New South Wales Court of Criminal Appeal CITATION: Regina v Drew [2005] NSWCCA 50 HEARING DATE(S): 16/02/2005 JUDGMENT DATE: 23 February 2005 JUDGMENT OF: Bryson JA at 1; Barr J at 20; Hoeben J at 21 DECISION: (1) The applicant is granted leave to appeal against sentence.; (2) The sentence imposed upon the applicant by the District Court at Port Macquarie on 4 December 2003 on conviction of aggravated assault with intent to take a motor vehicle while armed with an offensive weapon under s.154C(2) of the Crimes Act 1900 is set aside.; (3) In lieu thereof the applicant is sentenced to imprisonment for four years to commence from 4 September 2003 and to expire on 3 September 2007, with a non-parole period of two years to commence on 4 September 2003 and expire on 3 September 2005.; (4) The applicant will become eligible for release to parole on 3 September 2005. CATCHWORDS: CRIMINAL LAW - sentencing - appeal against sentence - reference by Sentencing Judge to utilitarian value of plea of guilty followed immedaitely by reference to strength of Crown case and difficulty of any defence - no expressed discount - sentencing discretion erroneous - resentenced by CCA Crimes Act 1900 Criminal Procedure Act 1986 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Regina v. Sutton [2004] NSWCCA 225 CASES CITED: Regina v. Thomson; Regina v Houlton (2000) 49 NSWLR 383 Regina v. Way [2004] NSWCCA 131 Rebecca Thelma Drew - Applicant PARTIES: Crown - Respondent FILE NUMBER(S): CCA 2451/2004 R Hulme - Applicant COUNSEL: DC Frearson SC - Respondent SRALCS- Applicant SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/31/0403 LOWER COURT JUDICIAL OFFICER: Christie DCJ IN THE COURT OF CRIMINAL APPEAL 2451/2004 BRYSON JA BARR J HOEBEN J WEDNESDAY 23 FEBRUARY 2005 REGINA v. REBECCA THELMA DREW Judgment 1 BRYSON JA: The applicant Ms Drew seeks leave to appeal against a sentence imposed on her by his Honour Judge Christie QC in the District Court at Port Macquarie on 4 December 2003. The principal offence for which she was then sentenced was car-jacking in aggravated circumstances contrary to s.154C(2) of the Crimes Act 1900, for which the statutory maximum penalty is fourteen years imprisonment. The applicant was sentenced for that offence to imprisonment for five years commencing on 4 September 2003 with a non-parole period of three years also commencing on 4 September 2003. 2 At the same time the applicant was convicted of and sentenced for four other offences under the procedure in s.166 of the Criminal Procedure Act 1986. These offences and the sentences imposed are as follows: Drive speed dangerous s.42(2) of Road Transport (Safety and Traffic Management) Act 1999 Fixed term of 9 months imprisonment from 4/9/03 to 3/6/04 Disqualified from driving for 3 years from 4/9/03 s.12(1)(a) of Road Transport Fixed term of 9 months imprisonment Driving under influence of alcohol (Safety and Traffic from 4/9/03 to 3/6/04 Management) Act 1999 Disqualified from driving for 3 years from 4/9/03 Malicious damage s.195(a) of Crimes Act 1900 Fixed term of 3 months imprisonment from 4/9/03 to 3/12/03 Unlicensed driver s.25(1)(a) of Road Transport Fined $50 (Driver Licensing) Act 1998 Imprisonment under these sentences was concurrent with the principal sentence, and the terms have expired. Submissions in support of the appeal were directed to the principal sentence. 3 The Statement of Facts in evidence before the District Court was as follows: DREW has approached the victim's vehicle and began her fist into the drives window. The victim saw DREW had a pair of white handled scissors in her hand. DREW said, "Give me the fucking keys you slut". The victim refused to give DREW the keys. DREW reached through the partially open window and punched the victim in the face. DREW grabbed the keys from the ignition. The victim attempted to get the keys back off DREW however DREW punched her in the face again. DREW began walking back away from the vehicle. DREW picked up a rock and threw it towards the vehicle, causing the rear drivers side window to shatter. As a result of DREW punching the victim, she suffered bruising, swelling and soreness to her face. The victim and Witnesses, STONE and DUNCOMBE feared for their safety and ran inside to number 17 Granite Street, Port Macquarie. A short time later as they were waiting for Police, witness MARKOVICZ has walked to his front porch and saw DREW driving away in the victim's vehicle. DREW drove down Hill street, onto Lake Rd and past the Private Hospital and lost control of the vehicle, crossing to the incorrect side of the road, mounted the footpath, causing the vehicle to roll, coming to rest colliding with a parked vehicle outside a block of units at 105 Lake road. DREW got out of the vehicle and left the vehicle when several occupants of 105 Lake road attended the scene of the accident. On the 1st of September 2003 Port Macquarie Crash Investigations attended the scene of the accident. The physical evidence supports a speed of the vehicle at the time of DREW losing control as being above 110km/h in a 60km/h area. Had the vehicle driven by DREW not impacted with the parked vehicle, DREW's vehicle would have continued to travel into the bedroom of a villa which is occupied by an elderly female. On Thursday the 4th of September 2003 DREW was arrested by Police. DREW agreed to participate in [an] Electronically recorded interview where she made full admissions to the incident. DREW further stated she began drinking around 10am on Sunday morning (31/8/2003). DREW stated she consumed at least four bourbon and coles, a carton of beer and a Goonie (wine). 4 The applicant co-operated fully with the police from a time soon after her arrest on 4 September 2003, and admitted the relevant facts in an electronically recorded interview on that day. She made no steps towards defending the charges, and pleaded guilty at the first and each available opportunity. 5 The applicant was born on 9 November 1981. She had many previous convictions. Most of her earlier offences were dealt with in Children's Courts and included assaults, stealing, robbery in company, malicious damage in various forms of these and lesser offences. The most severe sentences were several imposing control orders which led to her detention in a Juvenile Institution and one imposing one hundred hours of community service. Her previous convictions as an adult were as follows: 15. Imprisonment for 9 months suspended upon entering s. 12 bond for 9 months 22.11.00 Port Macquarie Local Court. Assault. 16. 2.5.01 Port Macquarie Local Court. Breach of bond. Bond, s.9, 12 months. Supervision and guidance of NSW Probation Service. Port Macquarie 1. Break bottle / glass / syringe in public place. 1. Fined $650. Court costs $58. 17. 30.1.02 Local Court. 2. Offensive language in public place. 2. Fined $350. Court costs $58. 18. 28.10.02 Port Macquarie Assault (2 counts) On each count Imprisonment for 12 months suspended upon entering s.12 bond for 12 months. Fined $400. Court costs $59. Local Court. 1. Malicious damage to property. 1. Imprisonment for 3 months from 26.11.02. 19. 9.12.02 Port Macquarie 2. Enter enclosed lands. 2. Fined $400. Court costs $59. Local Court. 1. Malicious damage to property (2 counts). 1. On each count imprisonment for 2 months from 24.2.03. (Appealed) 20. 24.2.03 Port Macquarie 2. Behave in offensive manner in public place. 2. Fined $300. Court costs $59. Local Court. 21. 16.4.03 Port Macquarie Appeal in relation to item 1 on 24.2.03. Conviction and sentence confirmed. District Court. 6 The bond entered into on the suspended sentence on 28 October 2002 was still current when the offence now relevant was committed on 31 August 2003. The applicant served short terms of imprisonment during the term of the bond. It was not made clear to his Honour, and it appears that his Honour was not aware, that the bond entered into on 28 October 2002 was still current at the time of the offence now relevant. 7 In his Remarks on Sentence the learned Sentencing Judge referred to the applicant's prior record. The motivation for the applicant's taking the vehicle as explained in her evidence and it would seem accepted by his Honour was that she did so in the hope of attracting the attention of Mr Leon Markievicz. His Honour made observations and findings on events in the applicant's life which have been markedly unfortunate. Passages in the Remarks on Sentence include the following: The young lady has not been the subject of any pre-sentence report but I have a fairly good picture of her background. She is not in touch with her father whom I gather from remarks from the Bar Table resides in the Wagga Wagga district. Her mother apparently has a new partner in life and resides somewhere in the Coffs Harbour area so that obviously this young lady has been obliged to fend for herself for some significant period of time. I am entitled to assume, probably for a good deal of her semi-adult life and she has accumulated an unenviable number of convictions some of them for not inconsequential matters by any stretch of the imagination. The attraction -it would seem - for a young man named Leon Markowitz led her into some previous difficulties and I am told by her from the witness box in response to questions from her own representative that those malicious damage matters that saw her in prison for five months are in some way related to her attempts to make contact or attract the attention of this particular young fellow. So that the events of this particular night, 31 August [2003] also seemed to have their aetiology in much the same circumstance. The young lady goes - obviously heavily inebriated one would assume and all the facts seem to indicate it - heavily under the influence of liquor she goes and sits outside in the gutter somewhere nearby the premises at which she is expecting to see or possibly speak with or attract the attention of this young man, Leon Markowitz. He is dropped home in a car round about a quarter to 10 on a Sunday night and he gets out of the car and goes into the house. 8 In relation to the scissors, the weapon which constituted circumstances of aggravation under s.154C(2), his Honour found: Obviously at that time possessed of a pair of scissors. The scissors were white handled scissors and were seen not only by the person, the driver whom she subsequently punched but by other occupants of the car. I am inclined to accept and indeed I do accept that the prisoner is of the belief that she was not possessed of these scissors and did not have them and that the scissors found in the car later on must have belonged to the previous occupants of the car, that is the persons who were in the car when Leon got out of it. Her representative, Mr [Magney], appears to be in possession of some information that the scissors came from the premises at which this young lady was boarding and indeed I think by and large the offender accepts that she had possession of the scissors but does not accept that in any way she attacked the driver of the car with the scissors. 9 With respect to the assault his Honour said: She appears to have struck the driver at least twice with a closed fist, that is the right fist and at that time the left hand was seen to be possessed of the scissors. She struck the lady a couple of times causing injury...That assault of course constituted by the striking of a number of blows to this 18 year old girl's face. (I interpose that a back-up charge of assault occasioning actual bodily harm was withdrawn and dismissed). 10 After dealing with the facts and events constituting the offence his Honour remarked on the good fortune that the applicant injured no other person. His Honour also made findings establishing that the applicant had been drinking most of the day, was a heavy imbiber of alcohol, and that her intoxication explained why she did not remember a great deal about the events. Dealing with elements subjective to the applicant his Honour said: This lady has a deprived background. I do not think she would mind my saying that. She left school before the end of Year 9 aged about fifteen, she tells me. I have no reason to disbelieve that. She has never been fortunate enough to have employment but hopefully that situation can be remedied upon her return to the community and consequently she - by reason of the absence of her parents - has obviously been left without any real support or sense of direction so that she has been adrift emotionally and sociologically for some years at the very least and possibly I strongly suspect for somewhat longer than that. So that if ever there was a case with strong subjective circumstances this is probably it because there will be a profit in the community and certainly a profit for the prisoner in her eventual rehabilitation. She will need to mend her ways in connection with alcohol consumption obviously, at least to the extent that it appears to have dominated her life leading up to this event. She has not been long out of gaol. She has been in custody now since 4 September and she only got out of custody on the previous occasion - a date in early April to which I earlier referred - 23 April, so she has been out of gaol for about sixteen or seventeen weeks and finds herself back there. She has been in there now for three months not knowing of course the length and breadth of her sentence and informed thinking with which I happen to agree is that persons who are within the custodial system not knowing how long they will be there find that time passes significantly more slowly than otherwise would be the case. For all I know she may have been held in the remand section which of course is not as satisfactory as persons who are serving a sentence and consequently have their time filled in somewhat better. 11 In the opening words of the Remarks on Sentence his Honour said "She has pleaded guilty at the earliest opportunity …" and later said: She pleaded guilty at the earliest opportunity. Mind you I think I would be forgiven for saying that the Crown case is strong to the degree of irresistible if ever there was an irresistible case. Most of the people who were in this car knew this girl. Knew her by sight. Knew who she was. So there was never much chance of her not being convicted of this offence and the associated offences ... 12 Ground 1 for which the applicant's Senior Counsel contended was "The sentencing Judge erred in the manner in which he took into account the applicant's plea of guilty." 13 Although his Honour referred, twice, to the applicant's having pleaded guilty at the earliest opportunity, he did not indicate, either in detail or in any way, however general, that that consideration had had any influence in his determination of the sentence to be imposed. A plea of guilty at the earliest opportunity raises for consideration whether the sentence to be imposed should be discounted so as to have regard to the utilitarian value in the public interest of an early plea of guilty. It is usual to articulate clearly whether or not an allowance of some kind is made for this consideration, and it is also usual, on the basis of observations in Regina v. Thomson; Regina v Houlton (2000) 49 NSWLR 383 to express the allowance made by adopting some percentage in the range from 10 to 25 percent. It is not erroneous to give a less than complete exposition of the reasoning process, and it is not erroneous to explain the reasoning process in some other way than by reference to a percentage of the sentence first adopted, but if these almost conventional means of expression are adopted there are advantages in the comprehensibility and openness of the reasoning process. 14 Not only is there no express indication elsewhere in the Remarks on Sentence that an allowance or discount for the utilitarian value of the early plea was made, it is a plain error to bring the strength of the Crown case to bear on consideration of the utilitarian value of the plea of guilty and what influence it should have on sentence actually to be imposed; his Honour's reference to the early plea is followed immediately by observations about the strength of the Crown case and the difficulties of any defence, had there been a defence. It has been established by decisions of this Court and in the clearest way that the strength of the Crown case is not a relevant consideration in relation to whether an allowance should be made for the utilitarian value of a plea of guilty and what that allowance should be. A full and clear exposition of the law appears in Regina v. Thomson; Regina v Houlton in the judgment of Spigelman CJ, and many decisions which give emphasis to the law are collected in the judgment of Howie J in Regina v. Sutton [2004] NSWCCA 225 at [11-13]. 15 I must respectfully say that from the manner and context in which the learned Judge referred to the significance of the early plea, and from the absence of any other observation explaining its significance, it appears quite clearly that his Honour did not make a correct application of the law on this very important aspect of determination of the sentence. Flawed reasoning on this important part of the discretionary process has the consequence that his Honour's exercise of discretion must be set aside, and the process of sentencing should be undertaken again by the Court of Criminal Appeal. 16 There are other respects in which the learned Judge's determination appears to be open to review. When determining the non-parole period his Honour was referred specifically to s.54B of the Crimes (Sentencing Procedure) Act 1999 and its provision (at Item 15 of the Table) of a minimum non-parole period of 5 years in relation to an offence under s.154C(2). His Honour referred to a number of circumstances, including several mitigating considerations and general circumstances, which led him to adopt a non-parole period of less than five years in dealing with the applicant; however his Honour did not expressly refer to the law as explained in Regina v. Way [2004] NSWCCA 131 at [71] under which a standard non-parole period is not applied on conviction upon a plea of guilty. In addition to the lack of express advertence to the standard non-parole period's not being applicable, his Honour also did not give express advertence to the circumstance adverse to the applicant that the offence occurred while the bond under s.12 was still current. 17 His Honour referred extensively and in my view correctly to adverse subjective circumstances of the applicant, whose life and emergence into adulthood have been disrupted by unusually adverse influences, which seem to have made her unable to bring her life into order and control in her own interests. These subjective circumstances included the lack of parental guidance during the applicant's highly troubled adolescence, the lack of employment and of a cultural base for employment, irresponsible abuse of alcohol, and severe signs of poor social integration and control, evidenced by repeated offences arising out of social conflict, aggression towards other people and irresponsibility towards other people's property. As the learned Judge said: "she… has obviously been left without any real support or sense of direction so that she has been adrift emotionally and sociologically for some years at the very least … There will be profit for the community and certainly a profit for the prisoner in her eventual rehabilitation." 18 The offence was a serious one and involved aggression in conduct and speech, repeated personal violence against the driver, continued and aggressive pursuit of the project of seizing the keys and taking control of the vehicle, and when taking and driving the vehicle, doing so in a markedly irresponsible way causing it to overturn and collide with another vehicle, in circumstances of public danger, fortunately unrealised. However this is not a grave instance in the range of conduct which could constitute aggravated car-jacking and fall within s.154C(2).. Some aspects of the offence were punished in concurrent sentences which have expired. The applicant's prior record and breach of bond are adverse to her. . In my view consideration should begin with a sentence of five years imprisonment, and after a discount for the utilitarian value of the early plea of guilty the sentence should be four years. The applicant's subjective circumstances and relative youth mean that an unusually lengthy proportion of the term should be available for parole. There is a public interest, as well as an interest personal to the applicant, in there being a full opportunity for rehabilitation. In the applicant's circumstances the sentence should be significantly weighted towards an opportunity for parole. 19 In my opinion the Court of Criminal Appeal should make the following orders: (1) The applicant is granted leave to appeal against sentence. (2) The sentence imposed upon the applicant by the District Court at Port Macquarie on 4 December 2003 on conviction of aggravated assault with intent to take a motor vehicle while armed with an offensive weapon under s.154C(2) of the Crimes Act 1900 is set aside. (3) In lieu thereof the applicant is sentenced to imprisonment for four years to commence from 4 September 2003 and to expire on 3 September 2007, with a non-parole period of two years to commence on 4 September 2003 and expire on 3 September 2005. The applicant will become eligible for release to parole on 3 September 2005. 20 BARR J: I agree with Bryson JA. 21 HOEBEN J: I agree with Bryson JA. ********** 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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