R v Pitt - [2004] NSWCCA 454

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v PITT [2004] NSWCCA 454

FILE NUMBER(S):
2004/2326

HEARING DATE(S): 5 October 2004

JUDGMENT DATE: 05/10/2004

PARTIES:
The Crown
Rachel Pitt (Appl)

JUDGMENT OF: McClellan AJA Grove J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/61/0202

LOWER COURT JUDICIAL OFFICER: Bell DCJ

COUNSEL:
G Rowling (Crown)
D Yehia (Appl)

SOLICITORS:
E Philpot (DPP)
S O'Connor (Legal Aid Commission of NSW)

CATCHWORDS:
CRIMINAL LAW:
appeal against sentence
break, enter and steal
co-offender
parity in sentencing
absence of Form 1 matters
lack of remorse
limited intellectual ability of co-offender

LEGISLATION CITED:
Crimes Act 1900 s 112(1)

DECISION:
Leave to appeal granted but appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2326
McCLELLAN AJA
GROVE J
JAMES J
TUESDAY, 5 OCTOBER 2004

REGINA v Rachel Teresa PITT

Judgment

McCLELLAN AJA: The applicant seeks leave to appeal against a sentence of eighteen months imprisonment with a non-parole period of nine months imposed by Bell DCJ on 5 May 2004 at Moree. The applicant had pleaded guilty, on indictment, to a charge of break ,enter and steal. This is an offence contrary to the provisions of s 112(1) of the Crimes Act 1900, which provides a maximum penalty of fourteen years imprisonment.
The offence occurred shortly after 6.30 pm on Saturday 16 November 2002. The applicant, together with a co-offender, Darren Bruce Caldwell, who was her partner, entered premises, they located an amount of cash totalling $14,230 in a sock drawer in one of the bedrooms. The applicant and the co-offender took the money, together with several cans of Tooheys beer and a packet of bacon.
Shortly after the offence, the applicant and her co-offender attended the premises of an acquaintance, Tony Gray. Gray drove the offenders to a bottle shop where they purchased a carton of bourbon and cola cans and a packet of cigarettes, totalling $60. Gray became suspicious as she considered it unusual that the applicant had money and she went to Casino police station and reported her dealings with the offenders.
Police attended the premises of the applicant and her co-offender. The applicant eventually gave the police permission to search the premises. Six pairs of men's socks and a packet of bacon were located in the lounge room. A sum of $13,800 was located in a coat worn by the applicant. Both offenders were taken to Lismore police station and charged.
The applicant entered into her bail on 18 November 2002. She was committed for trial on 18 February 2003. Apparently at the time of the committal proceedings, the applicant was facing a charge of aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900. The applicant failed to appear for arraignment and was subsequently apprehended pursuant to a warrant. She was given bail to appear at Dubbo District Court on 5 December 2003, whereupon she entered a plea of guilty to one count of break, enter and steal pursuant to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pitt

Details

AGLC: R v Pitt [2004] NSWCCA 454
Case: [2004] NSWCCA 454
Decision Date: 5 October 2004

CaseChat Overview and Summary

The appellant was convicted of breaking, entering, and stealing from a residence, together with his co-accused. The matter was heard in the Court of Appeal. The appellant sought to appeal his sentence, arguing it was excessive in comparison to his co-offender. The legal issues involved the principle of parity in sentencing, the absence of mitigating factors in the form of a Form 1 statement, and the limited intellectual ability of the co-accused. The court had to determine whether the disparity in sentences was justified and whether the absence of a Form 1 statement and the co-offender's intellectual limitations were factors that warranted a lesser sentence for the appellant.

The court examined the principles of parity in sentencing, recognising that while equal sentences for similar crimes are not mandatory, significant disparities may warrant scrutiny. The court noted that the appellant's co-offender had a Form 1 statement which highlighted intellectual limitations and a lack of remorse, which were factors that could have warranted a lesser sentence. However, the appellant did not present a Form 1 statement and did not display remorse. The court concluded that the sentencing judge had appropriately considered these factors and that the disparity in sentences was justified. The appellant's lack of remorse and absence of a Form 1 statement were critical in the sentencing decision, and the court found no error in the judge's approach.

The appeal was dismissed. The court affirmed the sentence imposed on the appellant, finding that the sentencing judge had appropriately balanced the principles of parity with the individual circumstances of the case. The appellant's lack of remorse and absence of a Form 1 statement were significant factors that justified the disparity in sentences between him and his co-offender. The court found no miscarriage of justice and upheld the original sentence.

Orders