Reported Decision : 116 A Crim R 150 New South Wales Court of Criminal Appeal CITATION : Regina v SLR [2000] NSWCCA 436 FILE NUMBER(S) : CCA 60600/99 HEARING DATE(S) : 25 February 2000 JUDGMENT DATE : 25 February 2000 PARTIES : Regina v SLR JUDGMENT OF : Hidden J at 34; Carruthers AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0542 LOWER COURT JUDICIAL Howie DCJ OFFICER : COUNSEL : M G Pincott (Solicitor) (Appellant) P Hock (Crown/Respondent) SOLICITORS : Sydney Regional Aboriginal Legal Service (Appellant) S E O'Connor (Crown/Respondent) CATCHWORDS : Criminal law - sentence appeal - 18 year old female pregnant at the time of sentence - custodial sentence imposed with direction that they served in a juvenile detention centre - fresh evidence that facilities unavailable for appellant to keep child after confinement in a juvenile centre - such facilities available in an adult prison under Mothers and Children Programme. Crimes Act 1900 LEGISLATION CITED : Correctional Centres Act 1952 Children (Detention Centres) Act, 1989 Regina v XYJ (Unreported) NSWCCA 15 June 1992; CASES CITED: Regina v Edwards (1996) 98 ACrimR 510; Regina v Wirth (1976) SASR 291 at 295 DECISION : Appeal allowed - order varied to provide "appellant to serve her sentence in a Juvenile Centre until she gives birth to her proposed child and thereafter she be transferred to an adult prison." IN THE COURT OF CRIMINAL APPEAL CCA60699/99 HIDDEN J CARRUTHERS AJ Friday, 25 February 2000 REGINA v S L R JUDGMENT 1 CARRUTHERS AJ: The applicant, S L R, seeks leave to appeal against sentences imposed upon her by Howie DCJ at the Port Macquarie District Court on 29 October 1999. The applicant had earlier pleaded guilty to an indictment containing four counts: the first count was steal from the person under s94 of the Crimes Act, 1900 (hereinafter 'the Act') which carries a maximum penalty of fourteen years. 2 The second count was under s59 of the Act, occasioning actual bodily harm, which carries a maximum penalty of five years penal servitude. 3 The third count was under section 148 of the Act, steal from a dwelling, which carries a maximum penalty of seven years penal servitude. 4 The fourth count was a further count under s94. 5 In relation to the first count, his Honour imposed a fixed term of three months penal servitude to commence on 29 October 1999 and to expire on 28 January 2000. In respect of the second count, his Honour imposed a fixed term of six months penal servitude to commence on 29 October 1999 and to expire on 28 April 2000. 6 In relation to the third count, his Honour imposed a fixed term of three months penal servitude to commence on 29 October 1999 and to expire on 29 January 2000. 7 Finally, in respect of the fourth count, his Honour imposed a minimum term of four months penal servitude to commence on 29 April 2000 and to expire on 28 August 2000, with an additional term of two years to commence on 29 August 2000 and to expire on 28 August 2002. His Honour directed that all sentences be served in a juvenile detention centre. 8 The applicant is of Aboriginal descent. She was born on 19 October 1981 and has lived all her life in the Kempsey area. 9 The applicant's history is conveniently set out in a report of Ms Joanne Smith dated 28 October 1999. Ms Smith is a Juvenile Justice Officer at the Kempsey District Office of the Department of Juvenile Justice. 10 On 1 August 1997 a child Tashaea was born from a relationship between the applicant and a young male living in the Kempsey area. That relationship has now ceased. In January/February 1998 Tashaea was placed with her paternal grandmother who resided in the Coffs Harbour area. The maternal grandmother, it is contended, hinders any contact between the child and the applicant by constantly moving her address and not advising the applicant of those details. 11 This separation from her child under these circumstances caused the applicant anxiety and emotional distress of a significant nature. Indeed, she commenced Family Law Court proceedings in about August 1998. It was about then that the offence in the first count was committed. The offences in relation to the second and third counts were committed shortly thereafter, on 2 September 1998, and the offence in the fourth count was committed on 7 October 1998. 12 According to the antecedent record before his Honour, the applicant was before the Kempsey Children's Court in 1998 on assault and larceny matters. On that occasion she received the benefit of a two year good behaviour bond. On 11 August 1998, she was again before that Court on offences involving violence and she then received a further two year good behaviour bond which, of course, was current, as was the earlier bond, at the time of the commission of the subject offences. 13 At the time of the commission of these offences she was, to use a colloquial expression, "living rough". 14 Unhappily, each offence which the applicant committed was extremely serious. I shall gratefully accept his Honour's summation of the relevant facts. As to the first offence, the applicant ran up to a 77 year old lady who was walking along the footpath in central Kempsey. The applicant took hold of her wallet, pulled it from her grasp, and ran off down the street. 15 As to the second and third offences, the applicant went into the home of a man who was then aged 76 who lived by himself and was suffering from Alzheimer's disease. His Honour said it was clear that this gentleman had been seen by young children in the community, perhaps particularly Aboriginal children, as a ready source of obtaining money for themselves by visiting his home and pretending friendship and in some way convincing him to part with money. 16 The applicant, because her associates were young people wandering around the streets, learned of this fact and went to the home. His Honour said he was certain that she went to the home to get money for herself as the other young people had done. Unfortunately, she was disturbed in the house by the resident. She then assaulted him by punching him and ultimately she picked up an ornament that was in the room and struck him over the head with it, causing a deep laceration to his skull. She stole his wallet, as well as some documents and left the premises. 17 Although the victim was taken to hospital, it would appear that no particular serious physical injury was inflicted upon him. 18 It would appear, however, that the applicant heard rumours that she may have killed him. His Honour accepted that for a couple of days the applicant experienced great anxiety as a result of this rumour and the possible consequences. 19 On 8 September 1998 the applicant was arrested and charged in relation to the first three matters. Between 8 September and 15 September she was in custody and on the last mentioned date she was released on bail. The fourth offence occurred within three weeks of her being released on bail. 20 The fourth offence again involved an elderly victim, a 75 year old male whom the applicant observed walking along the roadway in Kempsey towards the mall. The applicant approached him from behind, removed his wallet from his right hip pocket, and at the same time, pushed him heavily in the back so that he fell forward striking his head on the kerb of the roadway causing some minor bruising. 21 His Honour concluded that by reason of the serious objective factors, and despite the strong subjective factors, including the applicant's problems with alcohol and drugs, he had no option but to impose a custodial sentence. His Honour noted that the applicant was at the time she appeared before him pregnant, expecting the baby to be born in June 2000. His Honour said: "I really wish I could do something else other than to impose a period of detention upon her, and unfortunately I can see no way in which it cannot be detention running past the period in which she is going to have the child. If it were anything else it would simply not reflect the criminality." His Honour then went on to say: "She is going to serve the sentence in a children's detention centre, and I am sure that, well I can only hope that those people will do what they can to make it easier for her with the approach to her giving birth to the child and thereafter. As I say, the sentence is designed to allow her to leave custody as soon as possible so that she can have the child back into the community with her Aboriginal relations and her de-facto as soon as possible." 22 Mr Pincott, who appeared for the applicant before us, and who had earlier prepared written submissions, fairly and frankly did not seek to argue that the sentencing Judge to use his words, "acted improperly" in imposing the sentence that he did on the basis of the material before him. 23 However, this Court has now been informed that the Yasmar Juvenile Justice Centre, where the applicant is presently detained, will not be able to accommodate the applicant's new-born child immediately following the confinement. We were informed that there are, unfortunately, no other juvenile facilities in New South Wales which could so accommodate them. Thus, it was submitted that if the fact that the baby would be separated from his or her mother had been known at the time of sentencing, it would have been appropriate for his Honour to reduce the sentence solely for the purpose of preventing such separation and facilitating the bonding between mother and child. 24 In submissions in reply, the Crown understandably stressed that a lesser sentence would not reflect the objective gravity of the offences. Those submissions fairly accepted that the applicant should not be separated from her new-born baby because an order directing her to serve her sentence in a detention centre inadvertently deprived her of a facility which is available to adult female prisoners, namely, to keep their babies with them up to the age of five years. 25 It was submitted by the Crown that resolution of this problem could be achieved by quashing the last of the sentences imposed by Howie DCJ, and at the same time, re-imposing the same sentence but adding that the applicant should serve her sentence in a juvenile detention centre until she gives birth and thereafter be transferred to an adult prison. This would allow the applicant either to apply for release under s29(2)(c) of the Correctional Centres Act, or provide her with the facility of the full-time residence programme which enables children to live with their mothers in a correctional centre. 26 Details of this programme are contained in a brochure, which has helpfully been made available to the Court by the Crown, entitled 'Mothers and Children Programme, Information Pamphlet'. 27 Mr Pincott has provided this Court with a copy of the judgment in Regina v X Y J, Unreported, NSWCCA, 15 June 1992. which makes it clear that the extensive powers contained in s24(1)(b) and (c) of the Children (Detention Centres) Act, 1989 are not available in respect of a person sentenced to a term of imprisonment, notwithstanding that an order has been made under section 19 of the Criminal Proceedings Act that the term be served in a detention centre. Thus, from a legislative point of view, the applicant would be restricted, as the Crown has submitted, to an application for release under s29(2)(c) of the Correctional Centres Act. 28 This is a particularly disturbing matter. It was a disturbing matter for his Honour and it is a difficult matter for this Court. However, the authorities make it perfectly clear that the circumstances under which leniency can be afforded to an offender as a result of hardship to a third person are extremely limited indeed: see Regina v Edwards, (1996) 98 ACrimR 510. and in particular the judgment of Wells J in Regina v Wirth. (1976) SASR 291 at 295-296. 29 I am quite unable to conclude that in the circumstances of this case that demanding test has been met. 30 Mr Pincott has forcefully put upon this Court that the alternative suggested by the Crown of requiring part of the sentence to be served in an adult prison is too draconian, particularly bearing in mind that there is evidence of rehabilitation on the part of the applicant. Also, Mr Pincott stresses that one still does not know, even if the suggestion of the Crown is acceded to, that the favourable treatment for which the applicant would hope, would nevertheless be provided for her. 31 Giving these factors full weight, I am still quite unpersuaded, bearing in mind the information presently available to this Court which was not available to his Honour, that the quantum of the sentences imposed by his Honour should be disturbed. One can express confidence that the persons responsible within the corrective services system for the welfare of the applicant and the child which she is about to bear would be responsive to her needs. 32 To reduce this sentence, even despite the subjective circumstances as they now exist, would unfortunately result in a regime of sentences which could fairly be described as an affront to the administration of justice. 33 Accordingly, I would propose that this Court accept the proposals of the Crown. It would seem to me that it would be sufficient, however, for this Court to grant leave to the applicant to appeal and to uphold the appeal to the extent of varying the direction by Howie DCJ that the applicant serve her sentence in a juvenile detention centre by adding the words 'until she gives birth to her proposed child and she thereafter be transferred to an adult prison'. 34 HIDDEN J: I agree. I should add that I think it is unfortunate that the deficiency in the Children (Detention Centres) Act identified in this Court in Regina v X Y J has not since been remedied. I hope the matter will be given attention by the appropriate authority. 35 The orders of the Court will be as proposed by Carruthers AJ. 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.