Fieldsend v The Queen
[2008] NSWCCA 202
•26 September 2008
New South Wales
Court of Criminal Appeal
CITATION: Fieldsend v R [2008] NSWCCA 202 HEARING DATE(S): 13/08/08
JUDGMENT DATE:
26 September 2008JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 2; Price J at 42 DECISION: 1. Grant leave to appeal and allow the appeal.
2. Quash the sentences imposed for the four offences in the indictments.
3. In lieu of the sentence imposed for the first offence in the second indictment, sentence the applicant to imprisonment for a fixed term of three years nine months, which will be taken to have commenced on 20 December 2006 and which will expire on 19 September 2010.
4. In lieu of the sentence imposed for the second offence in the second indictment, sentence the applicant to imprisonment for a fixed term of three years and nine months, which will be taken to have commenced on 20 December 2007 and which will expire on 19 September 2011.
5. In lieu of the sentence imposed for the first offence in the first indictment sentence the applicant to imprisonment. Fix a non-parole period of four years, which will commence on 20 December 2009 and expire on 19 December 2013. Fix a balance of term during which the applicant will be entitled to consideration for release on parole of six months, which will commence on 20 December 2013 and expire on 19 June 2014.
6. In lieu of the sentence imposed for the second offence in the first indictment sentence the applicant to imprisonment. Fix a non-parole period of two years and three months which will commence on 20 September 2011 and expire on 19 December 2013. The balance of term, during which the applicant will be entitled to consideration for release on parole will commence on 20 December 2013 and expire on 19 December 2016.
7. Declare that the first day upon which the applicant will be eligible to be considered for release on parole will be 19 December 2013.CATCHWORDS: CRIMINAL LAW - appeal against sentence - accumulation of sentences - Certificate under s166 Criminal Procedure Act LEGISLATION CITED: Criminal Procedure Act 1986 s166, s168, s267, s268
Crimes (Sentencing Procedure) Act 1999 s44CASES CITED: Pearce v The Queen [1998] HCA 57
R v GDP (1991) 53 A Crim R 1
R v Micallef (1990) 50 A Crim R 465PARTIES: Geoffrey Shaun Fieldsend
ReginaFILE NUMBER(S): CCA 2007/3116 COUNSEL: J Manuell (Appellant)
D Arnott SC (Crown)SOLICITORS: Aboriginal Legal Service (Appellant)
Solicitor for Public Prosecutions (Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/61/0042 & 07/61/0043 LOWER COURT JUDICIAL OFFICER: Woods ADCJ LOWER COURT DATE OF DECISION: 22/06/2007
DRAFT 23/09/200812:31 PM
2007 / 3116
26 SEPTEMBER 2008McCLELLAN CJ at CL
BARR J
PRICE J
1 McCLELLAN CJ at CL: I agree with Barr J.
2 BARR J: This is an application for leave to appeal against sentences imposed in the District Court. On 7 June 2007 two indictments were presented against the applicant, Geoffrey Shaun Fieldsend. The first contained two counts, namely that on 6 December 2006 at Dubbo while armed with an offensive weapon he assaulted Cassie Lowe with intent to take a motor vehicle and took and drove the motor vehicle without the consent of Ms Lowe, the person in lawful possession, and that on 9 December 2006 at Dubbo he maliciously damaged the verandah of a certain house with intent to endanger the life of Sandra Kauter.
3 The second indictment contained two counts, namely that on 18 December 2006 at Dubbo, being armed with an offensive weapon, a machete, he robbed Bruce Fell of certain property and that on 19 December, also at Dubbo, being armed with the machete, he robbed Teresa Purvis of a cash till.
4 Also before the Court was a certificate under s166 Criminal Procedure Act containing a number of counts. Some were dismissed but the applicant fell to be sentenced for the following five offences, namely two counts of assault committed upon Ms Lowe, one count of knowingly contravening a prohibition specified in an Apprehended Domestic Violence Order, one count of being armed with a knife with intent to commit an indictable offence, namely the malicious wounding of Ms Lowe and one count of intimidating Ms Lowe with intent to cause her to fear physical or mental harm.
5 The applicant pleaded guilty to the four charges in the indictments and consented to being sentenced for the remainder of the charges listed in the s166 certificate.
6 The first count in the first indictment attracted a maximum penalty of imprisonment for 14 years and the second a maximum penalty of imprisonment of 25 years with a standard non-parole period of five years. The two offences in the second indictment each attracted a maximum penalty of imprisonment for 20 years.
7 The maximum penalties available for the offences listed in the s166 certificate attracted only the maximum penalties that the Local Court could impose on summary disposal: see ss168, 267, 268. Effectively, that meant a maximum penalty of two years’ imprisonment for each offence.
8 Woods ADCJ sentenced the applicant for the first count in the second indictment to a non-parole period of three years commencing on 20 December 2006 and expiring on 19 December 2009 and a balance of term of nine months, and on the second count in that indictment to a non-parole period of three years commencing 20 December 2008 and expiring 19 December 2011 and a balance of term of nine months.
9 On the first indictment his Honour fixed for the first count a non-parole period of three years commencing on 20 December 2010 and expiring on 19 December 2013 and a balance of term of one year and six months. On the second count his Honour fixed a non-parole period of three years and six months commencing on 20 December 2011 and expiring on 19 June 2015 and a balance of term of one year and nine months.
10 For each of the five offences listed in the s166 certificate his Honour imposed a sentence of imprisonment for a fixed term of 12 months commencing on 20 December 2010 and expiring on 19 December 2011.
11 His Honour declared that the applicant was eligible to be considered for release to parole on 19 June 2015.
12 The only one of the periods of eligibility for parole not subsumed by a succeeding non-parole period was the period of one year and nine months allowed for the second offence in the first indictment. The total effective sentence was thus a non-parole period of eight years and six months and a balance of term, with eligibility for release on parole, of one year and nine months.
13 The applicant and Ms Cassie Lowe were in a domestic relationship. They had a seven-month-old daughter. Early in December 2006 Ms Lowe obtained by telephone an interim Apprehended Domestic Violence Order, the import of which was to protect her from the applicant. The application for a final order was due to be considered at the Local Court Dubbo on 6 December. On the morning of that day the applicant and Ms Lowe were at home together. He took her mobile telephone and began searching it to try to ascertain the names of people she had been telephoning. He told her that he knew that she was speaking to people behind his back and had been requesting the police to arrest him. He told that he knew that she had something planned and demanded to know what it was. Ms Lowe denied these things and told the applicant that she was going to court to help him. The applicant was not to be denied. He repeated the question and after receiving the same answer pushed Ms Lowe onto the bed. He said that he was not to going to gaol just for hitting her. He would go for something else. He knelt over her and slapped her several times. He took out a pocket knife, opened it and pushed it towards her in a stabbing motion. Ms Lowe was in fear, crying. The applicant walked out of the bedroom. As they were getting ready to go to court he told her not to do anything stupid. He said that if she tried anything he would stab anyone. He would stab police officer in the neck if he had to. He said that she was not to leave his side while they were there. He said that he would not go to gaol just for hitting her, he would make it worth his while. If he was going to be locked up it would be for a long time. They went to court.
14 Those incidents were the foundation of the charges listed in the s166 certificate.
15 On the afternoon on the same day Ms Lowe and their daughter were visiting a friend, Mr Bell, in Dubbo. Ms Lowe had borrowed her mother’s car for the purpose and she parked it at the front of the house. Mr Bell left the house walked to the car and began to speak to Ms Lowe. Although Ms Lowe did not know it, the applicant was inside the house. He came running out and Mr Bell said “Quick, he’s coming. Drive.” Ms Lowe began to drive away but the applicant took hold of the front near side door, opened it and got into the passenger’s seat. He pulled out a knife and told Ms Lowe to drive. She was afraid and stopped the vehicle not far from Mr Bell’s house. The applicant lunged at her with the knife, threatening to stab her if she would not drive. Ms Lowe began to cry and got out of the car. The applicant moved into the driver’s seat and a tussle ensued. The applicant got out of the car and began to chase Ms Lowe. He returned to the vehicle and tried to remove the child and the baby seat. He began to chase Ms Lowe and then Mr Bell, swinging the knife in their direction. The applicant ran back to the car and got in. Ms Lowe ran to the vehicle and tried to pull the keys out of the ignition to stop the applicant driving the car away. As she did so he kicked at her. She fell to the ground. The applicant wrested the keys from her and drove away. The child was still in the seat in the rear of the car. The police were called. The child and the vehicle were recovered unharmed.
16 That event gave rise to the first count in the first indictment.
17 At about 10:00pm on 9 December 2006 Mrs Kauter was at her residence in Dubbo. Several other members of her family were present, including Ms Lowe and their daughter. A sensor-activated light came on at the front of the house, showing that somebody was moving close by. Ms Kauter went to the window and saw the applicant leaning over a brick wall that formed one side of the verandah. He had in his hand a tin can, holding it inverted, and splashing liquid from it over the timber floor of the verandah. He stood up and took out a cigarette lighter. Ms Kauter screamed out to those present that the applicant was going to set fire to the house. Those present ran into the rear yard. Ms Lowe noticed an orange glow coming from the verandah. The police attended. There was a strong smell of petrol and an area of charring on the timber floor and brick wall of the verandah. Fortunately, that was all the damage caused by the applicant.
18 That event was the subject of the second count in the first indictment.
19 On 18 December 2006 the applicant and another man entered a service station and shop in North Dubbo. The applicant was wearing a dark blue tracksuit and his face covered with a black balaclava. He was holding a machete. He jumped over the front counter into the operator’s console. Mr Brian Fell was on duty there. The applicant threatened him with the machete and used it to point at the cash drawer. He indicated that he wanted it. Mr Fell removed the cash drawer and handed it to the applicant. He put it inside a bag. He picked up a set of car keys belonging to Mr Fell. His companion stole goods from the business. The applicant took Mr Fell’s vehicle and drove it out of the premises. He picked up his colleague and drove away. It was later found abandoned in Dubbo. More than $600 was stolen from the business as well as a quantity of cigarettes.
20 That event was the subject of the first count in the second indictment.
21 On the following day 19 December 2006 the applicant, one other man and two young persons went to a hotel in Dubbo to commit a robbery. They took with them items to disguise their appearance and weapons, including a machete and baseball bats. At about 9:50pm Ms Teresa Purvis was working there as a bar attendant. The applicant and his companions entered, their faces disguised with balaclavas. Thr applicant was armed with a machete. The young persons had baseball bats. The applicant and the young persons tried to herd the hotel patrons together. In doing that the applicant brandished his machete. While that was going on one of the patrons, Jason Kemp picked up a stool and chased the applicant with it. The young persons struck him repeatedly with the baseball bats to keep him off the applicant. While that was happening the other offender, a man called Weldon, walked about the premises trying to get money from tills. Eventually he took one till and ran out of the hotel. The applicant and the young persons followed him. They were unable to open it and abandoned it. It was recovered intact. The applicant and his companions achieved nothing.
22 That event was the subject of the second count in the second indictment.
23 The applicant was arrested shortly after the last of these matters. He consented to be interviewed and made full admissions.
24 The offender was born on 19 April 1985, so he was 22 years old at the time of sentence. He is an aborigine, born in Bourke. His parents separated when he was four years old and he and his mother and siblings moved to Dubbo where he grew up. He has lost touch with his father but is in frequent touch with his mother. She lives and works in Dubbo.
25 During his tender years his mother had relationships with men who set him a bad example. He used to get into trouble at school because of fighting. He was expelled when he was found with cannabis. He worked in a shearing shed for a short time after leaving school but began committing offences. He was made subject to Children’s Court Control Orders for successive periods of six months, nine months and 12 months during the period 2001 to 2003. He had a relationship with a woman and there was a son now aged four. The applicant does not see the child. The relationship with Ms Lowe began in 2004. He spent eight months in custody in 2005.
26 He began to smoke cannabis at 11 years of age with his stepfather and his mates. By 12 or 13 years of age he had developed a habit and used the drug daily. He was later introduced to amphetamine and used to inject it. He used morphine to bring himself down. He began to use “ice” (methamphetamine) intravenously in 2005. This resulted in bizarre symptoms and led to arguments between himself and Ms Lowe. He developed paranoid thoughts and would stay awake all day and night to keep watch on the house. He had knives to protect himself. His mother tried unsuccessfully to get him to see a psychiatrist. During the time of the offences he was addicted to the use of ice and his bizarre and paranoid thoughts were probably involved in his motivation. Since his arrest he had detoxified from ice and exhibited insight into his actions, though, according to his consultant psychologist, Anita Duffy, he was still displaying some distortions on belief and attitudes.
27 A report of Ms Duffy was put before the Court. She assessed him as being above average in intelligence in non-verbal problem solving and reasoning. She thought that he had the potential to acquire a high level of skill in practical areas of work and that he should be encouraged to obtain training for employment during his time in custody. Ms Duffy commented on the applicant’s strong dependence on ice and other drugs and observed that he would need extensive drug and alcohol during his time in gaol. She considered that he could be considered for the new compulsory drug treatment program at the Parklea Correctional Centre. She noted his interest in undertaking a violence prevention program and thought, in view of history of fighting, that that would be constructive. She considered that the applicant had the ability to benefit from more intensive interventions and should be encouraged to do so. She considered that the supervision and support of the Probation and Parole Service would be necessary following his release.
28 In this Court Ms Manuell, for the applicant, acknowledged the seriousness of the offences but submitted that the aggregate sentence was crushing. She submitted that as a result the applicant would lose any realistic opportunity of meaningful rehabilitation in the community. The attack was not so much on the length of any individual sentence but on the degree of accumulation, bearing in mind that the offences were of a similar kind and that all were committed within a short period of time. It was submitted that the total sentence would keep the applicant in custody for eight years and six months and then allow an insufficient period of time, amounting only to one year and nine months, on parole in the community. That, it was submitted, was not best calculated to meet the applicant’s special needs if he were to have any reasonable chance of rehabilitation. Rather than adjusting the statutory norm to reduce the time available for parole to less than 20% of the head sentence, his Honour should have increased it.
29 Ms Manuell pointed to some discrete errors. His Honour said that he would order appropriate sentences for each count “which will have taken into account the matters on the Form 1”. What his Honour meant is unclear. There was no Form 1. It seems unlikely that his Honour was referring to the concurrent sentences for the s166 offences, since their concurrency could not justify any adjustment in the length of any individual sentence: Pearce v The Queen [1998] HCA 57.
30 Dealing with the part played by the applicant in the robbery at the hotel, his Honour referred to the images taken by the surveillance cameras -
- …the offender here now appears to be the eldest of that group and with his record of offending must be seen as having a leadership role.
31 Later in the judgment his Honour said -
- …it is possible that with the hotel robbery he, as the eldest, could be seen as responsible for the involvement of the others which included two people under the age of 18 years.
32 The applicant gave evidence. He said that he did not regard himself as the ringleader but as the eldest of the robbers. That evidence was not challenged.
33 It was submitted in this Court that in the face of the applicant’s evidence his Honour was not entitled to conclude that by reason of his record and his age he could be seen as responsible for the involvement of the others.
34 In my opinion that attack has been made good. The detailed statement of facts did not deal with motivation or leadership or with the relative responsibility of the several actors other than simply stating what they did. I do not think that his Honour was entitled to be satisfied by reference alone to the age and any antecedents of the applicant that he was responsible of the involvement of others.
35 A further complaint was that his Honour had not properly considered the youth of the applicant. Reference was made to R v GDP (1991) 53 A Crim R 1 and R v Micallef (1990) 50 A Crim R 465. In fact his Honour twice referred to the applicant’s youth. In my opinion the principles referred in those cases have no strong application to the facts of the present appeal. Although the applicant was a young man (21 years old) when he committed these offences he was well past that range of ages which attracts the special need for considerations of rehabilitation to outweigh those of deterrence and retribution.
36 I do not think that this complaint has been made good.
37 In my opinion, even allowing for his Honour’s errors in the reference to the Form 1 and in categorising the applicant as a leader in the robberies, the sentences for those and all other offences fell within his Honour’s proper range of discretion. However, I think that the attack on the degree of accumulation of sentences and upon his Honour’s failure to take that accumulation into account under the provisions of s44 Crimes (Sentencing Procedure) Act has been made good. I think that the Court should reconsider the degree of accumulation of the sentences and adjust the relationship between the effective non-parole period and the period available for parole in order to foster the applicant’s chances of rehabilitating in the community.
38 Affidavits were received on appeal in case the Court should interfere. The applicant said that he is at present classified as A2, which is maximum security, and as such is held at Lithgow gaol. It is hard for his family, who live in Dubbo, to visit him there. Once he has reached the point when he has fewer than seven years of his sentence to serve he will become eligible to be reclassified B. As such, he may be sent to Wellington, a place much closer to Dubbo. He is learning English formally and has registered for a course designed to help him regain control over his actions. It should lead to longer courses directed to drug rehabilitation and to head off repeat offending. The applicant has apologised in writing and face to face with Ms Lowe and they are now reconciled. The applicant’s mother strongly supports his efforts at rehabilitation.
39 It seems to me that his prospects of turning his life around, even at this early stage, appear reasonable, and that is taking advantage of the opportunities offered him.
40 I propose that the Court interfere with the sentences imposed for the four offences contained in the indictments. Although I would not vary the length of any sentence I would vary the relationship between the non-parole and parole components and the manner in which they are accumulated upon one another. My intention is to fashion sentences the aggregate effect of which is a head sentence of 10 years’ imprisonment with a non-parole period of seven years. I would not set parole periods for the two sentences commencing earliest in time since they would be wholly subsumed by the non-parole periods of the succeeding sentences. There are two circumstances that justify setting a period of eligibility for parole which exceeds one third of the non-parole period in the sentence that commences last, namely the accumulation of sentences and the need to provide a period of eligibility for parole that meets the special needs of the applicant in his rehabilitation. I would not interfere with the sentences imposed for the offences dealt under s166.
41 I propose the following orders -
1. Grant leave to appeal and allow the appeal.
2. Quash the sentences imposed for the four offences in the indictments.
3. In lieu of the sentence imposed for the first offence in the second indictment, sentence the applicant to imprisonment for a fixed term of three years nine months, which will be taken to have commenced on 20 December 2006 and which will expire on 19 September 2010.
4. In lieu of the sentence imposed for the second offence in the second indictment, sentence the applicant to imprisonment for a fixed term of three years and nine months, which will be taken to have commenced on 20 December 2007 and which will expire on 19 September 2011.
5. In lieu of the sentence imposed for the first offence in the first indictment sentence the applicant to imprisonment. Fix a non-parole period of four years, which will commence on 20 December 2009 and expire on 19 December 2013. Fix a balance of term during which the applicant will be entitled to consideration for release on parole of six months, which will commence on 20 December 2013 and expire on 19 June 2014.
6. In lieu of the sentence imposed for the second offence in the first indictment sentence the applicant to imprisonment. Fix a non-parole period of two years and three months which will commence on 20 September 2011 and expire on 19 December 2013. The balance of term, during which the applicant will be entitled to consideration for release on parole will commence on 20 December 2013 and expire on 19 December 2016.
7. Declare that the first day upon which the applicant will be eligible to be considered for release on parole will be 19 December 2013.
42 PRICE J: I agree with Barr J.
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