New South Wales Court of Criminal Appeal CITATION : Regina v Liddicoat [2000] NSWCCA 111 FILE NUMBER(S) : CCA 60014/99 HEARING DATE(S) : 13 March 2000 JUDGMENT DATE : 13 March 2000 PARTIES : Michelle LIDDICOAT - Applicant Regina - Respondent JUDGMENT OF : Simpson J at 1; Smart AJ at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0573 LOWER COURT JUDICIAL Mahoney DCJ OFFICER : COUNSEL : A C Haesler - Applicant C K Maxwell QC - Respondent SOLICITORS : T A Murphy - Applicant S E O'Connor - Respondent LEGISLATION CITED : Criminal Procedure Act 1986 Sentencing Act 1989 Cook [1999] NSWCCA 234, unreported CASES CITED: The Queen v Postiglione (1997) 71 ALJR 875 R v Fernando (1992) 76 A Crim R 58 R v Hickey unreported NSW CCA 27 September 1994 DECISION : Leave to appeal granted; Appeal allowed to the extent of restructuring the sentence on the major charge; Orders - see paragraph 16 IN THE COURT OF CRIMINAL APPEAL 60014/99 SIMPSON J SMART AJ Monday 13 March 2000 REGINA v Michelle LIDDICOAT Judgment SIMPSON J: 1 The applicant seeks leave to appeal against sentences imposed on her on 11 December 1998 by Judge Mahoney in the District Court following her pleas of guilty to a charge of being carried in a conveyance without the consent of the owner, and a charge of assault with intent to rob in circumstances of aggravation. The first-mentioned charge carries a maximum penalty of penal servitude for five years; the second a maximum penalty of penal servitude for twenty years. Judge Mahoney sentenced the applicant on the more serious charge to a total term of penal servitude for four years which he divided conventionally into a minimum term of three years and an additional term of one year. On the other charge he imposed a fixed term of twelve months penal servitude. 2 The two offences were committed during the morning of Sunday 29 March 1998. The applicant and a co-offender, David Cook, had possession of and were travelling in a motor vehicle which had been stolen four days previously. Cook was driving the vehicle. 3 Just before midday the vehicle stopped outside the Petersham fire station. While Cook remained in the vehicle the applicant alighted and approached a middle-aged woman who was about to enter the Petersham fire station. The applicant took hold of the woman's handbag and demanded possession of it. The two struggled over the bag. The applicant was in possession of a knife which she later said she had for the purpose not of inflicting injury on anybody but of using it to cut the strap of the bag in order to gain its possession. Cook shouted at the applicant to get in the vehicle, which she did. The woman retained possession of the bag. 4 The applicant gave evidence in the sentencing proceedings. She was born on 19 July 1966 and was not quite thirty-two years of age at the time of the offences. She had a long-standing drug problem and had been on a methadone program since 1990. She is the mother of four children but had custody of none of them. Three are wards of the State, one is in the custody of his father. The youngest had recently been taken into State custody at the time of the offence and the applicant said that this precipitated a return to drug use and she had used cocaine, this being a drug she had not previously used. She said that she had been regularly attending Narcotics Anonymous meetings and relapse prevention programs to assist with her drug problems. 5 The applicant has a relatively lengthy criminal record but the large majority of the offences are offences of prostitution. She has twice been charged with fare evasion, once with obtaining a benefit by deception, once, in 1983, with stealing and twice with unlawful use of motor vehicles and possession of utensils. The offence of obtaining a benefit by deception, for which she was sentenced in June 1998, related to claiming social security benefits based upon her custody of the children at a time when they had been taken into State care. Apart from that, she had been largely out of trouble since 1990. She appeared for sentence with her co-offender, Cook, and sentencing took place late in the afternoon of Friday 11 December 1998 and the sentencing judge commenced his remarks by observing that his reasons would be expressed more succinctly than would otherwise have been the case. On the Monday morning he relisted the matter in the absence of the applicant or her co-accused, but having consulted their legal representatives, for the purpose of noting that, although he had not expressly said so, he had taken into account a period of pre-sentence custody. In relation to the co-accused, Cook, that was of some significance because he had in fact spent eight months in custody referable to the offences for which he was being sentenced. In relation to the present applicant less significance could be attached to the omission of reference to the pre-sentence custody because the judge was told that she had then spent only eight days in custody referable to the offences. 6 During the course of the present application we were told by counsel for the applicant, and the Crown did not dissent, that the applicant had in fact spent an additional one month in pre-sentence custody following a grant of bail but pending her meeting the bail conditions, and an additional ten days at the expiration of an earlier sentence and prior to sentencing in relation to this offence. She had, accordingly, a period of one month and eighteen days for which she was entitled to consideration. 7 As I have observed, the sentencing judge said that he did take the period of eight days into account, and it was error not of the judge's making that the additional period of one month and ten days was not taken into account. In any event, for the reasons given in Cook, ([1999] NSWCCA 234, unreported) the applicant was entitled to the benefit of that time and preferably the sentence would have been backdated to accommodate that period of pre-sentence custody. 8 Two grounds of appeal were advanced on behalf of the applicant. The first raised questions of parity in relation to the sentences imposed on Cook, this having arisen as a result of the decision of this court in Cook. Cook was charged with three counts, one of robbery, one of aiding and abetting and attempted robbery. This was the attempted robbery by the applicant at the fire station and one of attempting to use an offensive weapon to prevent lawful apprehension. Four further offences were taken into account pursuant to s 21 of the Criminal Procedure Act 1986. These were offences relating to the use of the motor vehicle the subject of the first charge against the applicant. Initially Cook was sentenced to an effective total term of imprisonment for six years and nine months, made up of a minimum term of six years and an additional term of nine months. Having regard to the time he had already spent in custody, the effective combined minimum terms were of six years eight months and twelve days. The additional term remained one of nine months. 9 On appeal this court, constituted by Justice Studdert and myself, re-sentenced him to a total term of penal servitude for six years made up of a minimum term of three and a half years and an additional term of two and a half years. It is unnecessary here to recapitulate in detail the sentencing errors identified in that case that led the court to grant leave to appeal and allow the appeal. It will be necessary, however, to refer to some points of differentiation between the two cases. 10 What is here put on behalf of the applicant is that in sentencing the two offenders together, Judge Mahoney determined on an appropriate ratio or proportion between the two cases and that proportion was disturbed by the decision in this court. Counsel for the applicant relied upon the decision of the High Court in The Queen v Postiglione (1997) 71 ALJR 875, with particular reference to pp 878 and 879. 11 The complaint that is now made is that after Cook's re-sentencing, the two offenders were sentenced effectively to the same minimum term, although the charges Cook faced were more numerous. He had an extensive criminal history with prior record including three armed robbery offences in relation to which he had been incarcerated. The difference between the minimum terms after Cook's re-sentencing is about 16.5 per cent. It was suggested this did not adequately reflect the difference in criminality between the two cases. Here it is to be said that there were very particular features in Cook's case. One matter to which reference should be made is that one of the factors that led this court to find error in the sentence imposed on him was that the sentencing judge misapprehended the maximum sentence applicable to his case. However, as was pointed out, that was expressly identified in the judgment as being an independent basis for discerning error in the sentencing process. What is perhaps more important is that Cook made out an extremely strong subjective case, not least by the reference to the principles stated in R v Fernando (1992) 76 A Crim R 58, R v Hickey, unreported NSW CCA, 27 September 1994. 12 Reference to the judgment in Cook will reveal special features of the subjective case there made out. However, the applicant in her own way also made out a strong subjective case. She could not point to a history of familial deprivation as could Cook but her long history of drug use and the loss of her children meant her subjective features were comparable with, though not equal to, those of Cook. More powerful considerations in her favour were her recent apparent rehabilitation or attempt at it with no serious matters recorded over an eight-year period and her obvious continuing and primarily successful attempts to overcome her drug addiction. After some hesitation I have come to the view that the applicant has established a legitimate sense of grievance resulting from a comparison of her sentence with the sentence imposed on Cook. That view is strengthened when taken in conjunction with the second ground which concerned the failure to find special circumstances justifying departure from the statutory ratio contained in s 5(2) of the Sentencing Act 1989. Although the sentencing judge expressly declined to find special circumstances in Cook's case, he made no reference to special circumstances in the applicant's case. It is by now well established that it is preferable for a sentencing judge to make reference to the question of special circumstances in order to eliminate any suggestion that the question has been overlooked. But it cannot always be inferred that because no reference was made to the question it has been overlooked. In this case regard must be had to the exigencies of the sentencing which took place late on a Friday afternoon and the specific reference made to the question in the sentencing of Cook, militating against any conclusion that the question in relation to the applicant was overlooked. 13 On the other hand, the pre-sentence report disclosed significant circumstances that would have enabled such a conclusion to be drawn. The applicant's long drug use, her apparent adherence to the methadone program and her relapse into the use of cocaine on the loss of her children all suggest the need for substantial assistance from authorities concerned with rehabilitation on her eventual release from custody. The question is whether she has been able to demonstrate either that the question was overlooked, which could itself indicate error, or whether in the implicit refusal to make a finding of special circumstances, the exercise of discretion miscarried. 14 I conclude this is a case in which special circumstances ought to have been found in recognition of the applicant's own efforts, partially successful, at rehabilitation and her demonstrated need for continued assistance if those efforts are to be maintained. Accordingly, I am of the view that error has been demonstrated and the applicant is to be re-sentenced. Against the possibility that the court might reach that position, we were provided with some updated material showing that the applicant has continued her efforts and there is some possibility that one of her children might be restored to her. However, it is quite clear that she will need maintained supervision if full rehabilitation is to be effected. 15 In the light of all these considerations I would not interfere with the total term imposed but I would grant leave to appeal and allow the appeal to the extent of restructuring the sentence on the major charge. 16 The orders I propose are: 1. Leave to appeal be granted. 2. Appeal be allowed and the applicant be re-sentenced on the charge of assault with intent to rob. That in lieu of the sentence imposed the applicant be sentenced to a total term of penal servitude for four years commencing on 11 December 1998 made up of a minimum term of two years, 11 December to 10 December 2000 and an additional term of two years commencing 11 December 2000 and expiring 10 December 2002. I would not interfere with the sentence imposed on the other count. 17 SMART AJ: I agree. 18 SIMPSON J: The orders of the court will be as I have proposed. ********** 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.