New South Wales Court of Criminal Appeal CITATION : R v Nicholls [2003] NSWCCA 76 HEARING DATE(S) : 27 March 2003 JUDGMENT DATE : 27 March 2003 JUDGMENT OF : Studdert J at 1; Smart AJ at 25 DECISION : Leave to appeal granted; appeal dismissed. Crimes Act, s 117 LEGISLATION CITED : Crimes (Sentencing Procedure) Act, s 32 Criminal Appeal Act, s 6(3) Pearce v The Queen (1998) 194 CLR 610 CASES CITED : R v Ilbay [2000] NSWCCA 251 R v Simpson (2001) 53 NSWLR 704 PARTIES : Regina v Shirley Eva Agnes Nicholls (nee McDermott) FILE NUMBER(S) : CCA 60176/02 COUNSEL : M.C. Grogan (Crown) In person SOLICITORS : S.E. O'Connor (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0138 FILE NUMBER(S) : LOWER COURT Nash ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60176/02 STUDDERT J SMART AJ Thursday 27 March 2003 REGINA v SHIRLEY EVA AGNES NICHOLLS (nee McDERMOTT) Judgment 1 STUDDERT J: The applicant, Shirley Eva Nicholls, pleaded guilty in the District Court to eight offences of stealing from various retail outlets. The earliest of these offences was committed on 8 August 1999 and the most recent of them in May 2000. 2 His Honour Acting Judge Nash passed sentence on the applicant on 11 May 2002. In respect of one of the offences his Honour imposed a term of imprisonment of four years and six months to commence on 11 March 2002 and to expire on 10 September 2006. For that sentence his Honour specified a non parole period of two years and eight months to expire on 10 November 2004. In imposing that sentence his Honour had regard to a further eleven offences of a like nature on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act. For each of the remaining seven offences his Honour imposed a fixed term of imprisonment of nine months to commence on 11 March 2002 and to expire on 10 December 2002. 3 The applicant now seeks leave to appeal against the sentences imposed. 4 It is to be observed at the outset that each of the offences charged is in a category for which s 117 of the Crimes Act imposes a maximum penalty of five years imprisonment. 5 When one brings into account the Form 1 offences, the offences to be considered by his Honour in the sentencing task that he had were committed between December 1998 and May 2000. The value of the goods relevant to those nineteen offences was approximately $76,000. 6 The applicant was one of nine offenders sentenced by the learned judge on 11 March 2002 and he described those offenders as being part of a gang of shoplifters. Moore DCJ had earlier sentenced a tenth offender, Darren Green, on 20 April 2001. Two other offenders, Karen Fox and John Nicholls were sentenced in the Local Court. 7 Certain agreed facts were placed before the sentencing judge forming part of Exhibit A and his Honour recounted significant aspects of those agreed facts in his sentencing remarks. I draw upon those agreed facts in the following outline: "In mid 1999 the NSW Police Service set up Strike Force Port Patrick to investigate allegations of widespread organised shoplifting, mostly involving targeted supermarkets (Franklins, Woolworths, Coles, Toys R Us, Macs Liquor (a division of Woolworths Pty Ltd) and Flemings in Sydney and country areas involving a number of offenders. The Strike Force investigated allegations of criminal conduct dating back to late 1998 when many of these stores introduced surveillance cameras… This investigation focused on the conduct of members of the Nicholls family...members of this family group or syndicate in combinations of up to three to six would target a particular store and sometimes return to it before actually stealing items from it... The accused identified [thus referred to in this outline] were Noel Bushby, Andrew Thompson, John Nicholls Jnr, Glen Pheeney, Mark Nicholls and Jeffrey Douglas, they being mostly involved in the actual thefts. The offenders, including the applicant Cheryl Bushby and Kim Nicholls were mostly involved in either distracting staff, keeping lookout or opening entry and exit gates into stores." 8 His Honour described the criminal activities in which the applicant participated as well organised crime carried out with considerable precision and expertise. He considered each offender to be an important cog in the wheel of the gang's activities, which comprised well planned, organised and executed assaults on large retail outlets. 9 The total criminality of the applicant in relation to the matters for which the applicant was to be sentenced could only be regarded as extensive and serious. 10 The applicant has appeared before this Court in person and before doing so presented to the Court very comprehensive written submissions, which the Court had the opportunity of considering before the hearing of this application commenced today. I do not propose to refer exhaustively to those written submissions in this judgment but there are a number of matters about which the applicant complains and in respect of which it is contended that the learned sentencing judge fell into error. 11 The first of these matters is that the judge was wrong in assigning a role of principal to the applicant. He remarked of her: "If not the principal you certainly were a principal of the gang and either the or an organiser involved in these offences." 12 Certainly the agreed facts record the applicant's involvement, and it is apparent from the number of offences in respect of which the applicant pleaded guilty, which were to be taken into account on a Form 1 that the applicant was directly involved in nineteen out of forty three offences committed during the period in which the applicant was offending. 13 The value of the goods relevant to her charges was $76,000. The offences were committed during a sixteen month period between December 1998 and May 2000. There was before the judge a pre sentence report in which the applicant attributed the family's involvement in the shoplifting activities as being her fault and she confessed to having exposed her children to her shoplifting behaviour from a young age. The applicant stated in that pre sentence report that her role in the offences was usually to act as a decoy to distract staff. Then in her history to Dr Roberts, his report of 18 February 2002 having been introduced into evidence, the applicant acknowledged responsibility for the offences committed by other members of her family. 14 This appears to be the substance of the material that led the judge to categorise the applicant in the way I have expressed. It is quite clear from the extent of the activities of the applicant that her involvement was indeed extensive. The use of the expression "principal" or "a principal" does not to my mind lead to the conclusion that the sentencing procedure miscarried. 15 The applicant complained that there was a parity issue particularly having regard to her son Mark Nicholls. In his sentencing remarks the judge indicated that he would, as far as possible, use the sentence imposed on the offender Darren Green in considering parity. That was the offender sentenced by Moore DCJ, but he was sentenced for fewer offences than the applicant and he was involved in the enterprise for a shorter period. There were distinctions then to be drawn between Green's activities and those of the applicant. 16 Then, turning to Mark Nicholls, he received a sentence of five years and six months before its reduction for the guilty plea. This resulted in a sentence of four years one month and two weeks with a non parole period of two years and six months. His Honour had before him in relation to Mark Nicholls that he was one of the applicant's children and the applicant had acknowledged in the pre sentence report her exposure of her son Mark to shoplifting at an early age. 17 A person who complains of sentencing disparity is required to show that a reasonable person looking at the circumstances of the case would regard the offender's sense of grievance as justified (see R v Ilbay [2000] NSWCCA 251 per Grove J at para 6). The applicant is alert to that principle. That I infer, because in her comprehensive submissions she has referred this Court to that decision in Ilbay. 18 In my opinion the applicant has not discharged that obligation expressed in Ilbay in the circumstances of this case. I do not consider that the sentence imposed upon her offends the principle of parity. 19 The applicant has also submitted that his Honour erred in adopting as a starting point a sentence of six years before reducing it by twenty five percent to four years and six months. The maximum penalty under s 117 was one of five years but this, of course, was a penalty available for each of the eight offences the subject of charges. There can be no question but that it was open to his Honour to accumulate one sentence upon another. However, his Honour did not do what the High Court ruled in Pearce was required of him, that is to: "Fix an appropriate sentence for each offence, and then consider questions of cumulation or concurrence, as well, of course, as questions of totality". (See Pearce v. The Queen (1998) 194 CLR 610 at 623-624.) 20 However it is, I think, clear that what his Honour did was to arrive at a term of six years as accurately assessing the totality of the applicant's criminality before introducing a discount for the plea. In my opinion such an assessment was an appropriate one. It has to be borne in mind, as indeed it was by the sentencing judge, that the applicant had a prior criminal history for shoplifting, larceny and false pretences and, indeed, the applicant offended during the period of a recognizance of two years that had been imposed in the Downing Centre Local Court on 23 March 1999. Most of the offences for which the application was sentenced were committed whilst the applicant was on that recognizance. 21 The applicant has specifically complained that the sentence imposed upon her was manifestly excessive. That submission has to be considered by reference to an assessment of the total criminality involved in all these offences to which the applicant pleaded guilty and to be considered on the Form 1. 22 To my mind, the end result which this Court has to consider is whether or not it was to sentence the applicant too harshly to require that the applicant serve no less than four years and six months by way of sentence with a non parole period of no less than two years and eight months. In my opinion, having regard to the totality of the applicant's criminality in respect of the offences, including those on the Form 1, the applicant should be required to serve no less than four years and six months by way of sentence and a non parole period of no less than two years and eight months such as expires on 10 November 2004. This, of course, is the very effect of the sentences that were imposed in the District Court. 23 Section 6(3) of the Criminal Appeal Act requires that this Court must form a positive opinion that sentences other than those imposed were warranted in law and should have been passed. (See R v Simpson (2001) 53 NSWLR 704 and in particular the judgments of Spigelman CJ at para 79 and of Sully J at paras 99-100). 24 I do not form a positive opinion that sentences other than such as achieve the end result of those which were set should have been passed. In the result I would grant leave to appeal but, in my opinion, the appeal should be dismissed. 25 SMART AJ: I agree. 26 STUDDERT J: The orders of the Court will be those that I have proposed. ********** Last Modified: 04/04/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.