Graham v R

Case [2009] NSWCCA 212

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Graham v Regina [2009] NSWCCA 212

FILE NUMBER(S):
2008/12246005

HEARING DATE(S):
19 August 2009

JUDGMENT DATE:
31 August 2009

PARTIES:
Lisa Anne Graham - Applicant
Regina - Respondent Crown

JUDGMENT OF:
Macfarlan JA Grove J Hoeben J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/12246

LOWER COURT JUDICIAL OFFICER:
Bennett DCJ

LOWER COURT DATE OF DECISION:
30 October 2008

COUNSEL:
Mr M Dennis - Applicant
Ms V Lydiard - Respondent Crown

SOLICITORS:
SE O'Connor, Legal Aid Commission - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

CATCHWORDS:
CRIMINAL LAW - sentence appeal - submission that sentence manifestly excessive because of notional starting point - use of statistics - effect of previous criminal record - need to focus on sentence actually passed - extent to which sentence can be discounted before it becomes inadequate.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Charlesworth v Regina [2009] NSWCCA 27 at [78].
MacDonald v Regina [2007] NSWCCA 105 at [46]
R v Henry (1999) 46 NSWLR 346
Robertson v R [2007] NSWCCA 270
Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 477
R v Way (2004) 60 NSWLR 168
SZ v R [2007] NSWCCA 19 at [40]

TEXTS CITED:

DECISION:
Leave to appeal is granted.
The appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/12246005

MACFARLAN JA
GROVE J
HOEBEN J

Monday 31 August 2009

Lisa GRAHAM v REGINA

Judgment

  1. MACFARLAN JA:  I agree with Hoeben J.

  2. GROVE J:  I agree with Hoeben J.

  3. HOEBEN J: 

    Offence and sentence
    On 30 October 2008 the applicant was sentenced in respect of the following charge by Bennett DCJ:

    12 December 2007 at Bankstown – aggravated assault with intent to steal, take and drive a motor vehicle without the consent of the owner contrary to s 154C(2) Crimes Act 1900 (maximum penalty imprisonment for 14 years with a standard non-parole period of 5 years).

    An offence of larceny contrary to s 117 Crimes Act 1900 was taken into account on a Form 1.

  4. The applicant pleaded guilty to this offence.  His Honour passed the following sentence:

    A term of imprisonment of 4 years with a non-parole period of 2 years commencing 24 February 2008 and expiring 23 February 2010 with a balance of term of 2 years expiring 23 February 2012.

    The applicant seeks leave to appeal from the severity of that sentence.

    Factual background

  5. At about midnight on 12 December 2007, the victim was driving in the vicinity of Clements Avenue, Bankstown in his Saab motor sedan looking for a prostitute to service him.  He negotiated an agreement with the applicant to fellate him for $50.  The victim did not wish to proceed with this arrangement immediately, but took the applicant’s first given name and her mobile phone number.  He…

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Details
AGLC
Graham v R [2009] NSWCCA 212
Case
[2009] NSWCCA 212
Decision Date

CaseChat Overview and Summary

The applicant in this case, Graham, appealed against the severity of her sentence imposed by the District Court. The primary judge sentenced Graham to a term of imprisonment of 4 years with a non-parole period of 2 years. Graham argued that the sentence was manifestly excessive, particularly because of the notional starting point for the head sentence. The appeal court considered whether the sentence was appropriate, taking into account the applicant’s previous criminal record and the need to focus on the sentence actually passed.

The court addressed the issue of whether the statistics provided by the Judicial Commission could be used to argue that the notional starting point was excessive. The court found that the statistics were of limited use, as they did not provide information about the starting point for the calculations or the aggravating and mitigating features of the offence. Furthermore, the court noted that while statistics can be useful in understanding sentencing patterns, they do not constrain the proper application of sentencing principles. The court emphasised that the major guideposts for sentencing are the maximum sentence, any standard non-parole period, and the general principles of sentencing.

The court rejected the applicant's argument that the notional starting point of 8 years was necessarily excessive. The court found that the objective seriousness of the offence was substantial, with overwhelming aggravating features and little mitigation. The applicant had an extensive criminal history, which, while not relevant to the objective seriousness of the offence, was relevant to the final sentence imposed. The court concluded that the sentence was appropriate given the circumstances of the case.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentence imposed was neither manifestly excessive nor inadequate, and therefore, there was no basis for altering it. The applicant's extensive criminal history and the seriousness of the offence warranted a significant custodial sentence, which the primary judge had appropriately determined.

Orders

Orders of the court

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Background

Background to the litigation

The applicant pleaded guilty to this offence. His Honour passed the following sentence:A term of imprisonment of 4 years with a non-parole period of 2 years commencing 24 February 2008 and expiring 23 February 2010 with a balance of term of 2 years expiring 23 February 2012.The applicant seeks leave to appeal from the severity of that sentence.Factual background At about midnight on 12 December 2007, the victim was driving in the vicinity of Clements Avenue, Bankstown in his Saab motor sedan looking for a prostitute to service him. He negotiated an agreement with the applicant to fellate him for $50. The victim did not wish to proceed with this arrangement immediately, but took the applicant’s first given name and her mobile phone number. He returned not long afterwards and invited the applicant into his car. The applicant directed him to a car park. Shortly thereafter the applicant and the victim entered the rear seat of the vehicle. As the victim was undoing his trousers the applicant’s partner, Roach, opened the rear door and pointed a kitchen knife with an eight inch blade at the victim. The victim managed to escape from the car and ran away with Roach in pursuit. The applicant remained in the car and did not see what followed. Apparently Roach caught up with the victim about 150 metres away from the vehicle and while still holding the knife, demanded the car keys. The victim handed over the keys. When Roach demanded the victim’s wallet, the victim said that he did not have it. Roach then slashed the knife at the victim resulting in the victim being cut on his left index finger and left ear. The victim escaped to a nearby house where he was given aid and the police were called. Roach returned to the vehicle, which was driven to an address at Padstow, where Roach and the applicant were living. The applicant and Roach searched the car and found the victim’s wallet containing $400 in cash. They used that money to purchase the drug known as “ice”. Roach then took the car away to dispose of it. The applicant’s name and phone number were retrieved from the victim’s telephone by the police, which resulted in the applicant being arrested on 24 February 2008. The applicant participated in an ERISP in which she admitted her offence and implicated Roach. He was arrested on 25 February 2008.Remarks on sentence The applicant gave evidence in the sentence proceedings. That evidence differed from what she had told the police when interviewed. Accordingly, it was necessary for his Honour to make a number of factual findings. His Honour found that the enterprise in which the applicant was engaged was the robbing of one of her clients of his wallet, at a time to be selected by Roach who was watching her ply her trade nearby. His Honour found that the offence involved planning and organisation with the applicant directing the victim to where she expected Roach to intervene. His Honour accepted that the applicant was less willing in this enterprise than Roach, but rejected the applicant’s explanation that she was acting under any threat from Roach. In that regard his Honour noted that the applicant was using illicit drugs and that the money taken was used to acquire more drugs for herself as well as Roach.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant submitted that once it was accepted that his Honour’s start point for the head sentence was excessive, appropriate adjustments should be made which would result in a sentence which was less than that ultimately imposed.Consideration The applicant’s reliance upon the Judicial Commission statistics is misconceived. At best those statistics show the sentence actually passed by the court. They say nothing about the start point for the calculations which resulted in a sentence. They say nothing about aggravating and mitigating features of the offence. Accordingly, they are of little use as a basis for criticising his Honour’s notional start point for this sentence. There are other difficulties with the statistics. Sixteen offences over 5 years is too small a sample from which to draw any useful conclusion as to a sentencing pattern. There still remain the usual difficulties associated with the use of statistics which were usefully summarised by Rothman J (with whom Basten JA and Latham J agreed) in Robertson v Regina [2007] NSWCCA 270 as follows:“36 While the provision of statistical information on sentencing patterns may be useful in discerning the range of sentences that have thus far been imposed for a particular offence, this Court has often stated that they must be used with care. The major guideposts, imposed by the statute, are the maximum sentence, any standard non-parole period and the general principles of sentencing as espoused, particularly, in relation to the particular offences for which sentence is being imposed. The use of statistics as a measure of the appropriateness of the sentence has the effect of creating a self-fulfilling range of sentences, which may bear little relationship to the maximum sentence imposed by the legislature.37 While a comparison with statistics is a legitimate and potentially useful exercise, it does not constrain the proper application of sentencing principles nor inhibit the flexibility that inheres in the sentencing process. The use of statistics promotes consistency in sentencing, but a sentencing judge is not constrained by those statistics.” Implicit in the applicant’s submission is the proposition that 8 years as a notional starting point for the head sentence is necessarily and obviously excessive on the facts of this case. I do not agree. As his Honour found, the objective seriousness of this offence was substantial. In assessing the aggravating and mitigating features as required by s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, the balance was overwhelmingly on the side of aggravating features with little by way of mitigation. The applicant had an appalling record of previous convictions which denied her leniency, she was on conditional liberty, the offence was part of a planned activity, it was committed for financial gain and she did not have good prospects of rehabilitation. In fact his Honour’s treatment of the applicant’s previous criminal record, given its extent and the seriousness of some of the offences, was generous. While that record cannot be taken into account when assessing the objective seriousness of an offence, it can play an important part in the fashioning of the sentence finally passed. The classic statement of principle in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 477 makes this clear.“There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.”