Regina v Pagett [2000] NSWCCA 438

New South Wales Court of Criminal Appeal

CITATION : Regina v Pagett [2000] NSWCCA 438 FILE NUMBER(S) : CCA 60488/99 HEARING DATE(S) : 23 February 2000 JUDGMENT DATE : 23 February 2000

PARTIES : Regina v Melissa Dianne Pagett JUDGMENT OF : Hidden J at 1,23; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0093 LOWER COURT JUDICIAL Goldring DCJ OFFICER :

COUNSEL : C J Lyons (Appellant) D M L Woodburne (Crown/Respondent) SOLICITORS : Legal Aid Commission of NSW (Appellant) S E O'Connor (Crown/Respondent) CATCHWORDS : Criminal law - sentence appeal - parity argument - whether sentencing judge should have taken into account that an offender required by the Parole Board to serve an additional term by reason of a breach of parole conditions - might well expect an early review of that direction. LEGISLATION CITED : Crimes Act 1900 CASES CITED: Regina v Train (1999) NSWCCA 109; Regina v Jones (Unreported) NSWCCA 30 June 1994 DECISION : Application for leave to appeal granted - appeal dismissed

IN THE COURT OF CRIMINAL APPEAL CCA60468/99 HIDDEN J CARRUTHERS AJ

Wednesday 23 February 2000 REGINA v Melissa Dianne PAGETT JUDGMENT

1 HIDDEN J: I will ask Acting Justice Carruthers to give the first judgment. 2 CARRUTHERS AJ: Melissa Dianne Pagett seeks leave to appeal against a sentence imposed upon her by Judge Goldring at the Sydney District Court on 9 August 1999. The applicant had earlier pleaded guilty to one count of robbery whilst armed under s97(1) of the Crimes Act, 1900, as amended, which offence attracts a maximum penalty of 20 years penal servitude. The details of that offence need not be noted, except to record that one of the applicant's two co-offenders was David Charles Thomas, to whom I shall later refer. 3 The ground upon which this application is based is that of an asserted lack of parity with the sentence imposed upon Thomas by Judge Goldring who, in accordance with normal District Court practice, sentenced both co-offenders and a third co-offender, to whom it is not necessary to make reference. 4 Before I deal with the sentence imposed by Judge Goldring on the applicant for the subject offence, it is convenient to trace earlier relevant sentences imposed upon the applicant. On 22 November 1996, the applicant was sentenced at the Penrith District Court to concurrent sentences in relation to offences of armed robbery. A minimum term was fixed of 18 months to date from 24 October 1996 and to expire on 23 April 1998, with an additional term of two and a half years to date from 24 April 1998 and to expire on 23 October 2000. 5 On 23 April 1998, the applicant was released to parole. However, she failed to comply with certain parole conditions, namely she failed to remain at Kedesh House, failed to inform the Probation and Parole Service of her change of address, and failed to report. These breaches occurred in October 1998. 6 Accordingly, on 24 November 1998, at a time when the Parole Board was unaware of the applicant's location, it revoked the applicant's parole and ordered her to serve the then balance of the additional term of one year eleven months and two days. Whilst the applicant was at large, if I could use that expression, the subject offence was committed on 12 December 1998. 7 The applicant decamped after the subject offence was committed and it was not until 24 February 1999 that she was taken into custody at Mulawa Correctional Centre to commence service of the balance of the additional term, that is to say the one year eleven months and two days, to which I have already referred. That period was to date from 24 February 1999 and to expire on 16 February 2001. 8 Although the applicant had been taken into custody at the Mulawa Correctional Centre on 24 February 1999, the police officers investigating the subject offence were not aware of that fact until 18 March 1999. On that date, having ascertained her whereabouts, the police officers charged the applicant with the subject offence. 9 Against this background, Judge Goldring, at the Sydney District Court on 9 August 1999, sentenced the applicant to a minimum term of two and a half years to date from 9 August 1999, the date of sentence, and to expire on 8 February 2002 in relation to the subject offence. He imposed an additional term of 18 months to date from 9 February 2002 and to expire on 8 August 2003. The consequence of the sentence, thus structured, is that between 9 August 1999 and 16 February 2001 the applicant is concurrently serving the additional term flowing from the revocation of her parole, together with the sentence for the subject armed robbery. 10 After 16 February 2001, the applicant, for the first time, will be serving a period of custody solely referable to the subject armed robbery, thus, on the assumption that she would be released to parole on 8 February 2002, she will have only served, according to the calculations of the Crown, 297 days for that offence. 11 I then turn to the sentencing history of the co-offender Thomas. On 17 February 1993 he was sentenced, at the Sydney District Court, concurrently on four counts of break, enter and steal to a minimum term of four years three months, to date from 11 September 1992, and to expire on 10 December 1996, with an additional term of three years five months to date from 11 December 1996 and to expire on 10 May 2000. 12 On 10 December 1996, Thomas was released to parole. As earlier indicated, the subject offence was committed in company with the applicant on 12 December 1998. That offence of course involved a breach of Thomas' parole conditions, but at that stage no steps were taken by the Parole Board with regard to that breach. On 14 December 1998, Thomas was arrested for the subject offence and remained in custody on remand until he was sentenced by Judge Goldring at the District Court on 11 June 1999. If I could say, parenthetically, it will be observed this was approximately two months before Judge Goldring sentenced the applicant. 13 On 11 June 1999, Judge Goldring sentenced the offender Thomas to a minimum term of two and a half years to date from 14 December 1998, the date he was taken into custody for the subject offence, and to expire on 13 June 2001. His Honour imposed an additional term of eighteen months to date from 14 June 2001 and to expire on 13 December 2002. 14 Eleven days after Judge Goldring imposed this sentence, that is to say on 22 June 1999, the Parole Board revoked Thomas' parole in relation to the four break, enter and steal matters and directed that he was to serve the balance of the additional term, namely one year four months and twenty-nine days to date from 14 December 1998 and to expire on 12 May 2000. The relevant breach of parole was the commission of the subject offence. 15 That means, of course, that the whole of the additional term flowing from the breach of parole will be served by Thomas concurrently with the minimum term for the subject offence. 16 In the parity argument, counsel, in written submissions for the applicant, focused upon the fact that the applicant's sentence for the subject offence was fixed to commence from the date of sentence, whereas Thomas' minimum term was fixed to commence from the date of his arrest. Parity, counsel contended, would have required that the applicant's sentence be backdated to the date of arrest, vis 18 March 1999. 17 The Crown contends that this is not a disparity situation. The Crown relied upon the fact that whereas Thomas' revocation of parole was related to the commission of the subject offence, the applicant's revocation of parole was related to her failure, prior to the commission of the subject offence, to comply with her parole conditions. 18 It is significant, the Crown contends, that in sentencing the applicant, his Honour did not take into account the further breach of parole by the applicant in committing the subject offence, which was clearly an aggravating circumstance: See R v Train. (1999) NSWCCA 109 at par 15. In those circumstances, the applicant received the benefit of not having the increased criminality arising out of the commission of an offence on parole reflected in the sentence for the subject offence. In short, the applicant was serving a sentence for breach of her parole constituted by breaches of conditions which occurred prior to commission of the subject offence, whereas Thomas had not committed any breach of his parole independently of the commission of the subject offence. 19 Further, the applicant committed, the Crown submits, the subject offence whilst on parole from an offence of violence of the same type, namely armed robbery. This is, it is contended on the authority, if authority be needed, of R v Jones Unreported, NSWCCA, 30 June 1994. an aggravating factor. Thus, contrary to the submissions on behalf of the applicant, the Crown contends that the antecedent circumstances could not be considered to be identical. Thus, the Crown contends, there was no error made in not backdating the applicant's sentence to the date of commission of the said offence, in the sense of any violation of the principle of parity. 20 Ms Lyons, who appeared before this Court on behalf of the applicant, but who did not prepare the written submissions on behalf of the applicant, has raised a further interesting argument. She has put to the Court that it is well-known that where there is a revocation of a parole order and an order that the offender serve the balance of the additional term, such offender can reasonably expect to have his or her breach of parole reviewed by the Parole Board, and that such review would take place within a reasonable period of the direction that the additional term be served. This, it was contended, was not a factor taken into account by the sentencing Judge and should have had a direct bearing on the parity argument. No authority was relied upon in respect of this submission. 21 Having carefully considered the argument, I am not persuaded that, had it been drawn to the attention of the sentencing Judge, it could reasonably have affected the sentences which he imposed upon the applicant. Bearing in mind the particular circumstances associated with the applicant's breach of parole, for reasons which I have indicated, and the commission of the subject serious offence on 4 December 1998, one could only, to put it at its highest, speculate upon when the applicant would have been reviewed by the Parole Board and what action, if any, the Parole Board would have taken. 22 Thus, in my view, the submission does not undermine the rationale expressed in the sentences his Honour imposed upon the applicant, as distinct from the co-offender Thomas. In my view, the submissions put on behalf of the Crown are valid, and I am unable to accept that there has been any breach of the parity principle. In the circumstances, I would propose, however, that the application for leave to appeal be granted but that the appeal be dismissed. 23 HIDDEN J: I agree. The orders of the Court will be those proposed by Acting Justice Carruthers.