New South Wales Court of Criminal Appeal CITATION: Regina v Lewis [2005] NSWCCA 300 HEARING DATE(S): 07/02/2005 JUDGMENT DATE: 2 September 2005 JUDGMENT OF: Grove J at 1; Hidden J at 2; Bell J at 17 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - break, enter and steal in circumstances of aggravation - two matters on Form 1 - relevance of standard non-parole period after plea of guilty - sentence passed before REGINA v WAY. Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CASES CITED: R v Way (2004) 60 NSWLR 168 Regina (respondent) PARTIES: Katrina Lewis (applicant) FILE NUMBER(S): CCA 2004/2630 Ms E Wilkins (Crown) COUNSEL: Mr S Corish (applicant) S Kavanagh (Crown) SOLICITORS: S E O'Connor (applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/41/0004 LOWER COURT JUDICIAL OFFICER: Knight DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2630 JUSTICE GROVE JUSTICE HIDDEN JUSTICE BELL Friday 2 September 2005 REGINA v Katrina LEWIS Judgment 1 GROVE J: I agree with Hidden J. 2 HIDDEN J: The applicant, Katrina Lewis, pleaded guilty in the District Court at Bega to a charge of aggravated break, enter and steal, an offence under s112(2) of the Crimes Act which carries a maximum sentence of twenty years imprisonment. She also asked that further charges of stealing from a dwelling and stealing be taken into account on a Form 1. On the principal charge, and taking those additional matters into account, she was sentenced to imprisonment for four and a half years, comprising a non-parole period of two years and three months and a balance of term of the same length. She had been in custody since her arrest on 23 November 2003, and the sentence was directed to commence on that day. She seeks leave to appeal against that sentence. The application is well out of time, but the Crown did not oppose an extension of time and it should be granted. Facts 3 The facts were summarised in the sentencing judge's remarks on sentence as follows (his Honour addressing the applicant personally): At about 6.30am on Thursday 20 November 2003 you walked to the home of Mr and Mrs Doris at 22 Manning Street, Bega, they are retired pensioners and both were in bed at the time. You walked around to the rear of the house and discovered the rear door to be unlocked. You let yourself into the house and searched for money and valuables, picked up two small old tins that contained old pennies and old one and two cent pieces, you went to a spare bedroom where from a handbag you removed Mrs Doris's purse from which you took at least $175 in cash. You also removed Mrs Doris's licence and Medicare cards. Whilst you were doing this Mrs Doris awoke to discover you in her home. She confronted you in the laundry of the home and as she did so you dropped one of the tins of coins which Mrs Doris picked up. You ultimately let yourself out of the front door of the house. Mrs Doris went to neighbours in a highly distressed state to raise the alarm. You walked to the house opposite the Doris's where you went in the back door and demanded that the occupant call you a taxi but he declined and told you to leave. You then walked to the home of Colin and Julie Smith next door who were known to you. You obtained clothing and a hat from the Smiths and you were observed by Mrs Smith to pull a large amount of cash from the pocket of your jeans. You then used the Smith's phone to contact your mother and arranged with Mr Smith to drive you to a friend's house in Rawlinson Street where your mother collected you. Police enquiries led to you being identified and contact was made with your parents and you subsequently with your parents and your solicitor, Mrs Blomfield, went voluntarily to the Bega Police Station on 23 November 2003. You there participated in a recorded record of interview in which you acknowledged committing the offence and you were subsequently charged. In relation to the two matters on the Form 1, the facts of which I am satisfied beyond reasonable doubt are that Ms Erica Piotrowski is an eighty-five year old female resident of Bega Nursing Home in Hill Street, Bega, who occupies room 1 of that nursing home. You went to that nursing home on 18 November 2003 and had a conversation with Mrs Piotrowski and after you had left Mrs Piotrowski noted that $30 had been taken from a purse which was in a handbag in the drawer next to her bed. This was raised with you when you attended the police station on 23 November 2003 in relation to the primary offence and you admitted this offence and confirmed such admission in your record of interview. In relation to the second offence on the Form 1 on 19 November 2003 you went to Gillies Gift Box which is a shop situated at 163 Carp Street, Bega. In that gift shop you were seen to be standing near a jewellery cabinet by a sales assistant who noted that the cabinet had been opened and that three crucifix necklaces were missing from the cabinet, one turquoise, one pink and one purple. She suspected that you had stolen them but did not have sufficient evidence to confront you. She saw you leave the store and walk to the Commercial Hotel. At the Commercial Hotel you met a friend who noted that you removed from your black leg-ins three crucifix necklaces, one turquoise, one pink and one purple. When confronted about having stolen them by your friend you said, "Well I've spent plenty of money there before", you did not deny stealing them. Subsequently the friend took possession of the turquoise crucifix and the following day delivered it to the Bega Police Station. Again when you attended at Bega Police Station on 23 November 2003 you were shown the turquoise crucifix and ultimately agreed (sic) that it had been given to you by a friend. You did not participate in a formal interview about the crucifix and made no admissions. But I note that the Crown case against you would have been a strong one in the sense that your friend's evidence was that you had them in your possession shortly after leaving the shop and you did not deny stealing them when that was put to you. 4 The circumstance of aggravation in the principal charge was the applicant's knowledge that there were persons present in the home where the offence was committed: s105A(1)(f) of the Crimes Act. Mrs Doris was sixty years of age at the time. There does not appear to have been any evidence of Mr Doris's age. Subjective case 5 The applicant was twenty-five years old at the time of the offences and is now twenty-seven. She has a criminal history, consisting mainly of drug offences, driving offences and offences of dishonesty, but had not previously been sentenced to a term of imprisonment. However, at the time of these offences she was subject to bonds which had been imposed in a Local Court about five months previously for offences of stealing and assaulting and resisting police. 6 Although she appears to have had a largely uneventful childhood, she left her family home in her mid-teens. She became involved in a series of relationships with men who were physically abusive and, in that milieu, was introduced to the use of illicit drugs. In her early twenties she had a relationship with yet another abusive man, which ended after a particularly violent incident resulting in her suffering a miscarriage. She developed a major drug problem, and her employment, in unskilled or semi-skilled positions, was sporadic. 7 Dr Tran, a psychiatrist who prepared a report for the sentence proceedings, wrote of her: Ms Lewis' offending behaviour could be related to her substance abuse and entrenched pattern of anti social conduct. Her past abusive relationships would have contributed to her substance abuse, which appears to have followed a chronic course, and become an enduring part of her lifestyle. The doctor saw her "persistent substance abuse" as "the basis of her ongoing problems", contributing to her "psychiatric vulnerability". He recommended ongoing psychiatric management while she remains in custody, adding that she would benefit from accommodation in the "structured setting" of a residential rehabilitation facility. There was evidence before his Honour that a place was available for her at Guthrie House, a rehabilitation centre for women "embroiled in the criminal justice system". 8 The author of a pre-sentence report arrived at much the same conclusion about the relationship between the applicant's drug abuse and her offending. That officer observed: Her incarceration appears to have had a cautionary effect on her, but given her lengthy history of drug usage, she would require a higher level of support after her release if she were to successfully avoid re-offending. In the light of this material, and because this was to be her first term of imprisonment, his Honour found special circumstances. 9 His Honour also noted that she was on anti-depressant medication and had health problems, apparently arising from her having earlier contracted Hepatitis C and also from her injuries in a motor vehicle accident a few years previously, and that she had been on protection because of an assault upon her in prison. Not only had she co-operated with police but she had also pleaded guilty early, and his Honour recognised the utilitarian value of that plea and its demonstration of her remorse by discounting the sentence he would otherwise have passed by one third. The application 10 Counsel for the applicant, Mr Corish, submitted that his Honour fell into error in his assessment of the gravity of the principal offence and in his approach to the standard non-parole period in respect of that offence. Because of those errors and because inadequate weight was given to the applicant's subjective case, he argued, the sentence is manifestly excessive. 11 The standard non-parole period for aggravated break, enter and steal is five years. Having referred to that fact, his Honour expressed his conclusion that the applicant's offence was not in the middle range of objective seriousness for offences of that kind but, rather, between the middle and lower range. Later, he expressed the view that this was a case where the standard non-parole period should be "shortened", giving as his reasons the applicant's plea of guilty, her good prospects of rehabilitation and her remorse. 12 Mr Corish argued that the principal offence should properly be seen as at the low end of the range of seriousness. He acknowledged the age of the victims and their vulnerability, and the time of day at which the offence was committed. However, he relied upon other features of the offence, including the fact that it was unplanned, no weapon was used or presented, there was no threat of violence, the applicant was acting alone, the amount of money stolen was relatively small and nothing of any sentimental value was taken, and there was no ransacking of the premises or any wanton damage to them. He noted that the offence created by s112 of the Crimes Act is breaking and entering premises and committing "any serious indictable offence therein", and pointed out that it embraces the commission within the premises of offences much more serious than larceny. 13 The applicant was sentenced before this Court's decision in R v Way (2004) 60 NSWLR 168, which was not handed down until several months later. Mr Corish argued that his Honour also fell into the error identified in that case. What emerges from Way is that the standard non-parole periods are intended for cases in the middle range of seriousness where the offender has been convicted after a trial, not upon a plea of guilty ([68]). When sentencing a person who has pleaded guilty, the non-parole period remains a reference point, bench mark or guidepost ([122]), but it should not be treated as a starting point, so as to dominate the sentencing exercise ([131]). 14 It does appear from the remarks that his Honour treated the standard non-parole period as a starting point, from which he departed by the process sanctioned by s54B of the Crimes (Sentencing Procedure) Act. Indeed, he said that he was "required by s54B to specify the reasons" why he was setting a non-parole period "shorter than the standard non-parole period." Without the benefit of the judgment in Way, it is entirely understandable that his Honour approached the matter in this way. I cannot accept the submission of the Crown prosecutor that the remarks, read as a whole, do not demonstrate the error examined in that case. It appears to me that the whole sentencing exercise, including his Honour's assessment of the objective gravity of the offence and the impact of the applicant's subjective case, revolved around the standard non-parole period and was impermissibly influenced by it. 15 Accordingly, error having been shown, it is open to this Court to re-sentence the applicant. The question is whether we should. Notwithstanding Mr Corish's analysis of the principal offence, it remains a serious one. In addition, in passing sentence his Honour took into account two further offences which are themselves serious enough, particularly the first matter on the Form 1 involving the elderly lady at the nursing home. The applicant has a reasonably lengthy criminal record and, more importantly, committed these offences whilst she was subject to conditional liberty. Her sad background naturally elicits sympathy but, in all the circumstances, I am not persuaded that any less a sentence is warranted in law: s6(3) of the Criminal Appeal Act. 16 I would grant leave to appeal but dismiss the appeal. 17 BELL J: I agree with Hidden J. ********** 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.