New South Wales Court of Criminal Appeal CITATION: Grace v Regina [2006] NSWCCA 286 HEARING DATE(S): 21 June 2006 - orders made that day, reasons delivered 28 September 2006. JUDGMENT DATE: 28 September 2006 JUDGMENT OF: Giles JA at 1; Grove J at 1; Hidden J at 1 DECISION: The Court granted leave to appeal and allowed the appeal. The sentence in the District Court was quashed, and the applicant was sentenced to imprisonment for two-and-a half years, to date from 7 March 2005, with a non-parole period to commence on 7 March 2005 and to expire on 22 June 2006. The Court ordered that she be released on parole on that day. CATCHWORDS: CRIMINAL LAW: - application for leave to appeal against sentence - break enter and steal - applicant sentenced to same term as co-offender - relativity of sentences - whether applicant entitled to be dealt with more leniently than co-offender - whether justified sense of grievance. CASES CITED: R v Engert (1995) 84 A Crim R 67 PARTIES: Rebecca Grace (applicant) Regina (respondent) FILE NUMBER(S): CCA 2006/1264 COUNSEL: Ms A Francis (applicant) P G Ingram (respondent) SOLICITORS: Legal Aid Commission (applicant) Solicitor for Public Prosecutions (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0564 LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ LOWER COURT DATE OF DECISION: 04/11/2005 IN THE COURT OF CRIMINAL APPEAL 2006/1264 GILES JA GROVE J HIDDEN J 28 September 2006 Rebecca Grace v Regina Judgment 1 THE COURT: The applicant, Rebecca Christine Grace, pleaded guilty in the District Court to a charge of break enter and steal, an offence carrying a maximum sentence of fourteen years imprisonment. She was sentenced to imprisonment for three years with a non-parole period of eighteen months, to commence on 7 March 2005. She sought leave to appeal against that sentence and the application was heard on 21 June 2006. 2 The Court granted leave to appeal and allowed the appeal. The sentence in the District Court was quashed, and the applicant was sentenced to imprisonment for two-and-a half years, to date from 7 March 2005, with a non-parole period to commence on 7 March 2005 and to expire on 22 June 2006. The Court ordered that she be released on parole on that day. These are our reasons for that decision. Facts 3 The applicant committed the offence with a co-offender, Oussama Ellessy, on 7 March 2005. The learned sentencing judge summarised the facts as follows: The offence took place at 11.40 at night in the information technology section of St Vincent's Hospital. An alarm was activated by the offenders and two security guards attended and found a broken glass door. The guards confronted Mr Ellessy, who was carrying a computer bag. Mr Ellessy made to walk past the guard but was stopped by the guard who took his wrist. He broke free and produced a screwdriver from his pocket and waved it at the guard. When the guard insisted that he put down the screwdriver he threatened to stab him. One of the security guards hit Mr Ellessy on the arm with his baton and he dropped the screwdriver and ran away. He was caught and arrested and he had a lap top computer and other things from the IT Department on him. When another security guard inspected the IT area he found Ms Grace crouched behind a desk. In her bag was a pager and a remote control taken from the IT area. 4 Mr Ellessy pleaded guilty to break enter and steal and also to using an offensive weapon to prevent his apprehension, an offence carrying a maximum penalty of imprisonment for twelve years. He was sentenced in the same proceedings as the applicant. It will be necessary later to refer to that sentence. Subjective case 5 The applicant was thirty-three years old at the time of the offence and is now thirty-five. She has a lengthy record in the Children's Court and the Local Court for offences of dishonesty, drug offences and street offences. She had previously served terms of imprisonment. Indeed, at the time of this offence she was on parole in respect of offences of a like kind. By the time she appeared for sentence that parole had been revoked, and the balance of that sentence was to expire on 8 September 2005. Accordingly, that term was served concurrently with the sentence imposed in the present case. 6 She had a disturbed background. She was an only child, and her parents separated when she was six years old. Thereafter, as her Honour put it, "her life was unstable and she was largely unsupported". Her mother and maternal grandmother remained her primary carers, but she was not provided with adequate emotional support. She told the authors of a pre-sentence report and a psychological report that she had been sexually abused by family members between the ages of six and eleven. 7 She left home at fourteen years of age and led a transient lifestyle, often living on the streets. She had several short term relationships with men. However, one relationship lasted several years and produced a child, who has been in the care of the father. From the age of sixteen she abused a variety of illicit drugs. At the time of the offence she was living on the streets and had used drugs. She had met Mr Ellessy a few days before, and she had committed the offence with him because he was willing to provide her with shelter, food and drugs. 8 She had made several attempts to defeat her drug addiction, without success. However, since being in custody on this occasion, she had undertaken a methadone program and had been able to reduce her daily dose. The author of the pre-sentence report thought that her attitude had been positive and that she was striving to achieve some stability in her life. Her Honour found that there was "some hope" for her rehabilitation but noted her need for "support and intervention on a number of aspects during any parole period." The application 9 Her Honour sentenced Mr Ellessy on the charge of break enter and steal to the same term of imprisonment as the applicant, that is, three years with a non-parole period of eighteen months, to date from 7 March 2005. On the charge of using an offensive weapon to prevent his apprehension, he was sentenced to imprisonment for a fixed term of twelve months, also to commence on 7 March 2005. That sentence was wholly concurrent with the non-parole period on the break enter and steal charge, so that his overall sentence was the same as the applicant's. Counsel for the applicant, Ms Francis, submitted that the sentences failed to reflect the difference in culpability of the two offenders, given their involvement in the offence and their antecedents. She argued that the applicant was left with a justifiable sense of grievance because she was entitled to be dealt with more leniently than her co-offender. 10 Mr Ellessy is about the same age as the applicant. He also has a long criminal record, including offences of dishonesty but, more importantly, entries for robbery and armed robbery. He also was on parole at the relevant time, in respect of an offence of break and enter with intent. When he was sentenced for the present matter that parole had been revoked and he was serving a balance of term to expire on 25 May 2006. Like the applicant, that term became wholly concurrent with the non-parole period fixed by her Honour. 11 Unlike the applicant, he had the benefit of a stable family background. However, apparently as a result of a head injury he suffered as a child, he has an intellectual disability. A clinical psychologist who knew the family reported that, after the head injury, he behaved impulsively and sometimes aggressively, and displayed "poor reasoning and planning abilities". He also had a long history of drug abuse and had been on a methadone program since being taken into custody on this occasion. 12 Her Honour accepted a concession by the Crown prosecutor that, because of his intellectual deficits, he was not an appropriate vehicle for general deterrence. She also feared that he would continue to find himself imprisoned unless those deficits were addressed, and was concerned that he should have a period of supervision sufficient to allow for his drug rehabilitation in a structured setting. As she put it, "His prospects of rehabilitation are not great but something must be tried to help him." 13 It is apparent from her Honour's remarks that there was good reason to extend leniency to Mr Ellessy. However, the applicant herself had a claim to leniency, which her Honour also recognised. The fact remains that Mr Ellessy might fairly be described as having played the leading role in the break and enter offence. In addition, he committed the offence of using a weapon to prevent his apprehension, for which he was sentenced to a wholly concurrent term of imprisonment. Although her Honour described that offence as "at the lower end of objective seriousness", it was another matter distinguishing his criminality from that of the applicant. His criminal record was more unfavourable than hers. 14 True it is that it was appropriate to give less weight to the factor of general deterrence in his case because of his intellectual deficits, in accordance with the familiar principles summarised by Gleeson CJ in R v Engert (1995) 84 A Crim R 67. On the other hand, personal deterrence remained a significant factor. Overall, the applicant's prospects of rehabilitation would appear to have been more favourable than his. It should also be noted that the eighteen month non-parole period fixed by her Honour represented a significantly greater extension of the applicant's existing custody than it did in his case. Both non-parole periods were to expire on 6 September 2006. As I have said, the applicant's balance of term following the revocation of her parole expired on 8 September 2005, while his did not expire until 25 May 2006. 15 It was for all these reasons that we were persuaded that the applicant was entitled to be treated more leniently than Mr Ellessy, and that the fact that the two of them received the same effective terms of imprisonment left her with a justifiable sense of grievance such that the Court should intervene. ********** 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.