R v Gardner - [2005] NSWCCA 383

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Gardner [2005] NSWCCA 383

FILE NUMBER(S):
2005/1573

HEARING DATE(S): 28/09/2005

JUDGMENT DATE: 10/11/2005

PARTIES:
Bronwyn Margaret Gardner - Applicant
Regina - Respondent

JUDGMENT OF: McClellan CJ at CL Hislop J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0228

LOWER COURT JUDICIAL OFFICER: Robison DCJ

COUNSEL:
Ms G Bashir - Applicant
Mr G Rowling - Respondent

SOLICITORS:
SE O'Connor (Legal Aid Commission of NSW) - Applicant
S Kavanagh (Director of Public Prosecutions) - Respondent

CATCHWORDS:
Sentencing
Rehabilitation
Sentence not suspended
Sentencing Judge's discretion
No error.

LEGISLATION CITED:
Crimes Act 1900 - s 112(1)

DECISION:
(1) Leave to appeal granted
(2) Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2005/1573
McCLELLAN CJ at CL
HISLOP J
ROTHMAN J
10 November 2005

R v GARDNER

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
HISLOP J:
Introduction
On the afternoon of 6 December 1999 a person or persons gained entry to a residence at Cherrybrook and stole antique items exceeding $15,000 in value. Damage was sustained to the screen and front doors of the premises. The residence was empty at the time, one of the elderly owners being in hospital, the other in a nursing home. The applicant was linked to the crime by the presence of her fingerprint on the outside of a window of the premises. There has been no restoration of any of the stolen items to their owners, nor has any restitution been made.
The applicant pleaded guilty to a charge of break, enter and steal goods of value in excess of $15,000 contrary to the Crimes Act 1900 s 112(1) arising out of those events. The maximum penalty for such an offence is 14 years imprisonment.
On 4 April 2005, the applicant was sentenced for that offence in the District Court to imprisonment for 2 years to commence on 21 February 2005 with a non-parole period of 1 year to date from 21 February 2005 and expire on 20 February 2006.
The applicant has sought leave to appeal against that sentence on the grounds that:
1) The sentencing discretion miscarried by his Honour’s approach to determining that a full time custodial sentence was warranted.
2) An assessment of the objective seriousness of the offence infringed the principles of R v De Simoni (1981) 147 CLR 383.
3) The learned sentencing judge failed to take into account the applicant’s mental illness and its relevance at the time of sentencing.
4) The learned sentencing judge erred in failing to give sufficient weight, if any, to the fact of the staleness of the offence and the applicant’s rehabilitation.
5) The learned sentencing judge failed to take into account in sentencing that there would be exceptional hardship occasioned to the applicant’s babies.
6) A lesser sentence was warranted in law.
The sentencing proceedings
The applicant was born on 30 April 1972. She had an extensive criminal history including, among other matters, offences of dishonesty and a number of property type offences. She had been imprisoned on a number of occasions. The offence, which his Honour described as “a very serious offence indeed”, must have involved some degree of planning and was committed whilst the applicant was on conditional liberty. The applicant had, over many years, a serious problem with drugs, including marijuana, heroin and amphetamines. The offence was connected with her drug consumption and her addiction. Her previous response to supervision by the Probation and Parole Service was reported by that service to have been superficial due to her ongoing drug issues and lack of insight into her offending behaviour.
The applicant did not give evidence at the sentencing hearing. Evidence was called from her mother, and a letter from her de facto husband was tendered as were reports from the Probation and Parole Service and from Peter Clark-Saunders, a psychologist.
It was submitted for the applicant that she had come to a crossroads in her life in 2001/2002 and had opted to take the path to rehabilitation. Since that time she had ceased to use drugs, or to commit crimes, and had formed a stable relationship with a man to whom she had borne two sons. Her counsel said:
My submission … is that your Honour is sentencing a very different person to the drug addicted offender who committed the offence in 1999. It is not the case that we can come to court and say that Miss Gardner has completely rehabilitated herself, she is still on that path your Honour, but it’s quite clear from the fact that there has been an absence of offences for quite some time, that she’s progressed significantly in that endeavour.
My submission ultimately your Honour is whereas your Honour had he been dealing with her in 1999, probably would have inevitably had to impose a full-time custodial sentence. That is not the case at the present time. …
But my submission to your Honour is that your Honour can reflect both the aspects of deterrence, both general and personal, and also offer Miss Gardner encouragement to continue to pursue her rehabilitation by dealing with this matter by way of a suspended sentence pursuant to section 12 of the Crime (Sentencing Procedure) Act.
His Honour largely accepted many of the submissions made on the applicant’s behalf. He found:

a) the applicant’s criminal behaviour had ceased in 2002, there being no offences recorded as occurring after that date.

b) The applicant claimed (and to some extent was supported by her mother) not to have used illicit drugs since 2002, which was a matter of encouragement.

c) The applicant was receptive to appropriate forms of rehabilitation to address her problems and was pro-active in reading self-help books.

d) He was impressed by evidence from the applicant’s mother and her de-facto partner that the applicant was doing her best to get her act together with some success. As his Honour observed:

She has been described as a person who is a different person from the person who committed the offence all those years ago. Only time will tell whether that opinion has been made out, but nevertheless that is a view held by others. I consider that there is some evidence to support that view.

e) He concluded the applicant had:

… good prospects of rehabilitation, and that, to a certain extent, has been demonstrated by her lack of criminal history after 2002. It is in the interests of the offender, and indeed the community, for that rehabilitation to be continued.

f) His Honour allowed a discount of 25% for the utilitarian value of the plea of guilty. He accepted that the plea evidenced genuine remorse and contrition and that the sentence should also be reduced for that element. He considered that had it not been for her plea, an appropriate sentence would have been 3 years imprisonment.
g) His Honour found special circumstances based upon the distinct likelihood of a benefit from rehabilitation.

Notwithstanding the favourable findings made by his Honour he concluded a suspended sentence was not appropriate. He said:
Given the objective seriousness of this offence, and having regard to her criminal history and also having regard to the fact that the offence was committed when she was on conditional liberty, at the end of the day it is appropriate to impose a sentence of full time imprisonment, there being, in my view, no other alternative available in these particular circumstances.
The applicant’s submission
It is submitted for the applicant that his Honour erred in failing to suspend the sentence and that the applicant, having now served part of her sentence, should be released forthwith.
Discussion
Sentencing involves a discretionary judgment. There is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies – Markarian v The Queen (2005) 215 ALR 213.
Whilst it will often be in the best interests of society if emphasis is put on rehabilitation – R v Molina (1984) 13 A Crim R 76 at 77 - rehabilitation is not to take precedence to the exclusion of deterrence, retribution and punishment. All must be balanced in the overall synthesising of the sentence – R v MA (2004) 145 A Crim R 434.
The determination of whether the applicant should serve a sentence of imprisonment or should receive a suspended sentence was a matter which fell wholly within the sentencing Judge’s discretion. His Honour concluded that the appropriate sentence was one of imprisonment. The sentence which he imposed, in my opinion, was not excessive having regard to the circumstances.
The function of the Court of Criminal Appeal is not to substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion – Markarian at [28]. An appellate Court interferes only if it be shown that the sentencing Judge was in error – R v Tait (1979) 46 FLR 386 at 388 and then only if it forms the positive opinion that some other sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79].
The nub of the applicant’s argument on appeal was stated in the following terms in the applicant’s written submissions:
His Honour determined that the seriousness of the offence, the criminal history and the commission of the offence while on liberty lead to a conclusion that there was no alternative but a full custodial sentence. There were many other factors to be considered in this determination as they were relevant to whether a full time custodial sentence or suspended sentence was warranted, namely the applicant’s mental health, the staleness of the offence, the substantial rehabilitation of the applicant and the exceptional hardship to the children…. None of these matters were referred to in this context and the applicant’s mental health was not referred to at all …. The applicant was entitled to have all these matters taken into account when this determination was made.
The submission that his Honour considered only the seriousness of the offence, the criminal history and the commission of the offence while on liberty is misconceived. Ultimately such factors proved decisive for his Honour but only after he had given consideration to other relevant factors bearing upon the question of the appropriate sentence and determined “at the end of the day” that it was appropriate to impose a sentence of full time imprisonment.
In particular:
(a) His Honour had regard, as evidenced by his remarks on sentence, to the applicant’s mental health as revealed in the Probation and Parole Service report, the de facto’s letter, the psychologist’s report and the evidence of the applicant’s mother. His findings substantially accepted the submissions put in this regard by the applicant’s counsel.
(b) His Honour referred, more than once in his remarks on sentence, to the age of the offence and stated in terms “Certainly the age of the matter needs to be taken into account”. A fair reading of the remarks on sentence does not support the submission that his Honour considered that factor had been “cancelled out” by the failure to provide restitution.
(c) His Honour made a number of references to the rehabilitation achieved by the applicant since 2001/2002. His Honour’s consideration of this aspect of the matter occupied a significant proportion of his remarks on sentence.
(d) His Honour made reference to the fact the applicant had young children and that she wished to keep in contact with her children. The applicant had five children. The eldest three were cared for by persons other than herself. The second youngest child had gone into DOCS care in December 2004 due to “just the situation of the home life”. It is necessary that the hardship to the child, if any, be classified as “exceptional” before it can be given substantial weight for the purposes of sentence – R v Togias (2001) 127 A Crim R 23. No submission of exceptional hardship to the children was made by applicant’s counsel at the sentencing hearing and it would have been necessary for more detailed evidence to be lead before the necessary categorisation would have been established.
The weight assigned to the various factors relevant to sentencing is a matter for the trial Judge. Error in this regard has not been demonstrated. There is no basis to set aside the sentence on the ground another Court may have assigned different weight to some, or all, of the competing factors – Mallet v Mallet (1983–1984) 156 CLR 605 at 614.
It was also submitted for the applicant that:
(a)
His Honour considered whether to suspend the sentence prior to determining the length of the sentence contrary to R v Zamagias [2002] NSWCCA 17 at [25] – [32].
It is true that in his remarks on sentence his Honour stated that he would not suspend the sentence before stating the term of imprisonment. However there is no reason to conclude that his Honour at that time had not already determined, albeit not stated, the term of imprisonment. In any event it is not shown the sentence imposed was affected by reason of his Honour first stating that he would not suspend the sentence.
(b)
The objective seriousness of the offence was informed by a finding in the facts of the offence that it was an offence committed in company. …. This was in breach of R v De Simoni (1981) 147 CLR 383 at 389. It was erroneous for his Honour to have regard to this matter when sentencing the applicant.
The possibility that the offence was committed in company was referred to by his Honour in reciting the facts which he took from the fact sheet and witness statement which documents were tendered without objection. However it has not been established his Honour sentenced the applicant on the basis the offence was committed in company. It is improbable he would have made such an error, particularly as counsel for the applicant had expressly drawn attention to that potential danger in making his submissions.
(c)
The Crown’s submission on the proceedings on sentence that “any submission by the defence that the sentence could be less than full time custody would be that it falls outside the range, that would be appealable your Honour…” was incorrect and misleading …. This submission may well have influenced his Honour’s decision to impose a sentence of full time custody on the applicant.
It has not been demonstrated that his Honour was misled in any way by the Crown’s submission.
I would also reject the applicant’s submission that the sentence was excessive, for the reasons which appear earlier in this judgment.
Conclusion

In my opinion, the applicant has not demonstrated relevant error on the part of the sentencing Judge or that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.
Orders
I propose the following orders:
(1) Leave to appeal granted.
(2) Appeal dismissed.
ROTHMAN J: I agree with Hislop J.

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LAST UPDATED: 10/11/2005