Sampson v R

Judgment 1HOEBEN CJ at CL: I agree with Adams J. 2ADAMS J: Introduction 3The applicant was sentenced in the District Court on 28 November 2012 for the offence of hindering the discovery of evidence concerning a serious indictable offence committed by another person, an offence under s 315(1)(b) of the Crimes Act 1900 (NSW), which prescribes a maximum penalty of imprisonment for 7 years. The applicant was sentenced to a term of imprisonment for 3 years, commencing on 21 March 2013, with a non-parole period of 18 months expiring on 20 September 2014. The sentence reflected a discount of 25 per cent for the utilitarian value of the plea. Accordingly, the starting point for the sentence was 4 years imprisonment. The applicant seeks leave to appeal from the sentence upon the single ground that it is unreasonable or plainly unjust. 4When the hearing of the appeal concluded on 26 February 2014, the Court made the following orders - (i)leave to appeal is granted; (ii)the appeal is allowed; (iii)the sentence under appeal is quashed; (iv)pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, no penalty is imposed; (v)reasons to be published on 28 February 2014. These are my reasons for concurring with those orders. The facts of the offence 5An agreed statement of facts was tendered, which was set out in the learned primary judge's reasons for sentence and from which the following account is largely taken. 6On 2 March 2012 in Tamworth, Michael Jacobs shot Senior Constable David Rixon, who died in hospital a short time later. Before he collapsed unconscious, the police officer fired four shots, three of which struck Jacobs. A firearm found at the scene contained two fired and two unfired .38 calibre cartridges marked with a particular label (not suggested to be in anyway uncommon). Ballistic tests of the firearm established it was the weapon which was used in the crime and further forensic testing identified Jacobs' DNA on it. 7During the afternoon of 2 March 2012 premises in Olive Lane, Tamworth, occupied by Jacobs, his partner Sharon Strudwick and her son, James Strudwick were declared a crime scene and placed under police guard. In the evening of 2 March 2012 a crime scene warrant was executed at the premises, Ms Strudwick being present at the time. During the search, a number of items were collected. On 6 March 2012 police commenced interception of Ms Strudwick's mobile service. About two weeks later Jacobs was charged with the murder of Senior Constable Rixon and refused bail. 8One week after Jacobs was charged with murder, investigating police attended at the Olive Lane premises to execute another crime scene warrant. As the house appeared to be unoccupied, police telephoned Ms Strudwick's mobile service. She was then driving a motor vehicle with the applicant as a passenger. As it happened, the call was answered by the applicant, who handed the phone to Ms Strudwick who, on being told that police were at her residence with a crime scene warrant, said that her son James was inside and she had told him not to open the door. Ms Strudwick was requested to go to the house and provide entry. About 10 minutes later James was telephoned, either by Ms Strudwick or the applicant, using Ms Strudwick's mobile telephone. 9The conversation was intercepted by police. The transcript starts off with an exchange between the applicant and Ms Strudwick about telling James to get "the bullets" from a handbag hanging on one of the doors. The applicant then told Ms Strudwick that she should talk to James but, because she was driving, Ms Strudwick asked her to do so. When James answered the phone the applicant asked, on the prompting of Ms Strudwick, whether the police had arrived. The applicant told James to go to his mother's room, take the bullets out of the bag hanging on the door and put them in her (the applicant's) bag. Ms Strudwick said (in effect) they were in a box, which she described. This was relayed to James by the applicant. There follows a conversation about where the box should be hidden, again the applicant relaying Ms Strudwick's instructions. After a further short exchange, Ms Strudwick suggested that the box should be placed inside the toilet, this being relayed to James by the applicant. Shortly after, James confirmed that he had done as requested and the applicant ending by saying, "Thank you brother". 10Having heard this conversation, police (who were outside at the time) forced entry immediately and commenced to execute the warrant. James was alone. The applicant and Ms Strudwick arrived a short time later. During the search, the rear yard was excavated and access was gained to the sewer pipe in which a box was found which contained 27 unfired .38 calibre cartridges, 20 of which were the same type as those which had been found in the revolver used by Jacobs. On 5 July 2012 the applicant was arrested at Parramatta Police Station and charged. She declined to speak to police. The objective seriousness of the offence 11That the offence was committed in connection with an investigation with the crime of murder, is a marker of significant seriousness. On the other hand, the police were in fact not hindered in their investigation (although it was necessary to perform some excavation in order to discover the ammunition). It was accepted by the Crown and, indeed by the primary judge, that the applicant had not acted in a premeditated way nor, indeed, at her own instigation but, rather, on the spur of the moment at the request of Ms Strudwick. Although the primary judge found that she showed no reluctance in doing so, at one point suggesting the bullets should be placed in her bag, and it is not disputed that the applicant was not just a mouthpiece for Ms Strudwick, her role was very much a secondary one. 12The primary judge described as "overstating it" the Crown's submission that the crime fell within the middle of the range of offences of this type, concluding that "it is in the lower part of the middle range". Even so, her Honour's starting point was well over half the maximum prescribed penalty. This is not to suggest, of course, that the middle of the range of objective seriousness suggests a sentence at half the statutory maximum. Nevertheless, it is difficult to relate her Honour's measure of objective seriousness to the starting point. It is, perhaps, worth observing at this point that this assumes that there were no mitigating subjective features. Subjective features 13The applicant, an Aboriginal, was just under 29 years of age at the time of the offence. She was in the late stage of pregnancy at the time. As at the date of sentence this child was in the care of the Department of Community Services and her four other children from different partners were all in the care of their extended families following intervention by DOCS for reasons of domestic violence inflicted by those partners on the applicant and the environment of drug use within the home. On one occasion, the applicant was so seriously assaulted that she was placed in intensive care with serious facial injuries and possible brain injury and, on another occasion, she was stabbed in the abdomen. The applicant's early childhood was fraught. She was brought up in a home where alcohol fuelled domestic violence occurred between her parents and she was moving constantly to live with different relatives and refuges to escape the violence. She was often the victim of her father's physical and psychological abuse. The applicant's mother reported to the Probation and Parole Officer a belief that the applicant suffered from symptoms of post traumatic stress disorder as a result of her experiences of violence. The applicant left school at the age of 15 years after having completed year 9, initially being employed as a casual cleaner but without gainful employment since 2008. 14The applicant used cannabis since the age of 18 and, when she lost her children at the age of 27, oxycontin, an opiate derivative. Although she denied that she was addicted, she used this drug regularly and had commenced a methadone maintenance program in May 2012 prior to her admission into custody. As at 7 November 2012 and (as I understand it) at the time of sentencing she was still on that program. 15The applicant's criminal record commences with the offence of stealing from the person for which she was charged some three months short of her 16th birthday. The next offence (to which was ascribed some importance by the primary judge) was an offence of threatening or causing injury to a witness, which was committed on 5 December 1998. In respect of these two offences the applicant was placed on a recognisance for 12 months. However, on 6 November 1999 the applicant was charged with malicious damage and was given a further recognisance on 24 January 2000. She was also dealt with in the Children's Court in 1999 for stealing from a motor vehicle and was given a recognisance. On 2 April 2002 she was fined for shoplifting. In February 2003 she was convicted of making a false representation resulting in police investigation for which she was fined and, in January 2005 she was fined for offensive behaviour. There then followed several driving offences. She was fined again in October 2002 on a charge of common assault. In August 2005 the applicant was convicted of offensive behaviour and given a s 9 bond for 12 months. There was a further conviction of common assault for which she was given a 12 months bond. In May and August 2008 she was convicted of a number of further shoplifting offences for which the outcomes were non-custodial. A further shoplifting conviction occurred in May 2010. In February 2011 she was convicted of another offence of shoplifting and sentenced to 6 months imprisonment, which, on appeal, was reduced to time served with parole ordered for the balance of the sentence. In February and April 2011 three driving offences occurred and, on 7 November 2012 she was convicted of a further offence of shoplifting and an offence (three counts) of supplying a prohibited drug. In respect of the first of these she was sentenced to 3 months imprisonment and, on the second, 9 months imprisonment cumulative, thus a total term of 12 months. Accordingly, when the applicant was sentenced on 28 November 2012, she was still serving the sentence imposed for the drug offences, then due to conclude on 20 June 2013. The term of the sentence under appeal commenced on 21 March 2013, thus being concurrent with the sentence the applicant was then serving for a period of three months, resulting in an additional term of imprisonment of 15 months before expiration of the 18 months non-parole period. 16The primary judge regarded it as significant when assessing the element of specific deterrence that "the prisoner has previously committed an offence of a similar type, albeit a very long time ago and bearing in mind at that time, as I have already emphasised, she was aged in the order of 15 years and nine months". 17The Probation and Parole report stated that the applicant would be suitable for supervision. Discussion 18It is submitted on behalf of the applicant that the sentence is manifestly excessive. As I have already pointed out, it appears that, having regard to the primary judge's characterisation of the objective seriousness of the offence, the starting point selected by her Honour does not appear to reflect any allowance for mitigating circumstances. Mr Gartelmann, counsel for the applicant, rightly points out that there was no suggestion that the applicant stood to benefit in any way or was motivated by anything other than, as it appears, her friendship with Ms Strudwick. It is submitted that such an uncalculating secondary involvement in the offence strongly suggested, if not the lowest seriousness, very much less than middle range seriousness. 19So far as the applicant's prior conviction for the offence involving the witness is concerned, the circumstances were that the applicant (who was then less than 16 years of age) had been identified by the witness as having knocked a wallet from the victim's hand and taking 100 dollars in cash from it. About a week later, the applicant accosted the witness in the street, grabbed him by the shirt, spun him round and punched him several times to the chest claiming that he and another had "dobbed me in for that purse snatch". There was no suggestion that the attack was in any way planned as distinct from an accidental meeting or that the assault was other than impulsive or caused any injury. To my mind its relevance as an offence involving the administration of justice pales into insignificance having regard to the fact that it was committed something over 13 years earlier, when the applicant was a teenager. It is also relevant to observe that the use of drugs was not implicated in the present offence. 20At the sentence proceedings and for the present application the applicant relied on statistics for offences under s 315(1)(a) (hindering the investigation of a serious indictable offence) as well as s 315(1)(c) (hindering the apprehension of a person who has committed a serious indictable offence) as well as the offence in question, to expand the statistical base. These offences all carry the same maximum penalty. The statistics involve such a limited number of cases, however, as to be of very limited utility when one bears in mind the wide variations of circumstances coming within the paragraphs. Also tendered were summaries of cases involving the offences in this Court and the Supreme Court, at least so far as the offences in paras 315(1)(a) and 315 (1)(b) are concerned. I do not propose to set out the summaries here but the cases should be noted: R v Mobbs [2005] NSWCCA 371 (fixed term 4 months); Mobbs v R [2005] NSWCCA 438 (periodic detention for 6 months and 11 days); R v Pearson [2005] NSWCCA 116 (18 months, non-parole period 6 months); R v Lawrence [2004] NSWCCA 404 (2 years and 6 months, non-parole period 6 months); R v Derbas [2003] NSWCCA 44 (5 years, non-parole period 3 years); R v Richmond [2000] NSWCCA 173 (300 hours community service, Crown appeal dismissed on exercise of residual discretion); R v Slacke [2013] NSWSC 1215 (s 9 bond for 2 years); R v Weston [2012] NSWSC 1498 (12 months suspended sentence); R v Grant [2012] NSWSC 1491 (12 months suspended sentence); R v Hamze [2005] NSWSC 136 (with Form 1 offences, periodic detention for 2 years and 3 months, non-parole period of 18 months); R v Ahmad [2005] NSWSC 848 (9 months suspended sentence); R v Ibrahim [2005] NSWSC 1028 (suspended sentence of 1 year and 5 months, non-parole period of 12 months reduced by 3 months to reflect pre-sentence custody); R v Skinner [2000] NSWSC 303 (s 9 bond for 3 years); R v Bailey [2006] NSWSC 49 (2 months fixed term). It is sufficient to say that each of these cases involved objective circumstances of significantly greater seriousness than the present case. 21It is worth noting, also, that although the prosecutor submitted and the primary judge apparently accepted that the locating of the ammunition was significant to the investigation, there was no attempt to establish why this should be so - although in fairness, it should be noted that no issue was made of this by the applicant's solicitor. The presence in Jacob's home of similar ammunition to that used in the shooting may well have been potentially significant as a circumstantial fact tending to support the likelihood of his being the shooter. 22The applicant's subjective circumstances were strong. Although she did not express remorse, her plea of guilty was rightly given some weight by the primary judge as evidence of remorse. Her upbringing in very difficult circumstances which did not later much improve should be regarded as playing a role in her failure to resist the request made of her. In addition, there was evidence that she was suffering from depression having been prescribed antidepressant and antipsychotic medication to manage her symptoms of depression and anxiety following her admission into custody. Conclusion 23With respect to the primary judge, I have concluded that the ground of appeal has been made out and that the sentence was manifestly excessive. Whilst, of course, it does not follow from the cases cited (referred to above) that the sentence under appeal is manifestly excessive, they fortify my respectful conclusion that the primary judge's discretion miscarried. 24On the hearing of the application, affidavits were read (subject to the usual condition) from the applicant's solicitor attaching certificates of achievement from various programmes undertaken by the applicant in custody, from the applicant's mother as to her disablement by illness and need for her daughter's care and family support, and from the applicant herself as to the steps she has taken by way of rehabilitation and her plans for the future. This information supports the appropriateness of the ultimate order made. 25In my view, a sentence of 12 months imprisonment, suspended in accordance with s 12 of the Crimes (Sentencing Procedure) Act 1999 is warranted in law and should have been passed. However, the applicant has already spent some 11 months in custody and it is not fitting to impose such a sentence at this point. Accordingly, an order under s 10A of the Act is appropriate. 26R A HULME J: The reasons given in the judgment of Adams J reflect why I joined in the orders made by the Court on 26 February 2014.