New South Wales Court of Criminal Appeal CITATION : R v "R" [2000] NSWCCA 163 revised - 17/05/2000 FILE NUMBER(S) : CCA 60259/99 HEARING DATE(S) : 14 April 2000 JUDGMENT DATE : 14 April 2000 PARTIES : Regina "R" JUDGMENT OF : Hulme J at 1; Dowd J at 23 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2031 LOWER COURT JUDICIAL Sides DCJ OFFICER : COUNSEL : Crown: M Grogan Appellant: CB Craigie SOLICITORS : Crown: SE O'Connor Appellant: TA Murphy DECISION : Leave to appeal granted.; See paragraph 24 for orders - 1 - IN THE COURT OF CRIMINAL APPEAL No: 60259/99 HULME J DOWD J Friday, 14 April 2000 REGINA -v- R JUDGMENT 1 HULME J: An application has been made to adopt a pseudonym in any report of these proceedings. For reasons for which will be apparent, I think that is an appropriate course. Accordingly, the matter will be dealt with by adopting the letter R as the pseudonym for the applicant's name. The Court orders that in any report of these proceedings that there be no identification or description of the applicant in a way which will identify her. 2 On 18 May 1999 the applicant was sentenced by his Honour Judge Sides in respect of two counts of robbery in company committed on 2 November 1998 and one count of attempted robbery in company committed on 4 November 1998. Each charge was brought under s.97(1) of the Crimes Act which provides for a maximum penalty of twenty years' imprisonment. 3 On the first count the applicant was sentenced to penal servitude for a fixed term of two years commencing on 30 December 1998, the date of her arrest. On the second and third counts, the applicant was sentenced to penal servitude for a minimum term of two years commencing on 30 December 2000 and an additional term of two and a half years commencing on 30 December 2002. The sentences on the second and third counts were made concurrent with each other but cumulative of the sentence imposed on count 1. 4 The circumstances of the offences and the issues with which he was concerned are set out with commendable clarity in the Remarks on Sentence of Judge Sides and it is unnecessary to recount most of them here. In short, the applicant and, in the case of the first and second offences, a female co-offender and, in the case of the third count, a male co-offender, approached a woman in the street or other place used by the public and held her up. In each case the victim was threatened with a knife. In the case of the first incident, Judge Sides found that the knife was produced by the applicant's co-offender but was not satisfied that the applicant was aware of the co-offender having the knife until it was produced. His Honour was satisfied that during the commission of the other two offences it was the prisoner who threatened the victim with the knife. 5 In the first offence, $4 was obtained and in the second $27. In the third the victim successfully resisted an attempt by the co-offender to grab the victim's bag. Otherwise, the robberies were unremarkable, although it should probably be noted that his Honour recorded that the victim of the first robbery was at the time of sentence afraid to go out on her own and the second had observed that she was terrified at the time. The son of the third victim, present at the time, did not follow his mother when she ran off a short distance and was clearly frozen in fear. 6 Among the results of the applicant's activities which render her offences so serious are those sorts of consequences to her victims. His Honour concluded that the circumstances of each offence fell within the guidelines of R v Henry and Barber & ors (1999) 46 NSWLR 346, although he did recognise that subject to one matter the applicant's plea of guilty was not entered in the face of a strong Crown case - one of the characteristics of the offences contemplated in R v Henry and Barber, the plea of guilty was not entered in the face of a strong Crown case. The reservation is that the strength of the Crown case depended upon the fact that the applicant had during the course of interviews with police admitted her guilt. 7 That difference is, in my view, one of some significance because there is no doubt that the Courts have generally tended to reduce the significance of the plea of guilty when it is given in the light of a strong Crown case. The bases of the applicant's appeal are that the sentences do not manifest an adequate allowance for the applicant's plea of guilty and assistance that it is suggested she gave to the authorities. 8 Based on the photograph which the first victim said looked "very similar to one of the girls", particulars of the applicant were circulated amongst police and on 13 December she was detained. On being taken to the Cabramatta Police Station she agreed to participate in an electronic interview. During the interview she described her co-offenders and thereafter named them. She admitted her own involvement in the robberies, albeit on the judge's findings, minimising unduly her own involvement with the knives. 9 Police subsequently interviewed the persons named. The female co-offender denied participation and had not been charged although the police officer in charge of the investigation has said he was satisfied she was, in all probability, the accomplice. When questioned the male co-offender made admissions which were sufficient to warrant his being charged. The statement of assistants records that without the applicant's identification of these persons, it is highly unlikely that their identities would have become known. 10 In his remarks on sentence, his Honour observed that there was no suggestion that the application would give evidence against either co-offender. His Honour observed that although there was the possibility that the prisoner might have to be on protection in the future, that had not occurred by the time of sentence and there was no evidence that the applicant or members of her family had been threatened due to the assistance provided. His Honour went on to say the assistance: "...could not be described as compelling, nor is it a case where the assistance is substantial ...the assistance will be reflected in sentence. However, the assistance does not entitle her to a significant reduction of sentence over and above that extended for her contrition which is manifest. Having considered all the matters required of me by s.442B of the Crimes Act, the discount to be extended for assistance here is one that, in my view, falls at the bottom of the range of discounts given for assistance." 11 His Honour went on to express the view that there was a "very strong case of contrition entitling the prisoner to a substantial mitigation in penalty on that basis". 12 As I have said, his Honour observed that without admissions made by the applicant, the Crown case against her would have been weak on all counts. 13 In any judgment on whether the matters of assistance to the authorities and the applicant's pleas were adequately recognised in the sentence imposed, it is necessary to have regard also to other subjective factors. The applicant was twenty at the time of the commission of the offences which were inspired by an addiction to heroin, the use of which had commenced at aged seventeen, alcohol by that time being already a major problem. His Honour found that the applicant's addiction in these regards arose out of a trauma of sexual abuse for a number of years up to age twelve and recognised that the applicant's descent into alcohol and drug abuse occurred at an age when she would not have been in a position to fully appreciate the long-term consequences of such abuse. 14 His Honour was satisfied that the applicant was well motivated to rehabilitate herself and to lead a law-abiding life in the future and that her prospects of rehabilitation appeared good. At the time of sentence the applicant was eight and a half months pregnant. 15 The applicant had had some prior convictions for dishonesty and one for assaulting police, although no prior convictions for offences of robbery. She was on a recognisance for one charge of having goods in custody and two charges of possessing a prohibited drug at the time of the commission of the subject offences. 16 I turn against that background to the particular matters raised. Section 442B of the Crimes Act requires that the court, in determining a sentence to be passed, have regard to the degree to which the person has assisted law enforcement authorities in the detection or investigation of the offence or other offences. In my view, the naming of a co-offender or co-offenders, particularly when the names or identity of those persons are not otherwise known to the authorities, cannot but be described as assistance to law enforcement authorities in the detection or investigation of offences. Thus what the applicant did in that regard was required to be taken into account. His Honour, as has been indicated, clearly did take it into account, but I am not satisfied that he gave it adequate weight. Given that it led to the arrest and charging of one offender and to admissions by that offender which were regarded by the police as justifying the charging, it seems to me, that the applicant's assistance was wrongly described by his Honour as assistance which entitled the applicant to a discount falling at the bottom of the range. 17 Otherwise, I am unable to find any specific error in his Honour's reasons, although it does seem to me that when account is taken of all matters which are argued in mitigation, or, indeed, in the other direction, the total sentence is too high and to a degree it requires intervention by this Court. 18 The circumstances of the offences themselves place them appreciably below the sort of circumstances which the Court was considering in R v Henry & Barber. I was one of the judges in that case and it would seem to me, by comparison with the criminality of the offenders there, that the appropriate sentence for one of the applicant's offences here considered in isolation was one somewhat less than the bottom of the four to five year range which R v Henry contemplated. Indeed, in the course of submissions, I think the Crown was led to the same conclusion. 19 The applicant also has in her favour the extent of contrition which his Honour found was substantial and prospects of rehabilitation which answered the same description. It also seems to me that the subjective factors which led the applicant to heroin and in consequence to crime, certainly, in the former case at an age when she had not yet reached maturity, are also factors which entitled her to a somewhat lower sentence than was, in fact, imposed. It was, as has been pointed out in the course of submissions, her first custodial sentence. In these circumstances it seems to me that the Court should grant leave to appeal and at least in part allow the appeal. 20 Looking at the totality of the applicant's criminality, it seems to me, that an appropriate sentence is one of five years divided between a minimum term of three years and an additional term of two years, or to take the more modern parlance, a non-parole period of three years and a full-time sentence of five years. 21 I think the best way of achieving this and one which does no injustice to the applicant, albeit at face value there may be some apparent inconsistency between the sentences themselves, is to dismiss the applicant's appeal on the first count, to quash the sentences imposed on the second and third counts, and on the second count to impose a non-parole period of six months commencing on 30 December 2000, and on the third count, I sentence the applicant to imprisonment for two and a half years, including a non-parole period of six months, both such terms to commence on 30 June 2001. 22 Implicit in those orders is that the applicant should have leave to appeal. 23 DOWD J: I concur in the proposed orders and the reasons therefor. I would only add in establishing special circumstances for a lengthier parole period, that I have taken into account the material contained in the affidavit of the applicant which is consistent with her contrition and her rehabilitation which is, in fact, occurring. 24 HULME J: I should add that implicit in what I have said, I regard there as being special circumstances in this case: those being the matters of mitigation to which I have referred. Accordingly, the orders of the Court are these: 1. Leave to appeal is granted. 2. I dismiss the appeal against the sentence imposed on the first count. 3. I quash the sentence imposed on the second and third counts. 4. On the second count the applicant is sentenced to imprisonment for a non-parole period of six months commencing on 30 December 2000. 5. On the third count the applicant is sentenced to imprisonment for a full term of two and a half years including a non-parole period of six months commencing on 30 June 2001. 4. The applicant will be eligible for parole on 30 December 2001. ……………. 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.