Regina v Wendy Olive LAWRENCE

Crimes Act 1900: s112(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999: s21A Criminal Appeal Act 1912: s6(3)

New South Wales v Seedsman [2000] NSWCA 119 R v Engert (1995) 84 A Crim R 67 R v Fernando (1992) 76 A Crim R 58 R v Henry and Ors (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255 CASES CITED: R v Lawrence [2004] NSWCCA 404 R v Scognamiglio (1991) 56 A Crim R 81 R v Sharma (2002) 54 NSWLR 300 R v Thomson and Houlton (2000) 49 NSWLR 383 Vernon v Bosley (No 1) [1997] 1 All ER 577

Wendy Olive Lawrence (Applicant) PARTIES: Regina (Respondent)

P Hamill SC (Applicant) COUNSEL: B Dawe QC (Respondent)

S E O'Connor - Legal Aid Commission (Applicant) SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Respondent)

• 7 - IN THE COURT OF CRIMINAL APPEAL 2004/3128

SPIGELMAN CJ GROVE J BELL J

Friday 11 March 2005 REGINA v Wendy Olive LAWRENCE Judgment 1 SPIGELMAN CJ: This is an application for leave to appeal against the sentence imposed by Goldring DCJ in the District Court of New South Wales. The Applicant pleaded guilty on arraignment to a charge of break and enter to commit a serious indictable offence, namely stealing contrary to s112(1) of the Crimes Act 1900. His Honour fixed a non-parole period of 18 months to commence on 2 April 2004, the date of his judgment, and an additional term of nine months. 2 The date of 1 October 2005 when the non-parole period would expire is of some significance because the Applicant was then subject to a term of imprisonment for other offences, the non-parole period for which would also expire on 1 October 2005. Subsequently, an appeal against that sentence, which had been imposed by Newman AJ in the Supreme Court, was successful in this Court and the Court amended the sentence with the effect that the non-parole period for the other offences will now expire on 1 April 2005. (See R v Lawrence [2004] NSWCCA 404). This is the subject of one of the grounds of appeal which will be considered below. 3 The circumstances of the offence can be briefly stated. On 1 August 2002, the Applicant broke into an apartment block in Warrawong and stole a stereo player from a flat. The occupant of the flat was a 74 year old widow who lived alone. The victim awoke and observed the intruder. In the statement of agreed facts tendered before his Honour, the victim was said to be traumatised by the incident. 4 With respect to the objective gravity of the offence, his Honour referred to a list of earlier offences committed by the Applicant and said: "This is a much more serious offence because it involved breaking into the flat of an old lady early in the morning. This is a sort of crime that is disapproved of by the community because it makes people frightened and terrified, and the courts have to let the community know that people who commit those offences will be punished." 5 His Honour found that at the time of the offence the Applicant was using heroin and was probably influenced by alcohol as well. His Honour said: "The use of drugs and alcohol is not an excuse for people who commit crimes but it is something that the courts must take into account when determining the sentence that is to be imposed." 6 Goldring DCJ noted the disturbed family history of the Applicant. She is an Aborigine. Her family circumstances from childhood involved violence, parental alcoholism, sexual abuse and drinking at a very young age. His Honour had before him a good deal of detailed evidence on the personal background of the Applicant and he indicated, correctly, that it was "almost the typical background" that the Courts have frequently encountered with Aboriginal offenders, as noted in a number of authorities of which the most frequently cited, as did Goldring DCJ, is R v Fernando (1992) 76 A Crim R 58. 7 With respect to the subjective case of the Applicant, his Honour referred to a report of the psychologist which he described as "very thoughtful and helpful", noting that the psychologist's conclusion was that Ms Lawrence has a PolySubstance Dependence with Psychological Dependence, and an Antisocial Personality Disorder. 8 His Honour concluded that in all of the circumstances, the non-parole period should be 18 months but he found special circumstances, he said, because of the prospects of rehabilitation. He imposed an additional term of nine months. 9 During the course of his remarks on sentence, his Honour referred to the other offences which have subsequently been the subject of a successful appeal. In this regard, his Honour said: "The Supreme Court has sentenced her to a total term of five years in prison dating from October 2002. Part of that is a fairly long parole period. She is eligible for release, subject to what the Parole Board says, on 1 October 2005, quite by chance that is a date 18 months from today." 10 In the final paragraph of the remarks on sentence, Goldring DCJ, after imposing the sentence, noted that "the release date for this offence will be the same release date for the other offences".

Ground 1 11 The Applicant contends that the sentencing Judge erred in failing properly to take into account the Applicant's plea of guilty. The Applicant was originally charged with an aggravated version of the offence, with the offence for which she was in fact convicted as an alternative count. The prosecution accepted the plea of guilty to the alternative charge in full discharge of the indictment at her arraignment. The Crown did not contend that this was anything other than the first available opportunity to plead guilty. 12 In his remarks on sentence, Goldring DCJ referred to the plea of guilty but did not explicitly refer to the fact that he had taken it into account, nor did he quantify the benefit to the accused by reason of the utilitarian value of the plea. (See R v Thomson and Houlton (2000) 49 NSWLR 383 at 419 [160].) 13 The Applicant submits that the sentencing Judge fell into error in failing to give proper weight to the plea of guilty and in failing to make plain the fact that, and the extent to which, the Applicant's sentence was reduced for the plea. The Crown contends that his Honour did take into account the plea and it puts forward a plausible computation that the final head sentence of 27 months happens to constitute a 25 percent discount from the sentence of 36 months. Although this is a plausible, indeed likely, reconstruction, it would have been easy for his Honour to say so. 14 Goldring DCJ is an experienced District Court Judge. He cannot be unaware of the line of authority on this matter, particularly Thomson and Houlton, as affirmed in R v Sharma (2002) 54 NSWLR 300. The guideline established in Thomson at 160 encouraged, but did not require, the sentencing judge to quantify any discount. It did, however, indicate that judges should explicitly state that the plea of guilty has been taken into account and added "failure to do so will generally be taken to indicate that the plea was not given weight" (at 416 [160]). 15 This Court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused. It would have been preferable, for that reason, if his Honour had mentioned that he had done so. However, in view of his Honour's long experience and the structure and length of the sentence he imposed, I am not prepared to act on the basis that his Honour failed to take into account the plea, or that he failed to give it appropriate weight. I think the likely situation is that contended for by the Crown: that his Honour commenced with a sentence of 36 months and applied a full discount. Accordingly, I would not uphold this ground of appeal.

Ground 2 16 The Applicant contends that the sentencing Judge erred in failing properly to take into account the evidence relating to the Applicant's psychological condition and the causes of, and background to, her drug dependency. The Applicant's submissions accept that the sentencing Judge made reference to her Aboriginality and to the fact that the reports before the Court indicate the significance of her background of deprivation, abuse and violence which is, unfortunately, as Goldring DCJ indicated, "typical" of many Aboriginal offenders. The Applicant also acknowledged that his Honour had made reference to the psychologist's report and how useful he regarded that report to be. It was also acknowledged that his Honour indicated that the substance abuse background of the Applicant was a relevant matter to be taken into account on sentence but "was not an excuse". 17 Notwithstanding these references in the judgment, it was submitted that his Honour failed to consider the impact of the Applicant's psychological condition, particularly on the weight to be given to the element of general deterrence. The Applicant referred to authorities which establish that a person suffering from an actual disability or a psychiatric or psychological condition is an offender for whom considerations of general deterrence will have less weight in sentencing. (R v Scognamiglio (1991) 56 A Crim R 81; R v Engert (1995) 84 A Crim R 67; R v Israil [2002] NSWCCA 255.) 18 It was also submitted that the sentencing Judge failed to take into account the circumstances under which the Applicant came to be addicted to drugs, and reliance was placed on the observations in R v Henry and Ors (1999) 46 NSWLR 346 at 397 [273] of Wood CJ at CL and at 410 [335]-[358] of Simpson J. 19 It was submitted that the sentencing Judge said nothing to indicate that the principles identified in these two lines of authority had been taken into account. It was submitted that the evidence established that the Applicant had serious psychological injury as a result of her traumatic childhood experiences. On this basis, the trial Judge should have expressly considered whether the element of general deterrence was entitled to less weight in the sentencing process. 20 It is well established that the weight to be given to general deterrence is less in the case of an offender suffering from a mental disorder or severe intellectual handicap. His Honour did not expressly refer to the issue of general deterrence or indicate what weight he was giving to it. Nevertheless, his Honour is an experienced sentencing Judge who is well aware of the principles involved, including the principle that less weight is to be given to general deterrence in a case where a person is suffering from a mental disorder. 21 In my opinion, his Honour's reference to the relevant facts and his express reliance on the psychologist's report, albeit without setting out the detail of the report, was directed to this very matter. His Honour emphasised the value that he received from that psychologist's report. It was directed to establishing the very propositions on which the Applicant would now seek to rely. I am also of the opinion that his Honour gave the personal history and psychological condition of the Applicant considerable weight and this appears from the structure of the sentence. 22 In these circumstances, it is unnecessary to analyse further the detail of the psychologist's report which found the Applicant had a comorbidity of Antisocial Personality Disorder and PolySubstance Dependence with Psychological Dependence in a Controlled Environment. These two conditions are apparently to be found in the Diagnostic and Statistical Mental Disorders Manual (4th ed, 2000), generally referred to as DSM(IV). It is by no means clear to me that these particular mental conditions, notwithstanding their acknowledgement in DSM(IV) as mental conditions, are of the character which justify less weight to be given to general deterrence. 23 Although DSM(IV) has come to be widely used for the purposes of categorisation, it should not be assumed that because, as a result of the rather tortuous process by which DSM(IV) is compiled and amended, some kind of recognition is given, by means of affixing a label to a mental condition, that any such condition is such as to attract the sentencing principle that less weight is to be given to general deterrence. That may not be true of a particular condition. (On the limitations of DSM(IV) see Vernon v Bosley (No 1) [1997] 1 All ER 577 at 610-611; New South Wales v Seedsman [2000] NSWCA 119 at [114]-[120]; Allan Young, The Harmony of Illusions: Inventing Post Traumatic Stress Disorder (1995) passim on DSM (III) and DSM (IV); Ian Freckelton "Post Traumatic Stress Disorder: A Challenge for Public and Private Health Law" (1998) 5 Journal of Law & Medicine 252; George Mendelson "Postraumatic Stress Disorder and Litigation" (1999) Australasian Forensic Psychiatry Bulletin 3; Paul R McHugh "How Psychiatry Lost its Way" (1999) 108 Commentary 32; Chris Tennant "Definition of Psychological Trauma: Psychiatric and Legal Approaches" (2003) 77 Australian Law Journal 369; D Saleeby "The Diagnostic Strengths Manual?" (2001) 46 Social Work 183; Luis A Rivas "Controversial Issues in the Diagnosis of Narcissistic Personality Disorder: A Review of the Literature" (2001) 23 Journal of Mental Health Counselling; Richard J McNally, Remembering Trauma (2003) at 118-213; Alix Spiegel "The Dictionary of Disorder" The New Yorker 3 January 2005.) 24 Weight will need to be given to the protection of the public in any such case. Indeed, one would have thought that element would be of particular weight in the case of a person who is said to have what a psychiatrist may classify as an Antisocial Personality Disorder. Nevertheless, as I am satisfied his Honour did give the element of general deterrence less weight than he would otherwise be entitled to give in the absence of the psychologist's report, it is not necessary to specify a view on the particular classifications involved in this case. I would not uphold this ground of appeal.

Ground 3 25 The Applicant contends that the sentencing proceedings miscarried in that the state of the facts upon which the sentencing Judge acted, specifically the Applicant's release date and the length of the sentence imposed upon her in relation to another offence, has changed as a result of the decision of this Court in R v Lawrence [2004] NSWCCA 404. His Honour did in fact impose a sentence which had the effect that the non-parole period would expire at the same time as the non-parole period for the sentences which the Applicant was already serving. As noted above the decision in this Court had the effect of bringing forward that non-parole period by six months, that is to 1 April 2005. 26 The Applicant contends that this was not a coincidence and that his Honour intended both these periods to coincide. That that is so is suggested in the final paragraph of his Honour's remarks on sentence which, to repeat, expressly state that the "release date for this offence will be the same release date for the other offences". 27 The Crown draws attention to the fact that during the course of the remarks on sentence, his Honour also said, to repeat: "She is eligible for release, subject to what the Parole Board says, on 1 October 2005, quite by chance that is a date 18 months from today." [Emphasis added] 28 The Crown contends that his Honour's reference to "quite by chance" indicates that his Honour independently arrived at both the term and commencement date of the sentence for the offences with which he was concerned and that he intended to impose a term of 18 months as the minimum term that the Applicant must serve before being released to parole for this offence. 29 I would not give that weight to his Honour's reference to "quite by chance". The "chance" his Honour was there referring to was, in my opinion, the fact that he was there sentencing on 2 April 2004 which was, in fact, precisely 18 months to the day before the expiration of the then extant non-parole period. 30 I think it is probable that his Honour did have in mind imposing a sentence which coincided with the non-parole period for the previous offences. This had the rarely desirable consequence that, subject to the decision on grant of parole, no additional penalty by way of actual imprisonment would be imposed for the quite distinct offences the subject of these proceedings. 31 It is pertinent to note the fact of the substituted sentence imposed by this Court on the Applicant in the other case. That reduced the overall sentence imposed by Newman AJ from an effective head sentence of five years, with a non-parole period of three years, to an effective head sentence, of which two years had already been served, of four years and six months with a non-parole period of two years and six months. 32 The non-parole period, it is noted, will expire on 1 April 2005. However, the head sentence will continue until 1 April 2007. As noted above, Goldring DCJ imposed an additional term of nine months. This means that the head sentence in the present proceedings will expire on 1 July 2006, i.e., before the expiration of the head sentence for the other offence. The Applicant will, if released to parole, be subject to supervision, and at risk in the case of any further offending, for a longer period under the other sentence than under the sentence presently under consideration. 33 In substance, therefore, the issue before the Court is whether the non-parole period should be reduced from 18 months to 12 months so that the sentencing Judge's original intention that the expiration of the non-parole period should coincide can be given effect in the light of the subsequent judgment of this Court. 34 This Court may quash the sentence pursuant to s6(3) of the Criminal Appeal Act 1912 if it is of the opinion that some other sentence is warranted in law.

Ground 4 35 The Applicant contends that the sentence in this case is excessive and relies particularly on the compelling and tragic subjective case of the Applicant. Mr P Hamill SC, who appears for the Applicant, submits that the objective facts of the case do not put it high on the scale of gravity, noting the limited degree of planning, the effect of drugs and the small item of property that was actually stolen, together with the fact that the Applicant left the premises immediately upon the occupant entering the room. He also submitted that the case could have been disposed of summarily in the District Court and that the head sentence actually imposed exceeded by three months the maximum penalty that could have been imposed if the matter had been disposed of summarily. He also drew attention to the fact that the sentencing Judge would have been influenced by the then extant non-parole period imposed by Newman AJ in determining that a non-parole period of 18 months was appropriate. 36 In my opinion, the sentence imposed by the sentencing Judge, both the non-parole period and the additional term, was within the permissible range in the exercise of the sentencing discretion. The offence was of significant gravity by reason of the home invasion element with an elderly victim living alone. The offender's considerable criminal history was such as would require condign punishment. There was no basis for a finding that this was a person unlikely to re-offend. In all the circumstances, including the subjective circumstances, and specifically the matters set out in s21A of the Crimes (Sentencing Procedure) Act 1999, in my opinion the sentence was not excessive.

Conclusion 37 None of the grounds of appeal have been made out. It would have been desirable, of course, for his Honour to emphasise that discount for the plea was in fact given and perhaps to quantify the amount of any discount. I do not doubt that his Honour fully took into account the subjective features of the Applicant. Nothing in the non-parole period or the additional term suggests that his Honour gave significant weight to the element of general deterrence. Nor is the end result excessive. 38 The one matter that has given me pause is whether or not this Court should reinstate his Honour's original intention that the non-parole period for the offence presently under consideration should expire at the same time as that for the other offence. If the Court were to do so, the result would be that the Applicant will not incur any additional punishment by reason of the present offence. It is an entirely unrelated offence and the circumstances are not so exceptional, and the Applicant's offending history is not such, that the Court should bring about that result. 39 It would, in my opinion, be open to this Court in the exercise of its discretion to intervene and reinstate his Honour's original intention. I would have been minded to do so if there had been any evidence before the District Court or in this Court indicating that the Applicant had taken significant steps to address her history of substance abuse. The Probation and Parole Service pre-sentence report before Goldring DCJ indicated there had been no such significant steps. 40 It is often the case that additional material is tendered in this Court indicating progress towards rehabilitation that an Applicant may have made subsequent to any pre-sentence report which was before the sentencing Judge. There is no such affidavit in this case. The Court does have before it a computer printout of the custodial history of the Applicant which indicates that on a number of occasions, including in June and October of last year, drugs were detected in a urine test. 41 In all of the circumstances of the case, I am not minded to intervene in order to restore what appears to have been his Honour's original intention. I am not satisfied that a lesser sentence, either in terms of the non-parole period or the additional term, is warranted in law. 42 In my opinion, leave to appeal should be granted but the appeal should be dismissed. 43 GROVE J: I agree. 44 BELL J: I also agree. 45 SPIGELMAN CJ: The orders are as I have indicated. **********

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.