Regina v PITT [2004] NSWCCA 454

New South Wales Court of Criminal Appeal

CITATION : Regina v PITT [2004] NSWCCA 454 HEARING DATE(S) : 5 October 2004 JUDGMENT DATE : 5 October 2004

JUDGMENT OF : McClellan AJA at 1; Grove J at 32; James J at 33 DECISION : Leave to appeal granted but appeal dismissed

CATCHWORDS : CRIMINAL LAW: - appeal against sentence - break, enter and steal - co-offender - parity in sentencing - absence of Form 1 matters - lack of remorse - limited intellectual ability of co-offender LEGISLATION CITED : Crimes Act 1900 s 112(1) R v Paul Joseph Anderson, NSWCCA, 25 March 1993, unreported R v Leonard [2000] NSWCCA 28 CASES CITED : R v Ponfield (1999) 48 NSWLR 327 R v Wright (1997) 93 A Crim R 48 R v Simpson (2001) 53 NSWLR 704 Lowe v The Queen (1984) 154 CLR 606 PARTIES : The Crown Rachel Pitt (Appl) FILE NUMBER(S) : CCA 2004/2326 COUNSEL : G Rowling (Crown) D Yehia (Appl) SOLICITORS : E Philpot (DPP) S O'Connor (Legal Aid Commission of NSW)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/61/0202 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2326

McCLELLAN AJA GROVE J JAMES J

TUESDAY, 5 OCTOBER 2004 REGINA v Rachel Teresa PITT Judgment 1 McCLELLAN AJA: The applicant seeks leave to appeal against a sentence of eighteen months imprisonment with a non-parole period of nine months imposed by Bell DCJ on 5 May 2004 at Moree. The applicant had pleaded guilty, on indictment, to a charge of break ,enter and steal. This is an offence contrary to the provisions of s 112(1) of the Crimes Act 1900, which provides a maximum penalty of fourteen years imprisonment. 2 The offence occurred shortly after 6.30 pm on Saturday 16 November 2002. The applicant, together with a co-offender, Darren Bruce Caldwell, who was her partner, entered premises, they located an amount of cash totalling $14,230 in a sock drawer in one of the bedrooms. The applicant and the co-offender took the money, together with several cans of Tooheys beer and a packet of bacon. 3 Shortly after the offence, the applicant and her co-offender attended the premises of an acquaintance, Tony Gray. Gray drove the offenders to a bottle shop where they purchased a carton of bourbon and cola cans and a packet of cigarettes, totalling $60. Gray became suspicious as she considered it unusual that the applicant had money and she went to Casino police station and reported her dealings with the offenders. 4 Police attended the premises of the applicant and her co-offender. The applicant eventually gave the police permission to search the premises. Six pairs of men's socks and a packet of bacon were located in the lounge room. A sum of $13,800 was located in a coat worn by the applicant. Both offenders were taken to Lismore police station and charged. 5 The applicant entered into her bail on 18 November 2002. She was committed for trial on 18 February 2003. Apparently at the time of the committal proceedings, the applicant was facing a charge of aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900. The applicant failed to appear for arraignment and was subsequently apprehended pursuant to a warrant. She was given bail to appear at Dubbo District Court on 5 December 2003, whereupon she entered a plea of guilty to one count of break, enter and steal pursuant to s 112(1) of the Crimes Act 1900. 6 The applicant has a minor record with no matters of a similar kind. His Honour accepted that in light of the applicant's upbringing, her record "…was, if anything, one of slight importance and almost one of commendation." 7 The co-offender was sentenced by Ducker ADCJ on 21 May 2003 to a term of imprisonment of eighteen months with a non-parole period of nine months. When imposing the sentence, Ducker ADCJ took into account five matters on a Form 1, which were filed pursuant s 32(1) of the Crimes (Sentencing Procedure) Act 1999. The matters were: