R. v Baker [1999] NSWCCA 150

New South Wales Court of Criminal Appeal CITATION : R. v Baker [1999] NSWCCA 150 FILE NUMBER(S) : CCA 60452/98 HEARING DATE(S) : 11 June 1999 JUDGMENT DATE : 11 June 1999

PARTIES : REGINA v Diane Elizabeth BAKER JUDGMENT OF : Grove J at 33; Carruthers AJ at 1-32

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0201 LOWER COURT JUDICIAL OFFICER : JOB DCJ

COUNSEL : R. Burgess for the Applicant. R.A. Hulme for the Crown. SOLICITORS : C.K. Smith for the Crown. CATCHWORDS : Criminal law - sentence appeal against severity; One count of armed robbery; Obtain benefit by deception; Goods in custody; break, enter & steal; Assault; Breach of recognisance; Steal articles in course of post on a schedule. Drug addiction (heroin). Special circumstances. Quasi custody not restricted to Odyssey House. ACTS CITED : 97(1) of Crimes Act 1900 5(2) of Sentencing Act 1989 Fisher (CCA unreported 18//9/98) Eastaway, (CCA Unreported 19/5/98) Cartwright (1989) 17 NSWLR at 258-259 CASES CITED: Douglas (CCA Unreported 4/3/97) Hampton (CCA unreported 25/6/98) Morrisey (CCA unreported 15/7/94) McDonald (CCA unreported 12/10/98) GDR (1994) 35 NSWLR at 376 DECISION : Grant leave to appeal.; Appeal dismissed.

- 11 - IN THE COURT OF CRIMINAL APPEAL

60452/98 GROVE J CARRUTHERS AJ

FRIDAY 11 JUNE 1999

DIANE ELIZABETH BAKER v REGINA (NSW)

JUDGMENT

1 CARRUTHERS AJ: Diane Elizabeth Baker seeks leave to appeal against the sentence imposed upon her at the Newcastle District Court on 11 August 1998 by his Honour Judge Job QC in respect of one count of armed robbery under section 97(1) of the Crimes Act 1900. His Honour was also asked to take into account five matters on a schedule, namely one count of obtain benefit by deception, one count of goods in custody, two counts of break, enter and steal and two counts of assault. 2 His Honour sentenced the applicant to a minimum term of two years and four months penal servitude to commence on 6 August 1998 and to expire on 5 December 2000. His Honour fixed an additional terms of nine months to commence on 6 December 2000 and to expire on 5 September 2001. 3 It is also convenient to note that on 25 September 1998 the applicant was sentenced at the Newcastle Local Court, for breach of her recognisance, to a fixed term of 12 months to commence on 25 September 1998 and to expire on 24 September 1999. That recognisance was breached by reason of the offences for which Judge Job sentenced the applicant. 4 The circumstances of the subject armed robbery are serious and I shall take them from a statement by the victim, Robert Clark, which was tendered by consent before his Honour. 5 At about 5pm on Friday 27 March 1998 the victim, Robert Clark, was then 89 years of age with greatly reduced vision and greatly impaired hearing, living by himself at home at Cooks Hill. He was in the bedroom of his home. A person unknown to him, but who admittedly was the applicant, with a robe over her head entered the room and yelled at him, "Get your wallet". She had what was described as a 12 inch knife in her hand. Mr Clark was frightened and got his wallet out. He extracted $30 from it which was all the money which he had in the wallet. The applicant took the money and left the room. Mr Clark tried to follow her. Then she turned and pushed him away. He banged into the door. The applicant then grabbed his spectacles, pulled them from his face and threw them on to the floor. 6 The victim received quite a severe abrasion to his right arm as a result of being pushed against the door by the applicant. This bled and caused him pain. He then saw the applicant near the kitchen door. She was still holding a knife in her hand and she said something like, "Give me your pin number and your card". The appellant did not appear to Mr Clark to be in control of her senses. I might add, parenthetically, that I have no doubt she was affected by the ingestion of drugs. 7 In any event, Mr Clark explained to her that he did not have a pin number and a card and that he used a withdrawal form to get money from the Building Society. She then told him to get out a withdrawal form, together with his passbook. He said that she was waiving the knife around in front of his face. 8 He got the passbook and withdrawal form and, on her instructions filled out a withdrawal form for $400. She took the form and the passbook and left the house endeavouring to reach the Building Society before it closed. But she did say to him, "If this doesn't work tonight, I'll be back tomorrow". She also took some coins from a jar on Mr Clark's bedside table. 9 After she had left, Mr Clark contacted a neighbour who then contacted the police and a ambulance was also called. The following morning, whilst the neighbour was with Mr Clark providing support for him, the phone rang. The applicant was on the line and she said to Mr Clark, "I told you not to tell the police". He replied, "If you go to the Building Society this morning, you are in trouble". She replied, "No, you're in trouble". 10 The evidence before his Honour was to the effect that the applicant was unable to get to the Building Society before it closed to withdraw the money. Before she could take the matter any further, however, she was arrested on the following day. 11 His Honour accepted that when the applicant entered Mr Clark's home she was unarmed and that she had obtained the knife from his kitchen. The applicant said that she had obtained this knife so that she could cut the telephone cord. His Honour was somewhat dubious about accepting that explanation. However, when arrested, the applicant made full admissions. His Honour noted that her fingerprints were found on the inside of the victim's wallet. 12 I shall not refer to the details of the various matters on the schedule but they themselves were all significant matters and unquestionably attributable to the applicant's attempts to obtain money to support her drug addiction. 13 The applicant was born on 15 March 1962 with a criminal history going back to 1984. She has a criminal history in Queensland as well as New South Wales. On 14 November 1997 she was granted a three year bond at the Newcastle Local Court in relation to the offence of steal articles in the course of post. That was the bond that was, of course, still current at the time of the subject offences and in respect of which she was dealt with at the Newcastle Local Court on 25 September 1998. 14 Sadly the applicant has a long history of drug addiction with intermittent periods of abstention. Indeed, it looks as though that history could have gone back as far as when she was 10 years of age. At the time of the commission of the subject robbery, she alleged that she was using up to five grams of heroin a day at a cost of approximately $2,000 per day. 15 The applicant remained in custody from 27 March 1998 until conditional bail was entered on 14 May 1998. That bail had actually been granted on 11 May 1998 so she was in custody for a period of 47 days. A condition of the bail which she entered was that she reside at William Booth Institute and undertake to complete a course of drug rehabilitation. Further, that she was not to leave that institution until the rehabilitation course had been completed, except for the purpose of complying with the reporting conditions or for conferences with her legal advisers or to attend court. 16 In fact, the applicant seems to have resided for most of the 12 weeks between 14 May 1998 and 7 August 1998 (when she was taken back into custody) at Selah Farm. Captain Drayton, a drug counsellor at Selah Farm, gave evidence before his Honour and to use his Honour words, "described that she was doing well on the programme". This was, however, a reference to a programme of 26 to 32 weeks at Selah Farm and then a further eight to 10 weeks at the William Booth Institute to complete that programme. Unfortunately, but inevitably, the sentence which was imposed upon her by the Judge disrupted that rehabilitation course. 17 When sentencing the applicant, his Honour said that he was being as lenient as he could in the circumstances and specifically referred to the fact that he was taking into account the 47 days pre-sentence custody. At the conclusion of the sentencing process his Honour was asked by the applicant's legal representative whether he could clarify one particular point, namely counsel said, "I take it from that calculation that your Honour has not found any special circumstances". His Honour replied: "Yes, I should say I did not find special circumstances. I did consider that but no, I did not find special circumstances. Thank you for that Mr Johnson. I should have mentioned that. I had intended so to do". 18 It could not be taken in these circumstances, therefore, that his Honour had overlooked the issue of special circumstances. 19 It is not argued on behalf of the applicant by Ms Burgess that the overall sentence is manifestly excessive, (notwithstanding the plea of guilty and the applicant's contrition) by reason Ms Burgess concedes of the seriousness of the subject offence and the matters on the schedule. 20 However, Ms Burgess submits that his Honour erred in not finding special circumstances. It is contended that there was abundant material to support a finding of special circumstances, namely the applicant's long drug addiction and related criminal history, together with the evidence of "her successful rehabilitation", the insight she had gained into her behaviour and her motivation to change. Ms Burgess submitted that these were all matters which lead to the irresistible conclusion that there was a need for a longer than usual additional term. 21 It was further submitted that his Honour does not appear to have determined the total sentence as such, but rather approached the sentencing process by imposing a minimum term and adding an additional term, which procedure carried the risk that separate questions which arise under section 5(2) of the Sentencing Act would be overlooked. Reliance was placed here upon the decision of this Court in Fisher, (unreported 18 September 1998). 22 Finally it was argued that his Honour failed expressly to take into account the 12 weeks which the applicant had spent at Selah Farm which amounted to quasi custody. Reliance was placed here on the decisions of this Court in Eastaway (CCA unreported 19 May 1998), Cartwright (1989) 17 NSWLR at 258-259 and Douglas (CCA unreported 4 March 1997). 23 It was submitted that applying those principles to this case, the applicant should have been given the benefit of a credit to the order of approximately 50 percent of the subject 12 weeks. Ms Burgess submitted that the principles enunciated in the cases to which she made reference were not to be restricted to Odyssey House, a submission with which I respectfully agree, as long as the type of restraint referred to in those cases was applicable and here I think it was. 24 Ms Burgess submitted that this was an unusual case in that despite this lengthy period of drug addiction, the stage has finally been reached where there is concrete evidence that the applicant has embarked upon a potentially successful course of rehabilitation. 25 It was submitted that although the applicant has by reason of her drug addiction a long criminal record, the type of offences which were being considered by the sentencing judge here were inconsistent with the type of convictions on her record. 26 Mr Hulme, on behalf of the Crown, has submitted that if there is any error in this matter by reason of the length of the additional term, it could only have reasonably been corrected by an extension of the additional term with no consequential reduction in the minimum term. 27 It has been pointed out by this Court in recent cases with regard to section 5(2) of the Sentencing Act, that there is, in effect, only one question: Are there special circumstances which justifies a larger additional term than one third of the minimum term? A finding by the sentencing judge that there were no special circumstances would therefore generally involve a finding that there were no such special circumstances as would justify the imposition of an additional term longer than the one third period. This is a discretionary decision. See Hampton (CCA unreported 25 June 1998). 28 The decision to vary the statutory proportion requires consideration, not only of the desirability of increasing the additional term, but also the appropriateness of reducing the minimum term which must nevertheless remain such as to appropriately reflect the criminality involved. Morrissey (CCA unreported 15 July 1994). The objective criminality of the offence should be reflected not only in the full term but also in the minimum term McDonald (CCA unreported 12 October 1998). And finally, although it may be open to a sentencing judge in the exercise of his or her discretion to regard certain circumstances in combination as special circumstances, the Judge is not bound to respond to the circumstances by setting an additional term which is in excess of one third of the minimum term GDR (1994) 35 NSWLR at 376. 29 Applying those principles to this case it seems to me that there is much weight in the submission of Mr Hulme on behalf of the Crown. The minimum term which his Honour fixed was, in my respectful view, completely within his Honour's discretion and appropriate to the high degree of criminality involved in the subject offences. Were his Honour to have allowed a greater period of time for the applicant to be subject to the rehabilitation process, then it could, in my view, have only reasonably been by the extension of the overall term and necessarily an increased additional term. 30 His Honour must therefore have taken the view that although it was open to him in the exercise of his discretion to regard the relevant circumstances to which reference was made before him in combination as special circumstances, he nevertheless did not feel bound to respond to the circumstances by setting in the particular situation before him an additional term which was in excess of one third of the minimum term. That was a perfectly appropriate approach in my respectful view. 31 As to the question of the 12 weeks spent at Selah Farm, I have a strong suspicion that the matter was not raised before his Honour although, as Mr Hulme has pointed out, submissions by counsel were not recorded and therefore one cannot necessarily infer that the matter was not raised. But I must say, speaking for myself, I doubt that it was. But what does one do with this fact? It has troubled me but it seems to me that when one looks at the overall criminality involved in the subject offences, and what I consider to be a sentencing regime which was not too severe and well within his Honour's sentencing discretions, that it would be inappropriate, or indeed one could say de minimis, to attempt to take into account 50 percent of that 12 week period. 32 One always feels a deep sense of regret when one must reject an appeal on the ground of severity when there is concrete evidence before the Court of rehabilitation because sadly the instances which come before this Court of a demonstrated determination on the part of the appellant to rehabilitate himself or herself are much more rare than one would wish. However, it is our responsibility to administer the law and applying the relevant principles to the evidence, I am left with the conviction that the Court has no alternative but to grant the application for leave to appeal but to dismiss the appeal. 33 GROVE J: I agree. The orders of the Court will be that the application for leave to appeal against sentence is granted but that the appeal is dismissed. **********