousness of the offence of hindering the investigation committed by the applicant and also his Honour's specific comparison between the offence committed by the applicant and that committed by the offender in Derbas. He submits that the objective criminality of the offence in the second count could not have justified a sentence towards the maximum prescribed penalty, particularly having regard to the applicant's plea and the subjective considerations identified in Fernando. 17 In particular Mr Hamill takes issue with his Honour's reference to the investigation being "one involving unlawful homicide". He points out that at the time of the applicant's statements to police, the deceased, although seriously injured was in fact alive. Further, the police, both when they initially attended at the premises and later during the search, indicated to the applicant that they were investigating an assault. 18 Further, Mr Hamill argues that the police investigation in fact was not impeded or hindered by the applicant even though this might have been her intention. The police apparently never accepted the explanations given by Frew for his injuries because they arrested him at the unit on the first visit and, shortly after they arrived at the police station, the police charged him with an offence relating to his attack upon the deceased. The applicant was also charged with an offence at that time which was a further indication that the police did not accept her version of the events either. 19 Finally Mr Hamill argued that there was no parity in the objective seriousness between the offence committed by the applicant and those considered in Derbas when detailed consideration was given to the facts of that case. 20 It seems to me that, had the offence in the second count stood alone, there would be considerable merit in the submission made by Mr Hamill that the sentence imposed upon the applicant was manifestly excessive to a very marked degree. For my part with respect, I find little, if any, assistance in the decision of Derbas and certainly I can see no parity between the culpability of the offender in that case and the applicant. Derbas involved the offender organising other persons to degrease a vehicle used in connection with the killing of two persons and the injury of another, in order to get rid of possible evidence linking the vehicle with the killings. There were also attempts made, at the offender's instructions, to cause it to appear that the vehicle had been stolen prior to the killings. 21 Unlike Derbas, the offence the investigation of which was hindered by the applicant was not homicide. Simply the deceased was not dead at the time of the conversation by the applicant with police. This is not merely a technicality: the simple fact is that the serious indictable offence, although not particularised in the indictment, was an assault, albeit a serious one. The culpability involved in such an offence is not as grave as an offence of homicide or homicides as was the case in Derbas. 22 Further, although the applicant made the statement exculpating Frew on more than one occasion, her conduct was, in my opinion, far removed from that of Derbas in organising other persons to destroy evidence which had the effect, at least, of making the conviction of the shooter more difficult and less likely to succeed. Although both Derbas and the applicant were motivated by misguided loyalty to some other person, that fact in itself, while perhaps not mitigatory, does not indicate that their criminality was of a similar order. 23 With respect, I can see no basis for concluding that the objective seriousness of the offences committed by Derbas was comparable or that the same sentence was warranted. In my opinion the sentence for the offence in the second count is manifestly excessive as a result of his Honour's erroneous assessment of her criminality as being "at a very high level". In coming to that view I take into account both the fact that the applicant was on bail at the time she committed the offences that were before Newman AJ and that her criminal record could not afford her any leniency. 24 However, it must be remembered that his Honour was not sentencing the applicant only for the offence of hinder police. The applicant was also to be sentenced for the offence of stealing from a person, an offence that his Honour described as "an action of extraordinary callousness". In addition Newman AJ was to take into account when sentencing for that offence a charge of affray on the Form 1. His Honour described that matter as a "very serious breach of s 83(C)(1) of the Crimes Act. 25 During the course of his remarks his Honour stated:

Consistent with what fell from the High Court in Pearce v The Queen (1998) 194 CLR 610 I propose to impose the sentence I believe appropriate to both crimes. I accept the submission that I should deal with the crimes on a concurrent basis. In so doing, having considered the appropriate sentence for each crime, I have then taken into account considerations of totality. I have also taken into account the matter contained in the form 1.

The submission as to concurrency of sentences that his Honour accepted was that such an order was warranted because both crimes essentially arose out of the same event. 26 In seems that, in applying the principle from Pearce, Newman AJ must have thought that the total criminality before the court could be encompassed by the sentence to be imposed for the offence of hindering police, notwithstanding that his Honour had previously indicated his view of the seriousness of both the larceny offence and the matter taken into account on the form 1. Unless this were so, his Honour would have been in error in making the sentences for the two offences concurrent notwithstanding that they arose from the same set of facts. It may be that, had his Honour been correct in his assessment of the objective seriousness of the hindering offence, the gravity of that offence was such that it simply overwhelmed the offence on the first count. In that circumstance it would have been appropriate to impose concurrent sentences. 27 But in my respectful opinion his Honour misapprehended the objective seriousness of the offence on the second count and it could not encompass the criminality involved in the larceny from the person offence especially taking into account the matter on the form 1. In those circumstances it was not appropriate to impose concurrent sentences for the two offences notwithstanding that they arose from the same set of circumstances. Although his Honour sought to apply the principle laid down in Pierce, with respect, I believe that his Honour erred in coming to the view that the criminality for the offence in the second count in the indictment could encompass and reflect the criminality for the offence of stealing, especially taking into account the matter on the Form 1. 28 Both parties argued the matter in written submissions on the basis that the appeal related only to the sentence for the hinder police. However, it seems to me that the real issue to be determined is whether the total sentence imposed on the applicant, one of 5 years with a non-parole period of 3 years, was excessive having regard to the criminality with which Justice Newman was concerned. If it was not, then all that is necessary is that the sentences be varied and restructured to arrive at the same result. It would be necessary for this Court to reduce the sentence for the hinder police so that it reflected the objective seriousness of that offence and then order that the sentence be served cumulative upon the sentence for the first count. However, the second ground of appeal attacks the overall sentence imposed by his Honour and should now be considered. 29 The second ground of appeal contends that his Honour failed to give sufficient weight to the applicant's plea of guilty and expressions of remorse. In respect of the plea of guilt his Honour said:

Giving full weight to her unfortunate background, to which I shall shortly turn, I am of the view that her attitude to the tragic events of 2 October 2002 is not consistent with her being either remorseful or contrite. On the other hand, consistent with what fell from the Court of Criminal Appeal in Queen v Thomson and Houlton I will allow a discount [of] 15 percent for the utilitarian effect for the plea of guilty. 30 The first criticism of this passage is his Honour's failure to explain why he chose a discount of 15 per cent for what were pleas of guilty at the first reasonable opportunity. To understand the argument it is necessary to refer shortly to the history of the matter. I have earlier indicated that the applicant was initially charged with an offence of concealing a serious indictable offence. That is an offence contrary to s 316(1) of the Crimes Act and carries a maximum penalty of 2 years imprisonment. However, shortly after the deceased died on 3 October the applicant and Frew were both charged with his murder. The original charge did not proceed further. 31 The applicant and Frew were committed to the Supreme Court on the charge of murder and originally arraigned on that charge. The indictment, dated 6 February 2003, contained an alternative charge in respect of the applicant of aiding, abetting and assisting Frew to commit the murder. The applicant pleaded not guilty to both charges. The matter was stood over to 24 November 2003 for trial. About a week before the trial was to take place the Crown was given some information that led her to believe that the applicant might plead guilty to some offence or other. On the day of the trial, Frew indicated that he was prepared to plead guilty to manslaughter. Frew was re-arraigned, pleaded guilty to manslaughter and that plea was accepted in full discharge of the indictment as it related to Frew. The Crown then presented a fresh indictment against the applicant containing the current charges and she pleaded guilty to both. The Crown had previously indicated that if she were prepared to plead guilty to both of the fresh charges, the Crown would not proceed on the original indictment. 32 In that situation it seems to me that the applicant was entitled to consideration of her pleas on the basis that they were made at the first available opportunity. There was no realistic basis upon which it might have been expected that she would offer a plea at some earlier point in time to any charge when the Crown was alleging that she was guilty of murder or at least being an accessory to that offence by Frew. Although the charge of concealing a serious indictable offence was outstanding, there was no likelihood that the Crown would accept a plea to that offence and it is unrealistic to have expected the applicant to offer to plead to it. 33 It is unnecessary for present purposes to examine the vexed question of the utilitarian value of pleas given on the day of the trial to lesser charges after a plea bargain has taken place between the Crown and the defence. It was held in R v Dib [2003] NSWCCA 117 that, simply because a plea of guilty is given at the first reasonable opportunity, it does not follow that the utilitarian value of the plea must be 25 per cent. Trial judges have been urged to consider the discount for a plea of guilty on a realistic and discriminating basis: R v SY [2003] NSWCCA 291. There is a discretion involved in determining the discount and an accused has no expectation for any particular discount to be applied in any given situation: R v Scott [2003] NSWCCA 286. 34 It seems to me that in re-sentencing the applicant and in the somewhat unusual and special circumstances of this case a discount of 25 per cent is appropriate notwithstanding that the plea came some 16 months after the applicant was initially charged. It should not be assumed that I would have allowed the appeal simply on the basis that his Honour determined in the exercise of his discretion that the appropriate discount was 15 per cent. 35 The second asserted error arising from the passage of the sentencing remarks quoted above is his Honour's finding that the applicant was not remorseful or contrite. This assessment was based upon evidence given by the applicant before Newman AJ during which she described the incident, from which the charges arose, as "an accident". It is unnecessary in the present case to determine whether his Honour's assessment of the evidence of the applicant when compared with other statements indicative of her remorse was appropriate. It was a finding his Honour made but one which does not necessarily bind this Court on re-sentencing. If it were necessary to do so, I doubt that I would reach the same conclusion, although I do not have the advantage of seeing or hearing the applicant give evidence. It is unfortunate perhaps that no-one asked her to explain what she meant by her use of the term. But it is sufficient to dispose of the appeal by noting that, having regard to the discount that I believe should be given for the plea and the relative lack of significance that I attribute to the issue of remorse in the present case, it is unnecessary to reach a concluded view about the matter. 36 I am of the opinion for these reasons that the appeal should be allowed and that the applicant should be re-sentenced. I doubt that a sentence of 2 years was sufficient for the larceny offence and taking into account the affray. However, the sentence should not be increased on appeal. I treat that sentence as having been reduced from what would otherwise be appropriate by reason of the fact that the sentence for the second offence is to be served cumulatively upon it: see Johnson v The Queen (2004) 78 ALJR 616. Having regard to the subjective matters that Newman AJ took into account and the new discount for the plea, a somewhat lesser overall sentence should be imposed taking into account the progress of the applicant during her period of custody awaiting the resolution of the appeal. As Newman AJ recognised there are special circumstances justifying a reduction in the overall non-parole period. There is also the factor that the sentence for the second count is to be served cumulative upon the first count. 37 I propose that the appeal be allowed in part and the sentence imposed for the second count be quashed. In lieu the applicant should be sentenced to 2 years 6 months to commence from 2 October 2004. There is to be a non-parole period of 6 months to expire on 1 April 2005 the date upon which the applicant is eligible to be released to parole. 38 BUDDIN J: I agree with Howie J. **********

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