Regina v Ronda Prestwidge

Revised 26/2/04THE COURT OF CRIMINAL APPEAL 60905/01

DUNFORD J KIRBY J

Friday 8 November 2002 REGINA v Ronda Shane PRESTWIDGE Judgment 1 DUNFORD J: I agree with Kirby J. 2 KIRBY J: Ronda Shane Prestwidge (the applicant) seeks leave to appeal against the sentence imposed by his Honour Judge Freeman in the District Court on 13 December 2001. Ms Prestwidge was charged with breaking, entering and stealing from a dwelling in circumstances of aggravation, the circumstances being the malicious infliction of actual bodily harm (s112(2) Crimes Act, 1900) (the Act). Ms Prestwidge pleaded guilty to that offence. She asked his Honour to take account of a number of offences on a Form 1, namely, one count of larceny (s117 of the Act), and four counts of attempted break and enter with intent to steal (s112(1) of the Act). 3 His Honour imposed a sentence of imprisonment of five years and three months, dating from Ms Prestwidge's arrest on 4 March 2001. He fixed a non parole period of three and a half years. 4 When sentencing Ms Prestwidge, his Honour also sentenced the person with whom she was in company, Mr John Carter. Mr Carter faced an indictment expressed in the same terms (including the Form 1). He, likewise, pleaded guilty. The sentence imposed upon Mr Carter was six years three months dating from 4 March 2001, with a non parole period of four years and six months. The Offences 5 Ms Prestwidge is a woman aged 32 years. Some months before March 2001, she formed an association with Mr John Carter. Both were involved in drug taking. Each had a significant criminal record. 6 On 3 March 2001 at 10.30 pm, Ms Prestwidge and Mr Carter broke into a suburban dwelling occupied by Mr Hewitt. Mr Hewitt was aged 86 years. He lived alone. He heard the dog barking and went to investigate. He then saw Mr Carter and Ms Prestwidge rushing towards him. Mr Carter was armed with a screwdriver. He demanded money. Mr Hewitt said that he had none. Mr Carter then forced the victim's head to one side, holding the screwdriver to his throat. Ms Prestwidge remained in the near vicinity. Mr Carter repeated his demand for money. The victim directed his assailants to an ashtray where he had small change. 7 Mr Hewitt then cried out for help. Mr Carter responded by removing a pillow from behind Mr Hewitt's head. He placed it over his face. Mr Hewitt had difficulty breathing. The screwdriver cut his forehead, causing him to bleed. He felt in terror for his life. 8 Ms Prestwidge and Mr Carter then ransacked the house. Mr Hewitt's valuable watch was physically removed from his arm by Mr Carter. Ms Prestwidge and Mr Carter then stole other property, including a bag, ostrich eggs and whisky. As Mr Carter left, he unplugged the telephone. He warned the victim that, should he endeavour to contact the police, they would return and kill him. The offences on the Form 1 (the larceny and the four counts of attempted break, enter and steal) appear to have been part of the same criminal spree. They were committed on 3 March 2001 and before 6.50 a.m. on 4 March 2001. At 6.50 a.m. Ms Prestwidge and Mr Carter were arrested. When arrested, Mr Carter had in his possession Mr Hewitt's watch. He also had the screwdriver in his pocket. Property, including the ostrich eggs, was later found at premises which Mr Carter occupied. 9 By any standards this was a serious crime, as his Honour recognised. Ms Prestwidge and her companion had invaded a home when it was obviously occupied. The lights were on, as was the television. The offence was committed in company. The victim was threatened and injured, although not seriously. When seen by a neighbour, Mr Hewitt was bleeding and described as "shaking uncontrollably".

The Grounds of Appeal 10 Let me move to the complaints made against the sentence which his Honour imposed. Two issues were identified: · First, it was said that his Honour gave insufficient recognition to the plea of guilty. · Secondly, there is a complaint about parity, having regard to the sentence imposed upon Mr Carter. 11 It is convenient to deal with the second issue first.

The Parity Argument 12 His Honour recognised that there were real differences between Ms Prestwidge and Mr Carter, both in the commission of the offence, and their subjective cases. So far as the offence was concerned, his Honour said this: (p13) "They are, of course, both guilty as a matter of law of this offence, but it is appropriate to mark the significant differences in the roles they played as it is to record the differences in their past criminal history and to take account of the opinion of Miss Duffy that the prisoner Prestwidge is a dependent personality who may, given that condition, have been more of a follower than a leader. Indeed, she describes to Ms Duffy she did not initially enter the house, although, of course, by the time the victim came upon them, she had joined company with the prisoner Carter." 13 Mr Carter was described as the "bully boy", Ms Prestwidge as "the collector of the loot". His Honour specifically found that she did not participate in any physical manhandling of the victim. 14 His Honour set out at some length the subjective circumstances of each offender. He identified the issue he was required to address, and the way in which the resolution of that issue favoured the applicant. He said this: (p13) "I think there is scope for distinguishing between the two, but I must, of course, be careful not to so infringe the principle of parity as to engender a legitimate feeling of grievance. I have sought to indicate the bases upon which I distinguish between them - their roles, their records and her superior prospects for rehabilitation and the condition of depression from which she suffered then and now." 15 His Honour did not, as such, include in that list, the fact that the applicant was serving her sentence in Protection, unlike Mr Carter. He was, nonetheless, certainly conscious of that fact. I do not doubt that it formed part of his assessment. 16 His Honour said Ms Prestwidge, unlike Mr Carter, had made "quite significant attempts at rehabilitation", and "was able to engage in meaningful rehabilitation". He was persuaded that there was in her case, but absent in the case of Mr Carter, a degree of contrition. His Honour found, in Ms Prestwidge's case, special circumstances. No such finding was made in the case of Mr Carter. Commenting upon Mr Carter's criminal history, his Honour said there was "a worrisome propensity towards violence". Ms Prestwidge, therefore, had every reason to expect these differences would be reflected in the sentences imposed. 17 In sentencing Mr Carter there was, however, a complication. At the time of his arrest (4 March 2001), he was on bail for five offences; shoplifting (one count), larceny (two counts), common assault (one count) and assault occasioning actual bodily harm (one count). The fact that he was on bail was, of course, a matter of aggravation. Mr Carter pleaded guilty at the Blacktown Local Court on 2 October 2001 to each of those offences. He was sentenced as follows: · First, in respect of each count of larceny, he was given concurrent terms of six months, commencing on 2 October 2001 and ending on 1 April 2002. · Secondly, on the shoplifting, he was sentenced to a fixed term of one month, which was concurrent with the sentences imposed for larceny. · Thirdly, for the common assault, and the assault occasioning actual bodily harm, he was sentenced to concurrent terms of eight months with a non parole period of six months, which was to be cumulative upon the sentences imposed in respect of the other offences, that is, to run from 2 April 2002 until 1 December 2002, with a non-parole period expiring on 1 October 2002. 18 When sentencing Mr Carter, his Honour said it would be inappropriate to backdate his sentences to 4 March 2001. His remarks on sentence included these words: (p8) "It is said on his behalf that he should have the benefit of having this sentence backdated to the date upon which he was taken into custody so that effectively, those sentences imposed in October would disappear in a practical sense." 19 His Honour determined that the commencing date for Mr Carter's sentence should be the date that he was sentencing, 13 December 2001, and the term should be adjusted to reflect time spent in custody before sentence, which was not referable to the sentence imposed in Blacktown on 2 October 2001. 20 After his Honour had concluded his remarks, counsel for Mr Carter drew attention to difficulties that such a sentence would create for Mr Carter. His Honour was persuaded to adjust the sentence imposed. Instead of commencing on 13 December 2001, his Honour made the commencing date for Mr Carter 4 March 2001. The effect of that change was to make the sentence imposed concurrent with those imposed by the Local Court. His Honour attempted to compensate for that by increasing Mr Carter's head sentence by three months (from 6 years to 6 years 3 months). The non parole period remained the same (four and a half years). 21 It is instructive to compare the sentence originally proposed by his Honour, and its impact upon the co-offender, with the altered sentence, once adjustments had been made. Initially Mr Carter was sentenced to six years imprisonment, with a non parole period of four and a half years, commencing on 13 December 2001. The relevant dates, therefore, were as follows: Head Sentence: 13.12.01 to 12.12.07 Non Parole Period: 13.12.01 to 12.6.06 22 In the case of Ms Prestwidge, the sentence imposed was five and a quarter years, with a non parole period of three and a half years, commencing on the date of arrest, 4 March 2001. The relevant dates in her case (which remained unaltered) were as follows: Head Sentence: 4.3.01 to 3.6.06 Non Parole Period: 4.3.01 to 3.9.04 23 Once Mr Carter's sentence had been adjusted, the head sentence was six and a quarter years, with a non parole period of four and a half years, the sentence dating from the date of arrest (4 March 2001). The relevant dates became: Head Sentence: 4.3.01 to 3.6.07 Non Parole Period 4.3.01 to 3.9.05 24 As originally fashioned, therefore, Mr Carter was to remain in custody in respect of these offences, serving the non parole period, until 12 June 2006. Ms Prestwidge was to be released on 3 September 2004 (assuming both were released on the day fixed for parole). The margin between their respective parole release dates, according to that regime, was one year and nine months. Once altered, Mr Carter was to be released on 3 September 2005. The margin reduced to one year. 25 In Postiglione v The Queen [1996-1997] 189 CLR 295, Dawson and Gaudron JJ said this: (at 303) "The approach adopted by the Court of Criminal Appeal in this case treats or has the effect of treating the total period to be served in custody and, more particularly, the actual period to be served in consequence of the offences committed as irrelevant to the proportion which the sentences imposed on Postiglione and Savvas should bear to each other. In the circumstances of this case, the real punishment for both Savvas and Postiglione is the extra period which they must spend in prison. Due proportion cannot be determined without taking it into account." 26 His Honour was confronted by an awkward sentencing task, by reason of the commencement date of the sentences imposed by the Local Court (2 October 2001). By the time Mr Carter came before his Honour, he was already serving the sentence imposed by the Local Court, and yet his time in custody, between the date of the arrest and the commencement date of the Local Court sentences, had not been taken into account. Nonetheless, I believe the adjustment made by his Honour to overcome that difficulty worked to the disadvantage of Ms Prestwidge, such that she has a justifiable sense of grievance. By backdating Mr Carter's sentence to 4 March 2001, so that it subsumed the Local Court sentences, the additional term of imprisonment imposed, as a consequence of the offences of 3 and 4 March 2001, was five years and one month. Yet, the head sentence in respect of Ms Prestwidge was five years three months, and that despite a legitimate expectation that she would receive a lesser sentence. 27 Perhaps more importantly, the adjustment to Mr Carter's sentence worked an unfairness in terms of the non parole period for each offender. Mr Carter's non parole period was extended by three years and six months beyond the date fixed by the Local Court. And that was precisely the same non parole period fixed by his Honour in respect of Ms Prestwidge, notwithstanding the findings in her favour, which included a finding of special circumstances. 28 His Honour had intended to sentence Ms Prestwidge to a lesser term. In the result, the late alteration to Mr Carter's sentence defeated that intention. I believe, therefore, it is necessary to intervene and re-sentence Ms Prestwidge so that there is parity between the two sentences.

The Discount for Early Plea 29 His Honour, in his remarks on sentence, identified the differing ways in which the pleas of guilty by each offender, may be relevant. First, they were each entitled to a discount for the utilitarian value of their pleas. His Honour said this: "... each pleaded guilty at the earliest opportunity. That much is conceded by the crown and each is entitled, accordingly, to the utilitarian value of that plea at an early stage, regardless of the strength of the crown case." 30 His Honour quantified that discount at 10 percent "principally because of the avoidance of the elderly Mr Hewitt having to give evidence ...". 31 Secondly, the pleas of guilty may be some evidence of contrition. Were there genuine remorse, that would be relevant to the need for personal deterrence, and to the prospects of rehabilitation (R v Thomson & Houlton (2000) 49 NSWLR 383, per Spigelman CJ at 412). 32 In judging whether expressions of remorse are genuine, the strength of the Crown case will be relevant. Here, the cases against Mr Carter and Ms Prestwidge were strong. The Crown case against Mr Carter and Ms Prestwidge included fingerprint evidence. The case against Ms Prestwide also included DNA evidence, she having cut herself and bled whilst at Mr Hewitt's home. On this aspect, his Honour said this: "The strength of the Crown case is (a) relevant consideration, together with contrition, when considering other methods of discounting the sentence which is appropriate in the circumstances. I have taken those elements - the strength of the crown case, the contrition allegedly felt and proclaimed by each of the prisoners, into account in a global sense ..." 33 It is said, on behalf of Ms Prestwidge, that the determination by his Honour of the utilitarian benefit at 10 percent was so low that it can be inferred that the discretion miscarried. 34 The utilitarian benefit is to be measured objectively. The benefit was described by the Chief Justice in R v Thomson & Houlton in these terms: (at 411-412) "The benefits to the criminal justice system as a whole, which flows from a plea of guilty, particularly an early plea of guilty, are not related to the circumstances of the offence or to the conduct of the offender. Such benefits flow from an act by the offender that is not directly related to any of the multifarious objectives designed to be served by the sentencing process; deterrence, rehabilitation, punishment, etc. Rather, they are a collateral benefits for the efficiency and effectiveness of the criminal justice system as a whole, which require acknowledgment of some character by way of an incentive, so that the benefits will in fact be derived by the system." 35 They are the benefits in saving court time and resources. An aspect of the saving may be sparing witnesses the inconvenience of giving evidence. On the other hand, sparing witnesses the anguish of giving evidence is a matter relevant to contrition, where that forms part of the reason for entering a plea. 36 The principals as identified in R v Thomson & Houlton (supra) have been recently reaffirmed in R v Sharma [2002] NSWCCA 142. According to those cases, the following propositions can be stated: · First, the utilitarian value of a plea of guilty to the criminal justice system should generally be assessed in the range of 10 to 25 percent discount on sentence. · Second, the primary consideration in determining the discount, is the timing of the plea. The benefits to the system are the greater the earlier the plea. What is to be regarded as an early plea will vary according to the circumstances. · Third, it is also relevant to have regard to the length and complexity of the trial. · Fourth, being an objective measure of savings to the Court system (and inconvenience to Crown witnesses), the strength of the Crown case is irrelevant. · Fifth, there will be cases, nonetheless, where the utilitarian discount will not be available, notwithstanding the savings to the Court system. This discount will not be available where the crime warrants a life sentence. It will not be available where the protection of the public makes a longer sentence appropriate (R v Stabler (1984) 6 Cr App R (S) 129 at 131; R v Costen (1989) 11 Cr App R (S) 182 at 184) or the sheer enormity of the crime makes it inappropriate (R v Kalache (2000) 111 A Crim R 152, per Sully J at 165-166). 37 Here, his Honour identified the relevant considerations. He made a determination which was within the designated range. Can it be said that his discretion miscarried? 38 In R v Thomson & Houlton (supra) Spigelman CJ said this: (at 418) "The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial." 39 The plea was entered in the Local Court. It was, as his Honour found, entered at the first opportunity. The elderly Mr Hewitt was spared the need to come to Court. There was no evidence concerning the length or complexity of the trial. Even taking account of the matters on the Form 1, one imagines it would be a relatively short trial. 40 R v Lo [2001] NSWCCA 271, was an appeal determined by a two Judge bench (Simpson and Sperling JJ). The applicant pleaded guilty to multiple armed robberies. The plea was entered before committal. The sentencing Judge allowed a discount of 10 percent for the utilitarian value of the plea. In fixing the discount, he erroneously took into account the strength of the Crown case (Simpson J, para 3). Sperling J said the plea should have been regarded as an early plea. His Honour added: "14. In the present case, the plea was early, although the prospective trial was short. An allowance at the very bottom of the range was erroneous in these circumstances. 15. This point alone vitiates the sentencing process. The sentence should be set aside and this Court should resentence the applicant." 41 Simpson J added these words, referring to the discount of 10 percent: "5. ... I agree with Sperling J that, by reason of the timing of the applicant's plea alone, he could legitimately have expected something in excess of that. However, as I have said, the estimated length of a trial meant he could not legitimately have expected that his sentence would be reduced by the 25 percent nominated as the upper end of the range in Thomson & Houlton . In my opinion the appropriate reduction in these circumstances was of the order of 15 percent." 42 The same issue came before another two Judge bench in R v Hayes [2001] NSWCCA 358 (Sully J and Carruthers AJ). The applicant pleaded guilty to malicious wounding with intent to do grievous bodily harm (s33 Crimes Act, 1900). The attack upon the victim was brutal in the extreme. A woman was repeatedly struck with a piece of timber to the point of unconsciousness. It was described by Carruthers AJ as "an horrendous crime". It was committed by a person who was then on parole for murder. 43 The plea was entered in the face of a very strong Crown case. It was entered, one gathers, on the first day of the trial, although in circumstances where the Crown did not press a more serious alternative charge, that of causing grievous bodily harm with intent to murder (s27 Crimes Act, 1900). The sentencing Judge, Karpin DCJ, allowed a discount of 10 percent for the utilitarian value of the plea. 44 It was submitted on behalf of the applicant that the sentencing discretion had miscarried. Carruthers AJ (with whom Sully J agreed), having referred to Veen v The Queen (No 2) (1988) 164 CLR 465, said this: (para 26) "I am quite unable to conclude in the light of the submissions that have been put and the views expressed by her Honour in her carefully considered and worded judgment that any appealable error is disclosed by the allowance of a discount of 10 percent." 45 It is unnecessary for this Court (it again being a two Judge bench) to resolve such differences as there may be between the view expressed in R v Lo and that taken in R v Hayes. However, since, the applicant has demonstrated error, on the issue of parity, such that re-sentencing is necessary, I should say that I believe that the appropriate discount is 20 percent for the utilitarian value of the pleas.

The Re-sentencing of the Applicant 46 On the issue of re-sentencing, this Court has been provided with material which describes Ms Prestwidge's progress since her incarceration. She has used her time well. She has completed a number of courses in gaol. Most importantly, she has addressed her drug problem. Ms Prestwidge has completed the Methadone Maintenance Programme. She has now ceased taking that drug. She has expressed her resolve to remain drug free, and ultimately, upon release, to remove herself from the environment which has, in the past, led to her relapse. 47 Bearing in mind the sentence imposed upon Mr Carter, an appropriate starting point for Ms Prestwidge would be five years three months. Discounting that sentence by 20 percent for the utilitarian value of the plea of guilty, the head sentence becomes four years two months. For the reasons given by his Honour, I would find special circumstances. An appropriate non-parole period is two years and nine months. I believe that such a sentence restores an appropriate balance between Ms Prestwidge's sentence and that of Mr Carter.

Orders 48 The orders I would therefore propose are as follows:

3. That the sentence imposed by Freeman DCJ be set aside and, in lieu thereof, Ms Prestwidge sentenced to 4 years 2 months commencing on 4 March 2001 and ending on 3 May 2005, with a non parole period of 2 years 9 months which is to expire on 3 December 2003. **********

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