R v Lewis
[2003] NSWCCA 375
•5 December 2003
CITATION: R v Lewis [2003] NSWCCA 375 HEARING DATE(S): 5 December 2003 JUDGMENT DATE:
5 December 2003JUDGMENT OF: Hidden J at 19; Smart AJ at 1 DECISION: Leave to appeal against sentence granted. Appeal allowed. Sentence quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for 12 months commencing on 29 August 2003 with a non-parole period of 16 weeks expiring on 18 December 2003, on which date the applicant is to be released on parole. CATCHWORDS: Subjective features given insufficient weight LEGISLATION CITED: Sentencing Procedure Act CASES CITED: Nil PARTIES :
Regina v Bradley Scott Lewis FILE NUMBER(S): CCA 6038203 COUNSEL: (A) R Jankowski
(C) P Power SCSOLICITORS: (A) J Paton
(C) C K Smith
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/31/0231 LOWER COURT
JUDICIAL OFFICER :English DCJ
IN THE COURT OF
CRIMINAL APPEAL
HIDDEN J
SMART AJ
Regina v Bradley Scott LEWIS
JUDGMENT
1. SMART AJ: Bradley Scott Lewis seeks leave to appeal against a sentence of imprisonment for 2 years with a non-parole period of 18 months for conspiracy to cheat and defraud. This is a common law offence and the sentence is at large.
2. About 11.15 pm on 20 November 2002 motor vehicle TJL 867 was stopped for the purpose of random breath testing. The driver of the car was Brendon Fenson and the passenger was Tracey Wasson. Police inquiries revealed that the vehicle had been reported stolen at 11pm at Port Macquarie. It was alleged by its owner that it was stolen from the marina car park before 10.30pm. Wasson told the police that she had permission from the owner to have the vehicle and it was a mistake. Fenson and Wasson were arrested and conveyed to Bulahdelah Police Station. They were informed by police that the owner had been contacted and stated that they did not have permission to have his vehicle. Wasson told the police that they had the car to do an insurance job for the applicant. Fenson similarly informed the police.
3. On 22 November 2002 the applicant attended Taree Police Station. He informed police that he wanted to trade his vehicle in for a new car, but his vehicle's trading price was well below its insurance value. He discussed the matter with Tracey Wasson who told him that she had contacts that made vehicles disappear and he could collect the insurance money. The applicant finally agreed that Wasson should arrange for the vehicle to be taken from a car park in Port Macquarie by an ex-boyfriend. They would dismantle the car for parts and the applicant could collect the insurance money.
4. The applicant's father, Trevor Lewis was the holder of the insurance policy with NRMA Insurance. The car was comprehensively insured for $20,800. The applicant admitted to police that the key in the ignition of the car had been given to Wasson and that his intention was to collect the insurance money for the car. No claim was made and the vehicle was returned to the applicant.
5. English DCJ concluded that the applicant
"was not the mastermind behind the scenes but rather a willing participant once the seed of thought had been planted."
The judge concluded that Tracey Wasson was the mastermind of the scheme. The applicant was the principal beneficiary of the proposed fraud.
6. The applicant was born on 22 February 1981 and was thus aged 21 at the time of the offence. He had no criminal history. The judge described him as a "well respected and highly skilled cabinet maker", with "solid upbringing" and concluded that there was a minimal risk of him re-offending. She accepted the applicant's expressions of remorse and contrition as genuine and that his actions were totally out of character. There was supporting medical evidence that the applicant had been out of work for five months with back problems and had been somewhat depressed.
7. The applicant submitted that the sentence imposed by the judge was manifestly excessive for these reasons:
1. He was a young man with no previous criminal history This would make him particularly vulnerable in the prison system.
2. He pleaded guilty in the Local Court and was entitled to a significant discount for his early plea.
3. He was not the mastermind and the offence was totally out of character.
4. The risk of his re-offending was minimal and his prospects for rehabilitation were favourable.
5. The attempted execution of the crime was clumsy and no-one was defrauded.
8. The plan was hatched in a nightclub whilst the applicant was under the influence of alcohol. The net gain to the applicant was likely to be $12,800 or less and not $20,800. However, the loss to the insurance company would have been of the order of $20,800 if a claim had been made successfully.
9. The Crown submitted that this was a serious crime in which the role of general deterrence was important. It endorsed the judge's comment that society pays enormously as a result of insurance fraud. The judge was much influenced by the offence not being spontaneous, the degree of planning, the applicant being a willing participant and the crime not being able to occur without such participation.
10. The judge also sentenced Tracey Wasson and Fenson. Wasson was sentenced to a term of imprisonment for 2 years with a non-parole period of 18 months. Fenson was sentenced to a term of imprisonment for 18 months with a non-parole period of 13½ months.
11. Questions of due proportion arise. There was not much difference between the objective criminality of Wasson and the applicant. Perhaps her criminality was a little greater. There was a big difference in their subjective features. Wasson was aged 38 at the time of sentencing and had a lengthy criminal record stretching back to 1990. It included drink driving offences, driving while disqualified, drug offences and stealing. She had received fines, supervised bonds, community service orders and imprisonment. She had been extended leniency pursuant to s.10 of the Crimes (Sentencing Procedure) Act. The judge was unable to find that she was either remorseful or contrite other than to the extent that her plea of guilty showed some contrition and had public utility. While Wasson did not have a powerful subjective case, the applicant did.
12. On the issue of due proportion the applicant has a justifiable sense of grievance. The sentence imposed does not reflect his strong subjective features.
13. At the time of sentencing Fenson had just turned 21. He spent his younger years exposed to domestic violence and at one stage was the victim of a schoolyard incident in which he was inappropriately fondled. He spent periods in youth refuges, a period with his father and a period with his grandmother. In 1991 he was an outpatient of Redbank and diagnosed as suffering from chronic low grade depression in conjunction with a specific developmental arrhythmic disorder. He continued to receive treatment and was continually monitored and assessed by various departments until about 1995. The judge said:
"Unfortunately his criminal record affords him no leniency whatsoever.
He has matters on his record for motor vehicle theft, stolen goods, driving offences, break and enter, assault police in the execution of duty, just to name a few. He too has been dealt with in variety of ways including imprisonment.
At the time he committed this offence he had not long been released from custody and had just finished serving a period of parole. He received a custodial sentence of six months in respect of the driving while disqualified at the time this offence was committed."
14. The judge noted that Fenson had sought a placement at the Benelong Haven Rehabilitation Centre. He told the judge he wanted to turn his life around; he had been able to find landscaping work. I agree with the judge that Fenson's role demonstrated a lesser level of criminality. However, he did not have the powerful subjective features which the applicant has.
15. It was important when dealing with the applicant that the importance of the relatively young age of the applicant and the need for rehabilitation be appreciated. The judge has made insufficient allowance for the relatively young age, his previous good character, the circumstances which led to his commission of the offence (the injury and the subsequent depression), the need for and good prospects of rehabilitation.
16. The head sentence of 2 years was, in the circumstances, manifestly excessive. This case would be properly dealt with by a sentence of imprisonment of 12 months and a non-parole period of 16 weeks. There are special circumstances. These include the young age of the applicant, this being his first time in custody and his need for and good prospects of rehabilitation.
17. Mr Jankowski, who appeared for Mr Lewis, pressed the Court to consider an order for imprisonment to be served by way of periodic detention. That would be an incorrect order.
18. I propose the following orders:
2 Sentence quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for 12 months commencing on 29 August 2003 with a non-parole period of 16 weeks expiring on 18 December 2003, on which date the applicant is to be released on parole.1. Leave to appeal against sentence granted. Appeal allowed.
19. HIDDEN J: I agree. The orders of the Court will be those proposed by Smart AJ.
Last Modified: 12/16/2003