Regina v Walker [2004] NSWCCA 230

New South Wales Court of Criminal Appeal

CITATION : Regina v Walker [2004] NSWCCA 230 HEARING DATE(S) : 07/06/2004 JUDGMENT DATE : 8 July 2004

JUDGMENT OF : Dowd J at 1; Hislop J at 2; Smart AJ at 22 DECISION : (a) Leave to appeal granted; (b) Appeal allowed; (c) Sentence quashed; in lieu thereof imprisonment for forty three months and six days to commence on 6 June 2002 and expire on 11 January 2006; Non-parole period of twenty eight months and fifteen days to expire on 20 October 2004.

CATCHWORDS : Criminal law - Robbery in company - Sentence - Totality - Offence whilst on parole - Double punishment - Adjustment to commencement date of sentence. LEGISLATION CITED : Crimes Act 1900 - s 97(1) Crimes (Sentencing Procedure) Act 1999 - ss 47(2)(a), (3) CASES CITED : R v Hajjo NSWCCA 31/8/1992, unreported R v Kitchener [2003] NSWCCA 134 PARTIES : Regina Lisa Walker FILE NUMBER(S) : CCA 60036/04 COUNSEL : B Knox SC - Crown L Flannery - Applicant SOLICITORS : S Kavanagh - Director of Public Prosecutions (NSW) SE O'Connor - Legal Aid Commission (NSW)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1240 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER :

- 1 - IN THE COURT OF CRIMINAL APPEAL 60036/04

DOWD J HISLOP J SMART AJ

8 July 2004 REGINA v LISA WALKER Judgment 1 DOWD J: I have read the judgment of Hislop J in draft form. I agree with the proposed orders and his reasons therefore. 2 HISLOP J: At about 4pm on 26 February 2002 the applicant, in company with two other persons, one male and one female, snatched a handbag from a forty year old woman as she was waiting for a friend in a Blacktown street. The victim was initially grabbed by the applicant by the neck and shoulders and struck in the face by the male assailant. The victim gave chase whereupon she was threatened with a stick by the male and then punched in the face by him. 3 As a consequence of those events the applicant pleaded guilty to one count of robbery in company contrary to the Crimes Act 1900 s 97(1). The maximum penalty for the offence is twenty years imprisonment. 4 On 21 March 2003 Gibb DCJ sentenced the applicant to forty three months and six days imprisonment for that offence. Her Honour directed that the sentence be taken to commence on 6 October 2002. She set a non-parole period of twenty eight months and fifteen days. 5 The applicant seeks leave to appeal against sentence. The grounds of appeal are that the sentencing Judge (a) failed to consider principles of totality and (b) imposed a double punishment for the fact that the offence was committed on parole. 6 The essence of the applicant's complaint is not that her Honour erred in determining the sentence or non-parole period per se but rather her Honour erred in not directing that the sentence commence on an earlier date. 7 It may be said at once that the commencing date selected by her Honour was the date upon which the parties agreed the applicant went into custody for the purposes of the subject offence. As such the commencing date conformed with the requirements of the Crimes (Sentencing Procedure) Act 1999 s 47(2)(a) and (3). 8 The matter is however complicated by reason of the applicant's earlier conviction for three offences (assault occasioning actual bodily harm, steal from the person; detain for advantage and cause injury to victim). These offences resulted in the applicant being sentenced on 3 October 2000 (concurrently in respect of each offence) to imprisonment for two years with a non-parole period of four months and five days, the latter backdated so as to expire on the date of sentence and to cover the period she had spent in custody, initially having been charged on more serious offences many months previously. The parole period of 19 months 25 days was to expire on 28 May 2002. The conditions of her parole included supervision by the Probation and Parole Service and required her to accept all reasonable directions for rehabilitation courses for drug and alcohol abuse. 9 On 20 June 2001 she was sentenced to 6 months imprisonment starting on 3 May 2001 on each of four offences (possess prohibited drug, possess implements to enter/drive conveyance, be carried in conveyance taken without consent of owner and goods in custody). She was released on 2 November 2001 to her previously granted parole.