Regina v Ronda Prestwidge [2002] NSWCCA 439

New South Wales Court of Criminal Appeal

CITATION : Regina v Ronda Prestwidge [2002] NSWCCA 439 revised - 26/02/2004 FILE NUMBER(S) : CCA 60905/01 HEARING DATE(S) : 29/10/02 JUDGMENT DATE : 8 November 2002

PARTIES : Regina Ronda Shane Prestwidge JUDGMENT OF : Dunford J at 1; Kirby J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/1166 LOWER COURT JUDICIAL Freeman DCJ OFFICER :

COUNSEL : P Barrett (Crown) H K Dhanji (Appl) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appl) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Parity - Discount for plea of guilty on utilitarian grounds - Home invasion LEGISLATION CITED : Crimes Act, 1900 Postiglione v The Queen [1996-1997] 189 CLR 295 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Sharma [2002] NSWCCA 142 R v Stabler (1984) 6 Cr App R (S) 129 CASES CITED: R v Costen (1989) 11 Cr App R (S) 182 R v Kalache (2000) 111 A Crim R 152 R v Lo [2001] NSWCCA 271 R v Hayes [2001] NSWCCA 358 Veen v The Queen (No 2) (1988) 164 CLR 465 DECISION : Ref para 48

Revised 26/2/04THE COURT OF CRIMINAL APPEAL 60905/01

DUNFORD J KIRBY J

Friday 8 November 2002 REGINA v Ronda Shane PRESTWIDGE Judgment 1 DUNFORD J: I agree with Kirby J. 2 KIRBY J: Ronda Shane Prestwidge (the applicant) seeks leave to appeal against the sentence imposed by his Honour Judge Freeman in the District Court on 13 December 2001. Ms Prestwidge was charged with breaking, entering and stealing from a dwelling in circumstances of aggravation, the circumstances being the malicious infliction of actual bodily harm (s112(2) Crimes Act, 1900) (the Act). Ms Prestwidge pleaded guilty to that offence. She asked his Honour to take account of a number of offences on a Form 1, namely, one count of larceny (s117 of the Act), and four counts of attempted break and enter with intent to steal (s112(1) of the Act). 3 His Honour imposed a sentence of imprisonment of five years and three months, dating from Ms Prestwidge's arrest on 4 March 2001. He fixed a non parole period of three and a half years. 4 When sentencing Ms Prestwidge, his Honour also sentenced the person with whom she was in company, Mr John Carter. Mr Carter faced an indictment expressed in the same terms (including the Form 1). He, likewise, pleaded guilty. The sentence imposed upon Mr Carter was six years three months dating from 4 March 2001, with a non parole period of four years and six months. The Offences 5 Ms Prestwidge is a woman aged 32 years. Some months before March 2001, she formed an association with Mr John Carter. Both were involved in drug taking. Each had a significant criminal record. 6 On 3 March 2001 at 10.30 pm, Ms Prestwidge and Mr Carter broke into a suburban dwelling occupied by Mr Hewitt. Mr Hewitt was aged 86 years. He lived alone. He heard the dog barking and went to investigate. He then saw Mr Carter and Ms Prestwidge rushing towards him. Mr Carter was armed with a screwdriver. He demanded money. Mr Hewitt said that he had none. Mr Carter then forced the victim's head to one side, holding the screwdriver to his throat. Ms Prestwidge remained in the near vicinity. Mr Carter repeated his demand for money. The victim directed his assailants to an ashtray where he had small change. 7 Mr Hewitt then cried out for help. Mr Carter responded by removing a pillow from behind Mr Hewitt's head. He placed it over his face. Mr Hewitt had difficulty breathing. The screwdriver cut his forehead, causing him to bleed. He felt in terror for his life. 8 Ms Prestwidge and Mr Carter then ransacked the house. Mr Hewitt's valuable watch was physically removed from his arm by Mr Carter. Ms Prestwidge and Mr Carter then stole other property, including a bag, ostrich eggs and whisky. As Mr Carter left, he unplugged the telephone. He warned the victim that, should he endeavour to contact the police, they would return and kill him. The offences on the Form 1 (the larceny and the four counts of attempted break, enter and steal) appear to have been part of the same criminal spree. They were committed on 3 March 2001 and before 6.50 a.m. on 4 March 2001. At 6.50 a.m. Ms Prestwidge and Mr Carter were arrested. When arrested, Mr Carter had in his possession Mr Hewitt's watch. He also had the screwdriver in his pocket. Property, including the ostrich eggs, was later found at premises which Mr Carter occupied. 9 By any standards this was a serious crime, as his Honour recognised. Ms Prestwidge and her companion had invaded a home when it was obviously occupied. The lights were on, as was the television. The offence was committed in company. The victim was threatened and injured, although not seriously. When seen by a neighbour, Mr Hewitt was bleeding and described as "shaking uncontrollably".