New South Wales District Court CITATION: Anarella Faye MCKELLAR v R [2009] NSWDC 428 JUDGMENT DATE: 2 February 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Refer to [31]-[35] CATCHWORDS: CRIMINAL LAW - sentence appeals - larceny, goods in custody, common assault, obtaining a valuable thing by deception, breach of s 9 bond - submission that overall sentences do not reflect special circumstances - submission that the sentence of the magistrate was out of proportion with the criminality - substantial assistance - pleas of guilty Crimes Act 1900 s 9, s 117, s 178BA(1) LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 s 20(2) Crimes (Sentencing Procedure) Act 1999 s 5 PARTIES: Anarella Faye McKellar Regina FILE NUMBER(S): 2008/18186 SOLICITORS: Ms Robinson for Ms McKellar Mr Monaro for the Director of Public Prosecutions JUDGMENT 1. Anarella Faye McKellar's life has been seriously out of control. It has been out of control it seems since she started to associate with a man named Keith Cubby. She has made a serious commitment to getting her life back into control. 2. These sentence appeals raise the issue of structuring appropriate sentences which take into account the crimes which Ms McKellar has committed, but which also take into account her efforts at getting her life back into order. 3. When a person is sentenced by a Magistrate in the Local Court, they are entitled to appeal to the District Court against the severity of the sentence. When the District Court Judge hears the appeal, the District Court Judge can take fresh evidence. The District Court Judge re-sentences the offender according to what the District Court Judge thinks is the appropriate sentence. 4. In this case, Anarella McKellar has appealed from sentences she received from a Magistrate sitting in the Dubbo Local Court on two occasions. On the first occasion, she received four sentences. She is appealing from all of those. On the second occasion she received one sentence and she is appealing from that as well. 5. The first occasion she was sentenced in the Dubbo Local Court was 3 November 2008. On that occasion, Magistrate Hamilton had before him a number of crimes committed by Ms McKellar. In addition, he had to deal with the breach of a bond which had been imposed by another Magistrate, almost eighteen months beforehand. The result of the Magistrate's sentences was an overall period of custody of twenty-six months with a non parole period of nineteen months. For some reason the sentences were not back-dated to when Ms McKellar went into custody and when the period of just over a month additional custody is taken into account for that back-dating, the overall sentence was about twenty-seven months with a non parole of about twenty months. That overall non parole period is about equivalent to the statutory ratio of seventy-five percent. 6. I will now explain the sentences which the Magistrate imposed. The earliest crimes that his Honour was sentencing Ms McKellar for were two offences of larceny and goods in custody; the larceny was shoplifting. For those two crimes Ms McKellar had received a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for eighteen months from 7 February 2009. When she was before Magistrate Hamilton on 3 November 2008, she had breached that bond by the other offences which she had committed and which the Magistrate was sentencing her for. Those breaches were significant, one of them being an assault and the other being a long series of offences involving a stolen credit card. The Magistrate revoked the bond and, instead, sentenced Ms McKellar to two months imprisonment, which his Honour dated from the day that he imposed it. 7. The other offences which the Magistrate had before him on that day included a common assault, as I said, and the credit card offences. There were eleven credit card offences - which amounted to crimes against s 178BA(1) of the Crimes Act 1900 - of obtaining a valuable thing by deception. The Magistrate sentenced Ms McKellar to nine months imprisonment for seven of those offences and commenced that sentence on 3 January 2009, at the expiry of the two months which his Honour had imposed, and specified a non parole period of six months. For the other four credit card offences, his Honour imposed sentences of twelve months and commenced those sentences six months into the sentences he imposed for the earlier credit card offences. The commencement date was 3 July 2009 and the non parole period nine months. 8. The nine months sentence for the first seven were concurrent and the four months sentence for the second four offences were also concurrent. His Honour accumulated the two groups of sentences to the extent that I have mentioned. 9. The last matter which his Honour sentenced Ms McKellar for was a common assault. For that he imposed a sentence of nine months imprisonment. That sentence commenced at the expiry of the non parole period for the credit card offences and his Honour specified a non parole period of two months. 10. I have already referred to the overall result of those sentences by reference to the dates. Ms McKellar's overall sentence commenced on 3 November 2008 and expired on 2 January 2011. Her non parole period expired on 2 June 2010. 11. The second occasion that Ms McKellar was in court was on 22 January 2009, just a few weeks ago. Once again she was before Magistrate Hamilton. She was again charged with larceny. That had been committed on 29 September 2008. Larceny is an offence against s 117 of the Crimes Act. His Honour imposed a sentence of seven months imprisonment with a non parole period of three months. His Honour commenced that sentence at the same time as the sentence which he had earlier imposed on 3 November 2008 for the common assault, namely 3 April 2010. His Honour specified three months non parole period. So Ms McKellar's overall non parole period was extended by a month from 2 June 2010 to 2 July 2010. 12. I need to refer briefly to what happened when Ms McKellar committed these various crimes. The first in time was the larceny and goods in custody, committed on 18 August 2006. She was seen to steal some items from the Priceline Pharmacy in Macquarie Street, here in Dubbo. She was seen to be accompanied by a man. When police caught up with her they found her with other items which were stolen and they were stolen from shops and they were the goods in custody offences. It is for those two offences that she was given the eighteen month bond which Magistrate Hamilton revoked and substituted with two months imprisonment. 13. The next crime in time was a common assault, which occurred on 20 March 2008. Ms McKellar and her partner Keith Cubby were in Centrelink. There was another woman in Centrelink at the time called Nina Elwood. Passing her in Centrelink Ms McKellar said to Ms Elwood "You're a dog". Ms Elwood responded in the same terms. Ms McKellar took exception to that and according to the police facts "started to pull the victim's hair and punch her to the face and head". At the same time Mr Cubby started to punch Nina Elwood and threw her to the ground and kicked her to the head a number of times. The staff separated them and alerted the police. 14. The third set of crimes were the credit card offences. Ms McKellar and Mr Cubby, who was at that time her partner, came by two stolen credit cards, belong to somebody else. Over the afternoon of 9 June 2008 and the morning of 10 June 2008, they went around to various retail outlets here in Dubbo and used first, the MasterCard which had been stolen and second, the Visa card which had been stolen, to buy goods from those shops with the false credit cards. They were stopped on the first day when the MasterCard was rejected. They then switched to the Visa the next day and were stopped when that was rejected. It was a shopping spree using somebody else's credit cards which lasted about twenty-four hours. The effective sentence imposed for those eleven crimes was eighteen months imprisonment with a non parole period of fifteen months. 15. I should have recorded when talking about the common assault on Nina Edwards(as said) in Centrelink, that Ms McKellar was sentenced to nine months imprisonment for that crime, with a non parole period of two months. 16. The last offence in time which is the subject of a sentence appeal, was committed on 29 September 2008, and was once again a shoplifting offence. She was with her partner Mr Cubby. They went to a retail outlet in Dubbo. They helped themselves to a number of items. They were caught on the CCTV. Mr Cubby was seen to take some initiative so far as the commission of these offences was concerned. 17. I should note what the evidence is before me. I have as exhibit A the prosecution papers, regarding the sentences which were imposed on 3 November 2008. Exhibit D are the prosecution papers concerning the sentence which was imposed on 22 January 2009. Exhibit B is a note of the penalties imposed on Keith Cubby for his part in the credit card offences, which he committed together with Ms McKellar. Exhibit C is Mr Cubby's criminal record. Exhibit 1, tendered on behalf of Ms McKellar, is a personal note to the Magistrate or to me at least - it is directed to 'Your Honour' - and Exhibit 2 is Ms McKellar's up-dated criminal record. 18. Ms Robinson, who appears for Ms McKellar, makes various submissions regarding the sentences which have been imposed. Her first submission is that the overall sentences do not reflect special circumstances, which the Magistrate found, and there should be some adjustment. Her second submission was that at least two of the sentences might have attracted other than custodial sentences, namely the assault and the first crimes of larceny and goods in custody. Her third submission concerned the overall impact of the sentence, being out of proportion with the extent of the criminality involved. Her fourth submission concerned the sentences imposed for the credit card offences, which she said could have been more concurrent than they were, because they were committed over the relatively short period of time. Her fifth submission concerned a very significant event, which occurred since the Magistrate sentenced Ms McKellar on 3 November 2008. Although she had entered pleas of not guilty for the credit card offences, Mr Cubby her co-offender and partner in life, had entered not guilty pleas. Ms McKellar decided to co-operate and she gave evidence for the prosecution against Mr Cubby. It is agreed that the evidence amounted to substantial assistance. He was convicted. She is entitled to a discount on the sentences which she received because of that assistance. Ms Robinson's sixth submission concerned periods which should be allowed on supervision on parole, or alternatively, under bonds to be of good behaviour. Her seventh submission concerned back dating of the overall sentences to commence when Ms McKellar first went into custody. 19. Ms Shields appeared briefly for the respondent Director of Public Prosecutions on this appeal. She disclosed at the earliest opportunity the fact that on a previous occasion she had acted for Ms McKellar. As soon as she could, she withdrew from acting for her client and Mr Monaro appeared for the Director. Mr Monaro's position was that he generally did not disagree with the submissions made by Ms Robinson. He submitted regarding the credit card offences that sentences for those crimes should not be fully concurrent because of the number of separate victims of the crimes. 20. For various reasons - including the need to update the evidence before me concerning the sentence which had been imposed on 22 January 2009 and to institute a formal appeal from that sentence - these proceedings have been adjourned a number of times. This has no doubt resulted in some degree of inconvenience to Ms McKellar who has been to court a number of times and her case has not been dealt with as early as it might have, although it has been important to obtain the information which we now have. 21. When the matter resumed today, Ms Robinson focused her attention on sentences imposed for the credit card offences. Mr Cubby's overall sentences for the same crimes was a period of twenty-one months with eighteen months non parole period. His criminal history was substantially longer than Ms McKellar's. Ms McKellar's offending behaviour in fact commenced at about the time that she started her relationship with Mr Cubby. In fact Ms McKellar, who is now thirty-two, had no criminal record at all until she was twenty-seven. In addition of course Ms Robinson argues Ms McKellar pleaded guilty not at the earliest opportunity, but on an earlier occasion, and should be entitled to a discount not only for the assistance she gave in the proceedings against Mr Cubby, but for that plea. 22. The result should be a sentence which is substantially less than the sentence imposed on Mr Cubby. In fact when the overall sentences are compared, as they presently stand, Mr Cubby received a sentence of twenty-one months compared with her overall sentence of eighteen months. Mr Cubby's non parole period was eighteen months, with her non parole period of fifteen months. Clearly that needs a significant adjustment. 23. Another focus of Ms Robinson's submissions today was her client's rehabilitation. She acknowledged that she clearly needs to see the Probation and Parole Service. Her client, she said, is open to addressing her drug problem including undertaking a residential rehabilitation program, once she has had the opportunity to become reunited with her family. One of the clear signs of her rehabilitation, in my opinion, was referred to by Ms Robinson as the steps she made in giving evidence against Mr Cubby. Mr Cubby, I expect, has been a bad influence in Ms McKellar's life since she has been associated with him. She has now not only broken away from that relationship, but has taken steps to see that he has been dealt with by the justice system as he should have been. 24. So far as individual sentences are concerned, Mr Monaro did not take exception to the submissions made by Ms Robinson. She proposed that for the larceny and goods in custody offences committed on 18 August 2006, instead of revoking the bond and imposing a custodial sentence, an appropriate course would be to substitute a longer bond. I agree with that submission, although it was a serious breach of the bond. It was one of her earliest offences and s 5 of the Crimes (Sentencing Procedure) Act requires a judicial officer to sentence an offender to imprisonment only if there is no other alternative. I regard a longer bond as an appropriate alternative, although I regard revocation of the earlier bond as also appropriate. 25. So far as the assault on 20 March 2008 was concerned, Ms Robinson's submission was that this amounted to Ms McKellar's first crime of violence. She has a limited adverse history and her submission was that this should be met by another bond. I also accept that submission because of her limited previous record and s 5 of the Crimes (Sentencing Procedure) Act requires me to consider alternatives. 26. So far as the credit card offences were concerned, Miss Robinson realistically and appropriately acknowledged that they should be met with full-time custodial sentences. This is so because she committed eleven separate crimes either on eleven separate occasions or against eleven separate victims, or both, over a period of some twenty-four hours, using two credit cards. However, I propose to commence those sentences from when she went into custody on 29 September 2008. 27. I am going to structure the sentences which Ms McKellar receives for those eleven crimes as follows. She previously had an overall sentence of eighteen months, with a fifteen month non parole period. As I said that needs significant adjustment, because of the assistance which she has given in the prosecution of Mr Cubby and because of her plea of guilty. There needs to be a marked difference between her sentence and that received by Mr Cubby. 28. I propose that her overall sentence for those eleven crimes will be twelve months, with a non parole of six months. That sentence takes into account her assistance, her role in the crimes and her pleas of guilty. The sentences would have been significantly higher and closer to what they were so far as the Magistrate was concerned, but for those factors. 29. Once again Ms Robinson turning finally to the shoplifting which occurred on 29 September 2008, realistically acknowledges that a custodial sentence was appropriate. Her client was bail at the time and had a record for similar offences. She suggested some partial accumulation of that sentence with the other custodial sentences. I propose to do that. 30. In a moment I will announce the particular sentences which I would impose in allowing her appeal. But I can indicate that the global result will be as follows. There will be a twelve month sentence from 29 September 2008 to 28 September 2009, the non parole period will commence on 29 September 2008 and conclude on 28 April 2009; that will be an overall non parole of eight months. The ratio between the non parole period of eight months and the overall sentence of twelve months, has been altered taking into account the special circumstances which I find of Ms McKellar's need for assistance in her rehabilitation. Accordingly the formal orders which I make in this appeal are as follows. 31. Under s 20(2) of the Crimes (Appeal and Review) Act 2001, I set aside all of the sentences of the learned Magistrate. For the seven offences of obtain valuable thing by deception contrary to s 178B A(1) (described as Sequences one to seven), I impose a sentence of a fixed term of six months to commence on 29 September 2008 and to expire on 28 March 2009. 32. For the four offences of obtain a valuable thing by deception, again s 178BA(1) of the Crimes Act (described as Sequences eight to eleven) I impose an overall sentence of nine months imprisonment, to commence on 29 December 2008, and to expire on 28 September 2009. I fix a non parole period of three months to commence on 29 December 2008 and to expire on 28 March 2009. 33. For the offence of larceny, committed on 29 September 2008, again s 117 of the Crimes Act, I sentence Ms McKellar to seven months imprisonment to commence on 29 January 2009 and to expire on 28 August 2009. I fix a non parole period of three months to commence on 29 January 2009 and to expire on 28 April 2009. 34. For the common assault, committed on 20 March 2008, again s 61 of the Crimes Act, instead of imposing a sentence of imprisonment, under s 9 of the Crimes (Sentencing Procedure) Act 1999, I make an order directing Ms McKellar to enter into a good behaviour bond for one year from today. The only condition of that good behaviour bond is that she be of good behaviour. 35. Finally for the offences of larceny against s 117 of the Crimes Act, and goods in custody again s 527C(1)(a) of the Crimes Act, committed on 18 August 2008, I revoke the good behaviour bond previously imposed. Instead of that bond and instead of imposing a sentence of imprisonment, under s 9 of the Crimes (Sentencing Procedure) Act, I make an order directing Ms McKellar to enter into a good behaviour bond for three years from today. That good behaviour bond is subject to the following conditions- 1. That she be of good behaviour. 2. That she report to the office of the New South Wales Probation and Parole Service at Bourke within seven days of her release on parole. 3. That she advise that service and the Registrar of this court of her residential address and of any change in that address. 4. That she accept supervision from the Probation and Parole Service and accept all of their reasonable recommendations and directions so far as alcohol and other drug assessment and long term residential rehabilitation programmes and counselling for domestic and family violence issues. HIS HONOUR: Now I think that is it. So a number of things, one whether I have made all the orders I need to make to dispose of the appeals. Two, whether the arithmetic is correct. MONARO: Your Honour I just-- HIS HONOUR: Yes Mr Monaro. MONARO: In relation to the bond matter, the revocation of bond matters-- HIS HONOUR: Yes. MONARO: --there were two bonds imposed originally, is your Honour-- HIS HONOUR: Thanks. MONARO: --intending to make two concurrent bonds I assume? HIS HONOUR: What's the custom does - I didn't realise there were two bonds were, it's just got here s 9 bond for two offences. But where's the-- MONARO: Well your Honour I think. HIS HONOUR: This is the original larceny isn't it. No I think it's one bond Mr Monaro, it's behind - it's tab 11-- MONARO: Yes, yes I'm sorry Your Honour yes. HIS HONOUR: Tab 11 yes, I think I'm right, what do you think? MONARO: Yeah it does appear to have been-- HIS HONOUR: One bond for the two offences. MONARO: Mm, thank you your Honour. HIS HONOUR: Good. Now is there any other order that I need to make Ms Robinson? ROBINSON: I don't believe there's any other order. However, just in relation to the maths, your Honour indicated an overall non parole of eight months, my calculation the overall non parole period is seven months, is that what your Honour intended? Effectively goes from September until April which is seven months however when your Honour was-- HIS HONOUR: Okay. Yes it's probably what I - yes I might've actually looked at eight months before I did my - that might be an earlier calculation just let me - no you're right it's seven months I'm wrong. 36 I correct my remarks in the judgment. The overall non parole period is seven months, with the head sentence of twelve months, which I confirm reflects the special circumstances but the dates I specified are correct. ROBINSON: Correct. HIS HONOUR: Good thank you. Now anything else? ROBINSON: Nothing that I can see arising. MONARO: No your Honour. 37. All right. Ms McKellar I am obliged to explain all this to you. You have won your appeals, all of them and I've adjusted your sentences. The overall reason is what I said, you look as though you're making a serious effort of getting your life back on track. Am I right - yeah and I've given my reasons, you've heard what I said. 38. The gaol sentences I've kept for the credit card spree that you went on for twenty four hours and for the recent shoplifting from the flower place in September last year. That's because of your record, but I've reduced the credit card fraud sentence significantly, because you helped in the case against Cubby and because you pleaded guilty I've reduced it from overall eighteen months, down to overall twelve months and from the minimum of fifteen months to a minimum of six months because of what I've said. Your recent shoplifting, you've still got the seven months and you've still got the three months which the Magistrate set you, but two of those three months you're serving at the same as the six months, all right. 39. So your overall sentence I've back-dated to start on 29 September 2008, that's when you first went into custody. You've got twelve months, so your overall sentence finishes a year after that 28 September this year. That's when your overall sentence finishes. 40. Your effective non parole period is seven months, starting back then in September and your non parole period finishes on 28 April 2009 - 28 April 2009. In a moment I am going to make an order that you be released on that day on parole. I've given you a bond for twelve months for clocking Ms Edwards in Centrelink, all right and that's just to be of good behaviour there's no other conditions. 41. The main sentence so far as I'm concerned - so far as your future is concerned - is the three year good behaviour bond from today. And that's so that you can help yourself getting your act together. Probation and Parole Service are in charge of your supervision. You've got to report to them seven days after you're released on parole at Bourke, keep them informed of your address and this court of your address. You've got to stay out of trouble for three years and they're going to give you advice about drug and alcohol rehabilitation, family violence, domestic violence and I am directing you to follow their advice so far as it's reasonable which I'm sure it will be and they're going to help you. They're trained to do that in getting your life back together. They're good at what they do and they know how to help people in your situation, that's what they're trained to do. So that lasts three years to give you a good opportunity and if need be if that includes a residential rehab programme that might be the best thing for you to do. But you've got to stay out trouble for three years or you'll be back before me and I will have to reconsider the sentence. 42. There is one other formal order which I have to make under s 50 of the Crimes (Sentencing Procedure) Act, I order that Ms McKellar be released to parole on 28 April 2009. I am not fixing any conditions on parole because of the good behaviour bond of three years. HIS HONOUR: Now do you understand all of that? All right, it's a lot to understand, Ms Robinson might help you if you need when she's available and explain but you're out of gaol on 28 April this year and then it's over to you and the Parole Service to carry on sorting out your life. You've made a very good start. Nothing else Ms Robinson? ROBINSON: Thank you your Honour. HIS HONOUR: Mr Monaro? MONARO: Thank you your Honour. HIS HONOUR: Okay, Ms McKellar can be taken down and good luck. ********** 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.