REGINA v. LOLESI [2002] NSWCCA 189

TUESDAY 21 MAY 2002 REGINA v. SHONTEL LOLESI Judgment 1 GREG JAMES, J: This is an application for leave to appeal in respect of the sentences imposed upon the applicant in the District Court of New South Wales at Campbelltown for a number of offences which were placed on an indictment in consequence of there being some difficulty with the papers, the offender having indicated a plea of guilty before the magistrate and pleading guilty to the offences arraigned. 2 The offences comprised count one, robbery armed with an offensive weapon on 27 March 2001; count two, steal a motor vehicle on 28 March 2001; count three, another count of robbery armed with an offensive weapon committed on 29 March 2001; count four, another robbery armed with an offensive weapon committed on 30 March 2001; count five, steal a motor vehicle committed on 27 March 2001. 3 The crimes of robbery armed with an offensive weapon under s.97(6) of the Crimes Act 1900 punishable by a maximum penalty of 20 years imprisonment. Those of steal a motor vehicle are, pursuant to s.154A(1)(a) of the Crimes Act 1900 punishable by a maximum penalty of five years imprisonment. 4 The applicant had been arrested on 3 April 2001 and had been in continuous custody since that date. 5 On each charge, the trial judge imposed sentences as follows: count one, imprisonment for a fixed term of two years to commence on 3 April 2001 and to expire on 2 April 2003; on count two, a fixed term of imprisonment for nine months to commence on 3 April 2001 and thus expiring on 2 January 2002; on count three, imprisonment for a fixed term of two years to commence on 3 April 20001 and to expire on 2 April 2003; on count four, imprisonment for three years and four months to commence on 3 April 2002 and to expire on 2 August 2005; on count five, a fixed term of imprisonment of nine months to commence on 3 April 2001 and to expire on 2 January 2002. In respect of the sentence on count four, his Honour directed a non-parole period of two years to commence on 3 April 2002 and to expire on 2 April 2004. 6 His Honour gave to the appellant the benefit of an early plea, noting that it had been conceded she was entitled to the discount on the basis that the pleas were entered at the earliest opportunity. 7 He noted that the co-offender, to whom I will refer shortly, had been arrested following a pursuit of a vehicle in which the two had absconded and that after his arrest he had identified her to the police as one of his co-offenders. But he also noted that in response to a telephone call on 3 April, police went to a house in Bass Hill where they spoke to a Miss Lewis who informed them that the applicant wished to give herself up. At the police station she volunteered the information as to the robberies she had been involved in, saying as she did so, "I just want to get off the drugs and going to gaol will help". In interviews with the police she admitted her own involvement but declined to furnish further information concerning the involvement of others. 8 Having regard to those matters and in particular having regard to the earlier plea before the magistrate, the trial judge fixed the utilitarian value of the plea at about 25%. 9 He had regard to her contrition but also to the strength of the Crown case, although his Honour does not appear to have expressly adverted to the assistance she furnished to the prosecuting authority in the way in which she divulged the robberies and her own involvement. His Honour expressed the view, "notwithstanding those matters, she is entitled to credit for the contrition that she has shown by giving herself up and then by admitting her involvement in these offences and I intend to make an allowance for that contrition, however I have taken the strength of Crown case into account in that process". It is apparent that his Honour had regard to the matters which I have referred when assessing contrition rather than on some formulation as to the utilitarian aspect for which she was entitled to credit when sentencing. 10 He noted that during the commission of one of the robberies she apologised to the victim saying to him, "I have to because I have to survive, I'm sorry". 11 His Honour referred to two matters in her history as principally important in relation to the commission of the crimes, the facts of which I will refer to shortly. They were, firstly, her addiction to drugs and the consequent need to commit offences for the purpose of feeding her drug habit, and secondly, her involvement with the co-offender, Bradley Lewis, a person who is some 20 months younger than her in age. This involvement had extended over a considerable period, and in an attempt to break the cycle of dependence on drugs and involvement with Lewis, her parents had even gone to the extent of seeking to move the family to Melbourne. That had been unsuccessful. 12 She had indeed admitted in her interviews with the police her dependence on drugs and her involvement with Bradley Lewis and the involvement of both of them with drugs. His Honour noted that when asked by the police "Well, how are you going to get off the drugs?". She answered, "Go to rehab. I reckon the best way is to go through court and do it". She pointed out that she hadn't been in trouble with the police for quite a long time and had never been in gaol; that her head was mixed up and she did these things for money for drugs. 13 His Honour made the following findings favourable to her: that she intends to carry out a drug rehabilitation programme. That she is sincere in her attitude towards giving up drugs. That she had begun the first steps on what might be a long path to rehabilitate herself. 14 His Honour referred to the reflection of the author of the pre-sentence report which was before him that the applicant had a loving and supportive family, accepted her responsibility for her own drug usage and subsequent criminal activity, and had indicated her willingness not only to embark on the drug rehabilitation programme, but to return to her parents when the programme was completed. 15 His Honour concluded that it appeared that she was more a follower that an instigator or ringleader and had reference to her psychological profile in that regard. He concluded that her remaining in custody for a lengthy period with ultimately hardened criminal types is likely to prove detrimental and that in the circumstances, a lengthy probation and parole supervision would be of benefit to the prisoner. 16 The facts shortly of the offences were that on 27 March 2001 she and the co-offender, he armed with a machete, robbed a shopkeeper of $500 and a quantity of cigarettes. On 28 March they stole the motor vehicle to which the second count relates. On 29 March, armed with the same machete, Mr. Keena was robbed of $600, a mobile phone, condoms and a quantity of cigarettes. On the fourth charge, the co-offender armed with a machete, robbed Andreas of $600, a quantity of telephone recharge cards and chocolate bars and there was, in addition, the theft of the motor vehicle. 17 In respect to the conduct embraced by the first count, his Honour particularly adverted to the fright occasioned to the victim and that the victim was terrified of the actions of the accomplice. It was to that shopkeeper that the applicant apologised. This was a robbery carried out late at night against a convenience store employee in a vulnerable position. Although the threatening weapon was used, there was no intent to inflict harm upon the shopkeeper. His Honour did not conclude that there had been any notable degree of planning. 18 The vehicle involved in the second offence was recovered intact except for damage to the ignition barrel and locks. It had been used as the get-away vehicle in relation to the robbery of 29 March 2001. The obtaining of the vehicle did indicate to his Honour some degree of planning. The robbery which was committed in very much the same way by production by the co-accused of the machete, but it was the prisoner who picked up the condoms and packets of cigarettes and ran after the accomplice who had rifled the till. Again, the same considerations to which his Honour had adverted concerning the vulnerability of the victim are reflected in his Honour's remarks. 19 The robbery of 30 March 2001 was that of a service station at Padstow. The co-offender utilised what was apparently a machete but which was described as a "large timber handle thing with a triangle metal bit on the end" by the victim. The victim was threatened, the cash register money tray rifled, and the co-offender demanded the phone recharge cards. The prisoner who had been present during the exercise went with the offender and a third person who had been engaged in the commission of that offence when they left. It was on that occasion that the police pursued the escape vehicle and the co-offender was arrested. It was in that factual context that his Honour passed the sentences in respect of which this application is brought. 20 The effect of the total sentence passed by his Honour is that the applicant will have to serve a non-parole period of three years and be subject to a total sentence of four years and four months imprisonment dating from the time she went into custody. 21 The co-offender, Bradley Lewis was, because of his age, sentenced for his part in the offences in the Children's Court to a control order for 15 months with a non-parole period of nine months. We have been informed that, unlike the present applicant, he did not fully admit his part in all of the offences upon being charged. He had a criminal history comprising a number of pages of offences unlike the applicant who has only three minor prior matters on her record. The material provided to the Children's Court when dealing with him referred to his tragic family background and in particular the pressures created upon him to commit crime arising from the criminal behaviour of his family and relatives. 22 The evidence before the magistrate and before the learned trial judge was that it was the co-offender who carried the machete and that the role of the applicant was a lesser one. 23 It is contended that the learned trial judge fell into error in a number of ways. Firstly, that he failed to give sufficient weight to contrition and remorse. It will be apparent from what I have said that the trial judge expressly noted the applicant's contrition and remorse. I apprehend that the submission made, however, is that his appreciation of those matters was it not translated into the ultimate sentence. Secondly, it is submitted that the trial judge failed to give due weight to the applicant's lesser role in the offences. This submission leads into a further submission that his Honour failed to have sufficient regard to that matter, to her limited criminal history and her prospects of rehabilitation and thus erred. 24 It was also submitted that the trial judge failed to have sufficient regard to appropriate parity in the sentence that was ultimately passed having regard to the sentence that had been passed on the co-offender. 25 It was, however, argued by the Crown that having regard in particular to the different regimes and the different purposes which it is submitted the Children (Criminal Proceedings) Act 1987 seeks to achieve by at least a different weighting of the sentencing considerations applicable to children, that limited regard should be given to any parity considerations when considering any asserted grievance by persons who have been sentenced as adults in consequence of apparently disparate sentences imposed on co-offenders who are children. 26 The Crown has further argued that although there is a discretion in the court where the sentences are disparate such as here, that discretion would not be enlivened where there is a sentence, as it is submitted there is here, upon a co-offender under a Children's Court regime which is so inadequate that a sense of grievance engendered should no longer be regarded as a legitimate one. 27 Reference has been made to the decisions of this court in Regina v. Diamond (unreported, 18 February 1993); Regina v. Steele (unreported, 17 April 1997). We have further been referred to Regina v. GDP (1991) 54 A. Crim. R. 112; Regina v. Govinden (1999) 106 A. Crim. R. 316; Regina v. Boney [2001] NSWCCA 432, and Regina v. Coglan [1999] NSWCCA 292. In the last decision there appears in the judgment of the Chief Justice the following:- "In Regina v. Govinden [1999] NSWCCA 118, Dunford, J., who delivered the judgment of the court, referred to the authority in the court to the effect that parity considerations do not arise, as such, when comparing a person dealt with in the Children's Court and adults. Nevertheless as his Honour indicated at paragraph 376 of that judgment, that does not mean that the sentence imposed on a person in the Children's Court, which would otherwise give rise to issues of parity, is irrelevant. This is so for the reason that an individual sentenced as an adult may very well have a justifiable sense of grievance with respect to that very difference of the regimes, the strictures of which Sully, J. has referred to in his judgment. " 28 This is not, in my view, a case in which it is necessary to resolve precisely the ambit of the regard the court may have when sentencing an adult offender to that sentence which was passed upon a co-offender in the Children's Court where that latter sentence is, in the opinion of a sentencing judge, grossly inadequate. 29 Having regard to the entirety of factors in this case in the applicant's favour and noted by the trial judge, having regard to the difference between the two sentences, including the differing regimes under which the sentences will be served, and the Crown's concession that the discretion to intervene is enlivened should the court wish to intervene, this is a case, in my view, where the court should intervene. 30 In my view, having regard to those matters, the application for leave to appeal should be allowed. The matters that I have set out concerning the applicant's prospects for rehabilitation, her youth, this being the first gaol sentence she is to undergo, her contrition, her early plea of guilty - both of which tend to affirm the prospect noted by the trial judge for rehabilitation - and her willingness to enter a custodial rehabilitation centre, constitute special circumstances. 31 In my view, the appeal should be allowed, the sentence below quashed and in lieu thereof on counts one and three, there should be imposed a fixed term of 18 months to commence on 3 April 2001, expiring 2 October 2002. On count four, there should be imposed a sentence of two years, nine months imprisonment commencing on 3 April 2001 and expiring on 2 January 2004. That sentence, therefore, will be wholly concurrent with the sentences imposed on counts one and three. On that sentence there should be a non-parole order in respect of a non-parole period of 18 months expiring on 2 October 2002. The sentences of nine months for a fixed term should remain on the remaining counts. 32 There should be a parole order providing for release to supervised parole pursuant to the Crime (Sentencing Procedure) Regulation 2000, Clause 67, and including a provision that until the parole order ceases to have effect, the applicant is to submit to the supervision and guidance of the Probation and Parole Service and/or such other body as she is referred to by that service for drug rehabilitation. That will require the use of form three to the Crimes (Sentencing Procedure) Regulation 2000. The order should remain in force until the end of the term of imprisonment provided for in the sentence. 33 SMART, AJ: I agree. 34 GREG JAMES, J: The orders of the court therefore will be as I have proposed. **********

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Cases Cited (3)

Cited By (2)