R v Knight

[2005] NSWCCA 253

Reported Decision: 155 A Crim R 252

New South Wales

Court of Criminal Appeal

CITATION:	R v Kerrie-Ellen Robyn Knight [2005] NSWCCA 253
HEARING DATE(S):	21 March 2005
JUDGMENT DATE:	27 July 2005
JUDGMENT OF:	Mason P at 1; Barr J at 2; Johnson J at 3
DECISION:	Refer to paragraph 117 of the Judgment.

CATCHWORDS:	SENTENCING - pleas of guilty to multiple offences of break, enter and steal and break and enter with intent to steal - offences directed at small business premises in country towns - application of principles in Pearce v The Queen (1998) 194 CLR 610 - error in treating as aggravating factor under s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999 the fact the offences were committed in company - applicant re-sentenced in accordance with Pearce principles.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v AEM Snr [2002] NSWCCA 58 R v Carr (2002) 135 A Crim R 171 R v Hammoud (2000) 118 A Crim R 66 R v Knight [2004] NSWCCA 145 Queen v De Simoni (1980-1981) 147 CLR 383 R v Johnson [2005] NSWCCA 186 R v Martin [2005] NSWCCA 190 Re Attorney-General's Application (No. 1) Under Section 26 of the Criminal Procedure Act; Regina v Ponfield and Ors (1999) 48 NSWLR 327 R v Thomson and Houlton (2000) 49 NSWLR 383 R v El Hani [2004] NSWCCA 162 R v Fidow [2004] NSWCCA 172 R v Kalache (2000) 111 A Crim R 152 R v Myers [2002] NSWCCA 162 R v Wheeler [2000] NSWCCA 34
PARTIES:	Regina Kerrie-Ellen Robyn Knight
FILE NUMBER(S):	CCA 2004/3271
COUNSEL:	Ms M Cusack (Appellant) Mr P Ingram (Crown)
SOLICITORS:	Abbott Pardy & Jenkins (Appellant) Mr S Kavanagh (Crown)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/51/1094
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Urquhart QC

2004/3271

Mason P
Barr J
Johnson J

27 July 2005

Regina v Kerrie-Ellen Robyn Knight

Judgment

1 Mason P: I agree with Johnson J.

2 Barr J: I agree with Johnson J.

3 Johnson J: The Applicant, Kerrie-Ellen Robyn Knight, seeks leave to appeal against sentences imposed by his Honour Judge Urquhart QC at the Armidale District Court on 19 February 2004.

4 On 22 October 2003, the Applicant pleaded guilty in the Armidale Local Court to 36 charges comprising:

(a) 27 counts of break, enter and steal contrary to s.112(1) Crimes Act 1900 (maximum penalty 14 years imprisonment);

(b) three counts of break and enter with intent contrary to s.113(1) Crimes Act 1900 (maximum penalty 10 years imprisonment);

(c) one count of disposing of stolen property contrary to s.189 Crimes Act 1900 (maximum penalty three years imprisonment);

(d) four counts of larceny contrary to s.117 Crimes Act 1900 (maximum penalty five years imprisonment);

(e) one count of stealing a motor vehicle contrary to s.154AA Crimes Act 1900 (maximum penalty 10 years imprisonment).

5 In the District Court, the Applicant adhered to her pleas of guilty and asked that two further offences of goods in custody contrary to s.527C Crimes Act 1900 (maximum penalty six months imprisonment) which were listed on a Form 1 document be taken into account pursuant to s.32 of the Crimes (Sentencing Procedure) Act 1999.

6 On 19 February 2004, the learned sentencing judge sentenced the Applicant in relation to the 36 offences and the two matters on the Form 1 to imprisonment for a total effective term of four years and six months with a total effective non-parole period of three years with both periods to date from 21 July 2003.

The Offences

7 The Applicant was sentenced with respect to 36 offences committed by her during a period of some 12 months from about 20 May 2002 to 16 May 2003. His Honour Judge Urquhart QC made findings of fact for the purpose of sentence. The evidence before the District Court concerning the offences included a statement of facts, witness statements, interviews with police and the Applicant’s evidence before the learned sentencing judge on 13 February 2004. Given the grounds of appeal before this Court, it is appropriate to refer to the facts of the offences in some detail.

8 Count 1 (s.112(1) Offence): Between 6.00 pm on 19 May 2002 and 5.00 pm on 20 May 2002, the Applicant and co-offenders (to whom later reference will be made) went to the premises of Donald Wallace in Rifle Range Road, Uralla. The premises comprised a large shed used as a dwelling. The Applicant and co-offenders forced entry through a window to a dwelling and stole a Honda XR100 motorcycle, a motorcycle helmet, a Bosch electric drill, an AG electric drill and a Philips stereo. To remove the motorcycle, a chain which secured it to a post was cut. None of the property, which was worth approximately $4,300.00, has been recovered.

9 Count 2 (s.112(1) Offence): Between 12.00 pm on 25 May 2002 and 10.00 am on 26 May 2002, the Applicant and co-offenders went to the premises of Malcolm Hughes at Bridge Street, Uralla, where the business of an agricultural stockist and repairer was carried on. Entry to the premises was gained by forcing open the aluminium sliding front door using a jemmy bar or similar item. The Applicant and co-offenders tampered with an alarm before stealing two chain saws and a chain saw carry bag, a wheel brace kit, two rattle guns, four bulk bags of dog and cat food and $300.00 cash. None of the property, which was worth approximately $2,860.00, has been recovered.

10 Count 3 (s.112(1) Offence): Between 7.15 pm on 30 May 2002 and 6.30 am on 31 May 2002, the Applicant and co-offenders went to the premises of Dale Menser situated at Ebor Road, Ebor. The premises operated as the Ebor Hilltop Roadhouse. Entry was gained to the Roadhouse by forcing open a window using a jemmy bar or similar item. The premises were ransacked with drawers being emptied and their contents thrown on the ground. The Applicant and co-offenders stole 40 packets of cigarettes, five packets of biscuits, phone cards to the value of $180.00, a Makita electric drill, a Hitachi electric planner, a 13-piece box set of screwdrivers and $250.00 in cash. None of the property has been recovered.

11 Count 4 (s.112(1) Offence): Between 4.00 pm on 7 June 2002 and 7.30 am on 8 June 2002, the Applicant and co-offenders went to the premises of Paul Walsh at Bridge Street, Uralla. The premises operated as Walshs Quality Meats. Entry to the premises was gained by the forcing of the back door. The premises were ransacked with papers being thrown all over the floor. The Applicant and co-offenders stole a number of meat trays and a quantity of meat, some butchers’ knives and some associated sharpening steels together with $130.00 in cash. None of the property, which was worth approximately $1,300.00, has been recovered.

12 Count 5 (s.112(1) Offence): Between 8 and 12 June 2002, the Applicant and co-offenders went to the premises of Mr James Blore at 38 Hill Street, Uralla. The premises operated as the Uralla Tyre Service. Entry to the premises was gained by climbing onto the roof, forcing open a skylight and removing a glass panel. A rear window was open from inside the premises. The Applicant and co-offenders ransacked the office in the premises, before using oxy-acetylene equipment to cut into an antique safe in an office. From there, seven blank cheques were stolen together with a number of other items including tyre levers. On 1 July 2003, police located one of the stolen tyre levers in rocks adjacent to the former home of the Applicant, but none of the other property has been recovered.

13 Count 6 (s.112(1) Offence): On or about 8 June 2002, the Applicant and co-offenders went to the premises of Robin Moon at 54 Bridge Street, Uralla. The premises operated as Moon’s Bakery. The Applicant and co-offenders smashed a wall panel at the rear of the premises to gain entry. Once inside, the Applicant and co-offenders ransacked the premises, stealing a cash box containing $99.00 cash and some cakes. None of the property has been recovered.

14 Count 7 (s.112(1) Offence): On or about 9 June 2002, the Applicant and co-offenders when to the premises of Sheree O’Halloran in Salisbury Street, Uralla. The premises operated as a hairdressing business. Entry to the premises was gained by forcing open a side window using a jemmy bar or similar item. The premises were ransacked with papers being strewn over the floor. Scissors and associated hairdressing equipment were stolen together with some wine and $30.00 cash. None of the property has been recovered.

15 Count 8 (s.112(1) Offence): Between 7.00 pm on 9 June 2002 and 6.00 am on 10 June 2002, the Applicant and co-offenders went to the premises of Chris Feltham at 18N Derby Street, Walcha, where the business of Mountain Motors was conducted. Entry to the premises was gained by cutting a padlock to a side door and opening the door. The premises and vehicles located at the premises were ransacked. Every vehicle in the workshop was entered. Oxy-acetylene equipment was used to cut open the safe. The sum of $3,500.00 in cash was taken from the safe and a camera and pair of binoculars were taken from the premises. None of the property has been recovered.

16 Count 9 (s.112(1) Offence): Between 2.00 pm on 9 June 2002 and 7.15 am on 10 June 2002, the Applicant and co-offenders went to the premises of Helen Stace at 1W Fitzroy Street, Walcha. The premises operated as Market Fresh. Entry to the premises was gained by forcing open a rear roller door using a jemmy bar or similar item. The premises were ransacked and a money box containing approximately $100.00 in cash was stolen. None of the property has been recovered.

17 Count 10 (s.112(1) Offence): On or about 10 June 2002, the Applicant and co-offenders went to the premises of John Watts at 108W Fitzroy Street, Walcha. The premises operated as the Walcha Tyre Service. The Applicant and co-offenders gained entry to the premises by cutting a padlock from the front door and opening the door. Thereafter, the premises were ransacked and papers were scattered about. Ammunition, knives, a jump-starter kit and $100.00 in cash were stolen. None of the property, which was worth approximately $700.00, has been recovered.

18 Count 11 (s.112(1) Offence): On or about 10 June 2002, the Applicant and co-offenders went to the premises of Hayley Bird in Derby Street, Walcha. A hairdressing business was conducted on the premises. Entry to the premises was gained by forcing open the aluminium front door with a jemmy bar or similar item. The premises were ransacked and the contents of a filing cabinet were strewn over the floor. A donation money box, a hairdryer and other hairdressing equipment were stolen. None of the property has been recovered.

19 Count 12 (s.112(1) Offence): On or about 10 June 2002, the Applicant and co-offenders went to the premises of Carol Rose at 15W Fitzroy Street, Walcha. The premises operated as a hairdressing salon. Entry to the premises was gained by forcing a door lock. The office was ransacked and the cash register was broken open. Scissors, a hairdryer, hair clippers, several carry bags and beauty products were stolen. On 1 July 2003, police located the bag containing beauty products in rocks adjacent to the former home of the Applicant. None of the other property, which was worth approximately $5,000.00, has been recovered.

20 Count 13 (s.117 Offence): On or about 10 June 2002, the Applicant and co-offenders, while in the building at 15W Fitzroy Street, Walcha, entered a partitioned area occupied by Jayde Goodwin and used as a beautician’s business. Entry was gained by climbing over an internal wall. An ear piercing kit and beauty products were stolen from the premises. On 1 July 2003, police recovered the ear piercing kit and beauty products in rocks adjacent to the former home of the applicant.

21 Count 14 (s.112(1) Offence): On or about 10 June 2002, the Applicant and co-offenders went to the premises of Lyn Laurie in Derby Street, Walcha. The premises operated as the “Toys in Town” toy shop. Entry to the premises was gained by cutting through a gridlock which covered a rear window and forcing the window open. The premises were ransacked with papers being strewn over the floor. Several children’s toys were stolen. None of the property has been recovered.

22 Count 15 (s.112(1) Offence): On or about 10 June 2002, the Applicant and co-offenders went to the premises of Anja Kermode at 13W Fitzroy Street, Walcha. The premises were used as a children’s clothes and goods supplier trading as “Pipsqueaks”. Entry to the premises was gained by forcing a rear aluminium sliding door using a jemmy bar or similar item. The premises were ransacked and clothing was thrown about. Children’s clothing, a child’s carry bag and compact discs were stolen. None of the property has been recovered.

23 Count 16 (s.113(1) Offence): Between 6.00 pm on 18 June 2002 and 7.00 am on 19 June 2002, the Applicant and co-offenders went to the premises of John Collins at 76 Bridge Street, Uralla. The premises operated as Collins Downtown Meats. Entry to the premises was gained by cutting a lock from a rear door and then entering through this door to a toilet area. An internal window was smashed, but the offenders were not successful in further entering the premises. No items were stolen.

24 Count 17 (s.113(1) Offence): On or about 18 June 2002, the Applicant and co-offenders went to the premises of Patricia Fuller at 78 Bridge Street, Uralla. The premises operated as The Green Apple Fruit Shop. The offenders attempted to gain entry to the premises by attacking a padlock on the rear door using bolt cutters. When unsuccessful, the offenders went to the front of the premises and smashed a glass panel on the front door and cut a metal grille using the bolt cutters. However, the door was deadlocked and the offenders were unable to enter the premises. No property was taken.

25 Count 18 (s.112(1) Offence): Between 11.00 pm on 18 June 2002 and 9.00 am on 19 June 2002, the Applicant and co-offenders went to the premises of John Wooldridge, trading as John Wooldridge Real Estate, at 48A Bridge Street, Uralla. The premises operated as a real estate and secondhand goods agency. Entry to the premises was gained by the use of a jemmy bar or similar item to force the aluminium front doors. The premises were ransacked. A rifle scope, some throwing knives, a number of rings and $670.00 cash were stolen from the premises. Upon the execution of a search warrant upon the Applicant’s home on 15 July 2003, a throwing knife belonging to Mr Wooldridge was located next to the Applicant’s bed. No other property has been recovered.

26 Count 19 (s.112(1) Offence): Between 11.00 pm on 20 June 2002 and the morning of 21 June 2002, the Applicant and co-offenders returned (see Count 18) to the premises of John Wooldridge, trading as John Wooldridge Real Estate, at 48A Bridge Street, Uralla. Entry to the premises was gained by forcing open the front aluminium doors by using a jemmy bar or similar item. The premises were ransacked before an angle grinder was used to cut into a safe. A number of grinding disks lay on the floor and white dust was spread though the office. Jewellery worth approximately $32,500.00 together with $10,000.00 in cash was stolen from the safe. The Applicant had smoked a cigarette while in the premises, leaving the butt in a rear toilet.

In November 2002, police recovered three rings from pawnshops in Tamworth and Armidale. These rings were stolen from Mr Wooldridge’s premises during this offence and had been pawned by the Applicant. A buccal swab was obtained from the Applicant on 11 November 2002 and subsequent testing of this sample against the cigarette butt located on the premises provided a DNA match with the Applicant. On 1 July 2003, police recovered several jewellery display cases from rocks adjacent to the former home of the Applicant. These jewellery cases were stolen from Mr Wooldridge’s premises during this offence.

27 Count 20 (s.112(1) Offence): On or about 8 July 2002, the Applicant and co-offenders went to the premises of Sophie Brown at 11690 Waterfall Way, Ebor. The premises operated as the Ebor Hotel/Motel. Entry to the premises was gained by forcing open a side door using a jemmy bar or similar item. The premises were ransacked and a large quantity of alcohol and cigarettes together with about $100.00 in cash was stolen. None of the property has been recovered.

28 Count 21 (s.112(1) Offence): On or about 8 July 2002, the Applicant and co-offenders returned (see Count 3) to the premises of Dale Menser at Ebor Road, Ebor. The premises operated as the Ebor Hilltop Roadhouse. Entry to the premises was gained by smashing a side window and removing a piece of timber. The premises were ransacked and a large quantity of cigarettes was stolen together with some electric tools and $115.00 in cash. None of the property has been recovered.

29 Count 22 (s.112(1) Offence): Between 2.30 pm on 6 July 2002 and 8.20 am on 8 July 2002, the Applicant and co-offenders went to the premises of Michelle Kellett at 16 Cudgery Street, Dorrigo. The premises operated as Moy and Darby Stock and Station Agents. Entry to the premises was gained by forcing open the front aluminium door using a jemmy bar or similar item. The premises had been ransacked with drawers being pulled open and papers strewn over the floor and desks. An angle grinder was used to cut open a free-standing safe in the office on the premises before removing its contents. A Canon digital camera (worth $1,000.00) and $500.00 in cash were stolen. None of the property has been recovered.

30 Count 23 (s.113(1) Offence): On 8 July 2002, the Applicant and co-offenders went to the premises of Anthony Noble at 46 Hickory Street, Dorrigo. The premises operated as Phil Noble Motors. Entry to the premises was gained by forcing open the front aluminium door with a jemmy bar or similar item. Although entering the premises with the intention of stealing therefrom, an alarm was activated and the offenders fled the scene. No property was taken.

31 Count 24 (s.112(1) Offence): Between 11 and 12 July 2002, the Applicant entered the premises of Property New England in Uralla by forcing the front door with a jemmy bar or similar item. Once inside, the Applicant ransacked the office, stealing a quantity of cash and a white-mesh women’s shoulder bag. An unsuccessful attempt was made to access a wall safe by cutting into it with an angle grinder. A search of the Applicant’s home pursuant to a search warrant on 15 July 2003 revealed the white-mesh women’s shoulder bag hanging over the Applicant’s bedhead.

32 Count 25 (s.112(1) Offence): On or about 12 July 2002, the Applicant and co-offenders returned (see Count 17) to the premises of Patricia Fuller at 78 Bridge Street, Uralla. The premises operated as The Green Apple Fruit Shop. Entry to the premises was gained by removing the lock from the rear security door before removing the lock and latch from the rear door. The premises were ransacked and $20.00 in cash was stolen. None of the property has been recovered.

Count 26 (s.112(1) Offence ): Between 5.30 pm on 19 July 2002 and 8.30 am on 20 July 2002, the Applicant and co-offenders went to the premises of Graeme Shiels at 131-143 Bradley Street, Guyra. The premises operated as Guyra Smash Repairs. Entry to the premises was gained by forcing open the front aluminium door using a jemmy bar or similar item. The premises and vehicles contained in the premises were ransacked with books, files and the contents of drawers being strewn about the office. A rechargeable torch and a money box containing about $5.00 was stolen. None of the property has been recovered.

33 Count 27 (s.117 Offence): Between 6.00 pm on 19 July 2002 and 8.00 am on 20 July 2002, the Applicant and co-offenders, while in the building at 131-143 Bradley Street, Guyra, entered the office of Gregory Burgess. Mr Burgess operated a garage business from the same premises as the smash repair business conducted by Mr Shiels. Mr Burgess’ office and vehicle, which was parked inside the premises, were ransacked. A steering wheel kit and $160.00 in cash were stolen. None of the property has been recovered.

34 Count 28 (s.112(1) Offence): Between 5.30 pm on 19 July 2002 and 8.00 am on 20 July 2002, the Applicant and co-offenders went to the premises of John Truscott trading as Truscott Rural Traders, at Moore Street, Guyra. Entry to the premises was gained by forcing the front aluminium door with a lock on an internal door then being cut open. The premises were ransacked and a carry bag, high-pressure water cleaner, a number of wrist watches, some lollies and $40.00 in cash were stolen. None of the property has been recovered.

35 Count 29 (s.112(1) Offence): Between 5.30 pm on 19 July 2002 and 9.30 am on 20 July 2002, the Applicant and co-offenders went to the premises of Michael Jackson trading as Jackson Livestock and Property, at 100 Bradley Street, Guyra. Entry to the premises was gained by forcing open the front door with a jemmy bar or similar item. The premises were ransacked with a jemmy bar or a similar item being used to force open filing cabinets. An angle grinder was used to cut open a safe on the premises. Dust lay everywhere and documents from the safe were strewn about the office. A Fuji digital camera and $4,000.00 in cash were stolen. None of the property has been recovered.

36 Count 30 (s.112(1) Offence): At about 2.00 am on 21 August 2002, the Applicant and co-offenders went to the premises of Wesfarmers Landmark Boulton at 3N Derby Street, Walcha. An agency of the Westpac Bank was located in the same building. There was an unsuccessful attempt to gain entry to the premises by forcing a rear window. Thereafter, entry to the premises was gained by forcing open a side window using a jemmy bar or similar item. The offenders disabled the movement sensor, alarm key pad and telephone system. The alarm system was smashed from the wall. The premises were ransacked and the sum of $210.00 in cash was stolen. A jemmy bar or similar item was used to open a safe. None of the property has been recovered.

37 Count 31 (s.112(1) Offence): Between 6.00 pm on 20 August 2002 and 2.30 am on 21 August 2002, the Applicant and co-offenders returned (see Count 8) to the premises of Chris Feltham at 18N Derby Street, Walcha. The premises operated as Mountain Motors. These premises had been broken into by the Applicant and others on 9-10 June 2002 (Count 8). Entry to the premises was gained by cutting a padlock on the side door and opening the door. The premises were ransacked and hand tools were stolen together with a set of shock absorbers, a wallet, a torch, and other items, including $10.00 cash. On 8 July 2003, a search warrant was executed at the home of the Applicant. One of the items which had been stolen (the torch) was located in her bedroom. The other property taken from the premises (worth about $4,000.00) has not been located.

38 Count 32 (s.112(1) Offence): Between 5.00 pm on 20 August 2002 and 2.30 am on 21 August 2002, the Applicant and co-offenders went to the premises of Anthony Elder at 5W Fitzroy Street, Walcha. The premises operated as AB Elder Real Estate. Entry to the premises was gained by forcing the lock on the front door with a jemmy bar or similar item. The premises were ransacked and a camera, $20.00 in cash and other items, including a brown carry bag, were stolen. On 1 July 2003, police recovered the brown carry bag and some of the items stolen from these premises.

39 In the early hours of 21 August 2002, the Applicant’s vehicle was observed in the vicinity of the premises in Walcha which had been broken into. The vehicle was pursued by police for some time in Walcha before being lost. Later that day, the police observed the Applicant driving her vehicle on the Bundarra Road toward Uralla. The Applicant was stopped and spoken to by police. She denied that her vehicle had been in Walcha at the time of the offences earlier that day. Located in her vehicle were a number of disks for an angle grinder. Located at her home were several used disks for an angle grinder.

40 Count 33 (s.189 Offence): In November 2002, the Applicant was at her home in Armidale when she handed a co-offender three gold rings stolen from John Wooldridge during a break and enter offence at his Uralla business on or about 20 June 2002. The Applicant asked the co-offender to sell the rings before driving him to the Armidale pawnbrokers. The co-offender sold the rings for $60.00. Following the execution of a search warrant at the Applicant’s home on 8 July 2003, police attended the Armidale pawnbrokers where the rings disposed of were recovered. During the search of the Applicant’s home on 8 July 2003, police located in the Applicant’s dresser drawers three other pieces of jewellery stolen from Mr Wooldridge during the beak enter and steal offence on or about 20 June 2002.

41 On 11 November 2002, police conducted an electronic interview with the Applicant concerning a number of the break, enter and steal offences, and in particular, the offence at Mr Wooldridge’s property in June 2002 (Count 19). The Applicant denied any knowledge and involvement in these offences.

42 On 3 February 2003, the Applicant appeared before the Armidale Local Court upon three counts of goods in custody. With respect to these matters, she was ordered to perform 80 hours community service and was placed on a two-year good behaviour bond under s.9 Crimes (Sentencing Procedure) Act 1999.

43 Count 34 (s.117 Offence): Between 6 and 9 February 2003, the Applicant and a co-offender went to the rural property known as “Gowrie”, owned by Nicholas Rhoades and situated on the Copeton Dam Road, Inverell. The offenders went to a shed on the property and forced open a gun cabinet from which a Remington 1100 automatic shotgun, a 270 Parker Hale shotgun, about 500 rounds of shotgun ammunition, 500 rounds of 270 ammunition, two boxes of 308 ammunition, spanners, a chainsaw and power tools were stolen. Some time after, Mr Rhoades found the two boxes of 308 ammunition lying in the paddock. None of the other items have been recovered.

44 Count 35 (s.154AA Offence): Between 6 and 9 February 2003, the Applicant and a co-offender went to a shed on “Gowrie”, the property of Nicholas Rhoades, and stole a 1999 300CC KTM motor cycle. The motor cycle has not been recovered. Mr Rhoades informed police that the total value of property taken from his premises in the offences which are Counts 34 and 35 was $15,000.00, and that none of the property taken was insured.

45 On 14 February 2003, police again conducted an electronic interview with the Applicant concerning the break, enter and steal offence on the premises of Mr Wooldridge in June 2002 (Count 19). By that time, the police had the results of the DNA testing which had been undertaken following the taking of a buccal swab from the Applicant on 11 November 2002. The Applicant continued to deny any involvement in the offence. On 14 February 2003, the Applicant was charged with the 33 offences contained in Counts 1-17, 19-23 and 25-35. Thereafter, she was released on conditional bail.

46 On 2 April 2003, police again conducted an electronic interview with the Applicant concerning the break, enter and steal offence effected upon Mr Wooldridge’s premises on 20-21 June 2002 (Count 19). On this occasion, the Applicant said that Mr Lay had committed the offence and brought the items of jewellery to her premises. She denied that she had entered Mr Wooldridge’s premises. When asked for an explanation as to how a cigarette butt bearing her DNA came to be inside Mr Wooldridge’s premises, the Applicant suggested that it may have been planted there by Mr Lay to make sure that she was an accessory (Q/A118).

47 Count 36 (s.117 Offence): At about 9.30 am on 16 May 2003, the Applicant attended the work address of Shaun Douglass at Wards Auto Suppliers, 97 Rusden Street, Armidale. The Applicant and Mr Douglass had known each other for a number of years. The Applicant asked Mr Douglass for a loan of $20.00. He removed $20.00 from his wallet and placed the wallet in a pigeon hole on his work counter. He handed $20.00 to the Applicant and resumed work. The Applicant remained standing behind Mr Douglass and left a short time later. Mr Douglass was not able to find his wallet shortly after and he concluded, correctly, that it had been stolen. Contained in the wallet was Mr Douglass’ weekly pay of $390.00 together with his driver’s licence and other personal papers. Upon discovering that his wallet was missing, Mr Douglass attempted to locate the Applicant. He spoke to her later that day, but she denied taking his wallet. On 15 July 2003, a search warrant was executed at the home of the Applicant. Mr Douglass’ wallet and personal cards were located in a brown paper bag at the back of the bottom drawer of the Applicant’s bathroom vanity. The $390.00 in cash was not recovered.

48 On 21 July 2003, the Applicant was again arrested and charged with the offences contained in Counts 18, 24 and 36 and bail was refused. The Applicant has been in continuous custody since that date.

49 On 28 July 2003, police conducted a further electronically recorded interview with the Applicant. For the first time, the Applicant admitted her involvement in the various offences with which she had been charged. She stated that she had acted as the driver and lookout with respect to the s.112(1) and s.113(1) offences, although she did enter premises and assist on occasions.

The Form 1 Offences

50 The Form 1 contained two offences of goods in custody contrary to s.527C Crimes Act 1900, both of which were committed in Armidale on 7 July 2003. The first offence related to the Applicant having in her custody goods suspected of being stolen or otherwise unlawfully obtained, namely the wallet and personal papers of a Mr Scott McVeigh. Mr McVeigh had stayed at the Applicant’s house on an occasion in mid-June 2003 and his wallet went missing. When asked by Mr McVeigh, the Applicant denied any knowledge of the whereabouts of the wallet. The second offence related to the Applicant’s custody of goods suspected of being stolen or otherwise unlawfully obtained, namely a Sony Playstation and games, several DVDs, a bottle of whiskey and a collection of $0.50 coins, which were the property of Korrina Schultz.

The Applicant’s Subjective Circumstances

51 The Applicant was born on 20 July 1976. She was aged 25-26 years at the time of the commission of the offences and was 27 years old at the time of sentence in the District Court.

52 The Applicant’s criminal record included fines for possession of a prohibited drug (cannabis leaf) and for receiving stolen property in the Armidale Children’s Court in 1994 and 1995 respectively. In July 1995, she appeared before the Tamworth Local Court upon a charge of stealing and was ordered to perform 75 hours community service. In October 1998, she was fined and disqualified by the Tamworth Local Court for offences of driving whilst disqualified and driving an unregistered and uninsured vehicle. On 16 September 2002, the Applicant was fined in the Armidale Local Court the sum of $250.00 for possession of a prohibited drug. As has been mentioned, the Applicant appeared before the Armidale Local Court on 3 February 2003 and was placed on a two-year good behaviour bond and was ordered to perform 80 hours community service with respect to three counts of goods in custody.

53 The Applicant’s evidence in the sentencing proceedings, and a pre-sentence report dated 6 February 2004 which was tendered in the proceedings revealed that the Applicant was born and raised in country areas of New South Wales and was the younger of two girls. Due to her father’s employment, the family moved regularly until the Applicant’s parents separated when she was 12 years of age. The Applicant and her sister remained with their mother who moved to Armidale in 1990 to undertake tertiary education.

54 The Applicant left school in 1990 whilst in Year 9 at Armidale High School. At the age of 15, she began a relationship with the father of her first child (a girl born on 4 January 1995) which ended at about the time the child was born. The Applicant subsequently met and married the father of her second child (a boy born on 3 September 1996), however, the relationship ended in 1997. Following the Applicant’s incarceration in July 2003, both children were placed in the care of their respective fathers and their families.

55 The Applicant has little employment history and has not worked since the birth of her first child. At the time of the commission of the offences, the Applicant was on a sole parent’s pension and also received maintenance for her children who, at that time, were living with her.

56 In her evidence, the Applicant recounted a history of drug use including cannabis use since her high school days and amphetamine use from about March 2000 to May 2003.

57 The pre-sentence report of Ms Marilyn Miller dated 6 February 2004 included the following statement:

“Although presenting as intelligent and with good literary skills despite her lack of formal education, the offender appears to have used this intellectual capacity in a negative way, with a history of meeting her needs through manipulation and dishonesty, and having little consideration for her responsibilities to her children and family or the wider community.”

58 The evidence before the District Court revealed that the subject offences were committed by the Applicant and a number of co-offenders, Jason Irvine, Jeffrey Scott and Morgan Lay. These persons were associates of the Applicant over a number of years. Mr Irvine had been in a relationship with her, initially for a two-year period from March 1999 and then again for a period commencing in July 2002. Mr Lay and Mr Scott had boarded during 2002 in premises in Uralla which the Applicant had purchased from her mother. The Applicant purchased these premises in January 2001, but sold them in December 2002 and moved to Armidale.

59 In January 2003, during an argument with Jason Irvine, the Applicant sustained an injury which has left her with leg and back pain.

60 A number of references were tendered in the Applicant’s case in the District Court. The referees included the Applicant’s mother, sister and stepfather. The Applicant’s mother and stepfather have resided in the United States of America since 1996. The Applicant’s sister, who resides in Coffs Harbour, has been visiting her in prison and has expressed a willingness to assist the Applicant with accommodation upon her release from custody.

Some Findings by the Sentencing Judge

61 Evidence was given by Senior Constable Shepherd of assistance which the Applicant had provided to police. Mr Irvine, Mr Scott and Mr Lay had all been charged with a number of offences committed jointly with the Applicant. At the time of the Applicant’s sentence in the District Court, Mr Scott had pleaded guilty to the charges against him. His Honour Judge Urquhart QC noted that Mr Lay was facing a number of charges and that, according to the evidence of Senior Constable Shepherd, the assistance of the Applicant in relation to the investigation of Mr Lay “has been very important”. The Applicant indicated a preparedness to give evidence in accordance with statements made by her to police.

62 His Honour Judge Urquhart QC allowed discounts to the Applicant in the following respects (remarks on sentence, page 22):

“I have considered the plea of guilty in the context of what I consider to be sincere remorse and contrition, and I have considered the value of the assistance which she has given and I quantify the discount which is to be allowed to her for those as follow:
For the plea of guilty 30%.
For the assistance 20%.
Accordingly, there will be an aggregate discount of 50%.”

63 The Applicant asserted in evidence in the District Court that some pressure had been placed upon her by Mr Lay to commit the offences. The learned sentencing judge adverted to this evidence in his remarks on sentence (page 17):

“During her evidence the offender said that she committed these offences because Morgan Lay insisted that she help him with them, and that he had a drug bill to pay, and if it was not paid his creditors would hurt her and her children. The offender also gave evidence that Morgan Lay told her that if she did not help he would make sure she got into trouble for the offences and would go to gaol for them. Jeff Scott and Jason Irvine did not threaten her.
The offender also gave evidence of Morgan Lay referring to his father becoming involved in relation to the offender and that that and what I have referred to caused her to be fearful.”

64 With respect to a submission that Mr Lay’s influence constituted a form of duress which was relevant to sentence, his Honour Judge Urquhart QC concluded (remarks on sentence, page 21):

“I am of the view that is partly, but only partly, correct. These offences continued over a long period of time and the offender’s participation saw her the better able to cater to her amphetamine addiction, which continued and increased over this period, but nevertheless I do have regard to Mr Morgan Lay’s influence upon her.”

65 The learned sentencing judge made the following observations concerning the offences (remarks on sentence, page 18):

“The offences were committed within rural country towns or in parts of the rural community. They were committed at times when the businesses conducted from the premises could be expected to be closed and sometimes for a long weekend. An escape route was always identified before each job. And the offender’s motor vehicle was always used because she was the only one who had a motor vehicle.
Some of the offences involved repeat visits. Some of the offences involved the use of oxy-acetylene equipment, grinders, other equipment and the use of gloves. Clearly, not one of these offences was a spur of the moment decision but the result of planned activity. They can, in my view, properly be described as jobs in that sense.
I have already noted that in relation to a number of the offences premises and cars were ransacked.
The items that were stolen generally were items of a household usage value and readily able to be sold or swapped for drugs, which is what happened.”

66 His Honour described his approach to sentencing for the various offences, including the question of accumulation, in the following way (remarks on sentences pages 22-23):

“It is appropriate that it be expressly noted that in relation to each offender, and each offence, the sentence that is imposed needs to be appropriate. In this regard I have given consideration to the overall criminality reflected in this series of serious offences over the period which I have indicated. In giving that consideration I have been concerned with whether or not there should be concurrence or an accumulation consequence. I have reached the conclusion that clearly for those matters that were committed whilst the bond, from February 2003, was in operation should have an aspect of accumulation. But otherwise, and having given this aspect very serious consideration, I consider that all of the other offences should result in concurrent sentences.”

67 The learned sentencing judge found “special circumstances” for the purposes of s.44 Crimes (Sentencing Procedure) Act 1999 by reference to the Applicant’s age, the absence of a previous custodial penalty and his Honour’s acceptance of her positive prospects of rehabilitation.

68 Given that offences had been committed both before and after 1 February 2003, his Honour determined to break up the sentences into two categories being those committed before and after that date, having regard to the amendment to s.44 Crimes (Sentencing Procedure) Act 1999 which operated from that day.

69 With respect to the offences committed before 1 February 2003, the following sentences were imposed:

(a) for each of the 27 break, enter and steal offences under s.112(1) Crimes Act 1900 , a sentence of imprisonment for four-and-a half years to date from 21 July 2003 to 20 January 2008 with a non-parole period of three years from 21 July 2003;

(b) for each of the three break and enter with intent offences under s.113(1) Crimes Act 1900 , a sentence of imprisonment for three years to date from 21 July 2003 to 20 July 2006 with a non-parole period of two years from 21 July 2003;

(c) for each of the larceny offences under s.117 Crimes Act 1900 , imprisonment for a period of one year to date from 21 July 2003 to 20 July 2004 with a non-parole period of six months from 21 July 2003;

(d) for the disposal of stolen property offence under s.189 Crimes Act 1900 , imprisonment for three years to date from 21 July 2003 to 20 July 2006 with a non-parole period of two years from 21 July 2003.

70 With respect to the offences committed after 1 February 2003, the learned sentencing judge imposed the following sentences:

(a) for each of the offences of larceny contrary to s.117 Crimes Act 1900 , a non-parole period of six months to date from 21 November 2003 with a balance of term of six months commencing on 21 May 2004 and expiring on 20 November 2004;

(b) for the larceny of a motor vehicle contrary to s.154AA Crimes Act 1900 , a non-parole period of two years to date from 21 November 2003 with a balance of term of 12 mont1hs commencing on 21 November 2005 and expiring on 20 November 2006.

Ground 1 – Failure of the Sentencing Judge to Apply the Principles in Pearce v The Queen (1998) 194 CLR 610

71 The Applicant submits that the learned sentencing judge did not comply with the principles in Pearce v The Queen (1998) 194 CLR 610 in his approach to sentence for the offences under s.112(1) and s.113(1) Crimes Act 1900. It is said that his Honour failed to fix an appropriate sentence for each offence before turning to issues of totality, concurrence or accumulation.

72 The Crown submits that, in the passage referred to in paragraph 66 above, the learned sentencing judge identified the need to fix a sentence which was appropriate for each offence as well as having regard to the questions of totality, concurrence and accumulation. The Crown points to the fact that his Honour had regard to the relevant principles in accumulating some of the sentences which were imposed.

73 In Pearce, the proper approach to sentencing for multiple offences was described by McHugh, Hayne and Callinan JJ at 624:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

74 The Pearce principle has been described as a “fundamental principle”: R v AEM Snr [2002] NSWCCA 58 at paragraph 65. The failure to sentence in accordance with the Pearce principle is “no matter of technicality”: R v Carr (2002) 135 A Crim R 171 at 177 (paragraph 35).

75 In R v Hammoud (2000) 118 A Crim R 66, Simpson J (Mason P agreeing) said at 67-68 (paragraphs 8-10):

“8. As a result of the decision of the High Court in R v Pearce [1998] HCA 57; 194 CLR 610, the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce , a judge is required to fix an ‘appropriate sentence’ for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced.

9. Pre- Pearce , it was possible to discern two different approaches to sentencing for multiple offences. The first was to select a single charge (a lead or representative count) and, in accordance with the principle of totality, on that charge impose a sentence that properly reflected the overall criminality involved in all offences. On the remaining counts, comparatively lenient sentences, frequently fixed terms, were imposed. The second approach was, again with the principle of totality in mind, to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges. Both of these approaches avoided the need for elaborate exercises in accumulation of sentences.

10. Neither of these approaches would survive the application of the Pearce principles. In the case of a judge adopting the first approach, the lengthy sentence imposed in relation to the lead or representative count would appear excessive and those imposed on the remaining counts would appear inadequate. None would represent ‘an appropriate sentence’ for the specific offence for which it was imposed. On the second approach, all sentences would appear excessive for the specific charges to which they related, even when the ultimate term to be served was unimpeachable.”

76 In R v Knight [2004] NSWCCA 145, Howie J (Grove and Simpson JJ agreeing) said at paragraph 31:

“The contention that in some way the applicant was disadvantaged because of the application of Pearce is in my opinion completely misconceived. The fundamental principle in sentencing for multiple offences is that the overall sentence imposed must reflect the totality of the criminality evidenced by those offences: the totality principle. Johnson v R [2004] HCA 15 makes it clear that this principle was neither established nor affected by the decision in Pearce . The significance of Pearce , in this regard, was to indicate the preferred manner in which sentences are to be structured in order to achieve compliance with the totality principle. In particular this Court has interpreted Pearce as prohibiting the practice of increasing a sentence for one offence merely to reflect the totality of the criminality disclosed by all of the offences for which sentence is being passed. Johnson merely confirms that compliance with the totality principle can also be achieved by decreasing a sentence that is to be made wholly cumulative with a sentence for another offence.”

77 In the present case, the learned sentencing judge has imposed a sentence of imprisonment of four-and-a-half years with a non-parole period of three years for each and every one of the 27 counts of break, enter and steal under s.112(1) Crimes Act 1900. A sentence of imprisonment for three years with a non-parole period of two years has been imposed with respect to each of the three counts of break and enter with intent under s.113(1) Crimes Act 1900.

78 In my view, such an approach is an example of the “second approach” referred to by Simpson J in Hammoud at paragraphs 9-10. To select a sentence appropriate to the overall criminality and impose that sentence, in particular, in respect of all of the s.112(1) charges is an approach which cannot survive the application of the principles in Pearce. An examination of the facts of the 27 offences under s.112(1) reveals that the offences varied in significant respects in their objective seriousness. An identical sentence for each of the 27 offences cannot be supported in principle. On this approach, as Simpson J observed in Hammoud at paragraph 10, all sentences would appear excessive for the specific charges to which they related even when the ultimate term to be served was unimpeachable.

79 Indeed, a submission advanced by Counsel for the present Applicant illustrates this very difficulty. Having regard to the aggregate 50% discount allowed by the learned sentencing judge for the pleas of guilty, remorse and assistance to the authorities, Counsel contended that sentences of nine years imprisonment with a non-parole period of six years would clearly be an excessive starting point for each of the s.112(1) offences. The fact that such an argument is available to be advanced points to the difficulty which has arisen from his Honour’s failure to approach the imposition of sentence in accordance with Pearce and Hammoud.

80 In my opinion, the learned sentencing judge has not complied with the principles in Pearce and Hammoud in this case. It will be necessary to re-sentence the Applicant with respect to the counts of break, enter and steal and break enter with intent to steal. Such an approach is appropriate even if the view may be formed that the overall total sentence is not excessive. The Applicant is entitled to be sentenced according to law, and the law requires compliance with the principles in Pearce and Hammoud.

Ground 2 – The Sentence is Manifestly Excessive

81 Counsel for the Applicant submitted, under this broad ground, the following:

(a) that the sentence of three years imprisonment for the offence of disposing of stolen property contrary to s.189 Crimes Act 1900 was excessive given that the maximum penalty for this offence was imprisonment for three years;

(b) that his Honour erred in taking into account as an aggravating factor under s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999 the fact that the offences were committed in company when the Applicant had not been charged with the aggravated form of a s.112 or s.113 offence containing such an element;

(c) that, having regard to his Honour’s discount of 50% to which reference has been made, the ultimate sentence imposed upon the Applicant was manifestly excessive.

82 With respect to the submission advanced in paragraph 81(a) above, it appears that the learned sentencing judge, at the time when sentence was imposed, was mistakenly of the view that the maximum penalty for an offence under s.189 Crimes Act 1900 was imprisonment for 10 years. His Honour said as much during his remarks on sentence (page 19.9). After sentence was imposed, the Crown Prosecutor brought to his Honour’s attention the fact that the maximum penalty for this offence was imprisonment for three years, and not 10 years (remarks on sentence, pages 24-25). Although noting his error in stating the wrong maximum penalty, His Honour did not proceed to vary the sentence of imprisonment which had been imposed for the s.189 offence after the error had been drawn to his attention.

83 As a result, the sentence of imprisonment for that offence involves the imposition of the maximum penalty, despite the fact that his Honour expressed an intention to apply a 50% discount to all sentences. Of course, this is but one sentence amongst 36 sentences, and the s.189 sentence was entirely subsumed within other sentences which were imposed. Nevertheless, as the Applicant is to be re-sentenced to comply with the Pearce principle, I consider that it is appropriate to quash the sentence of imprisonment for the s.189 offence and re-sentence the Applicant upon that matter as well.

84 With respect to the submission advanced in paragraph 81(b) above, the Crown conceded before this Court, that his Honour had fallen into error.

85 The Applicant pleaded guilty to 27 counts of break, enter and steal contrary to s.112(1) Crimes Act 1900 and three counts of break and enter with intent contrary to s.113(1) Crimes Act 1900. The Applicant was not charged with the commission of such offences in circumstances of aggravation under s.112(2) or 113(2) of the Act, which would have attracted a higher maximum penalty. Circumstances of aggravation include the fact that the alleged offender is in the company of another person or persons: s.105A(b) Crimes Act 1900. The Crown Prosecutor made specific reference during the sentencing proceedings to the fact that the Applicant had not been charged with the aggravated form of the offences which was available where the offence was committed in company with others (Transcript, 13 February 2004, pages 4-5).

86 In the course of his remarks on sentence, the learned sentencing judge said (remarks on sentence, page 20):

“The law also provides that in determining the appropriate sentences to be imposed on an offender the Court is to take into account aggravating, mitigating and other factors that exist in a particular matter.
It is to be noted that although these offences were committed with others the more serious and aggravated offence is not charged, but nevertheless, that is an aggravating factor which needs to be taken into account. There was not actual or threatened violence but clearly, as I have said, the offences were committed in company.”

87 In making these observations, it seems clear that his Honour had in mind s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999 which provides:

“(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…

… . “

88 However, s.21A(4) of that Act provides:

“(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or any rule of law to do so.”

89 In circumstances where there was an aggravated form of the offence which could have been charged, but the Crown had declined to do so, it would be contrary to principle for a sentencing judge to take into account as an aggravating factor the fact that some or all of the s.112(1) and s.113(1) offences were committed in company. Such an approach would be contrary to the principles in the Queen v De Simoni (1980-1981) 147 CLR 383 and would likewise infringe s.21A(4).

90 Accordingly, his Honour fell into error in taking this matter into account as an aggravating factor for the purposes of s.21A(2)(e) of the Act. If this matter stood alone, it would be necessary to determine what flowed from this error having regard to s.6(3) Criminal Appeal Act 1912: R v Johnson [2005] NSWCCA 186; R v Martin [2005] NSWCCA 190. However, as it is necessary to re-sentence the Applicant to comply with the Pearce principle, that further step is not required in this case.

91 With respect to the third submission made at paragraph 81(c) above, having regard to the findings which have been made and the need to re-sentence the Applicant, it is not necessary to deal with those arguments separately at this point. Rather, a number of factors which bear upon this argument will be considered in the course of determining the appropriate sentences which ought be passed upon the Applicant.

Re-Sentencing the Applicant

92 The facts of the various offences have been outlined earlier in this judgment. In assessing the objective seriousness of the offences, a number of observations are pertinent.

93 The s.112(1) and s.113(1) offences and two s.117 offences were committed in May, June, July and August of 2002. The offences represented a persistent and planned onslaught, in concentrated periods, against a range of small rural businesses. It may be said, in the Applicant’s favour, that (with the exception of Count 1) these were not offences committed upon residential premises where persons may be present, with the prospect of accompanying fear and distress which may occur in such cases. However, the owners of small business premises are likewise entitled to the protection of the law. At times of difficulty in rural areas, small businesses in country towns may be hit especially hard by burglary. There is evidence in the present case that small businesses were targeted because of an expectation that a large cash float may be readily available in petty cash tins on the premises (Transcript, 13 February 2004, page 19.42). The facts disclose a pattern of ransacking offices with consequential disorder amongst business records and systems. In six cases (Counts 5, 8, 19, 22, 29 and 30), safes were broken open with the use of oxy-acetylene equipment, angle grinders or a jemmy bar or similar item. In one case (Count 24), an unsuccessful attempt was made to crack a safe using an angle grinder. In four cases, the same premises were burgled twice (Counts 3 and 21; 8 and 31; 17 and 25; 18 and 19). A significant element of general deterrence should apply with respect to the category of s.112(1) and s.113(1) offences exemplified in this case.

94 It was the Applicant’s evidence that she drove the vehicle and acted as a lookout during the s.112(1) and s.113(1) offences. It is clear that she was aware of, and participated in, the planning of the offences. On occasions, the Applicant entered the premises as illustrated by the location of a cigarette butt allowing a DNA match to her for the 20-21 June 2002 offence upon Mr Wooldridge’s premises (Count 19). The Applicant was well aware that premises were being broken into and safes were being cracked by use of oxy-acetylene equipment and angle grinders. The Applicant was aware that a number of premises were broken into on more than one occasion.

95 The dispose of stolen property offence under s.189 was committed in November 2002.

96 On 3 February 2003, the Applicant was sentenced in the Armidale Local Court in relation to offences of goods in custody for which she was placed on a two-year good behaviour bond and was required to serve 80 hours community service. A further larceny offence and the steal motor vehicle offence were committed between 6 and 9 February 2003.

97 The Applicant was arrested in relation to the break and enter offences on 14 February 2003 when she was released on conditional bail. A further larceny offence was committed on 16 May 2003. Finally, the Applicant was arrested and charged in relation to the latter larceny offence (Count 36) and two previous break, enter and steal offences (Counts 18 and 24) on 21 July 2003 when she was refused bail.

98 As mentioned in paragraphs 63-64 of this judgment, the learned sentencing judge made a limited finding favourable to the Applicant concerning the influence of Mr Lay over her with respect to the s.112(1) and s.113(1) offences. It should be observed that Mr Lay departed the scene in September 2002, but the Applicant continued to commit offences thereafter including offences committed in breach of a good behaviour bond and whilst she was on bail in and after February 2003 (Transcript, 13 February 2004, page 23). The Applicant acknowledged in her evidence that she had been interviewed by police several times from about November 2002 until February 2004, but had never mentioned anything to them about Mr Lay holding out the threat of injury to herself or her children from his drug dealer (Transcript, 13 February 2004, page 24.13). However, The Crown has not challenged his Honour’s finding on this issue before this Court and this finding will be taken into account, in the Applicant’s favour, on sentence.

99 In considering the break, enter and steal offences under s.112(1) Crimes Act 1900 it is appropriate to refer to the guideline judgment of this Court in Re Attorney-General’s Application (No. 1) Under Section 26 of the Criminal Procedure Act; Regina v Ponfield and Ors (1999) 48 NSWLR 327. There is some overlap between aggravating factors identified in Ponfield and those contained in s.21A(2) Crimes (Sentencing Procedure) Act 1999. It is appropriate to have regard to both the guideline judgment and s.21A in approaching the question of sentence.

100 In the present case, the seriousness of the s.112(1) offences was enhanced by the following factors referred to in Ponfield by Grove J (Spigelman CJ and Sully J agreeing) at paragraph 48:

(a) the Applicant stood for sentence with respect to a multiplicity of offences of break, enter and steal committed over a period of four months – this was a series of criminal acts (s.21A(2)(m));

(b) the offences were the result of professional planning, organisation and execution – this was planned or organised criminal activity (s.21A(2)(n));

(c) the offences were accompanied by vandalism or significant damage to property, including damage to safes and doors;

(d) repeat incursions were made into four premises - Counts 3 and 21; 8 and 31; 17 and 25; 18 and 19 and

(e) the value of the property taken in some offences was substantial.

101 Whilst the Applicant’s use of amphetamines is a relevant circumstance for the Court to consider, it is not itself a mitigating factor: Ponfield at 338 (paragraph 49).

102 A significant aggravating factor which relates to sentence for the offences under s.117 and s.154A Crimes Act 1900 committed in and after February 2003 is the fact that, on 3 February 2003, the Applicant was placed on a good behaviour bond and ordered to perform community service for offences of dishonesty and was, accordingly, subject to conditional liberty. The offences under s.117 and s.154AA committed with respect to Mr Rhoades’ property (Counts 34 and 35) occurred within days after the Applicant’s appearance before the Armidale Local Court on 3 February 2003.

103 On 14 February 2003, despite the Applicant’s continuing denial of any involvement in the offences, police charged her with 33 offences and she was released on conditional bail. Thereafter, the Applicant stole the wallet of her friend, Mr Douglass, on 16 May 2003 (Count 36) and committed the goods in custody offences which were included in the Form 1.

104 The circumstances revealed in paragraphs 102 and 103 constitute a significant aggravating factor by reference to s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999 in that these offences were committed whilst the Applicant was subject to conditional liberty.

105 The Applicant benefited directly from the proceeds of these crimes through the sale of property to acquire drugs and money.

106 The objective seriousness of the offences was serious indeed. The planning and frequency of the offences can only be characterised as a crime spree directed at small business premises in country towns which reaped, at times, considerable rewards for the offences. The objective seriousness of this criminality must be reflected in a significant period of imprisonment.

107 The learned sentencing judge extended to the Applicant what the Crown described as a “fulsome combined discount for the pleas of guilty, remorse and assistance”. The discount of 30% for the pleas of guilty and remorse reflected a substantial combined discount for the utilitarian element (R v Thomson and Houlton (2000) 49 NSWLR 383) and the subjective element of remorse. The additional discount of 20% for assistance to the authorities was a significant finding in the Applicant’s favour: s.23 Crimes (Sentencing Procedure) Act 1999; R v El Hani [2004] NSWCCA 162 at paragraphs 71-74. Although the Applicant appears to have co-operated with the authorities in and after July 2003, she conceded in evidence that she had not implicated herself in interviews with police prior to July 2003 (Transcript, 13 February 2004, page 24). She had denied involvement in the offences in electronic interviews conducted by police on 11 November 2002, 14 February 2003 and 2 April 2003. However, the Crown did not submit before this Court that it was not open to his Honour to apply such discounts in this case and it is appropriate to take a similar approach in sentencing by this Court.

108 With respect to the Applicant’s assistance to the authorities, the Crown informed the Court, without objection, that the Applicant gave evidence in proceedings against Jason Irvine before the Armidale Local Court on 29 March 2004. Mr Irvine was convicted upon one count of disposal of stolen property in respect of which he was fined $400.00 and placed on a two-year good behaviour bond under s.9 Crimes (Sentencing Procedure) Act 1999. Mr Scott pleaded guilty to 12 counts of break, enter and steal and one of larceny and was sentenced by his Honour Judge Knight in the Armidale District Court on 13 May 2004 to an effective total sentence of imprisonment for two years with a non-parole period of nine months. The Applicant was not called upon to give evidence in the Scott proceedings. Mr Scott was 18 years old at the time of the offences and had no prior criminal history. His Honour Judge Knight concluded that there was no true parity between Mr Scott and the present Applicant. Morgan Lay pleaded guilty in the Armidale District Court on 6 May 2004 to an indictment containing 11 counts and, on 31 January 2005, pleaded guilty to a further indictment containing nine counts. The Applicant was not required to give evidence against Mr Lay. At the time of the hearing before this Court, Mr Lay had not been sentenced.

109 The Court was informed that the Applicant has not been the subject of a protection order whilst in custody.

110 The learned sentencing judge made a finding of “special circumstances” in this case. The Crown submitted that there was an element of double counting in this respect in that his Honour also took account of the age of the Applicant in determining the length of the total term: R v Fidow [2004] NSWCCA 172 at paragraph 18; R v Martin at paragraph 48. However, the Crown did not submit that it was not open to the sentencing judge to make a finding of special circumstances in this case. Such a finding ought stand for the purposes of the re-sentencing of the Applicant.

111 His Honour Judge Urquhart QC concluded that there were positive prospects of rehabilitation. It has not been contended that such a finding was not open to his Honour and I will approach the re-sentencing of the Applicant upon the same basis.

112 It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM Snr at paragraph 70; R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at paragraph 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at paragraphs 36-37.

113 In imposing the sentences which follow, I have had regard to the objective and subjective factors which bear upon the question of sentence including those which are referred to in s.21A Crimes (Sentencing Procedure) Act 1999. Given that no challenge was made to the aggregate 50% discount allowed by the learned sentencing judge for the pleas of guilty, contrition and assistance to the authorities, I have approached the imposition of sentence applying such a discount to the final aggregate sentence to be imposed. The sentences reflect a finding of “special circumstances” for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999.

114 Given the interrelationship between the various sentences imposed by his Honour Judge Urquhart QC, the appropriate course is to quash all sentences imposed by his Honour and to impose fresh sentences with respect to each matter.

115 In imposing sentences, the offences have been grouped in the following way:

(a) Count 19 – the most serious s.112(1) offence being a repeat offence on premises in Uralla which involved the theft of a substantial quantity of jewellery ($32,500.00) and cash ($10,000.00) from a safe which was broken open;

(b) Counts 21, 25 and 31 – repeat s.112(1) offences committed with respect to premises in Ebor, Uralla and Walcha which had been previously burgled;

(c) Counts 1, 2 and 3 – s.112(1) offences committed on domestic and business premises in Uralla and Ebor in mid-late May 2002;

(d) Counts 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 18 – s.112(1) offences committed on business premises in Uralla and Walcha in a concentrated period around a long weekend in June 2002;

(e) Counts 20, 22, 24, 26, 28, 29, 30 and 32 – s.112(1) offences committed on business premises in Ebor, Dorrigo, Uralla, Guyra and Walcha in July and August 2002;

(f) Counts 16, 17 and 23 – s.113(1) offences committed upon premises in Uralla and Dorrigo in June and July 2002;

(g) Count 13 – s.117 offence committed in June 2002 at Walcha in association with the s.112(1) offence which is Count 12;

(h) Count 33 – the s.189 offence committed in November 2002;

(i) Counts 34 and 36 – the s.117 offences committed whilst the Applicant was subject to conditional liberty in February (at Inverell) and May 2003 (at Armidale);

(j) Count 35 – the s.154AA offence committed in February 2003 at Inverell whilst the Applicant was subject to conditional liberty.

116 The sentences to be imposed will leave the Applicant with the same effective head sentence and non-parole period as that imposed by his Honour Judge Urquhart QC. The sentences to be imposed, however, comply with relevant sentencing principles. The total effective sentence represents the proper period of incarceration for the totality of the criminality involved. In reaching such a conclusion, it follows that I have rejected the Applicant’s submission that the overall sentence imposed in the District Court was manifestly excessive. Further, I have concluded that the error with respect to s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999 ought not lead to any reduction in the total effective sentence imposed in the District Court.

117 The orders that I propose are as follows:

(a) leave is granted to appeal against sentences imposed by his Honour Judge Urquhart QC at the Armidale District Court on 19 February 2004;

(b) appeal allowed and sentences imposed on 19 February 2004 are quashed;

(c) in lieu thereof, the Applicant is sentenced:


(i) on Count 19, and taking into account the Form 1 offences, to a term of imprisonment of three years to date from 21 July 2003 and expiring on 20 July 2006 with a non-parole period of two years to date from 21 July 2003 and expiring on 20 July 2005,

(ii) on each of Counts 21, 25 and 31, to a term of imprisonment of two-and-a-half years to date from 21 January 2004 and expiring on 20 July 2006 with a non-parole period of one year and nine months to date from 21 January 2004 and expiring on 20 October 2005,

(iii) on each of Counts 1, 2 and 3, to a fixed term of imprisonment of 12 months to date from 21 July 2003 and to expire on 20 July 2004,

(iv) on each of Counts 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 18, to a fixed term of imprisonment of 18 months to date from 21 July 2004 and to expire on 20 January 2006,

(v) on each of Counts 20, 22, 24, 26, 28, 29, 30 and 32, to a fixed term of imprisonment of 18 months to date from 21 October 2004 and to expire on 20 April 2006,

(vi) on each of Counts 16, 17 and 23, to a fixed term of imprisonment of 12 months to date from 21 October 2004 and to expire on 20 October 2005,

(vii) on Count 13, to a fixed term of imprisonment of nine months to date from 21 October 2004 and to expire on 20 July 2005,

(viii) on Count 33, to a fixed term of imprisonment of 6 months to date from 21 July 2005 and to expire on 20 January 2006,

(ix) on Counts 34 and 36, to a term of imprisonment by way of a non-parole period of nine months to date from 21 July 2005 and to expire on 20 April 2006 with a balance of term of six months commencing on 21 April 2006 and expiring on 20 October 2006,

(x) on Count 35, to a term of imprisonment by way of a non-parole period of 12 months to date from 21 July 2005 and expiring on 20 July 2006 with a balance of term of 18 months commencing on 21 July 2006 and expiring on 20 January 2008.

118 The earliest date on which the Applicant will be eligible for release on parole is 20 July 2006.

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