R v McLennan

[2000] NSWCCA 407

CITATION:	R v McLennan [2000] NSWCCA 407
FILE NUMBER(S):	CCA 60135/2000
HEARING DATE(S):	4 October 2000
JUDGMENT DATE:	4 October 2000
PARTIES :	Crown/Respondent Linda M McLENNAN/applicant in person
JUDGMENT OF:	Simpson J at 1; Hidden J at 31

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0331
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	R A Hulme - Crown Applicant in person
SOLICITORS:	S E O'Connor - Crown
LEGISLATION CITED:	Crimes Act 1901
CASES CITED:	R v Pearce (1998) 194 CLR 610 R v Ponfield (1999) 48 NSWLR 327
DECISION:	Leave to appeal granted - appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60135/00

SIMPSON J
HIDDEN J

4 October 2000


REGINA v Linda Michelle McLENNAN

Judgment

SIMPSON J

1    The applicant seeks leave to appeal against a sentence imposed upon her in the District Court by Judge Nield on 7 March 2000, following her conviction by a jury on a single charge of break enter and seal. The applicant has abandoned an appeal against conviction. By s 112(1) of the Crimes Act 1901 the applicant became liable to a maximum penalty of imprisonment for fourteen years for the offence. Judge Nield sentenced her to imprisonment for two and a half years, made up of a minimum term of one year and an additional term of eighteen months. He specified that the sentence was to commence on 13 March 2000. This was because the applicant was in custody in relation to certain other offences for which she had been sentenced in the Local Court

2    In fact those Local Court sentences were also before Judge Nield on the same day, as the applicant had appealed against them to the District Court. The applicant had been convicted of sixty-six charges, sixty-five of them offences of dishonesty, being principally offences of obtaining benefits by deception, making or using false instruments, goods in custody and stealing. The magistrate imposed various custodial sentences to be served concurrently, the longest of which imposed in relation to two of the deception counts, was a fixed term of imprisonment for six months. On fifty-eight of the charges he sentenced the applicant to the rising of the court.

3    Judge Nield was critical of the procedure adopted by the magistrate in relation to those charges on which he sentenced the applicant to the rising of the court, but otherwise substantially upheld the sentences imposed. No appeal lies to this court from the decision of Judge Nield in this respect and, other than as explaining the sentencing commencement date, and as appears later in relation to one of the matters advanced by the applicant on appeal, these sentences are of no further materiality.

4    The offence the subject to the present proceedings was committed on 10 March 1998 and it is necessary to take a moment to explain the circumstances in which it was committed. Some time in January 1998 the applicant telephoned an acquaintance, Ms Roberta Gee. She ascertained that Ms Gee intended travelling overseas from the end of January for several weeks. Ms Gee had previously lived at 132B Mowbray Road, Willoughby. She and the applicant had worked together for a time in 1986 and had maintained their contact for some time after their joint employment came to an end. The applicant had visited Ms Gee at Mowbray Road. Subsequently after the two had lost contact, Ms Gee left the apartment but retained the telephone number at her new address. As a result, when the applicant rang Ms Gee in January, she in fact spoke to her at her new address, although the applicant did not realise that.

5    During the time that Ms Gee expected to be away from Sydney, the applicant went to the Mowbray Road flat. She telephoned a locksmith and identified herself as Roberta Gee and told him that her purse had been stolen and it had contained her keys. The locksmith asked a few questions about the interior layout of the flat, designed to confirm that she was the resident of the premises. These she was able to answer because of her previous visits. Having gained access the applicant then stole property belonging to the current occupant, Ms Julie Terry, who was a friend of Ms Gee. The value of the property stolen amounted to more than $21,000. None of it has been recovered. It includes some items of sentimental value.

6    The applicant's trial commenced in Gosford on 23 August 1999. The jury returned a verdict at about 12.15 the following day. Judge Nield continued the applicant's bail over the lunch break, intending to commence the sentencing proceedings at 2pm. During that time the applicant left Gosford on a train. She was not recaptured until 13 January 2000. This accounts for the long delay between conviction and sentence, but is of no other relevance for present purposes, except perhaps as an indication of an absence of contrition.

7    Sentencing proceedings resumed on 15 February 2000. The applicant gave evidence. Inter alia, she said that she accepted the verdict of the jury.

Subjective Circumstances

8    Apart from the applicant's evidence, the judge had before him a pre-sentence report and a psychological report. Together these disclosed the following: the applicant was born on 14 March 1959, she was a few days short of her 39th birthday at the time of the offence. She had no convictions until May 1999, when she was convicted of the dishonesty matters to which I have already referred. In essence, these offences were committed by the applicant's use of a credit card that did not belong to her and which she had stolen from a friend.

9    The applicant was brought up in a materially comfortable home. She lived with both parents and her three younger brothers. She perceives her family, especially her mother, as lacking warmth or affection. She has effectively no contact with her parents. All siblings, including the applicant, did well academically and professionally, but she retains contact with only one of her brothers, a school teacher. She has been married and divorced. She has undertaken university studies in health science, in which she has achieved excellent results, but a course which she has not yet completed.

10    She has had serious surgery to her back for scoliosis and has been granted a disability support pension. She continues to experience disability as a result of her back condition. Prior to the surgery she was successfully employed in management roles. She has used various illegal drugs, including heroin, marijuana and amphetamines. She suffers from hepatitis C and possibly has some live damage.

11    In her early thirties the applicant met and became involved with a man who, according to what she told the psychologist, suffered from paranoid schizophrenia and who abused her psychologically and emotionally. He had criminal contacts and threatened to kill her. He was subsequently incarcerated.

12    As a result of her successful employment the applicant had accumulated considerable assets, including a home unit and cash in the bank. These, it seems, she sacrificed under the influence of her partner. She blames the relationship for her sudden descent into crime at the age of 38.

13    Psychological testing showed her to be of above average intelligence with histrionic and compulsive behaviour patterns.

14    The applicant appeared unrepresented on the application. She has provided the court written submissions in support of her application and these she has supplemented by oral argument today. In essence, her grounds are:

(i) the sentencing judge erroneously took the applicant's age into account;
(ii) the sentencing judge erroneously omitted to consider a non-custodial option that was available;
(iii) the sentencing judge erroneously increased the sentence by reason of his dissatisfaction with the magistrate's approach to sentencing on the summary offences;
(iv) the sentencing judge took into account irrelevant circumstances or alternatively misunderstood the facts of the offence of break enter and steal;
(v) the sentencing judge failed to have adequate regard to the applicant's rehabilitation;
(vi) the sentencing judge gave undue weight to the issue of general deterrence;
(vii) the sentencing judge erroneously penalised the applicant for her plea of not guilty;
(viii) the sentencing judge erroneously had regard to a guideline judgment promulgated after the commission of the offence;
(ix) the sentencing judge failed to have regard to subjective circumstances advanced on behalf of the applicant.

I will deal with each of these in turn.

(i) Age

15    Judge Nield noted the applicant's age at the time of the offence and observed:

“She is not a juvenile experimenting with criminal behaviour, she was a middle aged woman who entered upon a planned criminal exercise and she executed that exercise to perfection.”

16    I read this passage as no more than explaining that the applicant is not entitled to the leniency that is sometimes extended to young offenders, because their immaturity renders their level of culpability less than would otherwise be the case. There is nothing wrong with this approach. If the applicant had presented to the sentencing judge as a first offender at the age of thirty-eight, she would have been entitled to recognition of her crime free life to that date. However, his Honour could not overlook the large number of earlier offences. He was dealing with an unusual situation. As he observed, a middle aged woman had, after a blameless life, entered into an episode of real and serious criminality. She did not receive additional benefit for her previous good character because that benefit had been consumed in sentencing for the summary offences. The applicant's age was relevant in the manner in which it was used.

(ii) Alternative Sentencing Options

17    Evidence was put before the judge that the applicant had been assessed as suitable to a rehabilitation programme conducted by the Salvation Army.

18    Although in his sentencing remarks the judge mentioned the applicant's drug abuse and made particular reference to both the pre-sentence report and the psychologist's report in this respect, he did not expressly refer to the non-custodial alternative sentence proposed. If it could realistically be said that a non-custodial sentence was an option in this case, the failure to refer to the Salvation Army letter would be of significance. But in the applicant’s circumstances, such an option was not realistic. As I have noted, the applicant came before the sentencing judge as a person with a large number of convictions for dishonesty in relation to the credit card offences. The circumstances in which she committed the present offence and the value of the property taken combined to make this an offence which called for a custodial sentence. The offences disclose a degree of planning of which his Honour was rightly conscious. I am, accordingly, satisfied that there was no error in the omission to record the availability of the rehabilitation centre.

(iii) Double Punishment

19 The applicant's argument is directed to remarks made by the sentencing judge in relation to the course taken by the magistrate. In strong terms his Honour criticised the magistrate for the manner in which he or she imposed only a nominal sentence in relation to a large number of the charges and concentrated the penalty on a selection of charges. I take this criticism to be related to the judgment of the High Court in R v Pearce (1998) 194 CLR 610, in which it was pointed out that courts should impose an appropriate sentence in relation to individual offences and then consider questions of concurrence or accumulation. What his Honour did in relation to these charges, as I understand it, was to make some minor adjustment to the sentences that had been imposed, but he did not extend or reduce the total custodial term to which the applicant was liable. As I have said, these sentences are relevant only in the context of the sentence for the break, enter and steel offence.

20    The question that is raised by the applicant is whether his Honour improperly increased the sentence in relation to the latter offence, because of his dissatisfaction with the way in which the magistrate had dealt with the summary matters.

21    I am unable to conclude that he did. Immediately after dealing with the appeals, his Honour proceeded to sentence the applicant in relation to the offence of which she had been convicted by the jury. There is no reason to conclude that that sentence was increased because of his view of the magistrate's approach.

(iv) Irrelevant Considerations

22    It is not easy to understand the ground of the application advanced in this respect. In the particular passage to which the applicant refers in her written submissions, his Honour set out briefly the circumstances of the offence. I have read the transcript of the trial and the brief summary contained in the remarks on sentence is an accurate enough reflection of the case put by the Crown. This was a very short trial and the evidence was in a very narrow compass. What his Honour did was to draw a parallel between the method used by the applicant to gain entry to Miss Terry's premises, with the method she had used in committing the summary offences. This was a relevant sentencing consideration

(v) Rehabilitation

23    The applicant complains that the judge gave inadequate weight to the evidence of rehabilitation. The judge set out, again in brief terms, the considerations relevant to rehabilitation and concluded that the applicant has good prospects of rehabilitation. Rehabilitation is of course only one aspect of the sentencing decision. It does not outweigh considerations of punishment and deterrence. In my opinion the sentencing judge adequately placed in the balance all matters relevant to rehabilitation.

(vi) General Deterrence

24    In this complaint the applicant submits that his Honour failed to give adequate weight to the fact that all offences were committed over a short period of time and were part of a six month episode of criminality. This was the ground of the application which initially caused me some concern when it was raised by the applicant during the course of her oral submissions. However, it is based on a false premise. The premise is that all offences, including the summary offences, were committed over a six month period of time and as a result of the disruptive relationship in which the applicant was involved. So much might be true, but the chronology shows the following.

25    This offence was committed on 10 March 1998. By that time the applicant had been arrested and charged on three separate occasions in relation to the Local Court matters. One may speculate that the three separate arrests and charge arose because new offences kept coming to light as a result of the applicant's use of the credit card. There was no evidence before this court as to the date of the commission of those offences, but the applicant had been charged and granted bail on no fewer than three occasions when she executed the break, enter and steal offence. As has been observed, it was carefully planned and could properly be described as cunning. This puts the claim to a single episode of criminality in a different light. The sentencing judge appropriately referred to general deterrence as well as specific deterrence to which he accorded less weight because of his view about the applicant's potential rehabilitation. Not only had the applicant been charged on three separate occasions with the other offences when she committed this offence, but she was also subject to three separate bail orders. Deterrence, both general and specific, was a relevant consideration and was given the appropriate weight.

(vii) The Plea of Not Guilty

26    The applicant contends that his Honour was in error in referring to her plea of guilty as evidence of lack of contrition. His Honour correctly observed that the applicant was entitled to enter a plea of not guilty and was not to be punished more severely for adopting that course or for the absence of any contrition. It is well established that a plea of guilty is entitled to recognition, both as evidence of contrition and for the practical benefit to the community which results from avoiding a trial. However, an offender is not to be further penalised for exercising the right for the Crown to prove its case. His Honour's statement in this respect was completely correct.

(viii) The Guideline Sentence in R v Ponfield

27 In my opinion the argument put by the applicant in this respect is misconceived. The argument put simply is that as the judgment in Ponfield (1999) 48 NSWLR 327 was published after she had committed this offence, it was not relevant to sentencing in her case. It was entirely appropriate for his Honour to have regard to any decision of this court, particularly a guideline judgment, whenever published. The fact that Ponfield postdated commission of the offence is of no relevance at all.

(ix) Impact of the Sentence on the Applicant

28    One of the matters advanced on behalf of the applicant to the sentencing judge concerned another aspect of her rehabilitation, that is, her intention to resume her university studies. This complaint has been repeated in this court. The complaint is that his Honour failed to have regard to the interference with those plans that will be brought about by the sentence imposed.

29    Unfortunately, plans for events postdating the commission of offences cannot be allowed to stand in the way of the proper criminal process. The applicant's planned resumption of university studies will have to be postponed to a time when they can be accommodated by the necessities of the criminal law.

30    This disposes of the various matters raised by the applicant. The sentencing judge properly took account of all relevant matters and properly balanced all those matters that were advanced in her favour with those that required the imposition of a full-time sentence. There is no error in the approach he took. I would grant leave to appeal, but dismiss the appeal.

31    HIDDEN J: I agree.

32    SIMPSON J: The order of the court will be that leave is granted to appeal, but the appeal is dismissed.

********