Wingco v R

Court of Criminal Appeal (NSW)|2018-08-01|Before: Gleeson JA, Hulme J, Button J

Solicitors: Applicant (in person) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/192287 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 13 October 2017 Before: Girdham SC DCJ File Number(s): 2015/192287

Judgment

GLEESON JA: The applicant, Ms Leny Wingco, seeks leave to appeal against the sentence imposed on her by the District Court on 13 October 2017 following her plea of guilty to eight offences of stealing from the person. Pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant asked for seven further offences listed on a Form 1 be taken into account. Four of those offences related to goods in custody and three of the offences related to dealing with property suspected to be the proceeds of crime.
The offence of stealing any chattel, money or valuable security from the person of another carries a maximum penalty of imprisonment for 14 years: s 94, Crimes Act 1900 (NSW). There is no standard non-parole period.
The offence of having goods in custody reasonably suspected of being stolen or otherwise unlawfully obtained carries a maximum penalty of imprisonment for 6 months, or a fine of 5 penalty units, or both: s 527C(1)(b), Crimes Act.
The offence of dealing with property reasonably suspected to be the proceeds of crime, where the value of the property is $100,000 or more, carries a maximum penalty of imprisonment for 5 years: s 193C(1), Crimes Act. Where the value of the property is less than $100,000 this offence carries a maximum penalty of imprisonment for 3 years: s 193C(2).

Grounds

The applicant, who is self-represented, seeks leave to appeal the severity of her sentence on three grounds: 1. Her Honour failed to consider programmes that I've completed. 2. Her Honour failed to understand my medical history and ongoing medical condition. 3. Her Honour failed to consider family circumstances.

Facts

The sentencing judge proceeded upon the basis of an agreed statement of facts and the applicant also gave evidence and was cross-examined.
The offences occurred between March and June 2015. In chronological order, the agreed facts relating to the offending, as summarised by the Judge, are as follows:

Count 10 - 4 March 2015: the applicant stole a wallet from a female victim while she was shopping at the Espirit store at Homebush DFO containing $210 and a variety of cards;
Count 1 - 8 May 2015: the applicant stole a wallet from a female victim while she was shopping at a butcher's shop in Homebush, containing various cards, house key and $600;
Counts 2 and 3 - 2 June 2015: these two offences occurred at a supermarket in Campsie, the first involved the applicant stealing the wallet of a female victim containing various cards, house keys and approximately $150; the second involved stealing a money pouch which contained $2,100;
Counts 4, 5 and 6 - 8 June 2015: the applicant stole three wallets from victims who were shopping at UNIQLO Store at Macquarie Park Shopping Centre, the first being a Louis Vuitton wallet containing a variety of cards, including driver's licence, Medicare card, Commonwealth Bank debit cards, and $70; the second being a Longchamp wallet containing a variety of cards, including bank cards, a driver's licence, gift cards and $50; the third, being a wallet containing a variety of cards, including a Commonwealth Bank Mastercard, a driver's licence, Medicare card and $500. (The second wallet was subsequently found and returned without the bank cards and cash).
Count 7 - 28 June 2015: the applicant stole a female victim's purse while she was shopping at Lacoste at Homebush DFO, containing $5, 4,800 Philippino pesos, and a variety of cards, including a driver's licence, ANZ Bank card and Medicare card. (The wallet was subsequently found and returned without the cash.)

The offences listed on the Form 1 relate to items discovered by the police on execution of search warrants on 30 June 2015 at the applicant's residence at Homebush and a storage unit in her name at a different address in Homebush.
At the applicant's residence, the police found in the possession of the applicant's son various purses and wallets, cash totalling $23,275, cash in a black handbag totalling $1,050, 31 purses of various brand names in one bedroom, 12 purses of various brand names in another bedroom, and a beige wallet hidden under some clothes containing $3,500 in various foreign currencies, a locked Antler-wheeled suitcase containing a purse and red envelopes containing currency (AUD$7,420, US$340, 290,000 VND) and another Antler suitcase containing a purse which contained numerous bank cards and identification cards in the applicant's name and that of her ex-husband.
At the storage unit at Homebush, police found 45 purses of various brand names.
The sentencing judge assessed the objective seriousness of the offences as falling well below the mid-range of seriousness, approaching the bottom of the range (ROS 9). Her Honour found the most serious offence was Count 3 and that the Form 1 matters would result in a substantial increase to the appropriate sentence for Count 3 (ROS 4-5).
Her Honour referred to the applicant's criminal history of similar offending between 1991 and 2012 (ROS 9), including offences of larceny, goods in custody and steal from the person. The applicant was sentenced to terms of imprisonment in 2009 (AB 74-75) and again in 2013 (AB 76-77) for various offences, including stealing. She had breached her parole in the past by committing further similar offences. At the time of the present offending, the applicant was the subject of an intensive corrections order (imposed on 17 December 2014) (AB 77-78) for various offences, again, including stealing, which was revoked upon her arrest on 30 June 2015 (ROS 5).
Her Honour noted that the applicant became aware in 2009 that she had a problem with kleptomania (ROS 7). Her Honour found that the applicant's kleptomania had a causal connection with her offending such that her moral culpability for each offence is reduced and she is not an appropriate vehicle for the "full force of general deterrence" (ROS 11).

Subjective case

Her Honour made the following findings with respect to the applicant's subjective case. First, the applicant was born in the Philippines, and gave evidence that she grew up in poverty, that she started to work when she was 6-7 years of age and that she was sexually assaulted by her elder brother when she was young and has suffered ongoing problems with respect to this.
Second, the applicant was diagnosed with breast cancer in December 2016 and had an operation on 24 February 2017 following which she received chemotherapy treatment (ROS 6). Her Honour found that imprisonment would serve as a greater burden on the applicant by reason of her ill health and on the basis of the applicant's illness, made a finding of special circumstances (ROS 11-12).
Third, the applicant has a history of depression. She had previously been prescribed anti-depressant medications, but had ceased those medications during her chemotherapy treatment (ROS 6-7).
Fourth, the applicant had trouble coming to terms with her kleptomania and engaging in treatment with respect to this. Her prospects of rehabilitation were very poor unless she was able to come to terms with this condition (ROS 11).
In determining the aggregate sentence indicated, her Honour found that the applicant was entitled to a 25 percent discount for the utilitarian value of her early guilty pleas. Her Honour stated that the indicative sentences were 2 years for Count 3 and 12 months for each of the other 7 offences (ROS 13).

Ground 1 - Her Honour failed to consider programmes completed

The applicant tendered evidence of certificates with respect to two courses she has completed while in custody which she submits better her chances of rehabilitation. Those certificates are dated 1 November 2017 in relation to a hygiene operations course and 3 May 2018 in relation to the EQUIPS Foundation course.
The Crown points out that those certificates were issued on dates subsequent to the applicant's sentencing. The Crown submits that evidence concerning events, facts and circumstances that have arisen entirely since the applicant was sentenced could not have been taken into account by the sentencing judge and therefore it could not have been an error for the sentencing judge not to have taken them into account: Tran v R [2014] NSWCCA 32 at [12]-[13].
In Tran v R, the Court referred to the principles governing the admission of further evidence on appeal as summarised in Khoury v R [2011] NSWCCA 118 at [104]-[110] (Simpson J, Davies J and Grove AJ agreeing). It is sufficient for present purposes to set out that part of the summary by Simpson J at [110]: A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177.
In the present case, at the time of sentencing, the applicant had not completed either of the two courses referred to above. The significant issue for the applicant, with respect to her chances of rehabilitation, was the extent of her genuine engagement with psychiatric treatment for kleptomania. That was a matter which her Honour had regard to and took into account in her reasons for judgment (ROS 10-11).
The material now sought to be relied upon is not admissible on an application for leave to appeal. There is no suggestion that the sentencing judge proceeded upon an erroneous view of the factual circumstances relating to the applicant: cf Khoury v R at [113].
I would refuse leave to rely upon this ground.

Ground 2: Her Honour failed to understand the applicant's medical history and ongoing medical condition

In support of this ground, the applicant refers to her diagnosis of breast cancer in December 2016, the surgery on 24 February 2017 and the subsequent chemotherapy and radiotherapy treatment at Westmead Hospital and that she is currently in remission for five years and on hormone treatment. The applicant attached letters from her oncologist confirming these matters, together with a letter from her son dated 3 April 2018 requesting leniency and sympathy for his mother.
Again, there is no merit in the submission that this material constitutes fresh evidence on appeal. The applicant tendered before the sentencing judge on 23 June 2017, a body of evidence concerning the applicant's cancer diagnosis, surgery and medical treatment. In addition, before the applicant was sentenced on 13 October 2017, her Honour received further evidence, including a letter from the Westmead Department of Medical Oncology regarding the applicant's treatment and management plan dated 26 July 2017, a letter from Dr Tim Wang dated 15 March 2017, the applicant's radiation oncologist and a letter from the applicant's son requesting leniency by reason of her breast cancer and his concerns of the care the applicant was receiving whilst in hospital (Ex 6) (ROS 6).
The letter from the Westmead Department of Medical Oncology recorded the applicant's history of having been diagnosed with a left-sided breast cancer that she had undergone a lumpectomy in February 2017 followed by three months of chemotherapy, completed in June 2017, and the applicant was currently undergoing radiation therapy. The applicant's management plan involved five years of hormonal treatment. The handwritten letter from Dr Wang noted that the applicant's radiation treatment was expected to be completed by mid-August 2017, followed by another one month to recover.
Her Honour's reasons for judgment make plain that she had regard to and took into account the applicant's medical history. When referring to the diagnosis of the applicant's breast cancer and its impact upon her, her Honour remarked (ROS 11-12): It is apparent from her subjective case that it would be unduly generous to say that her chances of reoffending are other than very poor, and except for her health issues it seems inevitable that she will continue to offend. What has changed is the offender's diagnosis of breast cancer and the treatment she has received and will receive by reason of it. I appreciate that Corrective Services are in position where they can generally deal with such treatment but notwithstanding it is my view that imprisonment will serve as a greater burden on her by reason of ill health and common humanity in my view demands such a finding. … Her illness by which I mean her cancer is such that I am prepared to make a finding of special circumstances by reason of it. The existence of a condition as at the date of sentencing or a foreseeable recurrence may mean that a given sentence will weigh more heavily on the offender than it would a person in normal health.
As indicated, her Honour's finding of special circumstances was made on the basis of the applicant's illness. As a consequence of the adjustment to the non-parole period, the applicant's non-parole period is 55 percent of the total sentence.
Again, no error has been demonstrated and I would refuse leave to appeal on this proposed ground.

Ground 3: Her Honour failed to consider family circumstances

The applicant submits that her brother, who lives in the Philippines, is very sick and deteriorating rapidly and seeks a lesser non-parole period on the basis that, "it would assist me by allowing me to travel to the Philippines to be with my ailing brother sooner".
There is no direct evidence concerning the medical condition or likely prognosis of the applicant's brother in the Philippines. Further and importantly, this matter was not referred to or relied upon by the applicant before the sentencing judge.
The Court is not in a position to determine whether the asserted medical condition of the applicant's brother existed at the time of sentencing. If it did, there is no evidence that the applicant was unaware of the matter at the time of the sentencing hearing or could not have discovered the matter with reasonable diligence.
If the relevant facts have arisen subsequently to the sentencing hearing, it cannot have been an error for her Honour not to have taken them into account: Khoury v R at [110]. The authorities emphasise that the power to admit additional evidence is a discretionary one and that "proper grounds" must be established as a foundation for the exercise of that discretion and caution must be exercised in the admission of such evidence: R v Lanham [1970] 2 NSWR 217 at 218; Khoury v R at [113] and [117].
Assuming the circumstance sought to be relied upon by the applicant has arisen subsequent to her being sentenced, the applicant has failed to establish a basis for the admission of her uncorroborated assertions concerning her brother's medical condition. The applicant will become eligible to apply for parole after 11 September 2018. The standard conditions of supervision under a parole order include that the person must not leave Australia without permission from the State Parole Authority: cl 214A(1)(g) of the Crimes (Administration of Sentences) Regulation 2014 (NSW). This is a case where the impact of the asserted matter on the sentence is a matter for the State Parole Authority, assuming the applicant applies for and obtains parole.
In my view, leave to rely upon this ground should also be refused.

Orders

I propose that the application for leave to appeal against sentence be refused.
R A HULME J: I agree with Gleeson JA.
BUTTON J: I agree with Gleeson JA.

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. Decision last updated: 27 August 2018

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