R v Fitzgerald - [2001] NSWCCA 238

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v FITZGERALD [2001] NSWCCA 238 revised - 29/06/2001

FILE NUMBER(S):
60659/99

HEARING DATE(S): 25/06/2001

JUDGMENT DATE: 25/06/2001

PARTIES:
REGINA v
Wayne John FITZGERALD

JUDGMENT OF: Barr J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/51/0182, 99/51/0213

LOWER COURT JUDICIAL OFFICER: Twigg QC DCJ

COUNSEL:
Crown: GE Smith
Applicant: R Burgess

SOLICITORS:
Crown: SE O'Connor
Applicant: DJ Humphreys

CATCHWORDS:

LEGISLATION CITED:

DECISION:
See paras 19 and 22.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60659/99

BARR J
HOWIE J
Monday, 25 June 2001

REGINA v Wayne John FITZGERALD

JUDGMENT

BARR J: The applicant, Wayne John Fitzgerald, seeks leave to appeal against a sentence imposed upon him by Twigg QC DCJ. When first arraigned in the District Court the applicant pleaded guilty to one charge of armed robbery with a dangerous weapon. He also asked that a further twenty-eight charges of breaking, entering and stealing and one of escaping from lawful custody be taken into account. His Honour took those matters into account and sentenced the applicant to penal servitude for eight years, comprising a minimum term of four and a half years and an additional term of three and a half years.
On 16 January 1998 the applicant went to the front door of a house in suburban Sydney. The sixty-nine year old female occupant answered the door and the applicant asked her whether her husband were present as though he had some lawful business with him. The occupant said that he was not. Having thereby ascertained that his victim was alone the applicant produced a sawn-off shotgun, pointed it at her and told her to re-enter the house or he would kill her. She began to struggle with him and tried to close the door but he took her by the throat and forced her inside at gunpoint. He pushed her to the floor, striking her head. He demanded money and took bracelets from her wrist. She agreed to give him money and handed over cash which she took from her purse. He made her enter a bedroom and squeeze into a cupboard. He closed the doors on her and tied them shut. He searched the house and then left. So far as he was concerned, his victim was imprisoned in the cupboard.
Fortunately, the occupant was able to free herself and telephone for help. An ambulance came and her head injury was treated. Police attended as well and fingerprint experts located a fingerprint. The applicant had a criminal record and in due course the fingerprint was identified as his. On 30 March 1999 he was arrested. He made no admissions.
The victim identified him as one of eleven men appearing in a video tape. That evidence and the evidence of the fingerprint made the case against the applicant strong.
The applicant pleaded guilty when first arraigned in the District Court. He was thirty-eight years old when sentenced. He had a long criminal record dating from the early 1970s when he was first dealt with in the Children’s Court. There were many convictions for stealing and other offences of dishonesty, unlawfully using motor vehicles and alcohol-related events. In March 1989 he was sentenced in the Supreme Court of Victoria to eight years and six months’ hard labour for manslaughter. More recently he had served prison terms for stealing, receiving and like offences and for assault. He had breached parole conditions. Most recently he had been sentenced on 4 May 1999 to serve a minimum term of nine months, commencing on 24 February 1999 and ending on 23 November 1999 for an offence of breaking and entering a building with intent to commit a felony. There were concurrent sentences for breaking and entering with intent to commit a felony, escaping lawful custody and for two counts of failing to appear.
When the applicant was arrested he was told that he was suspected of having committed a break and enter in Coffs Harbour. He told the police that they had got the wrong man and ran away. He was soon caught and restrained. The charge of escaping from lawful custody which followed was one of the matters he asked his Honour to take into account. The remaining matters were all instances of breaking and entering dwelling houses and stealing goods. All except one took place early in 1999. The other one took place in 1997.
A psychological report of Jennifer Derricott was put before the sentencing court. It had been used in conjunction with an application by the applicant for compensation for criminal injuries. Although it was dated November 1994 it said much that was relevant to the sentencing process. The applicant gave evidence before his Honour and a combination of that evidence and the material provided by Ms Derricott showed that the applicant had grown up as a State ward in institutions until the age of seven or eight years. At that age he was introduced to people he was told were his mother and father. The man, called Hardcastle, was certainly not his father. He went to live with them. Hardcastle was a cruel man who systematically beat the applicant and other children under his control. When the applicant ran away Hardcastle caught him and brought him home. He frequently tied him up and left him unassisted for days at a time. He whipped the applicant with a stock whip. He never fed him enough.
The applicant had little formal education, having left school at eight years of age. By the age of twelve he had made a suicide attempt and was living on the streets. Crime became a way of life and he became addicted to the use of illegal drugs, eventually including heroin. Ms Derricott concluded that he had suffered severe and chronic psychological injury and diagnosed severe post-traumatic stress disorder. In due course the applicant recovered a substantial sum from the relevant tribunal.
The applicant admitted his criminal history before the sentencing judge but submitted that the armed robbery was out of character. He expressed shame for having treated the householder in the manner that he did. He said that fighting was all right but that was a “low act”.
The first ground of appeal complains that his Honour erred in failing to take into account assistance given by the applicant to the authorities which resulted in onerous conditions of custody. The applicant told his Honour that he was being kept at Grafton Correctional Centre on strict protection and that the reason for that was that he had assisted the authorities in the case of a man whom I shall call X. He said that he had given information which he considered would be helpful to the authorities and that that had resulted in his having been kept separately in prison. He said that that state of affairs was likely to continue. No further reference was made to that matter and no mention was made of it in his Honour’s judgment.
It was submitted that the onerous conditions under which the applicant would have to serve his sentence, resulting from the assistance he had given to the authorities, was a matter which gave rise to the discretion to impose a lesser sentence. Such was the importance of it that it was required to be dealt with in the remarks on sentence even if the sentencing judge decided not to reduce the sentence on account of it. I think that this submission has been made good. I infer from his Honour’s not having dealt with the matter that he overlooked it. I think that this Court should interfere with the sentence.
Material was put before the Court for use on re-sentence comprising an affidavit of the applicant and a letter written by an investigating police officer in March 1998 concerning the desired assistance. This material shows that when he was arrested in March 1999 the applicant told the police that he had recently shared a cell with a man, presumably X, who had told him about the seizure by the police of a gun and drugs. The applicant expressed his readiness to give assistance but required matters to be formalised and for protection to be provided. Not long afterwards the applicant confirmed his readiness to another police officer and gave him details of admissions the man had made to him about owning a crop, presumably cannabis.
In August 1999 the applicant went into protection at Grafton Gaol because he had been warned by his brother that he had seen a copy of the applicant’s statement in the possession of another inmate. His brother told him that his life was in danger and he believed it. He was in protection from August to December 1999 and has been segregated from other prisoners ever since.
In his affidavit the applicant repeats the expressions of remorse made to the sentencing judge. He says that he rid himself of his drug dependency in late 1998 or early 1999 when he completed the methadone withdrawal program. He says that he is free of illegal drugs. He has commenced a course of study at Southern Cross University and is in second year. He intends to complete the degree and to undertake subsequent study.
A considerable further body of material has been put before the Court in the event that it should interfere with the sentence. It is not necessary to deal with the detail of it. It shows that the applicant continues to be in segregation and that he has made remarkable progress in his studies. It shows he is well regarded by those who have the care of him. A submission made by Miss Burgess on his behalf that his is an extraordinary subjective case, is, I think, to the point.
Before considering the re-sentencing of the applicant I will deal with the second ground of appeal, namely that his Honour erred in failing to backdate the sentence. His Honour delivered judgment on 12 October 1999 and ordered the sentence to commence on that day. His Honour was aware that the applicant had been arrested in the previous March and had been held in custody on other offences. On 4 May 1999 he had been sentenced by a magistrate to a minimum term of nine months dating from 24 February 1999 for offences which occurred in November 1998. There was, thus, no principle by which his Honour was obliged to backdate the sentence to the date of arrest for the minor offences. It was submitted, however, that the matters for which the magistrate had sentenced the applicant were breaks and enters of the same kind as those which his Honour was taking into account and all part of the same bout of criminality. His Honour’s discretion ought, therefore, to have been exercised in favour of backdating.
I do not think that this submission has been made good. Those circumstances gave rise to a discretion to backdate the sentence at least to the date of arrest for the robbery which appears to have been in May 1999. Further, the decision not to do so might be said to have produced a minimum term for the one bout of criminality, putting aside the principal offence (which it was submitted was out of character) of about five years two months. But bearing in mind the totality of that criminality such a term would have been by no means inappropriate.
The question for this Court is really whether if it found error the Court could conclude that a less severe sentence was warranted in law. In my opinion, but for the matter to which I have referred, it could not.
Bearing in mind the additional evidence which has been put before this Court I would make the following orders. I would grant leave to appeal and I would allow the appeal. I would quash the sentence imposed by his Honour and in lieu sentence the applicant to imprisonment for a period of six years commencing on 12 October 1999 and expiring on 11 October 2005. I would fix a non-parole period of three and one-half years expiring on 11 April 2003. The applicant would be entitled to be considered for release to parole on that day. The reasons for fixing a non-parole period of less than three-quarters of the sentence would be as stated by his Honour and as set forth in this judgment.
HOWIE J: I agree.
BARR J: The orders of the Court are therefore as I have proposed.
(Further submissions ensued)
BARR J: I shall add this to the judgment. On 22 November 2000 the applicant was sentenced at the District Court Grafton for the offence of making a false statement to the effect that a person was in danger to a fixed term of nine months’ imprisonment commencing on 12 April 2004 and expiring on 11 January 2005. As a consequence of re-sentencing the applicant in this appeal it will be necessary to advance the commencement date of that nine months’ sentence to 12 April 2003. The Court makes an order to that effect. That sentence will now expire on 11 January 2004.

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LAST UPDATED: 29/06/2001