Regina v Walker

Court of Criminal Appeal (NSW)|2004-07-08|Before: Dowd J, Hislop J, Smart AJ

CITATION : Regina v Walker [2004] NSWCCA 230 HEARING DATE(S) : 07/06/2004 JUDGMENT DATE : 8 July 2004

JUDGMENT OF : Dowd J at 1; Hislop J at 2; Smart AJ at 22 DECISION : (a) Leave to appeal granted; (b) Appeal allowed; (c) Sentence quashed; in lieu thereof imprisonment for forty three months and six days to commence on 6 June 2002 and expire on 11 January 2006; Non-parole period of twenty eight months and fifteen days to expire on 20 October 2004.

CATCHWORDS : Criminal law - Robbery in company - Sentence - Totality - Offence whilst on parole - Double punishment - Adjustment to commencement date of sentence. LEGISLATION CITED : Crimes Act 1900 - s 97(1) Crimes (Sentencing Procedure) Act 1999 - ss 47(2)(a), (3) CASES CITED : R v Hajjo NSWCCA 31/8/1992, unreported R v Kitchener [2003] NSWCCA 134 PARTIES : Regina Lisa Walker FILE NUMBER(S) : CCA 60036/04 COUNSEL : B Knox SC - Crown L Flannery - Applicant SOLICITORS : S Kavanagh - Director of Public Prosecutions (NSW) SE O'Connor - Legal Aid Commission (NSW)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1240 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER :

1 - IN THE COURT OF CRIMINAL APPEAL 60036/04

DOWD J HISLOP J SMART AJ

8 July 2004 REGINA v LISA WALKER Judgment 1 DOWD J: I have read the judgment of Hislop J in draft form. I agree with the proposed orders and his reasons therefore. 2 HISLOP J: At about 4pm on 26 February 2002 the applicant, in company with two other persons, one male and one female, snatched a handbag from a forty year old woman as she was waiting for a friend in a Blacktown street. The victim was initially grabbed by the applicant by the neck and shoulders and struck in the face by the male assailant. The victim gave chase whereupon she was threatened with a stick by the male and then punched in the face by him. 3 As a consequence of those events the applicant pleaded guilty to one count of robbery in company contrary to the Crimes Act 1900 s 97(1). The maximum penalty for the offence is twenty years imprisonment. 4 On 21 March 2003 Gibb DCJ sentenced the applicant to forty three months and six days imprisonment for that offence. Her Honour directed that the sentence be taken to commence on 6 October 2002. She set a non-parole period of twenty eight months and fifteen days. 5 The applicant seeks leave to appeal against sentence. The grounds of appeal are that the sentencing Judge (a) failed to consider principles of totality and (b) imposed a double punishment for the fact that the offence was committed on parole. 6 The essence of the applicant's complaint is not that her Honour erred in determining the sentence or non-parole period per se but rather her Honour erred in not directing that the sentence commence on an earlier date. 7 It may be said at once that the commencing date selected by her Honour was the date upon which the parties agreed the applicant went into custody for the purposes of the subject offence. As such the commencing date conformed with the requirements of the Crimes (Sentencing Procedure) Act 1999 s 47(2)(a) and (3). 8 The matter is however complicated by reason of the applicant's earlier conviction for three offences (assault occasioning actual bodily harm, steal from the person; detain for advantage and cause injury to victim). These offences resulted in the applicant being sentenced on 3 October 2000 (concurrently in respect of each offence) to imprisonment for two years with a non-parole period of four months and five days, the latter backdated so as to expire on the date of sentence and to cover the period she had spent in custody, initially having been charged on more serious offences many months previously. The parole period of 19 months 25 days was to expire on 28 May 2002. The conditions of her parole included supervision by the Probation and Parole Service and required her to accept all reasonable directions for rehabilitation courses for drug and alcohol abuse. 9 On 20 June 2001 she was sentenced to 6 months imprisonment starting on 3 May 2001 on each of four offences (possess prohibited drug, possess implements to enter/drive conveyance, be carried in conveyance taken without consent of owner and goods in custody). She was released on 2 November 2001 to her previously granted parole.

10 On 15 November 2001 the Parole Board revoked her parole for failure to report to the Probation and Parole Service as directed. The Board determined that she had 7 months and 10 days to serve to complete her sentence, thus giving her credit for having served 12 months and 15 days of the parole period of her sentence and allowing part of her parole period to be served concurrently with her sentence of 6 months. This was to Ms Walker's advantage but it is not uncommon. The warrant issued consequent on the order of the Parole Board was not executed until 26 February 2002 when the applicant was arrested for the robbery in company.

11 The Parole Board selected 5 October 2002 as the date on which the balance of the parole period of 7 months 10 days expired. The judge dated the sentence for the robbery in company from that date. The applicant was in custody from 26 February 2002 to 5 October 2002 being the balance of the parole period and thereafter by reason of the subject offence. Ground One - Totality 12 The applicant submits that her Honour should have applied the principle of totality so as to avoid the consequence that the applicant would be in continuous custody from 26 February 2002 to 20 February 2005 as such would result, in reality, in a sentence much harsher than the special circumstances found by her Honour justified. 13 It was submitted the principle of totality has application where a sentencing Judge is called upon to impose a sentence upon a person who is already serving a sentence - R v Hajjo (NSWCCA 31/8/1992, unreported) and that the principle should be extended to persons serving the balance of parole. 14 This was a bad example of the offence of robbery in company. Both the head sentence of 43 months and 6 days and the non-parole period of 28 months and 15 days were well within the permissible range. The details available to this Court of the offences dealt with on 3 October 2000 are meagre. However, it appears that those offences were committed in late 1999, that drug abuse played a large part in their commission and that on 3 October 2000 rehabilitation of the offender, who was then aged 22, was a significant consideration and led to that decision. The offences of early May 20001 and the consequent sentence of 6 months represented a major interruption to the applicant's rehabilitation. Those offences are not what is expected from a person serving her sentence on parole. However, she has been punished for those offences. 15 When regard is had to the history of this matter, the significant time gap between the offences of late 1999 and the subject offence in February 2002 and the benefit obtained by the applicant because of the 6 months imprisonment being treated as part of the period on parole the application of the principle of totality did not require the judge to further back-date the sentence.

Ground Two - Double Punishment 16 The applicant's submissions as to the second ground were, in effect, as follows:

(a) Her Honour, correctly, took into account as an aggravating factor in determining the head sentence that the offence was committed whilst the applicant was on parole.

(b) The applicant had sought a reconsideration of the parole revocation. This application was first made on 15 April 2002. Thereafter it was stood over by the Parole Board on numerous occasions pending the result of the subject proceedings.

(c) Had it not been for the Parole Board standing over the application (which standing over was a direct result of the subject offence) the application would have been determined at an early time with the reasonable probability that such determination would have resulted in the applicant being released to parole well before 5 October 2002.

(d) If that had occurred the applicant's custody after the release to parole would have been attributable to the subject offence and would have been taken into account for the purposes of determining the commencement date of the sentence. 17 The evidence as to the application for reconsideration of the revocation of parole was contained in Parole Board documents tendered on the appeal. That evidence was not before the sentencing Judge nor was the submission now made put to her. However as the Crown, very fairly, did not oppose the tender of the Parole Board documents on the appeal it is appropriate this Court determine the issue having regard to that evidence. 18 It was submitted by the Crown that it is a matter of supposition whether and to what extent, if at all, the Probation Board would have released the applicant to parole prior to 5 October 2002 and that this Court should not speculate in that regard. 19 I agree the matter is speculative. However in R v Kitchener [2003] NSWCCA 134 Simpson J (with whom Wood CJ at CL agreed) held that such an exercise should be embarked upon and that if the continued revocation of parole was properly seen as attributable to the commission of the subject offence and the fact the offence had occurred on parole had been taken into account as an aggravating factor in determining the head sentence this would result in an element of double punishment which should be corrected.

20 In my opinion, if the Parole Board had not stood over the application for review but had determined it at an early time it is likely the applicant could reasonably have expected to have been released to parole by, say, June 2002. The fact that she was not is attributable to the Board postponing consideration of the application due to the proceedings arising out of the commission of the subject offence. In my opinion as her Honour took into account the fact that the subject offence occurred whilst the applicant was on parole an element of double punishment does arise which requires correction by adjustment of the commencement date of the sentence. 21 I propose the following orders: (a) Leave to appeal granted; (b) Appeal allowed; (c) Sentence quashed; in lieu thereof imprisonment for forty three months and six days to commence on 6 June 2002 and expire on 11 January 2006; Non-parole period of twenty eight months and fifteen days to expire on 20 October 2004. 22 SMART AJ: I agree with Hislop J.

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