New South Wales Court of Criminal Appeal CITATION : Regina v Andrews [2002] NSWCCA 18 FILE NUMBER(S) : CCA 60853/00 HEARING DATE(S) : Friday 1 February 2002 JUDGMENT DATE : 1 February 2002 PARTIES : Regina v Tracey Marie Andrews JUDGMENT OF : Ipp AJA at 31; Grove J at 2; Dowd J at 32 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0452 LOWER COURT JUDICIAL Shillington DCJ OFFICER : COUNSEL : P.J.P. Power (Crown) H.L. Cox (Appellant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Appellant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - ASSISTANCE TO AUTHORITIES - CONSENT OF CROWN TO TENDER OF INFORMATION SHOWING VALUE OF ASSISTANCE GREATER THAN COULD HAVE BEEN APPRECIATED AT TIME OF SENTENCE - PARTICULAR CIRCUMSTANCES - RESENTENCE APPROPRIATE CASES CITED: R v Thomson & Ors [2000] 49 NSWLR 383 DECISION : APPEAL ALLOWED; APPELLANT RESENTENCED IN THE COURT OF CRIMINAL APPEAL 60853/00 IPP AJA GROVE J DOWD J Friday 1 February 2002 REGINA v TRACEY MARIE ANDREWS Judgment 1 IPP AJA: I will ask Grove J to give the first judgment. 2 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Shillington DCJ in the Newcastle District Court on 12 December 2000. 3 The applicant had appeared for sentence upon six counts, four of them charging her with being an accessory after the fact to robbery and two counts charging robbery, in each of which the Crown case was that she was a principal in the second degree. 4 The facts of the offences followed a fairly standard pattern. A man called Adam Dudgeon, recently released from prison, came to reside with the applicant, her de facto husband and her children. During this residence it appears that an affair took place between the applicant and the man Dudgeon, and she came to be somewhat influenced by him. 5 A spate of offences occurred, the first on 22 December 1999 and the last on 19 January 2000. The offences followed, as I have said, a general pattern. They were robberies of retail outlets, including chicken stores, bakeries, and pizza parlours, and one attack upon a liquor store. 6 The applicant was involved frequently as the driver of the vehicle which came to the place of the offence. Dudgeon entered the premises to commit the actual offences, often disguising himself with a balaclava. 7 The facts also reveal that on occasions the applicant was actually stopped by police in her vehicle, and gave explanations which were false, but which at the time satisfied police investigators. 8 It can also be remarked that on the occasions of some offences she was accompanied by children, specifically by her ten year old daughter. The applicant received shares of the proceeds, sometimes by way of a distribution of some drugs, which she was at the time using. As I have said, it is not necessary to detail the whole six of the offences. 9 His Honour imposed sentences of fixed terms of twelve months imprisonment on each of the four counts charging that the applicant was an accessory after the fact to robbery. Those sentences have been fully served and are now expired. 10 On the two counts of robbery in which, as I have mentioned, the applicant was alleged to be a principal in the second degree, his Honour imposed imprisonment terms concurrent for four years and six months, with a non-parole period of two years. Those sentences are currently being served, and the applicant's earliest date of eligibility for release to parole is 3 December 2002. 11 On behalf of the applicant a number of arguments were presented, principally by way of very full written submissions. As I am of the view that one of those grounds is made out, it is appropriate to deal relatively briefly with the others. 12 The applicant complained that the learned sentencing judge did not sufficiently take into account the applicant's voluntary disclosures of guilt. These disclosures followed a second interview by police. I have already referred to the occasions when she was stopped whilst virtually in flight from the offences, and the same situation pertained to her first formal interview, but shortly thereafter, in a second interview, she did make full disclosure. 13 It is true that his Honour did not make specific reference to the voluntary disclosure of guilt. However, the very objective mildness of the sentences imposed is strongly indicative of the circumstance that his Honour gave full weight and measure to such a matter. 14 It was argued that his Honour did not quantify the discount which he gave for the pleas of guilty by the applicant. Again, that statement, standing alone, is literally accurate. However, as appears from the case of R v Thomson & Ors [2000] 49 NSWLR 383, error is not established simply because a discount is not quantified. Again having regard to the sentences imposed, it is manifest that his Honour gave full and proper weight to such considerations. 15 It was also argued that the applicant harbours a justifiable sense of grievance having regard to sentences imposed upon co-offenders. Dudgeon, who as I have mentioned carried out the actual offences, was effectively sentenced to imprisonment for seven years, with a non-parole period of five and a half years. The comparison that is sought to be made, as I understand the submission, is between that sentence and the sentences imposed upon the applicant. 16 The applicant was not herself without prior record. It is true that the involvement of Dudgeon was much more serious than her involvement. On the other hand, it is a matter of simple arithmetic that his non-parole period is some two and a half times that imposed upon her. I cannot as a matter of assessment perceive that any sense of grievance harboured by her on this basis is justifiable. 17 Mention was made of sentences imposed upon her de facto husband, a man called Douglas. He received imprisonment for three and a half years, with a non-parole period of eighteen months, but it should be pointed out that he was involved in only two of the offences. There were other circumstances which were dealt with by the sentencing judge, who was aware of other sentences which had by this point been imposed, and again I am unable to assess any sense of grievance harboured by the applicant as being justifiable. 18 The final matter which I regard is unsustainable is a complaint that his Honour did not backdate the sentence which he directed to commence from 4 December 2000, that is to say, the date upon which the applicant was placed in custody by his Honour. She had been in custody for some nineteen days after arrest, prior to being granted bail in the Supreme Court. 19 His Honour expressly said that he would take into account that she had been in custody for some nineteen days before she was bailed, and for my part, I see no reason to express any scepticism about his Honour's expressed statement to that effect. It is true that statements in this Court have encouraged judges to backdate sentences in order to enable there to be clarity about matters being taken into account, but it does not demonstrate error for a judge not to do so. 20 Accordingly, I am of the view that none of those grounds are made out. 21 However, I turn to the final ground, which I have indicated I regard as having been sustained. This relates to the value of assistance to authority which in the event, has been given by the applicant. By consent of the Crown, there has been put before the Court certain information, to which I will later refer, concerning events subsequent to his Honour's sentence. 22 At the time of sentence the applicant gave evidence. It appears that then, for the first time, and to the apparent surprise of the advocate then representing her, she indicated that she was prepared to give evidence to assist the Crown in any proceedings against her co-offenders. His Honour dealt with the matter in these terms: "There has been some indication in your evidence, and this apparently has been the first formal indication, that you are prepared to assist in the forthcoming trials of the principals Dudgeon and your de facto husband Tony Douglas. It seems somewhat problematical as to whether that in fact is really the situation. You have certainly had the opportunity of making formal statements for use by the prosecuting authorities. You say that you had thought about it prior to your absconding and had even discussed the matter in general terms with Ms Zahra, who appears for you today. As nothing direct has resulted from those discussions, and although you have yourself said in your evidence that you are prepared to give that kind of assistance, one could understand that ultimately that may not be the position, particularly as one of those involved is the father of your children. Ms Zahra herself has realistically suggested that because of your psychological situation it may not be practical for you to give that assistance. However, there is the possibility that you will do so, and I have taken that matter into account." 23 Subsequent events have shown that it was not possible for his Honour to fully appreciate the commitment offered by the applicant. In January 2001 the applicant made a full statement to police authorities, which was incriminating of her two co-offenders. 24 More significant than that, in my view, was the circumstance that the co-offender Dudgeon on several occasions wrote from his position in custody to the applicant, and without reciting the entirety of the content of his letters, it suffices to observe that he proposed to the applicant that she should provide him with false evidence in order to enable him to escape justice. Not only did the applicant decline so to do, but she very properly handed over those letters to authorities. 25 I think it is reasonable to conclude that the subsequent pleas of guilty by Dudgeon and by Douglas were very much inspired by the offer of the applicant to give evidence on behalf of the Crown, and by her conduct which I have just described. 26 That ground having been made out, it is appropriate for this Court to consider the matter of sentence and possible re-sentence. I have already observed that in my view the sentences imposed by the learned District Court judge were mild indeed. Nevertheless, there is before the Court information concerning the steps towards rehabilitation which the applicant has taken. I also think it appropriate to take into account the family circumstances, the promises of future rectitude, and the other matters which are set out in lengthy affidavits by both the applicant and her mother. 27 The learned sentencing judge found there were special circumstances justifying the reduction of the non-parole period component of the sentence, and for reasons identical to him, I would reach the same conclusion. 28 There is one further matter to which reference should be made. There is evidence before the Court that whilst in custody the applicant has herself been the subject of some attack. It is reasonable to conclude that that attack may itself have been inspired by information becoming available that she has given assistance to the Crown of the type that I have indicated. 29 The consequence is therefore that it is likely that the applicant's period in custody will be more onerous than his Honour had expected at the time he was imposing sentence, when the matter of assistance needed to be dealt with as a mere and somewhat faint possibility, as his Honour indicated. In my view the offences were serious, but nevertheless, having regard to the findings that I would make, there should be a reduction in favour of the applicant. 30 I would therefore grant the application for leave to appeal and allow the appeal, and quash the sentences imposed upon counts four and five in the indictment. In lieu thereof, on each count, to be served concurrently, I would sentence the applicant to imprisonment for three years and six months, to date from 4 December 2000, and I would specify a non-parole period of one year and six months to commence upon the date just expressed and to expire on 3 June 2002. The applicant would therefore be eligible for release to parole on 3 June 2002. 31 IPP AJA: I agree. 32 DOWD J: I also agree. 33 IPP AJA: The orders of the Court will accordingly be as proposed by Grove J. ********** 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.