New South Wales Court of Criminal Appeal CITATION : R v Armstrong [2002] NSWCCA 94 FILE NUMBER(S) : CCA 60441/01 HEARING DATE(S) : 22 March 2002 JUDGMENT DATE : 22 March 2002 PARTIES : Regina (NSW) (Respondent) Kathryn Ann ARMSTRONG (Applicant) JUDGMENT OF : Dunford J at 1; Carruthers AJ at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0230 LOWER COURT JUDICIAL Christie DCJ OFFICER : COUNSEL : WG Dawe QC - Crown H Dhanji - Applicant SOLICITORS : SE O'Connor - Crown DJ Humphreys - Applicant CATCHWORDS : CRIMINAL LAW - sentencing - multiple counts of dishonesty - special circumstances CASES CITED: R v Simpson [2001] NSWCCA 534 Power v The Queen (1973) 131 CLR 623 DECISION : Leave to appeal granted. Appeal dismissed. Sentences confirmed. IN THE COURT OF CRIMINAL APPEAL 60441/01 DUNFORD J CARRUTHERS AJ Friday, 22 MARCH 2002 R v Kathryn Ann ARMSTRONG Judgment 1 DUNFORD J: This is an application by Kathryn Ann Armstrong to appeal against the sentences imposed on her by his Honour Judge Christie QC in the District Court at Sydney on 20 June 2001 for a number of offences of dishonesty. 2 In respect of the third count, which was one of making a false instrument, his Honour sentenced the applicant to imprisonment for a term of 3 years commencing on 9 November 2000 and fixed a non-parole period of three-quarters of that, namely 2 years and 3 months. In fixing that sentence, his Honour also took into account a number of matters on a Form 1 and in respect of the other eighteen counts, his Honour sentenced the applicant to fixed terms of imprisonment, to be served concurrently, and expiring within the non-parole period fixed on count 2. 3 Without going into the details of the charges, the facts can be summarised by saying that early in 2000 the applicant and her then partner moved to premises at Iluka on the North Coast, where they "apparently" befriended their neighbours. I say apparently because the applicant used this friendship to steal a number of items from the neighbours, including a marriage certificate, credit cards, Medicare cards, an Australian Tax Office cheque and other items, and subsequently used these items to make and use a number of false instruments to deprive the neighbours of various sums of money through a number of bank accounts. One offence in particular, to which I would make special reference, was in respect of a Tax Department cheque in favour of one of the neighbours in the sum of $32.75, which the applicant fraudulently altered to a cheque for $48,832.75, and then using the false identification material previously stolen, she attempted to open an account in the name of the neighbour with the National Australia Bank and present the cheque to the credit of that account. The bank became suspicious and the whole scheme unravelled. 4 The matters on the Form 1, which were some six in number, involved obtaining cash from the account of another neighbour, by the forging of various cheques. 5 In sentencing the applicant, his Honour took into account a number of subjective matters that were before him, including some rather sad and distressing features in the applicant's life, the effect that her recent incarceration had had on her daughter, the fact that her former partner had left her as a result of her incarceration for these matters and he said that he accepted almost every syllable in a document prepared by the applicant and which has been before us today as being demonstrative of significant subjective circumstances. He also had regard to the Corrective Services' health report, under the hand of Dr Michael Giuffrida and a Department of Corrective Services' Alcohol and Other Drug Report, and concluded that those matters painted a picture of a lady who is anxious to get on with her rehabilitation, is anxious to serve whatever sentence she faces and get on with her life in the company of her daughter, hopefully to repay the moneys and hopefully not to offend again. His Honour considered that she appeared to be a woman on the right track to rehabilitation. 6 It was also incumbent for his Honour to have regard to the applicant's previous record, which is extensive, although his Honour noted that she appeared to be "an incorrigible and repetitive offender", but went on to say that it is perhaps better to look to the future than to the past. He said that he was anxious not to crush her but to enable her to mend some fences and get on with her life and encourage any effort that she had so far made in terms of her rehabilitation. He took into account her pleas of guilty and her long history of drug addiction. 7 I should refer briefly to her prior record which, as I say, is extensive. I will not set it out in detail at this stage but she has failed to complete previous periods of supervision and been in breach of community service orders. She has a record dating back to 1986. In January 1996 she was placed on a 3 year good behaviour bond and orders were made for her to perform community service, neither of which she kept. On 10 April 1997 she was sentenced to 6 months' imprisonment on a number of charges but she appealed, as was her right, and in the District Court at Lismore on 5 March 1998 she was placed on a 3 year good behaviour bond, to accept the supervision of the drug and alcohol authority and also ordered to perform community service. Again she did not adhere to the terms of the bond. These offences were committed whilst she was subject to that bond. She also received a sentence of 3 months from the Grafton Local Court on 23 March 1999. These offences commenced some time during the course of the year 2000. She had previously been given a number of recognisances with supervision. 8 Towards the end of his Remarks on Sentence his Honour said: "Having looked at the subjective circumstances and balanced them against the prisoner's prior record, I do not feel this is a matter in which I could justifiably find special circumstances. It is not often that I do not find special circumstances but I propose to ameliorate the sentence as far as I can in terms of the subjective circumstances that present but I do not believe that there is anything here that would entitle me to find special circumstances and I do not propose to do so ." (my italics) 9 The only ground of appeal is that his Honour erred in law in finding that he was not entitled to find special circumstances and that submission is based substantially on the passage in italics above. The earlier part of the passage quoted is also referred to as perhaps being ambiguous but it is submitted that the passage in italics is not ambiguous and represented an error of law. 10 In R v Simpson [2001] NSWCCA 534 the learned sentencing judge had said "I see no reason to find special circumstances in this case" and it was submitted that that constituted the same error of law as here. In delivering the judgment of this Court, Spigelman CJ said at [90]: "Decisions on sentencing matters by District Court judges should not be analysed so finely. The suggestion of ambiguity in the applicant's submissions is to manufacture an error in his Honour's reasons which nothing in his Honour's reasons warrant." His Honour went on: "In my opinion his Honour's reasons should be understood to say that all the facts and matters to which he had earlier referred did not constitute a sufficient "reason to find special circumstances". His Honour was entitled to make a judgment of that character. No error is suggested which would entitle this Court to intervene." 11 In my opinion, similar considerations apply here. His Honour, as I read his Remarks on Sentence, was not saying and was not intending to say that as a matter of law there were no matters which were capable of giving rise to special circumstances which would justify a non-parole period of less than three-quarters of the head sentence, but was merely saying that in all the circumstances of this case, and having regard in particular to the manner in which he had ameliorated the head sentence by reason of the subjective matters which he had found in favour of the applicant, there were no additional facts which led to a finding that a non-parole period of less than three-quarters of the head sentence was appropriate. 12 As pointed out in Simpson at [56] the non-parole period is "the minimum period for which the offender must be kept in detention in relation to the offence" and having regard to what was said in Power v The Queen (1973) 131 CLR 623 and followed in Simpson at [55] and [59], that involves a consideration not only of the subjective features of the offender but also of the objective features of the offences that have been committed, including the need for general and personal deterrence. 13 As also pointed out in Simpson at [67], when subjective matters are taken into account in fixing the head sentence, then merely by applying the ratio indicated by s 44(2), those subjective features are reflected in the non-parole period. 14 Having regard to the applicant's prior record and including the number of times she had failed to take advantage of supervision, there was no basis in this case for believing that a longer period on parole would effect her rehabilitation any more than would the period fixed by his Honour during which she will be eligible for parole. As his Honour observed, although she was anxious to rehabilitate herself, the view was open that this represented the triumph of hope over experience. 15 For these reasons, I cannot see any error in his Honour's reasoning nor in the manner in which he has expressed himself. His Honour as I say was not finding there were no matters capable of amounting to special circumstances but that in this case there were no additional matters which he had not already taken into account which amounted to special circumstances such as would justify a reduction in the non-parole period below three-quarters of the head sentence. 16 A number of such matters were suggested to us in oral submissions but they were all matters which had been taken into account by his Honour in fixing the head sentence. 17 For these reasons, I would grant leave to appeal but would dismiss the appeal and confirm the sentences. 18 CARRUTHERS AJ: I agree. 19 DUNFORD J: The order will be as I have indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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