New South Wales Court of Criminal Appeal CITATION: Arnold v Regina [2007] NSWCCA 188 HEARING DATE(S): 8 May 2007 JUDGMENT DATE: 29 June 2007 JUDGMENT OF: Campbell JA at 1; Hidden J at 2; Smart AJ at 3 DECISION: Leave to appeal from the sentences imposed refused CATCHWORDS: Criminal Law - Sentencing - Three offences of break and enter a building and commit a serious indictable offence - no arguable error demonstrated in sentencing - responsibility for health care - no expert evidence health care provided inadequate LEGISLATION CITED: Sentencing (Criminal Procedure) Act 1999 CASES CITED: Nil PARTIES: Robyn Gay Arnold v Regina FILE NUMBER(S): CCA 2007/554 COUNSEL: (A) In Person (C) N Norman SOLICITORS: (A) Unrepresented (C) S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/1148 & 05/11/0161 LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ LOWER COURT DATE OF DECISION: 24/02/06 IN THE COURT OF CRIMINAL APPEAL 2007/554 CAMPBELL JA HIDDEN J SMART AJ Friday, 29 June 2007 Robyn Gay Arnold v REGINA Judgment 1 CAMPBELL JA: I agree with Smart AJ 2 HIDDEN J: I agree with Smart AJ 3 SMART AJ: Robyn Gay Arnold, the applicant, seeks leave to appeal against sentences of imprisonment imposed for three offences of break and enter a building and commit a serious indictable offence. The maximum penalty for such an offence is 14 years imprisonment. On the first of the three offences three other offences are to be taken into account, namely, goods in custody, (having possession of a credit card in the name of another In June 2004), using a false instrument (which involved altering a money order and cashing it in October 2003) and obtaining money by deception in October 2003. 4 The applicant received an overall sentence of five years consisting of three years non-parole period with an additional term (or balance of term) of two years. On the first count of break, enter etc, taking into account the offences on Form 1 the applicant was sentenced to three years imprisonment consisting of a non-parole period of two years commencing on 1 September 2005 and expiring on 31 August 2007 and a balance of the term of one year expiring on 31 August 2008. On the second count of break, enter etc the applicant was sentenced to a fixed term of two years to commence on 1 September 2005 and to expire on 31 August 2007. On the third count of break, enter etc the applicant was sentenced to three years imprisonment consisting of a non-parole period of one year commencing on 1 September 2007 and expiring on 31 August 2008 being the earliest date on which she was eligible for parole, and a balance of term of two years expiring on 31 August 2010. 5 The first offence of break, enter etc was committed on 5 June 2004 when the applicant, after knocking on the front door of a unit in Bondi entered the unit. The door was locked. The occupant in the unit thought it was his sister as she often knocked to be let in before finding her keys. He then heard the sound of keys jingling. The applicant walked into the kitchen and then into the sister's bedroom. The occupant called out his sister's name. He next heard the sound of footsteps running out of the unit. His sister's bag had been gone through and two $50 notes removed. About $29 cash and a credit card had been taken from his wallet. His mobile phone was also missing. The stolen items were recovered from the applicant's handbag. 6 A little later on the same day the second offence occurred. The occupant of another unit in Bondi arrived home. On opening his front door he saw the applicant inside his unit coming from the direction of the lounge room. She attempted to rush past him but he held her. A struggle ensued as she tried to escape. A neighbour came to the occupant's assistance. The applicant had taken $50 cash, some coins, some foreign currency and a digital camera. The stolen items were recovered from the applicant's handbag. 7 These offences were committed while the applicant was on a two-year good behaviour bond (s 9 of the Sentencing (Criminal Procedure) Act 1999) which had been imposed in March 2003 after she was convicted of stealing. 8 The applicant was taken back to Waverley Police Station where she gave the police some far-fetched explanations. She was charged on 5 June 2004 and granted bail. She was committed for sentence in February 2005. 9 The third offence was committed on 1 September 2005 at a unit in Kingsford. The occupant, upon returning to his unit and unlocking and opening the door, discovered the offender inside the unit trying to open the door to leave. A struggle ensued as she vigorously attempted to escape. With assistance, the occupant restrained her and the police were called. An ipod worth $450 belonging to the occupant was stolen, found in the applicant's handbag and recovered. 10 This offence was committed while the applicant was on bail for the two offences of 5 June 2004. The applicant was taken into custody on 1 September 2005 and has been in prison ever since. 11 The applicant was born on 23 November 1969. She has an extensive criminal history which stretches back to 1982 when she appeared before the Children's Court, aged 12. There were gaps from 1984 to 1989 and 1995-1998. Since 1992 she has spent periods in prison, albeit less than 12 months. There have been drug and dishonesty offences. She has been the subject of bonds and community service orders. 12 The Psychological Pre-Sentence Report of 31 January 2006 prepared by psychologists at Emu Plains Correctional Centre states: "Ms Arnold's history of illicit drug use appears to be the most influential factor in her offending behaviour. She reports her current and past offences as having occurred whilst affected by, or to finance further drug use. Ms Arnold identified a resumption of drug use as a major risk factor in regard to her risk of recidivism. She expressed a desire to maintain abstinence. Although her history would indicate she lacks the skills required to maintain abstinence for any significant period. … Ms Arnold would benefit from access (to) either community or gaol based psychological and alcohol and other drug services to address the following issues: grief and depressed mood; experiences in childhood; self esteem; emotion regulation and impulsivity; and to maintain abstinence from illicit drugs." 13 There is material suggesting that the applicant had a deprived and unsatisfactory childhood. 14 The Pre-Sentence Report of 4 November 2005 reveals that the applicant has been known to the Probation and Parole Service since 1992. It contains details of her unsatisfactory childhood. She was raised primarily by her grandmother who died when she was twelve. This distressed the applicant. Her first offence occurred about this time. She left school midway through Year 8 and has had limited employment since that time, her last position being in 1998 when she worked as a stable hand for a brief period. She told the Probation and Parole Officer that she is interested in working with animals. The report records that the applicant has a history of polydrug use from the age of fourteen and that she has been on the methadone program since 1990, but at one stage she had a two year break. Her use of cocaine escalated following the death of her father in 2004. On the day of the offences of 5 June 2004 she had travelled to Bondi to buy cocaine. She stated that the offences were committed to finance her drug habit. 15 As at November 2005 Ms Arnold had been in her current relationship for the past six years and her partner had been offered a two bedroom home by the Department of Housing. She was looking forward to the prospect of finally having a proper home after years of poor accommodation. Her partner appeared supportive of her, but he also has a history of substance abuse. The officer regarded the impending relocation as a very positive step for the applicant. 16 Ms Arnold was assessed as unsuitable for a Community Service Order and ineligible for periodic detention. 17 At the sentencing hearing she attributed her return to drugs and taking cocaine to her father's death. She said that she had had the cocaine addiction for 12 months. She verified that she had told the psychologist and the Probation and Parole Officer the truth. 18 The applicant said that she and her partner were engaged and that he had invited her to live with him at the Department of Housing home in Granville which he had obtained. She confirmed that this was her first stable accommodation. Her partner was in Court. She proposed to go and live with him upon her release. It was the applicant's evidence that while he had a drug problem in the past, he no longer uses drugs and that he wished to support her in any attempt to stop her using drugs. Despite sporadic contact in the past the applicant's mother gave evidence that she was prepared to support her daughter on her release. The mother could not explain what triggered off her daughter taking (or resuming) drugs and committing criminal offences. 19 It is apparent from the judge's reasons that she gave careful consideration to all the materials before her and weight to the applicant's evidence. 20 The judge recorded that there was no dispute that the applicant should have the benefit of the maximum discount from her sentence by reason of the plea. The judge accepted that the applicant's health was poor. She held that the applicant will need considerable support and resources if she is to become free of drugs and that whether she would be successful was doubtful. 21 The judge stated, correctly, that the offences were very serious crimes; they were committed in private homes and it could easily be expected that the occupiers of the homes would be in. The judge thought that the crimes were opportunistic and that any planning was minimal. She noted, correctly, that the offences were aggravated by having been committed either while on a bond or on bail. 22 The judge found special circumstances, holding that that would enable the applicant to be supported and supervised by the Probation and Parole Service on her release to assist with her rehabilitation. 23 The judge considered questions of concurrency, accumulation and totality and imposed the sentences earlier narrated. 24 The applicant has submitted that at page 3 of her judgment the judge stated that the applicant has many convictions for break, enter and steal and that this was incorrect as the last charges for break, enter and steal were fourteen years ago dating back to 1992. She added that while she understood that her record was blemished by her previous convictions her last custodial sentence served was between 1999 and 2000. 25 At pp 2-3 of the judgment it was stated: "She has an extensive criminal history commencing when she was about thirteen with a conviction in the Children's Court for break, enter and steal. Thereafter she has many convictions for break, enter and steal, possession of stolen property, making and using false instruments. She has been in prison before." 26 The record discloses that between 1982 and 1992 the applicant had seven offences of break, enter and steal and one of attempted break, enter and steal. I accept that from 1993 to January 2004 there are no recorded offences of break, enter and steal. There were an appreciable number of dishonesty offences. The point being made by the judge was that the applicant had an extensive criminal history. That was correct. The applicant's history did not assist her. 27 The criminal history shows that the applicant was in custody in 1999-2000 and 2000-2001. 28 This submission of the applicant is not of consequence. A relevant error has not been made. 29 The applicant has submitted that the judge stated that a lesser sentence was offered for a plea of guilty and that this was incorrect. The applicant further submitted: "My defense lawyer approached the DPP advising that a plea of not guilty would be submitted for aggravation and charges be dropped, as no such account took place." 30 The applicant pointed out that as soon as she became aware that there was a person in the unit (the first offence of 5 June 2004) she ran out immediately. 31 The applicant has misunderstood the thrust of what the judge was saying. The judge was merely explaining the delay. The important point is that the judge proceeded on the charges to which the applicant pleaded guilty and gave her the full discount for an early plea of guilty. No relevant error occurred. 32 A principal ground on which the applicant relied was her medical condition, the delays in her treatment and her lack of substantial improvement. Allied with this was the lack of time able to be devoted by gaol psychologists to the intensive counselling, she needed to overcome her drug addiction. She also relied on her good behaviour while in gaol and the work she had done. In support she relied on her affidavit of 24 April 2007. some documentary material, and some brief oral evidence. The Crown did not object to the applicant relying on this material taking the view that there was "fresh material as to the applicant's medical condition and the Court should be apprised of it." The Crown took a generous approach to the further evidence. This was appropriate. The applicant placed before the Court additional material mainly going to medical matters but also to her period in gaol and her performance. 33 The applicant, who appeared in person directed our attention to the matters in support of her application, stated in her affidavit of 24 April 2007 that she was seeking to appeal "on compassionate reasons". In her affidavit she states in her handwriting: "… after I was sentenced I have had a lot of test at Nepean Hostpital and have since found I have type 3 Cirrhosis of the liver. I have to have a Hep C Treatment on 12 months couse, if that does not work which it may not, I will need a liver transplant, and I would get better treatment from outside health care. Justice Health is not the best in the gaol system. I have been doing Drug & Alcohole, and seeing the Psyc, not as much as I would like to or need to as they are limited, the gaol is at overflow at the moment " 34 The applicant has detailed the enquiries she has made to obtain treatment for her drug condition if released. She also details the extensive work she is doing outside the prison in the community. She also refers to being in the minimum security part of the gaol. She reiterates that she could obtain better health care outside the prison. She also states that she could obtain better rehabilitation assistance outside the gaol because of a shortage of manpower in the gaol. She concludes by asserting that she will not go back to drugs as she wants to get better. 35 At the sentencing hearing the applicant gave evidence that she had been diagnosed with Hepatitis C, that while she had been in custody on remand she had had a liver biopsy and had to go on a drug called Interferon for 12 months which has severe side effects, the treatment being intense. She was also having medical investigations as to come lumps in her thyroid , in her neck. Her gland was swollen. A biopsy had to be done for that condition. She said that she lost a lot of weight. That loss had been arrested because of the medication prescribed for her. The judge, in her remarks described the applicant's health as poor. 36 In her oral evidence the applicant said that, in addition, she had been on treatment for multinodular goitre for lumps in her thyroid. On the previous day (7 May 2007) the clinic had informed her that the treatment was not working and that she would have to be seen by a visiting specialist. She did not know when this would occur and what the future would be. She knew that she would have to have further tests for possible cancer. She was concerned that the condition had been detected in 2005 and that two years later the position had not been resolved. 37 In cross-examination the applicant readily agreed, a biopsy of her liver had been done while she was detained in custody and it had been confirmed that she has cirrhosis of the liver. She agreed that since she had been in custody further steps had been taken to try and work out what was the problem with her thyroid function. The applicant said that she had had about five trips to Nepean Hospital for tests. More than five trips for tests had been cancelled. The applicant was worried about the time being taken to resolve her medical problems. 38 The applicant said that at the moment she was doing well. She needed to go to a place where she could receive counselling five days per week. The gaol psychologist had told her of a service in response to her query if there was somewhere she could go to receive such intense counselling. 39 Justice Health, due to the requirements of confidentiality, takes the view that it was not able to deal with the applicant's case specifically. Justice Health in its letter of 2 May 2007 stated: "This letter is to inform you of hepatitis care and treatment services that are provided within the NSW custodial environment by Justice Health. This includes management of patients with cirrhosis and hepatitis C. Justice Health provides clinical care for patients with hepatitis within NSW custodial facilities at all stages of liver disease. Clinical care for patients with hepatitis is provided by qualified Public Sexual Health Nurses who have been trained in all aspects of assessment, monitoring and treatment of the condition. A number of visiting physicians specialising in the treatment of liver disease also hold regular clinics within NSW custodial facilities. Patients who require hepatitis care and treatment can have this undertaken within all Justice Health facilities overseen by qualified medical specialists and nursing staff. Further more, there is a medical facility within Justice Health available to patients who are at advanced or critical stages of their illness. Should the need arise, referrals to external health services are made and coordinated and managed by Justice Health." 40 The Crown, after indicating its preference for medical evidence as to the applicant's future health, submitted that the applicant's health problems were not so debilitating that she was not able to function. She is to be commended for the work she has been doing by way of assisting disabled children. The applicant conveyed that she became tired by the end of the day. The Crown submitted that much of the material submitted to the Court was available prior to sentence, that the potential problems were known, treatment prescribed, that the applicant has been given ongoing medical treatment and that it did not appear that any of the applicant's medical conditions had been overlooked. 41 The applicant's worry was that her medical treatment was too protracted and taking too long. She was also concerned about the psychologist not being able to devote sufficient time to her treatment. 42 The Court has pointed out that it is the responsibility of Corrective Services to ensure that inmates receive adequate health care. It has recognized that there may be exceptional cases where the health care required is beyond that which the Department can provide. For example, care for unusual conditions may only be available at one or a limited number of hospitals. Deployment of a large number of security officers may be required. 43 In the present case there is no medical or expert evidence that the care provided is inadequate. This is not a case where it is necessary to go generally into the provision of health services in gaols. It is not sufficient that the applicant believes she would obtain better treatment outside the gaol. 44 What I have written earlier in these reasons deals with the major matters canvassed in the applicant's written and oral submissions. The following grounds of appeal appear from the Court's papers: "1. Her Honour refers to preceding offences on page 3 of the transcripts. She stated – there were multiple convictions for break enter and steal matters. The only preceding offences were back in 1992, which were 14 years ago. 2. In relation to early pleas which were entered in the Local Court, her Honour affirmed that a lesser sentence was offered by the DPP if a guilty charge was accepted. I wish to disagree as my defense team was seeking for charges of aggravation be dropped, as no aggravation took place. 3. Her Honour stated that special circumstances were taken into account for remorsefulness and non premeditation. I fail to understand where Her Honour had implemented that in her sentencing. 4. Her Honour also acknowledged that a discount for early plea should apply. I believe it was not taken into consideration when sentencing. There has been no reprieve given in amount of time to serve or non parole period." 45 What has been earlier written disposes of Grounds 1 and 2. 46 As to Ground 3 the judge did taker special circumstances into account as she stated. She did so by reducing the length of the non-parole periods overall to 3 years and increasing the parole period (or balance of term) to 2 years. In the absence of special circumstances the non-parole periods (that is the minimum time that must be spent in prison) would have totalled 3 years 9 months. 47 As to Ground 4, the judge would have imposed longer sentences in total if she had not granted the applicant the full discount for an early plea of guilty. The applicant is reminded that the maximum penalty for breaking and entering a building and committing a serious indictable offence is 14 years. The applicant's challenges both in her submissions and grounds of appeal to the judge's remarks on sentence fail. 48 Unfortunately, the applicant committed serious crimes meriting the gaol sentences she has received. The judge has made no relevant error. While it seems that the applicant has made good progress in gaol and that has to be commended, this Court cannot and should not intervene. 49 The application for leave to appeal should be refused. 50 I propose the following order: Leave to appeal from the sentences imposed on 24 February 2006 refused. ********** 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.