R v Nastaly

[2000] NSWCCA 486

CITATION:	R v NASTALY [2000] NSWCCA 486
FILE NUMBER(S):	CCA 60104/00
HEARING DATE(S):	24/11/2000
JUDGMENT DATE:	24 November 2000
PARTIES :	REGINA v Kathleen NASTALY
JUDGMENT OF:	Barr J at 1; Carruthers AJ at 17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0584
LOWER COURT JUDICIAL OFFICER :	Blanch CJ DC

COUNSEL :	Crown: P Hock Applicant: M Thangaraj
SOLICITORS:	Crown: SE O'Connnor Applicant: DJ Humphreys
DECISION:	See para 16

IN THE COURT OF
CRIMINAL APPEAL

60104/00

BARR J
CARRUTHERS AJ

Friday, 24 November 2000

REGINA v Kathleen NASTALY

JUDGMENT

1   BARR J: Kathleen Nastaly seeks leave to appeal against sentences imposed in the District Court. She pleaded guilty in the Local Court to one count of robbery in company and was committed to the District Court for sentence.

2   Noting that there had been one month’s pre-sentence custody, the Chief Judge, Blanch J, sentenced her to imprisonment for three years eleven months comprising a minimum term of one year two months and an additional term of two years nine months.

3   On 23 April 1999, the applicant and a man called Alan Docherty, both drug addicts, went up to a young man in Belmore Park, Sydney, and engaged his attention on some pretext. Docherty was armed with a screwdriver. He took hold of the young man by the neck and tried repeatedly to stab him with the screwdriver. As the young man struggled to try to keep him off, the applicant took his wallet. The pair stole $500 from the wallet and ran away. The young man suffered minor lacerations, probably as a result of a couple of punches landed on him by Docherty.

4   By the time his Honour came to sentence the applicant, Docherty had already been sentenced by another Judge. Docherty also pleaded guilty and, on 21 January 2000, Judge Bellear sentenced him on the same facts and, allowing for one month’s pre-sentence custody, to imprisonment for three years six months comprising a minimum term of one year five months and an additional term of two years one month.

5   Docherty had a worse record than the applicant. He was the leader. He was on parole. As Blanch J observed, the sentence imposed upon Docherty was inadequate.

6   His Honour inquired whether the Crown had appealed against the sentence. In due course, the solicitor representing the Crown informed his Honour that the Crown had lodged an appeal. The sentencing proceedings continued on that assumption. In fact, his Honour was misinformed. The Crown had not lodged an appeal and has never appealed. Docherty’s sentence stands.

7   His Honour approached the matter cautiously, no doubt having in mind the uncertainty which accompanies a Crown appeal against sentence, and took some trouble to expose his thinking about the matter. He said that, but for the fact of Docherty’s sentence, he would have sentenced the applicant to an effective term of four years which would have produced a minimum term of one year five months, allowing for one month already spent in custody, and an additional term of two years six months.

8   For reasons of parity between the applicant and Docherty, however, his Honour would have reduced the sentence to an effective one of three years six months, comprising a minimum term of eleven months, allowing for the one month pre-sentence custody, and an additional term of two years six months. Instead, assuming success in the Crown appeal, his Honour sentenced the applicant to the effective four year term with the effective minimum term of one year three months against which she now seeks leave to appeal.

9   In this Court, the Crown concedes that his Honour was led into error by what he was told about a Crown appeal and submits that the applicant’s sentence should be quashed and that she should be re-sentenced. The Crown contends for the sentence which his Honour would have imposed if Docherty’s sentences stood, namely one of three years five months with a minimum term of eleven months.

10   The applicant contends for a shorter sentence, incorporating a minimum term which would see the applicant released straight away. Her existing sentence commenced on 6 February 2000 so what is in effect contended for is a minimum term of a little over nine months.

11   Evidence has been put before the Court about the progress of the applicant since sentence was imposed and, in the submission of Mr Thangaraj, counsel for the applicant, the rehabilitation demonstrated by that evidence to have taken place is the key to the proper approach to re-sentencing.

12   The evidence comprises an affidavit from the applicant herself and some formal documents in support of it which are annexed to the affidavit of her solicitor. They show that, during her time in custody, the applicant has put herself seriously to the task of changing her attitude towards drugs. She has completed a number of courses, is now clean of drugs, has re-established her self-esteem and intends to succeed. She has completed a hospitality course. Her parents visit her every weekend and she is looking forward to resuming her work in her father’s business at the end of her non-parole period.

13   It has to be said, however, that these matters were in a practical sense anticipated by the sentencing Judge. During his remarks on sentence, his Honour said this:

She was granted bail by the Supreme Court and she has been on bail since her release on 24 May 1999. She has been on a methadone programme and is in receipt of sixteen millilitres per day. She attends regularly for urine analysis and the pre-sentence report indicates that she has returned samples positive for heroin, benzodiazepine and amphetamines. It is abundantly clear then that the prisoner still has a lot of problems to address and accordingly there is no doubt that this is a case where special circumstances exist and she will need to have a significant period of supervision upon her release.

14   His Honour was well aware of the family support that the applicant was receiving and might expect to continue to receive, in view of the evidence given by the applicant’s mother.

15   Bearing in mind that the course of rehabilitation followed by the applicant cannot be said to be unexpected in view of the evidence that was before his Honour and bearing in mind that, in the circumstances which I have explained, the sentence incorporating a minimum term of eleven months was substantially lower than the applicant might otherwise have expected to receive, I do not think that the circumstances of the case call for any lesser sentence than the one his Honour would have imposed, assuming that Docherty’s sentence should stand.

16   I would make the following orders: Grant leave to appeal and allow the appeal. Quash the sentence appealed from and impose in lieu thereof a sentence of imprisonment of three years five months commencing on 16 February 2000 and expiring on 15 July 2003. Fix a non-parole period of eleven months which will expire on 15 January 2001. Declare that the applicant is entitled to release on parole on 15 January 2001.

17   CARRUTHERS AJ: I agree.

18   BARR J: The orders of the Court are as I have proposed.

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