Rich v Regina

PARTIES: Lynda Ann Rich - Applicant The Crown - Resppondent

COUNSEL: J Stratton - Applicant R A Herps - Respondent

SOLICITORS: S O'Connor - Legal Aid Commission S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT DATE OF DECISION: 31 October 2006 (Sentence)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/1037 DC 06/21/0052

GILES JA JAMES J HISLOP J

Thursday 5 July 2007 Lynda Ann RICH v REGINA Judgment 1 GILES JA: The applicant pleaded guilty to two charges of break enter and steal and one charge of obtaining benefit by deception, with a further seven offences on a Form 1 taken into account in sentencing for the second of the break enter and steal charges. The seven offences were four charges of break enter and steal and three charges of obtaining benefit by deception. 2 On 31 October 2006 the learned sentencing judge sentenced the applicant -

(a) for the first break enter and steal offence, to imprisonment for a non-parole period of 2 years 6 months commencing on 31 October 2006 and a balance of term of 3 years 4 months;

(b) for the second break enter and steal offence, to imprisonment for a non-parole period of 4 years commencing on 31 October 2007 and a balance of term of 7 years; and

(c) for the offence of obtaining benefit by deception, to imprisonment for a fixed term of 1 year 6 months commencing on 31 October 2007. 3 The sentences for the break enter and steal offences were thus largely concurrent, and the sentence for the offence of obtaining benefit by deception was wholly concurrent with the sentence for the second of these offences. The overall sentence was for a non-parole period of 5 years and a balance of term of 8 years. 4 The application for leave to appeal against sentence was on four grounds, namely -

1. that the judge erred in finding that the offences were part of a planned or organised criminal activity and in using this finding as an aggravating factor;

2. that the judge erred in limiting the weight to be given to the fact that the applicant had children;

3. that the judge erred in his treatment of the matters on the Form 1; and

4. that the sentences were manifestly excessive. 5 With one exception, the offences were committed in September and October 1995. The exception was one of the Form 1 offences. The applicant entered a house at Punchbowl on 3 June 2003 by forcing a window, and stole jewellery and money to the value of $300. 6 For the September - October 1995 offences, the first offence was the subject of the second charge of break enter and steal. On 29 September 2005 the applicant forced a door to premises at Five Dock, and took various items valued at $2,740. The items included a credit card, and the offence the subject of the charge of obtaining benefit by deception was use of the stolen credit card to purchase a mobile phone re-charge card to a value of $30. The three offences of obtain benefit by deception on the Form 1 were also use of the stolen credit card to pay a taxi fare of $12.65, to buy computer games and equipment for $416.85 and to buy a computer game for $49.84. All these uses of the credit card occurred on 29 September 2005. 7 One of the break enter and steal offences on the Form 1 was also committed on 29 September 2005. The applicant broke a glass panel to unlock the door of a house at Haberfield, and stole bracelets and money to the value of $590. 8 The offence the subject of the first charge of break enter and steal took place on 14 October 2005. The applicant broke into a house at Berala by manipulating the lock of a rear sliding glass door, and stole jewellery including a wedding ring and cash to a total value of $7,800. 9 The remaining break enter and steal offences on the Form 1 were committed on 16 October and 19 October 2005. On 16 October 2005 the applicant broke the window of a house at Earlwood with a brick, and stole jewellery to the value of $6,000. On 19 October 2005 she manipulated the lock on the door of a house at Lidcombe, and stole a digital camera, a wristwatch and jewellery. The materials before the judge did not include an estimate of the value of this property. 10 Putting aside the unknown value of the 19 October 2005 property, the total value of the property stolen or unlawfully obtained was a little under $18,000. 11 The applicant was aged 27 at the time she was sentenced. She had a lengthy criminal record, commencing in 1996 and with many offences involving car stealing, shoplifting, other forms of stealing, goods in custody, obtaining money by deception, more latterly break enter and steal, and other matters. She had been sentenced to terms of imprisonment on a number of occasions, commencing in January 1998. More recently, on 19 November 2003 she had been sentenced for three break enter and steal offences, with matters on a Form 1 taken into account, to imprisonment for an overall non-parole period of two years concluding on 22 July 2005 and balance of term of 3 years 6 months concluding on 22 July 2007. She had also been sentenced on 5 March 2004 to imprisonment for a host of offences (including break enter and steal, larceny, shoplifting, receiving, goods suspected of being stolen, possess housebreaking implements), the longest term being 9 months commencing on 5 March 2004 and all terms being within the non-parole period concluding on 22 July 2005. 12 The applicant was on parole at the time of committing the September-October 2005 offences. Her parole was revoked on 9 June 2006. Thus there was some concurrency in the sentences imposed on 31 October 2006 with the applicant's existing sentence. 13 The applicant had used illicit drugs for many years, and had become addicted to heroin. The judge observed that her criminal offending may be explained by her on-going use of and need for heroin, although that did not mitigate her conduct. In this and other remarks I take him to have found that she committed the offences in order to satisfy her addiction. 14 The judge gave discounts for the utilitarian value of the applicant's pleas of guilty, being a discount of 25 per cent for the plea in the Local Court to the first of the charges of break enter and steal and of 15 per cent for the offences the subject of the other two charges. He said as to the latter that they were "late in the day". He declined to discount the offences further for contrition and remorse, saying that the Crown cases were strong and the applicant had not expressed concern for the victims of her crime. 15 The judge said that the applicant had repeatedly failed to cease abuse of drugs and commission of crimes to fund their acquisition notwithstanding opportunities earlier made available to her which, with appropriate assistance, could have seen that occur. He said that the applicant told him that she had at last come to take seriously the assistance, which was available, and wanted to change. The judge found that she had "made progress towards rehabilitation", but that the progress had been in a custodial setting and it was early days, and - "The past does not provide any foundation for a finding that the progress would be continued if the offender was at liberty at any stage relatively soon, notwithstanding her representations to me about her wish to change her ways and that they are on this occasion genuine."

The judge said - "Paragraph 21A(2)(n) of the Crimes (Sentencing Procedure) Act specifies as an aggravating factor that the offence was part of a planned or organised criminal activity. Professional planning, organisation and execution was also a matter enhancing the seriousness of an offence identified in Re Attorney General's Application (No 1) under s 26 of the Criminal Procedure Act, R v Ponfield : ibid, and I have taken care not to double count this factor to the detriment of the offender. The sophistication of the planning involved however must be measured with the fact that she left behind fingerprint impressions that led to her detection." 16 The applicant submitted that in the list of potential aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, being part of a planned or organised criminal activity meant more than that the offence was planned: Fahs v R [2007] NSWCCA 26 at [21]-[22]. She said that there was no evidence of planning or an organised criminal activity beyond such planning and organisation as was part of commission of any break enter and steal offence; and that the break enter and steal offences were not committed in company, and were carried out by primitive means and ineptly because in half of them the applicant left her finger prints at the scene. She submitted that the uses of the credit card did not go beyond the opportunistic, and involved no planning or organisation at all. 17 The Crown pointed out that earlier in the judge's remarks on sentence, when referring to planning and organisation as a matter enhancing the objective seriousness of an offence as discussed in Re Attorney General's Application (No 1) of the Criminal Procedure Act, R v Ponfield (1999) 48 NSWLR 327, he referred to "the planning and organisation such as it was", and to his observation about the sophistication of the planning. It was submitted that, while noting the potential aggravating factor, the judge had thought little of it and had in the end not given the factor any weight; he had "ultimately … moved past it and dismissed it". 18 I do not think that the judge did dismiss the planning and organisation as a s 21A(2) aggravating factor. His statement that he took care not to double count it indicated that he did count it. But what he took into account can be seen from the larger passage in which he referred to "the planning and organisation such as it was", namely - " … the planning and organisation such as it was, reflected in the times when she broke into these homes and the theft of property easily disposed of …". 19 What the judge here meant by planning and organisation, and then in his reference to s 21A(2)(n), was that there was a degree of planning and organisation in the times of breaking into the homes, not inherent in the break enter and steal offences, and in stealing property easily disposed of, again not inherent in those offences. The times of breaking into the houses was not explained. Sometimes the hours in the facts sheets extended beyond daylight, but in all cases the homes were unattended and it was probably the latter. The degree of planning and organisation might be thought small, hence the appellation "such as it was". That it was not a factor of great moment was again recognised when noting that the applicant had left her fingerprints behind. 20 The applicant submitted that it was a feature so commonly found in break enter and steal offences that it could not be regarded as a matter of aggravation, and contrasted the planning and organisation with that in, for example, R v Danaca [2005] NSWCCA 45 (using "specialist break and enter tools") and R v Lay [2006] NSWCCA 45 (using oxy-acetylene equipment, grinders and gloves). The applicant submitted also that the planning and organisation could not be a factor material to the obtaining benefit by deception offence, but reading the remarks on sentence as a whole the judge did not so regard it. 21 Being a common feature went to the significance of the factor, not whether it could be taken into account. In my opinion, it was open to the judge to take planning and organisation, to the extent he found it, into account as an aggravating factor within s 21A(2)(n), albeit one of little significance. He plainly did not think it of significance, and there is no reason to think that he gave it greater significance than was appropriate.

Ground 2: the children 22 The applicant had two children, a daughter aged eleven at the time of sentencing and a son aged four and a half. The judge said - "I make it clear that although I have some sympathy for the offender and her children because of the impact her incarceration will have upon them and their relationship, I have put that aside and I have taken into account her relationship with her children only with regard to the prospect for her rehabilitation and the motivation their relationship will provide for her to continue toward that outcome." 23 The applicant submitted that, although her family circumstances were not exceptional so as to justify leniency of themselves (R v Edwards (1996) 90 A Crim R 510; R v X [2004] NSWCCA 93), her separation from her children because of imprisonment was part of her subjective circumstances to which the judge should have had regard (R v X at [24]; R v Girard [2004] NSWCCA 170 at [21]). She submitted that the judge had erred in entirely putting it aside, or at least in having regard to it only for motivation towards rehabilitation. 24 The judge had earlier noted that the applicant's mother cared for both children, and was responsible for their care until they reached the age of eighteen. Behind this lay evidence that an order had been made giving the applicant's mother the care of the daughter from a time close to the daughter's birth, and of her son from April 2005. The judge later said, and the applicant's mother gave evidence to that effect, that the applicant's relationship with her daughter was such that her daughter would not visit her in gaol and did not accept her drug use and continuing offending; the applicant herself said that she did not want her daughter "to keep hating me". 25 It was submitted that a custody order was not a final order, and that the applicant could seek to have a relationship with her children and would be distressed by separation notwithstanding that her mother had the children's custody. However, the applicant had spent long periods in prison, and had most recently been sentenced to the overall non-parole period concluding on 22 July 2005 and balance of term concluding on 22 July 2007. She had been separated from her children often and for long periods, and separation was inevitable if she continued offending. She continued offending. Separation from her children as a subjective consideration in her favour called for little if any regard, and I do not think the judge was in error in the limited manner in which he took it into account.

Ground 3: matters on the Form 1 26 The judge said of the matters in the Form 1 - "The additional offences should impinge upon the sentence for the principal offence to a significant extent, requiring an appropriate increase in the sentence that would otherwise be applied to the principal offence if standing alone: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 ibid at paragraph 42." 27 The applicant submitted that the judge did not refer to the point emphatically made in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [39] and [43], that the sentencing court is sentencing only for the principal offence and the focus throughout must be on sentencing for the principal offence. It is correct that the judge did not specifically do so, but he plainly had regard to the correct approach to taking offences on a Form 1 into account described in [42]. The contrast to sentencing only for the principal offence referred to in [39] was determining appropriate sentences for offences listed on the Form 1 or determining the overall sentence that would be appropriate for all the offences and then applying a discount, and there is no indication that the judge did either of these things. 28 The applicant's submission under this ground came down to a submission that the sentence for the second of the break enter and steal offences was so severe that there must have been an error of principle in taking the matters on the Form 1 into account. 29 Taking the sentence on the first of the break enter and steal offences as a base, for the sentence in question the non-parole period increased from 2 years and 6 months to 4 years and the balance of term increased from 3 years and 4 months to 7 years. The increase required on taking into account offences under a Form 1 can be substantial. The two elements to which greater weight will ordinarily be given, the need for personal deterrence by reason of the course of conduct in which the offender engaged and the community's entitlement to extract retribution for serious offences for which no punishment was imposed, both applied with considerable force given the applicant's course of offending and the seriousness of some of the offences on the Form 1. If the base be correct, and in my opinion it was open to the judge, I do not think error of principle in taking the matters on the Form 1 into account can be discerned.

Ground 4: manifest excess 30 The applicant submitted that there was error in the sentence for the second break enter and steal offence in the manner last described, and also that that sentence and the overall sentence imposed on her were manifestly excessive. She referred to statistics obtained from the Judicial Commission indicating that few offenders who received a full-time custodial sentence for the offence of break enter and steal received a longer non-parole period, and to cases which she said involved broadly similar or greater numbers of offences of generally greater objective gravity than those of the applicant, in most of which lesser sentences had been imposed. The cases were R v Muir [1999] NSWCCA 71; R v Tarpey [2001] NSWCCA 300; R v Argent [2004] NSWCCA 270; R v Danuca and R v Lay. 31 Guidance in sentencing can be obtained from such comparisons, but the circumstances of the applicant's sentencing and the need to impose a sentence appropriate to her offences and her circumstances must govern. Further, the question for this Court is not what sentence it would have imposed, but whether the sentence imposed by the judge was outside a sound exercise of the sentencing discretion. Statistics can provide a check on the result, but do not enable a meaningful comparison, and any comparison with other cases must bear in mind that no case is completely like another and (to repeat) that the circumstances of the applicant must govern. 32 I illustrate the caution with which comparison must be approached from R v Tarpey, as to which the applicant said that the overall sentence of 8 years with a non-parole period of 5 years imposed by the sentencing judge, and reduced in this Court to 6 years and 3 years 9 months, was the same as that imposed by the judge in the present case. 33 The 8 years and 5 years in R v Tarpey was imposed for one break enter and steal offence, that of 31 March 2000 in which property valued at $7,445 was stolen, with eight other offences (two break and enter with intent to steal, two larceny, one assault, one goods in custody, one possess housebreaking implements, one possessing instruments to steal a car) taken into account. The direct comparison is with the 7 years and 4 years in the present case. In R v Tarpey there were other break enter and steal offences, the sentences for which were made wholly concurrent with the sentence for the 31 March 2006 offence. The concurrency remained upon re-sentencing. 34 The offender in R v Tarpey committed the crimes to finance his drug habit. He had a long record, but only two short sentences of imprisonment. He was aged 20 or 21 at the time of the offences. He was given a 25 per cent discount for his plea. Contrition is unclear, but may have lain behind the Court's citation of a probation officer's description of "a likeable young man who expressed recognition of his need to remain drug free". The Court observed that it was "a large increase to go to a minimum term of five years for a young offender". The applicant could rely on neither youth nor such an escalation. Special circumstances were found in the offender's youth and the need for rehabilitation, and it was noted that an affidavit showed that "progress in rehabilitation is being made". That could not be said of the applicant. There cannot be a close comparison, but the 7 years and 4 years in the present case does not seem to me to be out of step with the re-sentencing in R v Tarpey. 35 I do not in these reasons go through the same exercise for the other cases. I note, however, that R v Lay, which although a case of many more offences than the present case brought a re-sentencing in this Court to an overall non-parole period of 3 years 6 months and a balance of term of 5 years 6 months, was a Crown appeal, and the re-sentencing was affected by delay in bringing the proceedings to finality and the restraint appropriate to a Crown appeal. These matters meant that the sentences were "considerably below what the circumstances of the case would otherwise demand": at [39]. Again, the caution with which a comparison can be attempted is manifest. 36 The offences the subject of the break enter and steal charges were serious, notwithstanding that property worth a great deal more could have been stolen. They were intrusions into persons' homes. Personal deterrence was significant, given the applicant's criminal history, as was general deterrence: the judge correctly said - "There is the need to give appropriate weight to general and specific deterrence when sentencing this offender. There is, moreover, the need to provide protection for the community from one such as the offender who has persisted in her offending over years notwithstanding the opportunities given her in the past to reform. The sentences must show that she is being held accountable for her conduct and reflect the community's entitlement that the conduct be denounced in recognition of the harm done to her victims and the community generally." 37 While the applicant obtained a discount for the utilitarian value of her plea, there was no contrition. I am unable to see that the sentence for the first of the offences the subject of the break enter and steal charges was manifestly excessive, or (to revert to the previous ground) that taking into account the offences on the Form 1 in the sentencing for the second of the offences the subject of the break enter and steal charges brought a manifestly excessive sentence. The two sentences for the break enter and steal offences were made largely concurrent. Having had regard to the cases to which we were referred for comparison and to the Judicial Commission statistics, the sentences and their overall result were not lenient, but were in my opinion within the range of sentencing open to the judge. 38 I propose that leave to appeal against sentence be granted but that the appeal be dismissed. 39 JAMES J: I agree with Giles JA 40 HISLOP J: I agree with Giles JA. **********

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