R v Sainsbury [2000] NSWCCA 496

New South Wales Court of Criminal Appeal

CITATION : R v Sainsbury [2000] NSWCCA 496 FILE NUMBER(S) : CCA 60444/00 HEARING DATE(S) : 28 November 2000 JUDGMENT DATE : 28 November 2000

PARTIES : Regina Leanne Marie Sainsbury (Appellant) JUDGMENT OF : Wood CJ at CL; Dunford J; Carruthers AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3348; 99/21/3048 LOWER COURT JUDICIAL Ford DCJ OFFICER :

COUNSEL : RA Hulme (Crown) AC Haesler (Appellant) SOLICITORS : SE O'Connor (Crown) Sydney Regional Aboriginal Corporation Legal Services (Appellant) CATCHWORDS : CRIMINAL LAW - sentencing - Crown appeal - use offensive instrument with intent to prevent apprehension - driving motor vehicle at policeman to avoid arrest - seriousness of offence LEGISLATION CITED : Criminal Appeal Act 1912, s 5D Crimes Act 1900, ss 33B, 112, 154A, 154AA R v Hamilton (1993) 66 A Crim R 575 CASES CITED: R v Hutchinson [2000] NSWCCA 113 R v Bazzi [1999] NSWCCA 346 DECISION : Crown appeal upheld. Respondent re-sentenced.

IN THE COURT OF CRIMINAL APPEAL

60444/00

WOOD CJ AT CL DUNFORD J CARRUTHERS J TTuesday, 28 NOVEMBER 2000 R v Leanne Marie SAINSBURY JUDGMENT 1 DUNFORD J. This is an appeal by the Director of Public Prosecutions pursuant to section 5D of the Criminal Appeal Act 1912 against the alleged inadequacy of sentences imposed by his Honour Acting Judge Ford QC in the District Court at Campbelltown on 9 June 2000 following the respondent's conviction after a jury trial on one count of larceny of a motor vehicle contrary to section 154A of the Crimes Act 1900, one count of stealing a motor vehicle contrary to section 154AA, two counts of break enter and steal and one count of using an offensive instrument with intent to prevent apprehension 9 June 2000. The respondent was ordered to perform 100 hours community service in respect of the offence of using an instrument with intent to prevent apprehension. The respondent was ordered to perform 100 hours community service in respect of each of the other 4 counts in the indictment, each of the sentences to be cumulative, making a total effective sentence of 200 hours community service. 2 I interpose here to say that the Department of Corrective Services appears to have taken the view that the total number of hours service to be performed was 100 hours, but this is clearly an error which the respondent has at all times acknowledged. His Honour's Remarks on Sentence are quite clear that the sentences were to be cumulative making a total of 200 hours. 3 The offence of larceny (s 154A) is punishable by a maximum penalty of 5 years imprisonment, that of stealing a motor vehicle contrary to s 154AA is punishable by a maximum penalty of 10 years imprisonment, break enter and steal (s 112) is punishable by a maximum penalty of 14 years imprisonment and the offence of using an offensive instrument with intent to avoid apprehension (s 33B) is punishable by a maximum penalty of 12 years imprisonment. 4 At about midday on 29 June 1998, the respondent, along with her then partner, Margaret Sanders, and two unidentified males, drove to the Woolworths carpark at Camden. The young child of Margaret Sanders accompanied them. They drove there in a Ford Falcon station-wagon which had been stolen the previous day by one of the males (count 1). At the carpark, one of the males stole a Ford Falcon station-wagon in the presence of the respondent (count 2). 5 The respondent then drove that vehicle to two homes in the suburb of Orangeville, near Camden, which were broken into by the group and from which a quantity of goods were stolen (counts 3 and 4). Both premises sustained damage due to the break-ins and the stolen goods were loaded by the group into the stolen Ford Falcon station-wagon. 6 The house alarm at the second premises broken into alerted police and a patrol car noticed the Ford Falcon station-wagon which, in the meantime, had been reported stolen by the owner. The respondent was driving. The police gave chase, but as they were in a caged vehicle, they were unable to keep up. 7 Other police vehicles joined the pursuit which continued for some 12 kilometres at speeds sometimes exceeding 130 km an hour. During the pursuit, the male passengers threw many of the large stolen items from the vehicle in an attempt to obstruct their pursuers. 8 At one stage the respondent lost control of the vehicle at a round-about, mounted the kerb and knocked over a fence before continuing on. This erratic and dangerous driving continued through traffic and numerous sets of traffic lights with up to 6 police vehicles following with their sirens and flashing lights activated. 9 Near an intersection in Claymore, the vehicle collided with another fence and came to a stop. At this point, Highway Patrol officers parked their vehicles around the Ford Falcon station-wagon so as to prevent it being driven further. The two males and Sanders quickly alighted from the vehicle and ran into a nearby reserve, one of the males taking the young child, leaving only the respondent behind. 10 At this stage, she reversed the station-wagon into a police vehicle and then she accelerated, veered to the left and drove straight at another police vehicle where a constable had one arm and one foot out of the car with the door three-quarters of the way open. 11 He was able to jump back into the vehicle, but his arm was still on the door, which was still open at the time and the Ford Falcon hit the police car. The acceleration of the stolen vehicle was such that its rear wheels were spinning. The force of the impact pushed the police vehicle a couple of feet sideways, caused the door to close and pushed the constable over to the passenger side, with the result he suffered soft tissue injury to his wrist and elbow and put his right arm out of use for two weeks. It also occasioned considerable damage to both vehicles. 12 At this stage, the respondent alighted and ran off before being arrested in a nearby reserve. Ms Sanders was also arrested, but the two males managed to escape. Ms Sanders was not subsequently charged owing to a lack of admissible evidence against her. 13 In an electronically recorded interview the respondent admitted to driving the Ford Station-wagon, but she claimed that the dishonesty offences were committed by her as a result of the duress directed at her by one of the males who she identified as Andrew Ingram. She said that the 2 males came to her home and forced her and Ms Sanders to accompany them and that, during the police pursuit, Ingram was threatening her with a knife and punching and hitting her as she drove the vehicle. 14 She alleged, in relation to hitting the police vehicle, that she missed the brake and put her foot on the accelerator instead. 15 The respondent did not give evidence at her trial, but relied on the account given in her record of interview. Ms Sanders gave evidence in the respondent's case along the lines of what the respondent had said in the record and Andrew Ingram gave evidence in the Crown case denying that he was present at all during the incident. 16 By convicting the appellant, the jury rejected her defences of duress to the dishonesty offences, and accident to the count of using an offensive instrument with intent to avoid apprehension. 17 The respondent was aged 27 years at the time of sentencing and had one previous conviction for larceny in October 1997, for which she had been fined $500. She was arrested on 29 June and spent one month in custody before being released on bail on 29 July 1998. 18 In R -v- Hamilton (1993) 66 A Crim R 575, in dealing with the seriousness of offences under s 33B, particularly where they involve the driving of vehicles in the direction of police officers, Gleeson CJ said, at p 581: "I should make it clear that offences against s 33B which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension are regarded by the Court extremely seriously. It is incumbent upon the Court in dealing with offences of this nature to show an appropriate measure of support for police officers who undertake difficult, dangerous and usually thankless tasks."