R v Piccin (No 2) [2001] NSWCCA 323

New South Wales Court of Criminal Appeal

CITATION : R v Piccin (No 2) [2001] NSWCCA 323 FILE NUMBER(S) : CCA 60207/00 HEARING DATE(S) : 09/02/01 JUDGMENT DATE : 30 August 2001

PARTIES : Regina v Kay Piccin JUDGMENT OF : Giles JA at 1; James J at 2; Hulme J at 24

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0607 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : P Segal - Appellant CK Maxwell QC - Crown SOLICITORS : - - Appellant SE O'Connor - Crown CATCHWORDS : Section 10 Crimes (Sentencing Procedure) Act - whether order should be made dismissing charge, notwithstanding verdict of guilty - offence not trivial. DECISION : Application for leave to appeal against conviction and sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL 60207/00 GILES JA JAMES J HULME J

Thursday 30 August 2001 REGINA v KAY PICCIN (No 2) JUDGMENT 1 GILES JA: I agree with James J. 2 JAMES J: On 9 February 2001 the Court dismissed an appeal by Kay Piccin against her conviction on a charge of maliciously wounding Yangyong Premprasert on 27 April 1999 (Count 1(b) in the indictment which had been presented against Kay Piccin at her trial) and allowed an appeal by her on a charge of stalking Yangyong Premprasert on 5 May 1999 with the intention of causing Yangyong Premprasert to fear personal injury (Count 3(b) in the indictment). 3 The appeal as filed had been against conviction only. After the Court pronounced its orders an oral application was made in relation to sentence. The precise application, and the basis on which the Court could deal with it, were unclear. The Court directed that "the appellant put on any application which she may be advised to put on in relation to the sentence on Count 1(b)" and the Court gave further directions about the delivering by both parties of written submissions in respect of any such application. 4 Pursuant to these directions, Kay Piccin (who I will henceforth refer to as "the applicant") made an application, which is headed "Application for leave to appeal against conviction and sentence" and both the applicant and the Crown lodged written submissions. The parties have agreed that the applicant's application can be dealt with by the Court on the basis of the written submissions and that it is unnecessary for there to be a further oral hearing. 5 To understand why the applicant made the application she did, after this Court had made an order on 9 February 2001 dismissing her appeal against her conviction on the charge of malicious wounding, it is necessary to refer to some of the history of the criminal proceedings against the applicant. 6 The applicant was tried in the District Court before his Honour Judge Luland and a jury on a number of charges, including the charges of malicious wounding and stalking. The jury found the applicant guilty on the charges of malicious wounding and stalking and acquitted the applicant on the other charges in the indictment. 7 Judge Luland delivered his remarks on sentence on 13 April 2000. In his remarks his Honour made a number of findings of fact about the offences for which he was sentencing the applicant. 8 His Honour found that both of the offences for which he was sentencing the applicant had arisen out of what his Honour described as the sad breakdown of an unusual, sexual relationship between the applicant, a woman aged about forty when she first met the victim, and the victim, who was only about seventeen years old when he and the applicant first met. The breakdown of the relationship, after it had lasted several years, left the applicant "a jealous and desperate woman still full of love and affection for the victim whom she had mothered and loved". The applicant was unable to bear that the victim had formed a new relationship with a woman who was very much younger than the applicant. 9 In his remarks on sentence Judge Luland further found that the applicant had arranged a meeting with the victim on 27 April 1999, having "pre-determined" to injure him with a knife she had armed herself with. When she and the victim were together in a vehicle, she positioned herself behind him so as to be in the most advantageous position to strike with the knife. After the victim told the applicant that the relationship between them was definitely at an end, the applicant struck the victim with the knife, wounding him in the chin, shoulder and finger. 10 The applicant was arrested on 5 May 1999, after she had allegedly committed the offence of stalking. She remained in custody for nearly four months before she was released on bail. She then remained at liberty on bail, until she was sentenced. 11 In his remarks on sentence his Honour noted that the applicant had no previous criminal history. In 1993 she had separated from her husband of many years, by whom she had had three children. With funds from a matrimonial settlement she had bought a home, a home unit as an investment and a restaurant business. However, as a result of a cruel fraud practiced on her, she had lost her business and the two properties. In spite of the losses, she had continued, his Honour found, to be "productive and self sufficient". 12 Judge Luland noted that the applicant was undertaking a nursing course at a TAFE college and his Honour expressed the hope that "she will now be able to put this awful chapter of her life behind her and get on with her new life". 13 Judge Luland decided that he would not impose a prison sentence on the applicant. He convicted the applicant of the two offences of which the jury had found her guilty and in respect of each offence he deferred passing sentence, conditionally on the applicant entering into a conditional recognisance to be of good behaviour for two years from 13 April 2000 and to come up for sentence if called upon. The applicant entered into a single recognisance in respect of both offences. There has not been any breach of this recognisance. 14 In an affidavit filed in support of her present application the applicant said that, after she was convicted and sentenced, she was interviewed by members of the Central Sydney Area Health Service and was told that, because of the criminal record she now had, she should resign from the nursing course she had undertaken and she had, accordingly, resigned from the nursing course. The applicant said that she wished to obtain employment but expected that the subject of her criminal record would arise "in relation to any meaningful employment to which I aspire". 15 As explained in her written submissions, the applicant's present application for leave to appeal against conviction and sentence is really an application for leave to appeal, and to appeal, from the decision of Judge Luland, following the jury's verdict of guilty, to convict her of the offence of malicious wounding. Her purpose is that, notwithstanding that the jury's finding of her guilt on that charge remains, a conviction should not be recorded against her. 16 At first sight, the fact the Court has already made an order on 9 February 2001 dismissing an appeal by the applicant against her conviction on the charge of malicious wounding would seem to place a procedural obstacle in the path of the applicant. The Court of Criminal Appeal has no jurisdiction to reopen an appeal which it has heard upon the merits and finally determined Grierson v The Queen (1938) 60 CLR 431. 17 However, the order made by the Court on 9 February 2001 has not yet been perfected. Accordingly, the Court still has jurisdiction to entertain an appeal by the applicant against her conviction for malicious wounding. R v Postiglione (1997) 98 A Crim R 134. If any extension of time is required to enable the applicant to bring her appeal, such an extension of time should be granted. 18 In the written submissions lodged on behalf of the applicant it is submitted that (1) Judge Luland was not bound to convict the applicant for the offence of malicious wounding, following the jury finding her guilty of that offence (R v Reinisch (1978) 1 NSWLR 483) (2) Judge Luland could have exercised the power conferred by s10 of the Crimes (Sentencing Procedure) Act of not proceeding to convict the applicant but dismissing the charge, either absolutely or conditionally on the applicant entering into a recognisance (3) The decision Judge Luland inferentially made, not to exercise the power conferred by s10 should now be regarded as vitiated, because it was made on the basis that his Honour was sentencing the applicant for two offences, whereas the conviction for one of those offences (the conviction for stalking) has now been quashed (4) This Court in the exercise of its own sentencing discretion should exercise the power conferred by s10 of the Crimes (Sentencing Procedure) Act in favour of the applicant. 19 It would appear from the Crown's written submissions that the Crown accepts the first three steps in the submissions made on behalf of the applicant but disputes the last step. I agree that the first three steps should be accepted. Accordingly, the question for the Court is whether, in the exercise of its own sentencing discretion, it should make an order in favour of the applicant under s10 of the Crimes (Sentencing Procedure) Act. 20 Section 10 of the Crimes (Sentencing Procedure) Act provides, so far as is relevant:- "(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years. (2) An order referred to in subsection (1)(b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider". 21 Earlier in this judgment I referred to the objective facts of the offence of malicious wounding, as found by the sentencing judge, and to the subjective circumstances of the applicant, as found by the sentencing judge. I also referred to the contents of the applicant's affidavit. In his written submissions counsel for the applicant submitted that the commission of the offence of malicious wounding had arisen out of a most unusual relationship and the applicant was unlikely to re-offend. Reliance was placed by counsel on the favourable subjective circumstance of the applicant, as found by the sentencing judge, and on the fact that the applicant has spent nearly four months in pre-trial custody. It was submitted that, contrary to his Honour's expressed hope, the applicant had not been able to get on with her new life, because her conviction had prevented her pursuing her nursing course. 22 Under subsection (3) of s10 a court is required to have regard to a number of factors in deciding whether to make an order of a kind referred to in subs(1). I accept that the factors in paragraph (a) of subs(3) would support the making of an order under subs(1). However, I do not consider that such an order could properly be made, when regard is had to the factor in paragraph (b), that the court is required to have regard to "the trivial nature of the offence". In my opinion, the present offence was not trivial in nature. According to Judge Luland's findings of fact, the applicant armed herself with a knife, arranged a meeting with the victim with the intention of using the knife to strike the victim, positioned herself behind the victim in a vehicle so as to be in an advantageous position to strike him with the knife and struck him with the knife, wounding him in the chin, shoulder and finger. As Street CJ said in R v Underhill (unreported CCA 9 May 1986): "This Court and other criminal courts have stated repeatedly that those who use knives when perpetrating criminal offences must expect to receive a significant measure of criminal punishment in consequence. The knife is held in universal abhorrence within the community and this view is shared by the criminal courts". 23 In my opinion, having regard to the nature of the offence and my conclusion that the offence was not trivial in nature, this is not a proper case for the Court to dismiss the charge or to discharge the applicant, without proceeding to conviction. In my opinion, the application made by the applicant for leave to appeal against conviction and sentence should be dismissed. 24 HULME J: In this matter, I have had the advantage of reading the reasons of Bruce James J. Subject to the following observations, I agree with what his Honour has written and with the order he proposes. 25 Although the matter has not been argued, I wish to record my view that it is not a pre-condition of the exercise of power under s10 of the Crimes (Sentencing Procedure) Act, 1999 that the offence involved be trivial. That conclusion was more obvious in the case of s556A of the Crimes Act, 1900 (as amended) which s10 replaced, the relevant terms of both sections being as follows:- "556A (1) Where any person is charged before any court with an offence punishable by such court, and the court thinks that the charge is proved, but is of the opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider, it is inexpedient to inflict nay punishment, or any other than nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to a conviction, make an order either:- (a) dismissing the charge; or (b) discharging the offender conditionally on his entering into a recognisance…" 10(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders:- (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond… (2) An order referred to in subsection (1)(b) may be made if the court is satisfied:- (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on that person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:- (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 26 However, there is nothing in the explanatory memorandum to the later Act or in the Minister's Second Reading speech or in the Law Reform Commission Discussion Paper 33 or Report 79 which preceded the legislative changes reflected in the Crimes (Sentencing Procedure) Act to suggest that any change of significance so far as s556A is concerned was intended. And clearly, a limitation such that the section could be invoked in only trivial cases would be a change of significance. 27 That some power should exist to ameliorate the rigours of the criminal law in cases calling out for such an approach has been recognised in a number of cases. It is sufficient for present purposes to refer to one. In R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ with the concurrence of the other members of this Court said:- "The essence of s556A is that it empowers a court which considers that a charge has been proved, in certain circumstances, to take steps 'without proceeding to a conviction'. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, 'a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice'." 28 I am unaware of any other statutory provision or other power applying to offences or offenders generally which enables a court to avoid recording a conviction when the facts prove establish the commission of an offence. Against this judicially recognised purpose and function of s556A, one cannot conclude from what is obviously a "plain English" rewriting of the section that a change to limit it to only trivial offences was intended. Indeed were one to regard the reference to "the trivial nature of the offence" as limiting the section's application to only such offences, one would have to take the same approach to the terms of paragraph (c) and conclude that the section was not merely limited to trivial offences but trivial offences where there were also "extenuating circumstances". 29 Such an emasculation of an important provision, designed to mitigate "the rigidity of inexorable law", is not to be inferred in the absence of legislative intent far more clearly demonstrated than in the change in terminology from s556A to S10. 30 I turn to the question of whether the power to avoid a conviction should be invoked in this case. I am not persuaded that it should. I do not thereby intend to say that no offender guilty of a knife attack can ever have the benefit of s10(1)(a) although obviously the seriousness of any such offence militates against it. In this case the Appellant's past history argues strongly in her favour and the breakdown of the somewhat unusual relationship between her and the victim provides something significant by way of extenuating circumstances. However, there was no immediate remorse and the Appellant lied about the offence when interviewed by police and at her trial about 12 months later gave yet another account which was rejected by the jury - matters which clearly fall within the ambit of "character" to which s10 entitles or requires a court to have regard. 31 Evidence put before the Court by the Appellant to the effect that a conviction will preclude her pursuing a nursing career on which she has embarked is a matter which it is "proper to consider" within the terms of s10(3)(d). But the area is a two-edged sword. While the adverse impact on the Appellant of a conviction argues for the exercise of the Court's leniency, the obvious desirability of those charged with the responsibility of ensuring that the persons who are granted qualifications as nurses knowing that in some stressful circumstances the Appellant could not control herself appropriately must also be borne in mind. 32 At the end of the day, the case is one where I am just not persuaded that, despite the Appellant's guilt, the Court's discretion to dismiss the charge should be exercised. **********