New South Wales Court of Criminal Appeal CITATION : REGINA v. WILSON; REGINA v. MURPHY [2004] NSWCCA 94 HEARING DATE(S) : Tuesday 6 April 2004 JUDGMENT DATE : 6 April 2004 JUDGMENT OF : Handley JA at 1/24; Dowd J at 25; Greg James J at 2 DECISION : In each case, application for leave to appeal allowed; appeal dismissed. CATCHWORDS : Criminal law - sentence - appeal - sentence asserted to be manifestly excessive - no question of principle. LEGISLATION CITED : Crimes Act 1900 CASES CITED : Fernando (1992) 76 A. Crim. R. 58 PARTIES : REGINA v. WILSON, Frank Malcolm REGINA v. MURPHY, Sharon Lee FILE NUMBER(S) : CCA No. 60474/03; 60473/03 COUNSEL : Crown: G. Rowling Apps: C. Craigie, SC. SOLICITORS : Crown: S. Kavanagh Apps: R. Mathur LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0231; 03/11/0255 FILE NUMBER(S) : LOWER COURT McGuire DCJ. JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL No. 60474 of 2003 No. 60473 of 2003 HANDLEY, JA. DOWD, J. GREG JAMES, J. TUESDAY 6 APRIL 2004 REGINA v. FRANK MALCOLM WILSON REGINA v. SHARON LEE MURPHY Judgment 1 HANDLEY JA: I ask Justice Greg James to give the first judgment. 2 GREG JAMES J: These are applications for leave to appeal brought by Sharon Lee Murphy and Frank Malcolm Wilson in respect of sentences imposed on them for a crime committed by them together of steal from the person, a crime punishable pursuant to s.94 of the Crimes Act 1900 by a maximum penalty of 14 years' imprisonment. Section 94 renders illegal and, so, punishable not only the crime of steal from the person but also the crimes of robbery and assault with intent to rob and the facts which may be comprehended in the offences created by s.94 fall within a broad spectrum of human behaviour. 3 In the case of Sharon Lee Murphy, the trial judge imposed upon her a sentence, taking into account a matter of receiving which was before the court on a Form 1, of three years and six months' imprisonment commencing on 22 January 2004 and to expire on 21 July 2007. That commencement date meant that the sentence for that offence was entirely cumulative on a sentence of a fixed term of 12 months' imprisonment which his Honour had imposed for another offence. The sentence for that offence is not the subject of any appeal. 4 Associated with the sentence for the crime of stealing from the person his Honour imposed a non-parole period of one year to commence following the expiry of the fixed term on 22 January 2004 and to expire on 21 January 2005. Thus, Ms. Murphy was required to spend at least two years in custody for her various offences. The non-parole period has not been the subject of any challenge in the submissions put on Ms. Murphy's behalf. 5 Mr. Wilson was sentenced for the crime of steal from the person to the same head sentence, but with a non-parole period of two years and there were, in his case, taken into account on a Form 1 three offences of stealing. 6 Both applicants have an appalling record. Mr. Wilson was only 22 years of age and Ms. Murphy was 11 years older. They had committed the offence together and were, at the time, involved in a close relationship. 7 The short facts of the offence were set out by the trial judge in his remarks on sentence in each case. They may be summarised as follows. At about two o'clock on Monday 13 May 2002 loss prevention officers saw the two applicants acting suspiciously in Pitt Street Mall and followed them through the arcade to David Jones Food Court level where the victim was seated at a food stall. The applicant, Murphy, picked up the victim's handbag and accompanied by the applicant, Wilson, walked to the escalators and went up the escalators. They were followed by the loss prevention officers who apprehended them holding the handbag open and going through its contents. The applicant, Murphy, was holding the handbag. Wilson was apprehended and sometime later, so was Ms. Murphy. The goods in the handbag were all, except for one item, returned. The property in the handbag included sums of money, credit cards and personal possessions. 8 In the case of each applicant, the trial judge referred to the consideration that each applicant was entitled to the benefit arising from their pleas of guilty having been entered at the earliest opportunity. The trial judge did refer to his view that convictions were highly likely but did that in the context of accepting that the applicants should receive in each case the utilitarian value of their pleas. He referred to the applicant Murphy's "simply appalling criminal history" which his Honour did not relate in detail. When dealing with the applicant Murphy, the trial judge held that the necessity for deterrence was a significant feature in her case and would have been more marked had she not been the subject of marked mental and psychological disadvantages. He referred to her gravely deprived and unfortunate background and in particular drew attention to her children, her lengthy history of drug abuse and her continuing dishonest behaviour which he concluded was a factor in her seeking to obtain drugs to support her drug addiction. The trial judge drew attention to head injuries that she had suffered and said that "It may well be that she has some ongoing organic disability as a result of assaults and such head injuries." He referred to a report provided to him by a psychologist which detailed a history of psychiatric hospitalisation, drug induced psychotic state and a chronic history of loss and abuse which were referred to as predisposing her to mood disorders. The trial judge also referred to the physical assaults, sexual assaults and trauma that had been occasioned to her during what has been a most difficult life. 9 The trial judge also referred to the psychiatrist's conclusion that Ms. Murphy suffered from marked intellectual limitations and referred to specific treatment for mood disorder and a rehabilitation programme for her drug and alcohol issues. In particular the trial judge referred to the necessity, if she wished to avoid further offences, for her to confront her substance abuse problems and noted the psychiatrist's recommendation that there be a neurological assessment as well as assistance to her by way of the provision of dentures. 10 All this being said, the trial judge concluded that the objective circumstances of the offences were not of the most serious type, so much may be accepted. His Honour found special circumstances and that it was in the interests of the prisoner and the community that she be given the opportunity for rehabilitation. He recommended supervision on release and in particular that she undertake a full time residential course involving drug and alcohol counselling. He recommended that she be afforded immediately whatever facilities were required by way of psychiatric and psychological care and review of her anti-depressant medication with such dental care as she may require. 11 In that context the sentence passed upon her comes to be considered in the light of the single ground of appeal asserted, that the sentence imposed upon her for that offence was excessive. 12 Mr. Wilson, who also asserts that sole ground of appeal, was about 22 years of age as I have said. He has for a person of that age also an appalling record and plainly had suffered from a considerably deprived childhood. At the time of the commission of these offences Mr. Wilson had been the subject of good behaviour bonds associated with suspended sentences. His Honour, however, assumed that Mr. Wilson had some desire to reform notwithstanding the breach of his suspended sentences and concluded he should reflect that in relationship of the non-parole period to the parole period, that is to say his Honour found special circumstances. 13 Again, when remarking on the absence of any violence in the commission of the offences, his Honour referred to the objective nature of the offences as not being a major incident of this type. He did, however, draw attention to the fact that it was a serious crime from which there was a maximum penalty of 14 years' imprisonment. His Honour referred to the necessity that there be in the sentence elements of both general and personal deterrence. He referred to those matters also in relation to the offences on the Form 1. 14 At portions of his remarks on sentence his Honour used the word "rob". It is quite apparent when his Honour refers to the absence of violence, to which I have already referred, that his Honour did not use that word "rob" in its technical sense as relating to the circumstances of the commission of these offences. It may well be it was simply used in its vernacular sense. In any event, the penalties prescribed for robbery or attempt to rob, that is to say assault with intent to rob and stealing from a person by s.94 are the same. Nothing turns therefore on his Honour having so described the offence. 15 The trial judge remarked upon the domestic circumstances of Mr. Wilson and Ms. Murphy; in particular on their residing with Mr. Wilson's mother who had treated Ms. Murphy as her daughter. He referred to the evidence which was before him relating to the unfortunate background of Mr Wilson and in particular the problems concerning Mr. Wilson's father. 16 He appears to have accepted that there was a change in the conduct of both Mr. Wilson and Ms. Murphy which commenced by their enrolling in a methadone programme and in educational course. His Honour referred to Mr. Wilson's disability he suffered as a child that had apparently resulted in his asserting himself by unruly and "untoward" conduct. His Honour accepted there had been chronic substance abuse that resulted in addiction and he referred to poly substance drug abuse. 17 Notwithstanding a reluctance on Mr. Wilson's part to enter into a rehabilitation programme of a full time residential nature, his Honour was prepared to extend to Mr. Wilson the benefit of finding of special circumstances and passed the sentences to which I have referred in that context. His Honour recommended that during the parole period Mr. Wilson be subjected to all directions of the officers of the Probation and Parole Service and in particular in relation to seeking to address the drug dependency and rehabilitation and he expressed a preference for a community-based drug and alcohol programme and training. The optimum, his Honour said, would be a residential drug and alcohol programme. 18 Even taking into account possible extensions to custody that might be occasioned by such programmes and notwithstanding the detailed analysis of the matters to which the trial judge had regard in his remarks on sentence in each case, made by counsel in argument, I do not conclude that the ground of appeal has been made out in the case of either appellant. Whilst it is true that the sentence of three years and six months in each case is a substantial sentence and whilst it is true that no violence was occasioned and even having regard to the fact that his Honour gave credit, though not specified in percentage terms, for the early pleas, I do not conclude the sentence of three years and six months in either case exceeded the permissible bounds of the exercise of his Honour's discretion. 19 It was submitted that the offence required assessment as being at the lower end of any identifiable and appropriate range. Whilst that proposition might be accepted I do not see that it was inappropriate for his Honour to regard the offence as appropriately being met in all the circumstances by head sentences of the extent he passed. 20 It was submitted that the matter was capable of being dealt with in the Local Court. True it is that the Local Court might have had jurisdiction but it is patent on the face of these offences and each of the applicants' prior records that it was entirely appropriate that this matter be dealt with in the District Court nor could it be said that court was required to restrict the penalty that it might pass by reference to the maximum of the jurisdiction in the Local Court. 21 His Honour accepted the subjective case for each applicant. He accepted the application of the principles enunciated by Justice Wood in Regina v. Fernando (1992) 76 A. Crim. R. 58. Indeed, in each case, he went further to refer to specific problems over and above those created by matters of general significance which had afflicted the earlier years of both applicants. I do not see that his Honour could be said to have fallen into error in the result in the way in which he came to deal with those particular matters on sentence. 22 On the hearing of the appeal there was tendered to us for the purposes of use in re-sentencing a number of certificates which had been gained by the applicant Murphy attesting to the courses she had completed whilst in custody. Those certificates included certificates attesting to her having acquired a skill in acrylic painting, in typing and no doubt associated secretarial matters, in first aid and in numerous other areas. The material was put before us on the usual basis, that is to say that it was available for use on re-sentencing. I should not move on without remarking upon how encouraging that material is to support the trial judge's faith that the applicant is moving considerably towards rehabilitation. This material is such as might help the Parole Board to give favourable recognition to her release and as such, indicate the prospect that the appellant might avoid again coming under notice of the criminal law and thus back into custody, but I cannot have regard to that material for the purposes of reconsidering a sentence which in my view properly fell within the appropriate parameters for the exercise of the trial judge's discretion. 23 In my view the application for leave should be allowed but the appeal dismissed in each case. 24 HANDLEY, JA: I agree. 25 DOWD, J: I also agree. 26 HANDLEY, JA: The orders of the court are as pronounced by Greg James, J. ********** Last Modified: 04/14/2004 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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