Graham v R - [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

MACFARLAN JA: I agree with Hoeben J.
GROVE J: I agree with Hoeben J.
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.
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.
His Honour accepted that the applicant had no knowledge of the knife before it was produced by Roach. His Honour accepted that she had no expectation that Roach would pursue the victim from the car and attack him. Nevertheless, he found that the applicant intended to participate in the offence of robbery with the expectation that the vehicle would be taken in its commission. The assault which was acknowledged by the applicant was that which occurred when Roach opened the door of the vehicle and threatened the victim.
His Honour acknowledged that the applicant had a strong subjective case. She was born on 13 April 1976 and was 32 years of age at the time of sentence. She had three children aged 7, 13 and 16 who were not living with her. They were all in foster care as a result of the intervention of the Department of Community Services.
The applicant had a long history of emotional problems and substance dependence. She told a psychiatrist, Dr First, that she was the victim of regular sexual and physical abuse at the hands of a stepfather and at the hands of one of her mother’s boyfriends. The mother was said not to have given her any support and to have rejected her allegations that she had suffered abuse. She was removed from the care of her mother by the Department of Community Services at the age of 10. Thereafter, she stayed in various foster homes until the age of 15 when she went onto the streets and began using heroin.
The applicant fell pregnant with her first child at the age of 15. Her pattern of life thereafter has been one of short and violent relationships, characterised by ongoing abuse of drugs and domestic violence.
The applicant made several attempts at suicide, the earliest being in 1998 as a result of which she was hospitalised at Glenfield Hospital and diagnosed with depression. In December 2006 she again attempted suicide by taking an overdose of medication. This led to her being admitted to Banks House where she attempted to hang herself. She has been treated with various antipsychotic medications but her compliance with the medication regime has been poor.
The applicant has an extensive history of drug and alcohol abuse. She became dependent upon heroin from the age of 16 and supported the habit by working as a prostitute. She was able to achieve some stability with the methadone maintenance program and counselling at the Jacaranda Clinic at Liverpool and admissions to Odyssey House in 1996 and Lyndon House in 1999. She last used heroin in 2000.
The applicant became addicted to the substance “ice” (crystal methamphetamine) in 2005. This was as a result of her association with her then de facto partner. Her habit escalated quickly and at the time of this offence she was using about $300 worth of the drug on a daily basis. The applicant said that the drug made her paranoid and when she stopped using it, she began to experience auditory hallucinations and suffer depression.
The applicant acknowledged that her participation in the offence was to acquire money for more “ice”.
After she was taken into custody, the applicant’s mental state was assessed. No sign of formal thought disorder was found. The applicant was diagnosed as having an opioid dependence, and amphetamine dependence with a drug-induced psychosis and perhaps schizophrenia. She was thought to have a borderline personality disorder. The likelihood of her being able to successfully function without assistance was put at no greater than 50 percent.
In assessing the applicant’s substance abuse and drug dependence and the part it played in her offending, his Honour had regard to the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346. His Honour took into account that these matters explained the applicant’s criminality but they did not excuse it.
In relation to the Form 1 offence, his Honour noted that this related to the theft of the wallet from the motor vehicle. For reasons not entirely clear, his Honour did not take that offence into account so as to increase the sentence that would be appropriate for the principal offence standing alone. In that regard his Honour does not appear to have given adequate effect to Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. That case makes clear that the Form 1 offence should not be taken into account in assessing the objective seriousness of the principal offence, but can and should be taken into account when assessing sentence.
His Honour took into account the maximum penalty of imprisonment for 14 years and the standard non-parole period of 5 years. Even though the applicant had pleaded guilty, his Honour accepted that he still had to give effect to R v Way (2004) 60 NSWLR 168. For offences at the middle range of objective seriousness, the standard non-parole period would provide a reference point or benchmark within the sentencing spectrum. Applying the guidance in Way, his Honour assessed the objective seriousness of the offence at slightly below the middle range of objective seriousness for offences of this kind.
In balancing the aggravating and mitigating features of the offence in accordance with s 21A of the Crimes (Sentencing Procedure) Act 1999, his Honour noted that the applicant had a substantial record of previous convictions. His Honour found that while this did not aggravate the offence, it operated to deny any leniency that might otherwise be given to the applicant. Aggravating features were that the applicant was on conditional liberty at the time of the offence, the offence was part of a planned activity and it was committed for financial gain.
By way of mitigation, his Honour accepted that the applicant had shown genuine remorse and had provided assistance to the authorities in identifying Roach’s role in the offence. While there was no material before his Honour to indicate the value of the assistance, the Crown at the sentence hearing conceded that the assistance was at the higher end of value. Taking that matter into account with the applicant’s early plea of guilty, his Honour determined to discount her sentence by 50 percent.
In relation to rehabilitation, his Honour referred in detail to the applicant’s substantial history of previous offending. He concluded:
“The courts have used all options available to them, no doubt to provide appropriate punishment, but also to do what they could to provide for the rehabilitation of the offender. She has been ordered to perform community service, she has been fined, she has been made the subject of recognizance to be of good behaviour, she has suffered periods of disqualification from driving, she has been sentenced to imprisonment, she has been given the benefit of suspended sentences, and she has been given the benefit of bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act.
Regardless of those efforts she has persisted in her offending.”
Not surprisingly, his Honour found that the applicant’s prospects of rehabilitation were poor.
Because of the applicant’s mental health issues, his Honour found special circumstances in that the applicant would require intense treatment for her problems upon her release from custody.
His Honour indicated that if it had not been for the applicant’s early plea of guilty and her assistance to authorities, he would have taken as his start point a head sentence of 8 years. His Honour then adjusted this notional head sentence to produce the sentence ultimately imposed.
Because the applicant was at conditional liberty, pursuant to a s 12 bond when she committed this offence, it was necessary for his Honour to sentence the applicant in respect of that matter. The s 12 bond had been granted by the Local Court for a shop lifting offence in which goods to the value of $818.90 were stolen. For breach of that good behaviour bond, his Honour sentenced the applicant to a term of imprisonment of 12 months commencing 24 February 2008 and expiring 23 February 2009. That sentence was wholly concurrent with the sentence for this offence.
Appeal
The sole ground of appeal was that the sentence imposed upon the applicant was manifestly excessive.
The applicant submitted that his Honour’s notional starting point of imprisonment for 8 years was clearly excessive when one had regard to the objective seriousness of the offence and his Honour’s finding in that regard, i.e. slightly under the midrange of seriousness for offences of that kind. The applicant submitted that such a start point did not have adequate regard to the standard non-parole period for this offence of 5 years operating as a reference point, benchmark or guidepost.
The applicant submitted that a head sentence of 8 years did not fit within the sentencing range for this offence as revealed by the statistics provided by the Judicial Commission of NSW. For the period February 2003 to December 2007 (a period of 5 years) 16 offenders had been sentenced for this offence and none had received a head sentence as severe as that contemplated by his Honour as the starting point.
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.”
In any event for this ground of appeal to succeed, the focus needs to be on the sentence actually passed, rather than upon the starting point or notional sentence (SZ v R [2007] NSWCCA 19 at [40]; MacDonald v Regina [2007] NSWCCA 105 at [46] and Charlesworth v Regina [2009] NSWCCA 27 at [78]). I do not read the judgment of Simpson J in TYN v R [2009] NSWCCA 146 at [33] – [34] as saying anything to the contrary. In those paragraphs her Honour was saying no more than that it was legitimate when considering whether a sentence was manifestly excessive to have regard to the reasoning process which led up to it.

The sentence imposed by his Honour on the applicant was calculated by reference to his Honour’s finding of special circumstances and the application of the substantial discount of 50 percent. This discount, in the circumstances, was also generous.
It is true that the applicant identified her co-offender and provided assistance in his apprehension. However her motivation in so doing was substantially directed towards minimising her part in the offence and maximising that of Roach. Considerable self-interest was involved. Against the background of this Court saying on a number of occasions that the combined discount for pleas of guilty and assistance should not normally exceed 50 percent, this was a generous allowance.
The application of such a generous discount inevitably raises the issue of the extent to which a sentence can be reduced by discounts before it becomes inadequate. As Howie J put it “the notion of an irreducible minimum sentence must inform the lower limit of the sentencing discretion”. The rationale behind such an approach was explained by Howie J (with whom Simpson J agreed) in SZ v Regina [2007] NSWCCA 19 at [4] – [6]:
“4           There is a limited degree to which an otherwise appropriate sentence can be discounted for one reason or a combination of reasons and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. There was by applying common law principles, and there still is by the application of the provisions of the Crimes (Sentencing Procedure) Act, a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of punishment. That bottom line is reflected in relation to a discount for assistance to the authorities by s 23(3) of the Crimes (Sentencing Procedure) Act. It is spelled out there in the Act because it is in relation to the application of discounts for assistance that the often conflicting purposes and policies of sentencing a particular offender come brightly into focus.
5             But the notion of an irreducible minimum sentence that must inform the lower limit of the sentencing discretion is manifest in the often quoted decisions of this Court emphasising that at the conclusion of the exercise of the sentencing discretion, whatever be the subjective circumstances of the offender and whatever discounts are applied to achieve a recognised public policy, the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment: see for example R v Geddes (1936) 36 SR (NSW) 554; and R v Dodd (1991) 57 A Crim R 349. Sometimes it is said that the sentence must “accord with the general morale sense of the community”: R v Rushby [1977] 1 NSWLR 594. After taking into account the various statutory and common-law principles and applying such discounts that arise on the particular facts, the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large.
6             These observations are trite and so there is a risk that they will be overlooked in an attempt to achieve one of the purposes of punishment at the expense of another. I simply wish to emphasise that, because there is only limited room to discount a sentence without going below the bottom line, it must follow that the application of one discount for one purpose will inevitably impact upon the extent to which another discount can be applied to achieve a different purpose. The extent to which a sentence is discounted in recognition of the utilitarian value of the plea must necessarily affect the ability of the court to discount the sentence in recognition of assistance and the consequences of it for the offender. The fact that the overall sentence is discounted in recognition of assistance or for some other reason must affect the ability of the court to reduce the non-parole period in order to reflect special circumstances.”
In my opinion, the sentence imposed by his Honour of 4 years with a non-parole period of 2 years represents the bottom of the range of sentences which would adequately reflect the objective seriousness of this offence. To impose a lower sentence would be to go below that “irreducible minimum sentence” appropriate to this offence and would involve error as being manifestly inadequate.
Even if I had concluded that the notional starting point for the head sentence was too high, it is clear that the sentence ultimately imposed not only fell within the permissible range of sentences for offences of this kind but was very much at the bottom of that range once the 50 percent discount was applied. Accordingly, I am not satisfied that the sentence which his Honour imposed on the applicant was manifestly excessive.
The orders which I propose are:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.
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LAST UPDATED:
31 August 2009