New South Wales Court of Criminal Appeal CITATION: R v Patti Anne Collins [2005] NSWCCA 198 HEARING DATE(S): 20/05/2005 JUDGMENT DATE: 20 May 2005 JUDGMENT OF: Simpson J at 23; Buddin J at 1; Hall J at 24 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: Sentence - armed robbery - Henry guideline - irrelevance of strength of Crown case to utilitarian value of plea. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 R v Attard [2004] NSWCCA 376 R v Drew [2005] NSWCCA 50 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Petrie (2003) 141 A Crim R 396 R v Sutton [2004] NSWCCA 225 R v Thomson & Houlton (1999) 49 NSWLR 383 Regina PARTIES: Patti Anne Collins (Applicant) FILE NUMBER(S): CCA 2005/281 G Rowling (Crown) COUNSEL: A Francis (Applicant) S Kavanagh (Crown) SOLICITORS: SE O'Connor (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0076 LOWER COURT JUDICIAL OFFICER: Armitage DCJ IN THE COURT OF CRIMINAL APPEAL 2005/281 SIMPSON J BUDDIN J HALL J FRIDAY 20 MAY 2005 REGINA v PATTI ANNE COLLINS Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon her in the District Court following her plea of guilty, which was initially entered in the Local Court, to an offence of robbery whilst armed with an offensive weapon. 2 The applicant was sentenced to a term of imprisonment for 3 years with an associated non-parole period of 15 months. The maximum penalty for the offence is 20 years imprisonment. The applicant requested that three offences of goods in custody, which appeared on a Form 1 document, be taken into account on sentence. Following her sentence in the District Court, the applicant then appeared later the same day in the Local Court where she received a wholly concurrent sentence of 6 months for an unrelated offence of receiving stolen property. 3 The facts of the matter may be shortly stated. The applicant entered a video store, which was a family owned business, in the early hours of the afternoon. She was carrying with her a black handled knife which she had concealed in the right pocket of her coat. CCTV images obtained from the next door service station showed the applicant approaching the store freely swinging her left arm, whilst her right arm was secured in her right pocket. The applicant approached the store manager who was standing behind the counter in the customer service area. There was no one else in the store at the time. The applicant produced the knife and extended it directly at the victim and said: "Give me all your money. Give me all your money now". The victim, who was understandably concerned for her safety, handed the applicant approximately $100 in notes from the till. The applicant then ran from the store and made good her escape notwithstanding the fact that both the victim and another person had pursued her for some distance. 4 Police were able to identify the applicant from the footage from the security camera. They also obtained details of the applicant's address from staff at the video store. When police approached the applicant's residence, she ran inside the premises. Police found her hiding under a bed. Police seized her jacket and a black handled knife which was located in the kitchen sink. Police then interviewed the applicant who denied having had any involvement in the robbery. She was then released from police custody. 5 The goods in custody offences were committed in the days following the commission of the armed robbery offence, when the applicant presented an electric guitar, two video machines and a CD player to various pawnbroking establishments on three different days. These items appear to have been obtained during the course of an offence of break, enter and steal committed by her de facto partner. 6 Some time later the victim of the robbery made a positive identification of the applicant as the offender from police photographs, the applicant having declined an offer to participate in an identification parade. The applicant was then arrested and charged with the present offence. 7 The applicant did not give evidence at the sentence hearing. A report from a psychologist and a pre-sentence report provided the sentencing judge with details of the applicant's background. The sentencing judge took into account a number of factors which had the effect of ameliorating the sentence which would otherwise have been appropriate. The applicant, who had an insignificant criminal record, was 48 at the time of the offence. She had only two prior convictions. Each was for shoplifting, the first of which was committed when she was 44. The applicant is the mother of a 7 year old son. The applicant had separated from the boy's father, who abused alcohol and was violent towards her, some time before the commission of the present offence. Her son went to live with his father because the applicant recognised that she was unable to properly care for him. Indeed, the evidence before the sentencing judge revealed that the applicant had had a long history of dependency upon alcohol and illicit drugs. 8 The applicant claimed, in an interview with the author of the pre-sentence report, that she had little memory of the offence. She maintained that she was withdrawing from heroin at the time as well as being under the influence of prescribed medication, which she had been given just prior to the commission of the offence. She was prepared to concede, however, that she had taken a higher dose of medication than had been prescribed. She also said that she was affected by alcohol at the time of the offence. 9 The sentencing judge found that the applicant was genuinely contrite. His Honour also found that she had good prospects of rehabilitation, particularly as she had undertaken a methadone program whilst on bail, prior to being sentenced. His Honour concluded that she was unlikely to re-offend. The sentencing judge found that the only aggravating feature of any significance within the meaning of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 was the fact that the victim was vulnerable by reason of her occupation. On the other hand, the sentencing judge found that there were a number of mitigating factors within the meaning of s 21A(3). His Honour referred specifically to subparagraphs (a), (b), (c), (g), (h), (i) and (k). His Honour also made a finding of "special circumstances" by reason of the fact that the applicant would require an extended period of supervision on parole to assist in her rehabilitation, together with the fact that this was her first custodial sentence. 10 The applicant has advanced two grounds of appeal. The first is that "the sentencing judge had insufficient regard to the utilitarian value of the plea". The second is that "the sentencing judge erred in applying the guideline judgment in R v Henry (1999) 46 NSWLR 346". The two grounds were argued together. 11 So far as the plea of guilty was concerned, it was contended that although the sentencing judge found that the applicant had pleaded guilty at the first opportunity, his Honour fell into error in not making specific reference to the utilitarian value of the plea, and in not quantifying the extent of the discount which had been allowed as a result. Reliance was placed by the applicant upon the following passage in R v Sutton [2004] NSWCCA 225, in which Howie J, with whom Studdert and Dunford JJ agreed, said: While there is no obligation on a sentencer to nominate the utilitarian value for the plea, I cannot personally understand why certain judges seek to avoid doing so in simple cases, such as the present. But if judges are not prepared to make the discount clear by quantifying it or indicating the starting point of the sentence before the application of the discount, then with respect, they should carefully and correctly enunciate the factors taken into account and the principles being applied in determining the discount which they are applying. As Dunford J noted in R v Mako [2004] NSWCCA 90 at [21]: In all cases the important consideration is to expose the transparency of the process so that it can be seen that an appropriate discount has been allowed. (para 16) 12 Whilst there was, as Howie J observed, no obligation upon the sentencing judge to quantify the discount, there is no particular reason that I can discern which would have prevented his Honour from doing so in a case which was as conspicuously straightforward as the present one. Nevertheless, I am not disposed to find that the sentencing judge fell into error because one of the key elements of the utilitarian component of the plea is its timeliness, an issue which the sentencing judge specifically addressed. His Honour, as I have said, found that the plea had been entered at the first opportunity. There is therefore no reason to think, in the circumstances of the present case, that the sentencing judge did not allow for an appropriate discount. 13 The attention of the Court was then drawn to what the sentencing judge had said when referring to the various matters which are set out in R v Henry (supra). His Honour observed that "the offender has pleaded guilty and did so at the first reasonable opportunity after her arrest; the significance of that plea is limited by a strong Crown case." 14 The applicant submitted that his Honour had thus fallen into error. Counsel submitted that this Court had made it clear in R v Thomson & Houlton (1999) 49 NSWLR 383 that the strength of the Crown case is relevant only to the question of remorse and is irrelevant to an evaluation of the utilitarian value of the plea. Indeed, as Howie J said in Sutton (at para 14), this Court has reiterated that principle on many subsequent occasions: See also R v Petrie (2003) 141 A Crim R 396; R v Attard [2004] NSWCCA 376; R v Drew [2005] NSWCCA 50. 15 Accordingly, I would uphold Ground 1. 16 In Thomson & Houlton (supra), this Court indicated that the guideline enunciated in Henry of 4 to 5 years for an offence of armed robbery with certain identified characteristics "was concerned with a guilty plea of limited value. …and should be understood to involve a late plea of guilty" (at para 161). That observation was brought to the attention of the sentencing judge. The applicant however sought to interpret that refinement or clarification as meaning that the range identified in Henry was in reality one of 3 years to 3 years 9 months for a case such as the present in which the maximum discount of 25% for the utilitarian value of the plea had been allowed. I do not accept that submission. It is to be recalled that the Henry guideline had built into it a late plea. An offender is not entitled to a discount of 25% for a plea of guilty in addition to the discount for which Henry already allows. 17 Complaint is also made about the following passages which appear in the Remarks on Sentence: It was held by the majority of the Court [in Henry ] that sentences for an offence of the character the subject of these present proceedings should generally fall between four and five years for the full term. That range was said to be a starting point. Aggravating and mitigating factors would justify a sentence below or above the range. It is very fairly conceded by the Crown Prosecutor that the only aggravating factors present in this case pursuant to Section 21A subs 2 of the Crimes (Sentencing Procedure) Act, 1999 are those referred to in subsections (d) and (l). The offender has a very minor record of previous convictions, and the victim was vulnerable. Both those matters were, of course, taken into account by the Court in Henry's case when fixing upon the sentence of four to five years for the full term. In my view this present offender is entitled to further consideration by reason of the fact that she managed to attain the age of 44 years before committing any criminal offence. I accept that this crime was completely out of character. … It is apparent that the offence committed by the offender is of a very serious nature. There is clearly no course open to me other than to sentence her to a full time custodial sentence. It is apparent too from the decision in R v Henry that that sentence must necessarily be substantial. As the Crown Prosecutor has pointed out, apart from her age, the offender fits into the common case category considered in R v Henry . 18 The sentencing judge fell into error, so it was submitted, because his Honour demonstrated in those passages that he felt constrained to apply the Henry guideline, and in so concluding had caused his discretion to miscarry. In a similar vein, it was submitted that his Honour had erred in concluding that he was obliged to impose a full-time custodial sentence. 19 I am not persuaded that his Honour fell into error of the kind asserted. His Honour was entitled to conclude that this was a very serious offence. No sentence other than one entailing full-time custody could have been properly countenanced in the circumstances. Indeed, counsel who appeared on behalf of the applicant at the sentence hearing recognised not only that a full-time custodial sentence was inevitable, but also that this was a case which properly attracted the application of the guideline established in Henry. 20 I would reject this Ground of Appeal. 21 The Court was provided with statistics maintained by the Judicial Commission which reveal that 82% of the 964 cases which have been decided since Henry have led to the imposition of a full-time custodial sentence. Only about 15% of all such sentences have resulted in terms which are less than the 3 years which was imposed upon the applicant. I have had regard to that material despite the limitations which are inherent in it. It has confirmed my opinion, notwithstanding the error which has been identified, that no less severe sentence is warranted in law and should have been passed: s 6(3), Criminal Appeal Act 1912. Furthermore, the non-parole period which was fixed had, in my view, a considerable degree of leniency built into it. 22 I propose that leave to appeal be granted but that the appeal be dismissed. 23 SIMPSON J: I agree. 24 HALL J: I also agree. 25 SIMPSON J: The orders of the Court will be as proposed by Buddin 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.