R v Butler [2000] NSWCCA 525

New South Wales Court of Criminal Appeal

CITATION : R v Butler [2000] NSWCCA 525 FILE NUMBER(S) : CCA 60147/00 HEARING DATE(S) : 4 December 2000 JUDGMENT DATE : 4 December 2000

PARTIES : Crown - Respondent Lisa BUTLER - Applicant JUDGMENT OF : Simpson J at 1; Howie J at 22

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0035 LOWER COURT JUDICIAL Coleman DCJ OFFICER :

COUNSEL : W G Dawe QC - Crown J S Andrews - Applicant SOLICITORS : S E O'Connor - Crown D J Humphreys - Applicant

LEGISLATION CITED : Sentencing Act 1989 DECISION : Leave to appeal granted, appeal allowed, sentenced quashed - a total term of eighteen months' imprisonment with a non-parole period of nine months to commence from 3 March 2000 imposed.

IN THE COURT OF CRIMINAL APPEAL 060147/00

SIMPSON J HOWIE J Monday 4 December 2000

REGINA v Lisa BUTLER Judgment

SIMPSON J : 1 The applicant, Lisa Butler, seeks leave to appeal against the severity of a sentence imposed upon her by Coleman DCJ in the District Court on 3 March 2000 following her plea of guilty to a charge of attempting to escape from lawful custody. The maximum penalty applicable to the offence is imprisonment for a term not exceeding ten years. Coleman DCJ sentenced the applicant to imprisonment for a period of eighteen months, made up of a minimum term of twelve months and an additional term of six months. 2 In order to justify departure from the ratio then referred to in s 5(2) of the Sentencing Act 1989, his Honour found special circumstances, these being the applicant's need for an extended period of supervision on her release. His Honour's determination in this respect is not in issue. 3 The applicant was serving a term of imprisonment which, so far as I can ascertain from the papers, was imposed in April 1999 for offences of larceny and goods in custody. That sentence was a sentence of twelve months, made up of a minimum term of two months and an additional term of ten months. For reasons which are not entirely clear, her parole was revoked on 6 July 1999 and she was required, subject to any subsequent determination of the Parole Board, to serve what remained of the additional term of ten months which would have entitled her to release on 7 May 2000. 4 The effect of this is that the applicant was in fact serving the additional term at the time of the offence. She was being held at the Mulawa Correctional Centre at Silverwater. 5 The attempt to escape was made early in the morning of Friday 31 December 1999. The applicant and a co-offender managed to obtain access to what was described as a sterile area by climbing over a barbed wire fence and a brick fence. They had prepared to attempt to climb over a third fence. Both gave evidence in the sentencing proceedings which his Honour accepted that before they were discovered they had abandoned the attempt. However, his Honour also accepted that the reason for abandoning the attempt was recognition that the attempt would fail. Further, while his Honour accepted that the offence was to some extent impulsive, he did not accept that it was entirely spontaneous, because the path they followed showed that there was a degree of planning in the execution of the escape. 6 The applicant gave an explanation for her participation which centred around her concern for her four year old daughter, who is presently in the custody of the applicant's father. She said that, it being New Year's Eve, she feared her father might take the child to the city where she would be in danger. His Honour was not satisfied that such an explanation amounted to any compelling reason having a bearing on the seriousness of the offence. 7 The applicant was born on 14 June 1979. She was twenty years of age at the time of the offence. She has a relatively lengthy criminal history, which is predominantly made up of matters identified either as stealing or shoplifting. She was born in New Zealand and was adopted at two months of age. The family moved to Australia when she was four and initially lived in Redfern. Shortly after that, she was sexually assaulted, by whom does not appear. The family moved to Campbelltown. The applicant attended school until Year 8, when at the age of fourteen she left school, left home and took up residence with her twenty year old boyfriend. This was preceded by some family disharmony, apparently originating in the religious beliefs of the applicant's parents, which she did not share. She became involved with heroin as a teenage and it seems that it was this that precipitated her offences of dishonesty. She has attempted detoxification on two occasions but without marked success. She has a daughter now aged four, who is the product of the relationship with the man with whom she lived after leaving home. The man has since died. As noted above, the child now lives with the applicant's father, who has separated from her mother. 8 Very shortly after the offence, the applicant expressed her remorse in a letter dated 3 January 2000 and directed to the supervisors of the Mulewa Gaol. That letter was before his Honour. 9 Prior to sentencing, the applicant had made some attempts at rehabilitation in prison and had undertaken educational courses. She gave evidence of having received a boost to her self esteem when she represented inmates in a consultation with politicians over prison matters. That material has been supplemented in this Court by an affidavit sworn by the applicant today, 4 December, and accepted into evidence on the usual basis, that is that it may be taken into account in the event that the Court decides to resentence. 10 The transcript of the evidence given by the applicant in the District Court makes it clear that she had some difficulty in giving evidence and behaved in some respects inappropriately. This left the sentencing judge unimpressed but he was satisfied that it was the result of immaturity and her unfamiliarity with the court process. 11 The matters raised in support of the application for leave to appeal are threefold, the first being a technical matter which can readily be corrected. The sentencing judge having imposed a sentence of three years or less, s 24 of the Sentencing Act 1989 which then applied required him to make an order directing release on parole at the expiration of the minimum term. His Honour did not make this order but noted that she would be eligible for release on parole at the time. Regardless of the outcome of the substantive matters raised on appeal, that technical oversight should be corrected. 12 The second matter raised concerned parity with the co-offender. In fact, both offenders were sentenced identically. The parity argument is really that, taking into account relevant circumstances, particularly subjective matters, the applicant deserved to be sentenced more leniently than the co-offender. This was because the co-offender is three years older than the applicant. This appears to be based on an assumption either that the co-offender was the instigator of the offence, or that her relative presumed greater maturity rendered her more culpable. Additionally, the co-offender is serving a sentence for murder, to be contrasted with the relatively less serious offences on the applicant's record. 13 In oral argument it was also put that as the co-offender had a more serious record, she was entitled to a lesser degree of leniency than the applicant would be. 14 These matters do not persuade me that the principles of parity require that the applicant be sentenced more leniently than her co-offender. I do not think the parity argument is made out. 15 The final argument and really the nub of the application is that the sentence was in any event manifestly excessive. In support of this argument, it was put that the sentence could have been backdated instead of commencing as it did on the date of sentence, which was 3 March and a little over two months after the date of the offence. 16 Reference was made to sentencing statistics which show that in the period between January 1993 and December 1994 fifty seven per cent of offenders of this kind were sentenced to total periods of imprisonment of twelve months or less, forty four per cent of six months or less. These were however statistics drawn from a total of sixteen cases, which is barely an adequate sample on which to draw any significant conclusions. 17 A number of specific matters were referred to in the submissions on behalf of the applicant. These included the remorse demonstrated, the plea of guilty, the fact that the attempt was no more than an attempt which had been abandoned, and the age and efforts at rehabilitation made by the applicant. All of these matters were mentioned by his Honour and there is no apparent failure to take any of them into account other than such as may be inferred from the length of the sentence itself. 18 It is necessary to observe the argument put on behalf of the Crown which centred around the concept of deterrence, principally general deterrence. It was argued that sentences of escape and attempting to escape from lawful custody have an unusual deterrent significance, for reasons that are obvious and need not here be detailed. That is a significant matter and it should not be overlooked when it comes to sentencing for escaping or attempting to escape. 19 The question of backdating is complicated and I have come to the view that it was open to his Honour to commence the sentence on the date in which it was imposed and that no error can be identified in this respect. There is accordingly no error patent in the approach taken by his Honour. Nevertheless, I have come to the view that the sentence imposed did exceed the bounds of legitimate sentencing discretion and in particular did not take account of the applicant's youthfulness. Although his Honour's assessment that the attempt was not entirely spontaneous must be accepted, it is also plain that it was opportunistic and impulsive and that the degree of planning was very limited indeed. Some credit must also be given for the abandonment of the plan before the two were discovered, although that credit is limited by the finding that it was brought about by need rather than by mature reflection on the course that the two were taking. 20 Accordingly, I am satisfied that there was error involved in the sentence and I would therefore grant leave to appeal, allow the appeal and quash the sentence. That being the case, I would take into account the very encouraging new material that was placed before this Court in the affidavit of the applicant sworn today. I would not interfere with the total term of the sentence but I would adjust the sentence by reducing what must now be called the non-parole period. 21 The sentence I propose is one of a total term of eighteen months' imprisonment with a non-parole period of nine months to commence from 3 March 2000. That means that the applicant was entitled to release on 2 December and I would direct her immediate release as soon as the necessary administrative procedures can be affected. 22 HOWIE J: I agree. The non-parole period imposed by his Honour cannot be considered in isolation but must be considered in light of the whole period that the applicant was required to serve, including the balance of parole and the escape. The applicant has been in custody since 8 July 1999. This is the longest period she has ever spent in custody. In light of her youth and personal circumstances and having regard to the offences for which she was in custody, the non-parole period specified by his Honour was in my view excessive and therefore should be reduced in the way in which the presiding judge has indicated. 23 SIMPSON J: The orders of the Court will be as I have proposed.