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 112(1) of the Crimes Act 1900.
The applicant has a minor record with no matters of a similar kind. His Honour accepted that in light of the applicant's upbringing, her record "…was, if anything, one of slight importance and almost one of commendation."
The co-offender was sentenced by Ducker ADCJ on 21 May 2003 to a term of imprisonment of eighteen months with a non-parole period of nine months. When imposing the sentence, Ducker ADCJ took into account five matters on a Form 1, which were filed pursuant s 32(1) of the Crimes (Sentencing Procedure) Act 1999. The matters were:
1. Two counts of larceny pursuant to s 117 of the Crimes Act.
2.One count of disposing of stolen property pursuant to s 188(1) of the Crimes Act.
3.One count of receiving stolen property pursuant to s 189 of the Crimes Act.
4.One count of break, enter and steal pursuant to s 112(1) of the Crimes Act.
The co-offender had a criminal record which was more significant than that of the applicant. He had been convicted in 1999 of one count of break, enter and steal, which was dealt with by way of a s 558 recognisance. He also had a number of convictions for contravening an apprehended personal violence order and, on 27 January 2000, he was dealt with by way of imposition of a fixed term of twenty-three days imprisonment for matters of assault and contravening an apprehended personal violence order. It would seem these difficulties of the co-offender arose from the relationship he had with the applicant.
Two reports were tendered on behalf of the applicant during the sentence proceedings. The first was a pre-sentence report dated 20 January 2004. The second report was prepared by Cecilia Blackwell, a welfare worker and counsellor, dated 3 May 2004. The reports disclose that the applicant is of aboriginal descent and was aged thirty-one at the time of sentence. She was born into a family of thirteen children. Her mother died when the applicant was five years old. The cause of death appears to have been related to alcohol abuse. Her father was also prone to abusing alcohol. During her childhood, the applicant was subjected to violent beatings by her older siblings which, on occasion, resulted in her being hospitalised.
The applicant herself commenced drinking at the age of eighteen. Her use of alcohol escalated over the years. She endured violent personal relationships which caused her to further abuse alcohol. As a result of her increasing alcohol consumption, the Department of Community Services intervened to remove four children from her care.
At the time of sentence she had the sole care of her fifth child, a son aged twelve months. Since the birth of her fifth child, she had reduced her alcohol consumption and had hopes of resuming the care of her other four children.
As I have indicated, the sentence imposed by Bell DCJ on the applicant was the same as that imposed by Ducker ADCJ on the co-offender. The applicant submits that, in the circumstances, this was an error which should be corrected by this Court.
When considering the appropriate sentence to impose on the applicant, Bell DCJ carefully considered the Remarks on Sentence of Ducker ADCJ in relation to the co-offender. Although the co-offender is apparently a physically strong man, he has been found by a psychologist to be borderline mentally disabled. Ducker ADCJ accepted that his mental functioning "is at a very low ebb."
Having regard to this diminished level of mental functioning, it was submitted to Ducker ADCJ that the co-offender was under the intimidation of the applicant. While denying any possibility of physical intimidation, his Honour indicated that "it may be that the domination is mental, not physical." However, his Honour also expressed the conclusion that he was "in no position to say just how dominant Miss Pitt may have been."
Although Bell DCJ expressed the view that it was "a task verging upon the impossible for me to be able to analyse accurately and reliably which of the two persons was the prime move in the offence", his Honour clearly formed the view that the applicant was the dominant person in the relationship. His Honour also formed the view that Miss Pitt was a "very active participant in the commission of this offence."
Having determined that the applicant was probably not affected by alcohol at the time of the offence, his Honour turned to the matter of parity and concluded:
"It is my considered view that on the matter of parity, the degree to which Mr Caldwell received leniency at Judge Ducker's hands because of mental disability, is, in effect, nullified by the degree of active participation in the matter by Miss Pitt, which ultimately produces something of a balancing exercise resulting in, as Mr Balding has submitted, perhaps a neutrality finding and a finding of equal responsibility for the offence in respect of both people."
Later in his remarks on sentence, his Honour said:
"I repeat, I am treating the matter as one in which they are equally responsible for the commission of the offence."
His Honour then said:
"In coming to the view that the same penalty should be imposed upon Miss Pitt as upon Mr Caldwell, I take full cognisance of the fact that Mr Caldwell also had matters on a Form 1 schedule put before his Honour, and that he had a more extensive criminal record than Miss Pitt. But the matters to which I have made reference as to the degree of her involvement satisfy me that notwithstanding the principle of parity where Mr Caldwell may appear to be a more serious offender, Miss Pitt's engagement in this serious offence is such that she too should receive a sentence of 18 months after the discount for her plea, and that that too should be divided equally between the non-parole and parole periods in order to allow her to resume the maternal relationship under supervision of the Probation and Parole Service in order to ensure her small child has the availability of his mother's care."
As I indicated earlier, the applicant submits that Bell DCJ erred by imposing the same sentence on the applicant as was imposed on the co-offender. The submission is founded upon the fact that Ducker ADCJ, when sentencing the co-offender, was required to have regard to the matters on the Form 1. The offences on the Form 1 were described by Ducker ADCJ as "not trivial crimes."
Accordingly, it is submitted that the absence of Form 1 matters in the case of the applicant meant that her overall criminality was less than that of her co-offender. In those circumstances it is submitted his Honour erred in concluding that the same sentence should be imposed upon the applicant as was imposed upon her co-offender. It is submitted that this error was compounded by his Honour's failure to give appropriate weight to the applicant's relatively minor record as compared with the more extensive antecedents of her co-offender.
These factors, it is submitted, placed the matter in a category where there was a basis for a proper degree of disparity, which is not obvious in the sentence outcome (R v Leonard [2000] NSWCCA 28).
The applicant further submits that any suggestion that to have imposed a lesser sentence on the applicant would have been to impose a manifestly inadequate sentence upon her, is also erroneous. Although it is accepted that it is unclear whether his Honour concluded that the sentence imposed on the co-offender was manifestly inadequate, it is submitted that, having regard to the available statistics, such a conclusion would not have been appropriate. Even if the Court considers the co-offender's sentence to be light, it is submitted that the principle of parity will still apply (R v Joseph Anderson NSWCCA, 25 March 1993, unreported).
Notwithstanding the care which the applicant's case has been presented to the Court, I am not persuaded that the sentence imposed by Bell DCJ was such that the Court should intervene. In coming to this conclusion, I am mindful of the serious nature of the offence, which carries a maximum penalty of fourteen years. Although it was almost all recovered, the amount of money taken was substantial (see R v Ponfield (1999) 48 NSWLR 327 at 337). In the circumstances of this offence, a custodial sentence was clearly appropriate.
With respect to matters of parity between the applicant and the co-offender, although the co-offender obviously possessed greater physical strength, the applicant was intellectually superior and the dominant personality in the relationship. When sentencing the co-offender, Ducker ADCJ was entitled to have regard to his limited intellectual ability, which diminished the need to consider matters of general deterrence (R v Wright (1997) 93 A Crim R 48 at 50-51), and the fact that he would find custody more difficult.
Furthermore, the co-offender pleaded guilty on arraignment whereas the applicant had absconded. Bell DCJ expressly declined to find the applicant was remorseful - a significant matter when imposing sentence.
I accept that the matters on the co-offender's Form 1 increased the degree of criminality to which Ducker ADCJ was required to have regard. However, when sentencing the applicant, Bell DCJ was required to fix a sentence which reflected the serious nature of the offence and the need for general deterrence (see R v Simpson (2001) 53 NSWLR 704 at 718).
The jurisdiction of the Court to intervene to correct any disparity of sentence imposed upon co-offenders was authoritatively discussed by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 610-611:
"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
His Honour considered the role of an appellate court in the process and concluded that (at CLR 613-614):
"… a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."
Dawson J expressed the law in the following terms (at CLR 623-624):
"… the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done."
In the present case, I am not satisfied, having regard to the considerations relevant to the sentence which it was appropriate to impose on each offender, that the applicant's sentence was such that it could be concluded that justice was not done. Furthermore, this Court is bound by s 6(3) of the Criminal Appeal Act 1912, of which the Chief Justice said in R v Simpson (2001) 53 NSWLR 704 at 720-721:
"By s 6(3) this Court must form a positive opinion that some other sentence … is warranted in law and should have been passed. Unless such an opinion is formed, the essential pre-condition for the exercise of the power 'to quash the sentence and pass such other sentence in substitution therefor' is not satisfied."
I would grant leave to appeal but dismiss the appeal.
GROVE J: I agree with the orders proposed by Justice McClellan and the reasons which he has given.
JAMES J: I also agree.
McCLELLAN AJA: The orders of the Court will be as I have indicated.

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LAST UPDATED: 16/07/2007