New South Wales Court of Criminal Appeal CITATION : R v Zaia [2000] NSWCCA 52 FILE NUMBER(S) : CCA 60354/99 HEARING DATE(S) : Wednesday 23 February 2000 JUDGMENT DATE : 23 February 2000 PARTIES : Regina v Karen Marie Zaia JUDGMENT OF : Grove J at 1; Greg James J at 10 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0088 LOWER COURT JUDICIAL Freeman DCJ OFFICER : COUNSEL : D.C. Frearson (Crown) B.R. Brown (Appellant) SOLICITORS : S.E. O'Connor (Crown) Peninsula Law (Appellant) CATCHWORDS : Criminal Law and Procedure - Armed Robbery - Sentence - Drug Addiction - Rehabilitative Steps by Offender - Severance of Relationship With Co-offender (in Form 1 matter) Who Introduced Her to Illicit Drug CASES CITED: R v Henry & Ors 1999 46 NSWLR 346 DECISION : Appeal Allowed.; Appellant Resentenced. IN THE COURT OF CRIMINAL APPEAL 60354/99 GROVE J GREG JAMES J Wednesday 23 February 2000 REGINA v KAREN MARIE ZAIA JUDGMENT 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Freeman DCJ in the Gosford District Court on 11 June 1999. The applicant appeared for sentence on a charge of armed robbery contrary to s 97 of the Crimes Act. She also asked his Honour to take into account on a Form 1 a single charge of break, enter and steal. 2 The principal offence occurred when the applicant, at about 6am on New Year's Day, entered a small shop known as Ridgey Didge Pies, where she accosted the operator with a kitchen knife. She had worn, presumably as a disguise, a baseball cap and sunglasses. She obtained about $145 but, when leaving the shop she dropped the knife and was pursued by the owner. She was apprehended and later handed to police. The matter in the schedule relates to an offence which occurred but one month before the applicant appeared for sentence. In terms of offenders committing crimes of this nature there are some unusual aspects to the applicant's background. Although she is now approaching thirty years of age, being born on 7 May 1970, she had, when she appeared before his Honour, no prior convictions. It appears that she had a problem with ingestion of the illicit drug heroin but, again unusually, had come to the use of that substance comparatively later in life. The evidence before his Honour showed that she came into contact, and became a user of this drug, as a result of her association with a man called Neville Bell. He was a heroin addict. He was not only the person who introduced her to the drug but was an accomplice in committing the offence of break, enter and steal which, as is apparent from the facts which I have recited, occurred whilst she was on bail awaiting being dealt with for the charge of armed robbery. Undoubtedly that is a significant aggravating factor. 3 His Honour had the benefit of the guideline judgment in R v Henry & Ors 1999 46 NSWLR 346 and it has to be said the sentence which he imposed of a total of five years' penal servitude divided into minimum and additional terms of three years and two years respectively was within the range available as a result of the application of those guidelines. It was, however, important for his Honour, as he did, to consider the applicant's subjective circumstances. Prominent amongst these were the prospects of the applicant's rehabilitation and her intention to seriously seek to undertake it. 4 The reports before his Honour were such that the situation must be described as considerably without promise. His Honour observed the matter had been adjourned on a number of occasions to allow the applicant to demonstrate her commitment to rehabilitation. He observed that three reports before him of the probation officer and the drug counsellor showed that neither of these people were persuaded of the applicant's commitment to her own rehabilitation. It can be concluded, therefore, that his Honour proceeded to sentence on the basis of that evidence. 5 There was, however, sworn evidence also before his Honour given by the applicant. Importantly in my view was evidence concerning her relationship with the man Bell whom I have mentioned. She told his Honour that she had accompanied him when they committed the offence in May 1999 because she owed drug dealers money and they were threatening her and her family. Significantly she told his Honour, as at that time, she had definitely split up with Bell. This was consistent with her other evidence that she had for the previous two to three weeks, returned to reside with her parents. As all the evidence before his Honour showed the applicant had considerable family support available to her if only she was prepared to avail herself of it. 6 It seems to me that the parting from the man Bell was capable of being a very strong indication (contrary to the indication to the drug counsellor and the Probation and Parole officer) that the applicant may have perceived the need to engage seriously in her own rehabilitation. In my view that was a matter which ought to have been weighed as one of the important circumstances in his Honour's ultimate assessment of sentence. It not being mentioned and having been apparently overlooked, the jurisdiction of this court is enlivened and the court should intervene to consider re-sentence. 7 On the matter of re-sentence we have received into evidence a report from the alcohol and other drugs worker at the Emu Plains Correctional Centre. That officer has seen the applicant on a number of occasions where she has been held at Mulawa. That officer has reported that the applicant since being incarcerated has thought deeply about her drug dependency and, although all inmates are on programmed urine tests it is to the credit of the applicant that she has been drug-free during the eight weeks that she was in custody up to the time of Miss Ward's report. It would therefore appear that the promise which I suggested ought to have been taken into account is confirmed by the subsequent conduct of the applicant. 8 These things being said, it is nevertheless incumbent upon this court to pay proper regard to the guidelines set out in the case of R v Henry . It seems to me, however, that the foregoing amount to special circumstances so that the proportion of sentence which might be served in the community whilst on parole should be lengthened beyond that specified by s 5(2) of the Sentencing Act. In my view a sentence should be imposed of a total of four years divided into minimum and additional terms, each of two years. 9 I propose the following orders. That the application for leave to appeal be granted and the appeal allowed and the sentence imposed in the District Court quashed. In lieu thereof, taking into account the matter on Form 1, the applicant be sentenced to a total term of four years' imprisonment to be divided into a minimum term of two years commencing on 11 June 1999 and expiring on 10 June 2001 together with an additional term of two years to commence on 11 June 2001. I would specify that the applicant is to be eligible for parole from 10 June 2001. 10 GREG JAMES J: I agree. 11 GROVE J: The orders of the court, therefore, 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.