R v Christou

[2003] NSWCCA 415

CITATION:	R v Christou [2003] NSWCCA 415
HEARING DATE(S):	17/12/2003
JUDGMENT DATE:	17 December 2003
JUDGMENT OF:	James J at 1, 32; Howie J at 2
DECISION:	The application for leave to appeal is granted, the appeal is allowed and the sentence imposed by Shadbolt DCJ be quashed. In lieu the applicant is sentenced to imprisonment for fifteen months to date from 22 May 2003. There is to be a non-parole period of seven months to expire on 22 December 2003, the date upon which the applicant is to be released to parole. It is to be a condition of her parole that she place herself under the supervision of the Probation and Parole Service. Pursuant to s 59 of the Crimes (Sentencing Procedure) Act the Court varies the date of commencement of the sentence imposed on the applicant at the Penrith District Court on 15 August 2003, being a sentence of a fixed term of two months, so that that sentence will commence on 23 December 2003.
CATCHWORDS:	Criminal Law and Procedure - Appeal against sentence - question of parity with co-offender.
LEGISLATION CITED:	Crimes Act 1900 - s 188 Crimes (Sentencing Procedure) Act 1999 - s 59
CASES CITED:	Postiglione v The Queen (1996) 189 CLR 295 Regina v Rutter [2003] NSWCCA 306 Pearce v The Queen (1998) 194 CLR 610
PARTIES :	Regina v Rebecca Elizabeth Christou
FILE NUMBER(S):	CCA 060381/03
COUNSEL:	D. Frearson - Crown P. Hamill - Applicant
SOLICITORS:	C.K. Smith - Crown B. Sandland - Applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1047
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

060381/03

JAMES J
HOWIE J

WEDNESDAY 17 DECEMBER 2003

REGINA v REBECCA ELIZABETH CHRISTOU

Judgment

1 JAMES J: In the matter of Christou the Court is in a position to give judgment. I will call upon Howie J to give the first judgment.

2 HOWIE J: This is an application for leave to appeal against a sentence imposed on the application by his Honour Judge Shadbolt on 22 May 2003. There is a single ground of appeal being the asserted disparity with the sentence imposed upon a co-offender, Anthony Vinton.

3 The applicant pleaded guilty on arraignment to an indictment containing a single count of receiving contrary to s 188 of the Crimes Act. That offence carries a maximum penalty of imprisonment for ten years. The applicant was sentenced to imprisonment for two years with a non-parole period of one year. The sentence commenced on 13 May 2003 and the applicant is to be released to parole on 12 May 2004.

His Honour imposed upon the co-offender, Vinton, a sentence of the same length as that imposed upon the applicant. However, Vinton had pleaded guilty to two offences, being a break, enter and steal of a dwelling house and stealing a motor vehicle, those offences being committed on 8 July 2002. In addition he was also sentenced for an offence of break, enter and steal committed on 1 March 2000. The applicant complains that having regard to the more serious criminality for which the co-offender was to be punished, she has a justifiable sense of grievance arising from the fact that she received a sentence of the same severity as that imposed upon him.

4 Little time needs to be taken in reciting the facts of the offence for which the applicant was to be sentenced. The applicant and her co-offender were arrested by police on 8 July 2002 attempting to pawn property that had been stolen earlier that day from a private house in Woronora. A large amount of property had been stolen from that home by Vinton. The applicant had initially been charged with breaking, entering and stealing but on the day of her trial for that offence pleaded guilty to receiving.

5 Judge Shadbolt sentenced Vinton before he sentenced the applicant. In sentencing the co-offender his Honour was confronted with the task of sentencing a person who was then serving a sentence and had been in custody since the date of his arrest, 8 July 2002. His Honour made the sentences for the offences, with which he was concerned, cumulative to the sentence then being served and found special circumstances for reducing the otherwise appropriate non-parole period. The result was that Vinton was to serve a total period in custody of three years and two months from 8 July 2002 with an effective non-parole period of two years and two months.

6 In support of the ground of appeal the applicant points to the fact that, not only was Vinton sentenced for more offences than she was, but also that he was on parole at the time that those offences were committed. On the other hand Vinton had given evidence before Judge Shadbolt, he had expressed remorse, he had undertaken some courses in prison to address his drug addiction and he had arranged accommodation and employment upon his release. When sentencing Vinton, his Honour stated:

“There comes a time when a man of twenty-six really ought to come to terms with his background and that time is fast approaching. There is also a time when the courts, in despair of a prisoner ever actually rehabilitating himself, look to the community requirements for some safety for their property and use ever heavier sentences. I am not persuaded that that time has arrived on this occasion but it certainly would arrive on the next.
I have got a problem in sentencing this prisoner because he has been serving [a] sentence since July last year, and will have been in prison approximately fourteen months before this sentence commences. In the light of that I have to see that there is an adequate period of supervision so that he is not left entirely to his own resources and might well fall back into drug use again.”

7 At the end of his sentencing remarks the following exchange occurred between the sentencing judge and Vinton:

“This is the last time that you are going to get what are regarded as short sentences. The next time you come in you really have to look forward to 4 or 5 years in prison. Do you understand that?
OFFENDER: Yes, your Honour.
HIS HONOUR: You must seize this opportunity in that year. You will be under supervision, in that year, of the Probation and Parole Service and you must use that period to finally rid yourself of drug use, of all drugs, do you understand that?
OFFENDER: Yes.
HIS HONOUR: Just do not replace one with another.”

8 It should be said that the sentences imposed upon Vinton were lenient in light of the nature of the offences, his record, and the fact that he was on parole at the time he committed the offences. However, one of the offences was a stale matter his involvement in which was discovered while he was in custody and would have attracted little extra punishment. It is clear that Judge Shadbolt, one of the most experienced judges on the District Court, formed the view that Vinton was worthy of an attempt to stimulate his efforts to reform on one further, but final, occasion.

9 The applicant presented his Honour with a different sentencing problem. Like her co-offender the applicant was also aged twenty-six years at the date of sentence. She was also a drug addict with a record for offences of dishonesty. The similarity continues in that the applicant was also subject to conditional liberty when she committed the offence for which she was to be sentenced. At the time of the offence the applicant was subject to good behaviour bonds imposed in the District Court and the Local Court in relation to offences of dishonesty. However, unlike the co-offender her prospects for rehabilitation were poor.

10 There were two pre-sentence reports in evidence. The first stated that a full report could not be prepared because the applicant had failed to make herself available for the preparation of the report. It noted that in 1998 the applicant received a supervised recognisance and a community service order for 150 hours. However, the order was revoked because of the applicant’s unsuitability due to her drug dependency and a further good behaviour bond was substituted for it. In the year 2000 the applicant was placed on two good behaviour bonds in the Local Court and, despite the fact that she subsequently breached those bonds, no action was taken by the Court. In October 2001 the applicant received a prison sentence but on appeal to the District Court, the sentence was quashed and a further good behaviour bond was substituted. That bond expired in May 2003. In July 2002 the applicant received yet another good behaviour bond for eighteen months.

11 The report concluded with the following:

“The offender’s long-standing drug dependency appears to be an ongoing factor in [the applicant’s] offending behaviour. Since 1998 this Service has made repeated attempts to assist [the applicant] to address her drug issues, however she has demonstrated little motivation towards cooperating with these initiatives.
Whilst on supervision for her current orders [the applicant] has been directed on a number of occasions to attend counselling in relation to her drug issues, and abuse issues, the offender has made short lived attempts to address these issues, and has not shown a genuine commitment to a more responsible lifestyle. More recently [the applicant’s] progress has diminished as she has failed to report to this Service in relation to supervision and preparation of this report, she has not been available for home visits that were made, she has failed to contact a number of Services in relation to her issues and has discontinued in the Methadone Program. Subsequently this Service has recommended that [the applicant] is not suitable for any community based sentencing options and Periodic Detention.”

12 The second report disclosed more information in relation to the applicant but was no more encouraging. It noted that inquiries with the applicant’s mother indicated that she believed the applicant had developed her abuse of drugs as a result of two sexual assaults committed upon the applicant when she was a teenager. The applicant has a four year old son who resides with her mother. The report indicated that the applicant had resisted all attempts to assist her in overcoming her drug abuse. It stated:

“[The applicant] began collecting Methadone from a new clinic on 3 January 2003. Discussion with that clinic revealed that [the applicant] was removed from the program on 10 March 2003 due to her poor attendance to collect her dosage and because she was aggressive towards staff. Three urinalysis tests conducted [by] the clinic revealed she continued to use illicit drugs. Counselling was offered by the clinic but [the applicant] refused to attend. Since 10 March 2003 [the applicant] has not been prescribed any pharmacotherapeutic treatment and her drug problem remains unresolved.”

13 The officer preparing the report was of the view that the applicant remained at risk of re-offending by reason of her failure to accept counselling in relation to the sexual assaults or her drug abuse.

14 There was in evidence a psychological report which contained the following statement:

“The applicant is convincing in her assertions that she would like to lead a drug free, law-abiding lifestyle and ultimately resume full-time care and custody of her son.”

In light of the material contained in the pre-sentence reports, little regard could be given to such an opinion even if it were reliable.

15 It is clear, in my view, beyond argument that his Honour had no alternative but to impose a full-time gaol sentence upon the applicant. She was found to be unsuitable for any of the other sentencing options. She had been repeatedly given opportunities to reform when various courts had extended to her what appears to be unjustified and ultimately undeserved leniency. In my view the only arguable error in the sentence imposed upon the applicant was that his Honour found that there were special circumstances.

16 However, the applicant’s argument in this Court in relation to parity must be founded on the premise that the sentence imposed by his Honour on the applicant was otherwise an appropriate one. I am prepared to accept, for present purposes, that the majority decision in Postiglione v The Queen (1996) 189 CLR 295 should be taken to hold that apparent disparity cannot be justified on the basis of the application of the principle of totality. However, it has been held that there was no ratio decidendi in the High Court to that effect. In Regina v Rutter [2003] NSWCCA 306 this Court made it be clear that the issue of parity cannot be addressed on any superficial basis of simply having regard to the sentence and the relevant facts and circumstances relating to the two offenders.

17 The Court may have to go further and look at each of the sentencing discretions exercised to see whether the apparent disparity is in fact justified. That is especially so where the two sentences were imposed by the same judge or where the allegedly disparate sentence was imposed by a judge who was fully aware of the other sentence and the reasons for it.

18 In the present case, the same judge sentenced both offenders and the sentence imposed upon the applicant was imposed secondly. It can, therefore, be assumed that his Honour imposed the sentence on the applicant fully conscious of what he had done in respect of the co-offender. It is not a case of his Honour simply overlooking some aspect of the facts or circumstances involving Vinton when he sentenced the applicant. In such a case the person asserting disparity may have a difficult field to plough to show that this Court should intervene, notwithstanding that the second sentence was otherwise an appropriate one.

19 But in the present case, and not withstanding the undoubted experience of the sentencing judge, it seems to me that apparent disparity between the sentence imposed upon Vinton and that imposed upon the applicant cannot be justified by the reasons given by his Honour for imposing the same sentence on the applicant as that imposed upon Vinton, even though the objective and subjective circumstances called for a heavier overall sentence than that imposed upon the applicant. The criminality for which the applicant was to be sentenced was on any assessment less than that for which Vinton was to be sentenced, even making allowances for the fact that one of the offences was stale and the other two were related. Generally speaking, an offence of break, enter and steal is more serious than an offence of receiving. The consideration of the respective maximum sentences for the two offences and the objective criminality involved in each is enough to make good that proposition.

20 There will be cases where a particular act of receiving may be more serious than a particular act of break, enter and stealing and call for a heavier sentence, notwithstanding the different maximum penalties. There was no reason for such a result in the present case, nor is there any reason to treat the criminality in the particular circumstances of the offences as being equal. Unfortunately, there are remarks made by his Honour in the course of sentencing submissions made on behalf of the applicant which tend to suggest that his Honour was in the present case treating the criminality in the applicant’s act of receiving as indistinguishable from the criminality in Vinton’s act in breaking into the house and stealing the property.

21 The Crown had resiled from its assertion that the applicant was a party to the breaking and entering and his Honour was not entitled to consider that she was. Further, from other remarks his Honour made he seemed to be placing too much weight on the old adage that a receiver was twice as bad as a thief. That might be so when one is contrasting the penalty for simple larceny which is five years and the penalty for receiving which is ten years. It might be so if one comparing a professional fence with a person who has committed an isolated burglary in order to receive money from the receiver of the goods. But that was not this case.

22 I appreciate this Court should not place too much weight upon what is said in argument as compared with what is said in a judgment or considered remarks on sentence, but the exchange does indicate why, other than for reasons of totality, his Honour may have imposed the same sentences on the applicant and Vinton.

23 Current sentencing practice arising after the decision in Pearce (1998) 194 CLR 610 requires that considerations of totality be reflected in the structure of the sentences rather than in the length of any particular sentence. Therefore his Honour should be taken as having viewed the criminality of the offences for which he was sentencing Vinton as being reflected in the sentences that he actually imposed. If totality was an issue it was to be addressed by determining when those sentences were to commence in relation to the sentence then being served by Vinton.

24 There is, in my respectful opinion, no basis upon which his Honour could have legitimately determined that the criminality of Vinton was identical with the criminality of the applicant such that the same sentence should be imposed. Any consideration that his Honour formed about the prospects of rehabilitation of Vinton and which he sought to encourage could not permit him to impose a sentence which was not commensurate with his criminality. Such a consideration, as is evidenced by both the sentence and his Honour’s remarks, was principally to be reflected in the specification of the non-parole period.

25 The applicant could not expect any great leniency from his Honour and did not deserve any. She was to some degree fortunate to have a finding of special circumstances made in her favour but there was nothing that could justify, either in her eyes or to a reasonable observer, the same sentence being imposed upon her as was imposed upon Vinton in view of the markedly different criminality for which they were being sentenced.

26 The applicant is entitled to retain the finding in her favour of special circumstances notwithstanding that it is difficult to find any justification for it. Although her counsel on this appeal suggested that it was a case of her now having heard the prison door shut, she had heard that sound once before with no consequential change to her behaviour. Still she is at a stage in her life where, like Vinton, if any change is to occur to the pattern of her behaviour, it might occur now.

27 Once again the sentence which I believe should now be imposed is a considerable act of leniency to which the applicant is not entitled and has only arisen because of the sentence imposed upon her co-offender.

28 I propose that the application for leave be granted, the appeal allowed and the sentence imposed by Judge Shadbolt be quashed. In lieu the applicant should be sentenced to imprisonment for fifteen months to date from 22 May 2003. There is to be a non-parole period of seven months to expire on 22 December 2003, the date upon which the applicant is to be released to parole. It is to be a condition of her parole that she place herself under the supervision of the Probation and Parole Service.

29 JAMES J: I agree with the judgment of Howie J and that the orders proposed by his Honour. The orders of the Court will be as proposed by his Honour. Is there any further matter?

30 HAMILL: There is one further matter and that is your Honours will see from the particulars of trial that a sentence imposed in the Penrith District Court as a consequence of a breach of recognisance was ordered to commence on 12 May 2004.

HOWIE J: Yes but that can be taken up in that court can’t it?

HAMILL: My understanding of s 59 of the Crimes (Sentencing Procedure) Act is that a court that quashes or varies a sentence may vary the date of commencement of any other sentence.

HOWIE J: What section is this?

HAMILL: S 59(1).

HOWIE J: We could do it or it could go back to the magistrate could it not?

HAMILL: It’s possible it could go back. I’d invite the Court to - certainly the Court has the power and it will save ultimately resources if such an order is made.

HOWIE J: When was the--

HAMILL: 15 August ’03 in the Penrith District Court there was a two month sentence to date from 12 May to 11 July 2004.

JAMES J: The sentence that we’ve quashed was a sentence of two years from 22 May ’03.

HOWIE J: It was from 12 May, I made it from 22 May.

HAMILL: The application is that the commencement date of the sentence which is the fourth one of the particular trial at post is that that commencement date would now be 23 December 2003.

HOWIE J: Our attempts to have her released for Christmas have been proved futile have they?

HAMILL: That’s correct. She might be there for her son’s first day of school. I’m told she won’t be.

HOWIE J: Tell us the order that you would have us make?

HAMILL: That there be a variation under s 59 of the commencement date of the sentence imposed at the Penrith District Court on 15 August 2003 so that the commencement date becomes 24 December 2003 and the expiry date 22 February 2004

JAMES J: It’s only two months is it?

HAMILL: It’s a two months sentence yes.

JAMES J: Do you want to say anything about this Mr Crown?

FREARSON: It should commence at the expiration of the non-parole period, the sentence just imposed would make it in December 2003.

JAMES J: That’s what’s proposed isn’t it?

HAMILL: I don’t object.

31 JAMES J: Pursuant to s 59 of the Crimes (Sentencing Procedure) Act the Court varies the date of commencement of the sentence imposed on the applicant in the Penrith District Court on 15 August 2003, being a sentence of a fixed term of two months, so that that sentence will commence on 23 December 2003.

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Last Modified: 03/19/2004