R v Sainsbury

[2000] NSWCCA 496

CITATION:	R v Sainsbury [2000] NSWCCA 496
FILE NUMBER(S):	CCA 60444/00
HEARING DATE(S):	28 November 2000
JUDGMENT DATE:	28 November 2000
PARTIES :	Regina Leanne Marie Sainsbury (Appellant)
JUDGMENT OF:	Wood CJ at CL; Dunford J; Carruthers AJ

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/3348; 99/21/3048
LOWER COURT JUDICIAL OFFICER :	Ford DCJ

COUNSEL :	RA Hulme (Crown) AC Haesler (Appellant)
SOLICITORS:	SE O'Connor (Crown) Sydney Regional Aboriginal Corporation Legal Services (Appellant)
CATCHWORDS:	CRIMINAL LAW - sentencing - Crown appeal - use offensive instrument with intent to prevent apprehension - driving motor vehicle at policeman to avoid arrest - seriousness of offence
LEGISLATION CITED:	Criminal Appeal Act 1912, s 5D Crimes Act 1900, ss 33B, 112, 154A, 154AA
CASES CITED:	R v Hamilton (1993) 66 A Crim R 575 R v Hutchinson [2000] NSWCCA 113 R v Bazzi [1999] NSWCCA 346
DECISION:	Crown appeal upheld. Respondent re-sentenced.

IN THE COURT OF
CRIMINAL APPEAL

60444/00

WOOD CJ AT CL
DUNFORD J
CARRUTHERS J

TTuesday, 28 NOVEMBER 2000

R v Leanne Marie SAINSBURY
JUDGMENT

1 DUNFORD J. This is an appeal by the Director of Public Prosecutions pursuant to section 5D of the Criminal Appeal Act 1912 against the alleged inadequacy of sentences imposed by his Honour Acting Judge Ford QC in the District Court at Campbelltown on 9 June 2000 following the respondent's conviction after a jury trial on one count of larceny of a motor vehicle contrary to section 154A of the Crimes Act 1900, one count of stealing a motor vehicle contrary to section 154AA, two counts of break enter and steal and one count of using an offensive instrument with intent to prevent apprehension 9 June 2000. The respondent was ordered to perform 100 hours community service in respect of the offence of using an instrument with intent to prevent apprehension. The respondent was ordered to perform 100 hours community service in respect of each of the other 4 counts in the indictment, each of the sentences to be cumulative, making a total effective sentence of 200 hours community service. 2 I interpose here to say that the Department of Corrective Services appears to have taken the view that the total number of hours service to be performed was 100 hours, but this is clearly an error which the respondent has at all times acknowledged. His Honour's Remarks on Sentence are quite clear that the sentences were to be cumulative making a total of 200 hours. 3 The offence of larceny (s 154A) is punishable by a maximum penalty of 5 years imprisonment, that of stealing a motor vehicle contrary to s 154AA is punishable by a maximum penalty of 10 years imprisonment, break enter and steal (s 112) is punishable by a maximum penalty of 14 years imprisonment and the offence of using an offensive instrument with intent to avoid apprehension (s 33B) is punishable by a maximum penalty of 12 years imprisonment. 4 At about midday on 29 June 1998, the respondent, along with her then partner, Margaret Sanders, and two unidentified males, drove to the Woolworths carpark at Camden. The young child of Margaret Sanders accompanied them. They drove there in a Ford Falcon station-wagon which had been stolen the previous day by one of the males (count 1). At the carpark, one of the males stole a Ford Falcon station-wagon in the presence of the respondent (count 2). 5 The respondent then drove that vehicle to two homes in the suburb of Orangeville, near Camden, which were broken into by the group and from which a quantity of goods were stolen (counts 3 and 4). Both premises sustained damage due to the break-ins and the stolen goods were loaded by the group into the stolen Ford Falcon station-wagon. 6 The house alarm at the second premises broken into alerted police and a patrol car noticed the Ford Falcon station-wagon which, in the meantime, had been reported stolen by the owner. The respondent was driving. The police gave chase, but as they were in a caged vehicle, they were unable to keep up. 7 Other police vehicles joined the pursuit which continued for some 12 kilometres at speeds sometimes exceeding 130 km an hour. During the pursuit, the male passengers threw many of the large stolen items from the vehicle in an attempt to obstruct their pursuers. 8 At one stage the respondent lost control of the vehicle at a round-about, mounted the kerb and knocked over a fence before continuing on. This erratic and dangerous driving continued through traffic and numerous sets of traffic lights with up to 6 police vehicles following with their sirens and flashing lights activated. 9 Near an intersection in Claymore, the vehicle collided with another fence and came to a stop. At this point, Highway Patrol officers parked their vehicles around the Ford Falcon station-wagon so as to prevent it being driven further. The two males and Sanders quickly alighted from the vehicle and ran into a nearby reserve, one of the males taking the young child, leaving only the respondent behind. 10 At this stage, she reversed the station-wagon into a police vehicle and then she accelerated, veered to the left and drove straight at another police vehicle where a constable had one arm and one foot out of the car with the door three-quarters of the way open. 11 He was able to jump back into the vehicle, but his arm was still on the door, which was still open at the time and the Ford Falcon hit the police car. The acceleration of the stolen vehicle was such that its rear wheels were spinning. The force of the impact pushed the police vehicle a couple of feet sideways, caused the door to close and pushed the constable over to the passenger side, with the result he suffered soft tissue injury to his wrist and elbow and put his right arm out of use for two weeks. It also occasioned considerable damage to both vehicles. 12 At this stage, the respondent alighted and ran off before being arrested in a nearby reserve. Ms Sanders was also arrested, but the two males managed to escape. Ms Sanders was not subsequently charged owing to a lack of admissible evidence against her. 13 In an electronically recorded interview the respondent admitted to driving the Ford Station-wagon, but she claimed that the dishonesty offences were committed by her as a result of the duress directed at her by one of the males who she identified as Andrew Ingram. She said that the 2 males came to her home and forced her and Ms Sanders to accompany them and that, during the police pursuit, Ingram was threatening her with a knife and punching and hitting her as she drove the vehicle. 14 She alleged, in relation to hitting the police vehicle, that she missed the brake and put her foot on the accelerator instead. 15 The respondent did not give evidence at her trial, but relied on the account given in her record of interview. Ms Sanders gave evidence in the respondent's case along the lines of what the respondent had said in the record and Andrew Ingram gave evidence in the Crown case denying that he was present at all during the incident. 16 By convicting the appellant, the jury rejected her defences of duress to the dishonesty offences, and accident to the count of using an offensive instrument with intent to avoid apprehension. 17 The respondent was aged 27 years at the time of sentencing and had one previous conviction for larceny in October 1997, for which she had been fined $500. She was arrested on 29 June and spent one month in custody before being released on bail on 29 July 1998. 18 In R -v- Hamilton (1993) 66 A Crim R 575, in dealing with the seriousness of offences under s 33B, particularly where they involve the driving of vehicles in the direction of police officers, Gleeson CJ said, at p 581:

"I should make it clear that offences against s 33B which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension are regarded by the Court extremely seriously. It is incumbent upon the Court in dealing with offences of this nature to show an appropriate measure of support for police officers who undertake difficult, dangerous and usually thankless tasks."

19 In that case, where the appellant had been found guilty by a jury of the offence under s 33B and pleaded guilty to 2 other property offences and asked that 5 associated summary offences be taken into account, an effective total sentence of 4 years 1 month was imposed, including a minimum term of 2½ years, cumulative upon a 9 month fixed term. 20 The judgment provides no details of the subjective features apart from a reference to the Sentencing Judge having said that he regarded the appellants as warranting a degree of leniency and noting prospects of rehabilitation; see also R -v-Hutchinson [2000] NSWCCA 113, where a sentence of 4 ½ years, including 2 ½ years minimum term, following a plea of guilty at the commencement of the trial to an offence under section 33B, was undisturbed, but in that case the appellant had an extensive criminal and driving record and I refer also to the remarks of Smart AJ in R -v- Bazzi [1999] NSWCCA 346 at [11]:

"One of the objects of section 33B when it was introduced into the Crimes Act 1900 in 1989 was to provide protection to the police and others who lawfully detain those reasonably suspected of committing an offence."

21 In his Remarks on Sentence, his Honour, referring to the offence under s 33B, said:

"That of course is a serious offence, a very serious offence.
Ordinarily, these offences would be offences (which) would attract a custodial sentence",
but although R -v- Hamilton had been brought to his Honour's attention, he did not refer to it in terms, nor to any of the other cases.

22 To say an offence is "serious", or "very serious", is one thing, but his Honour failed to make reference to why this offence under s 33B was so serious, namely, the need to support police in carrying out their duties for the protection of the whole community. 23 In addition, in his Remarks on Sentence, his Honour failed to make any specific reference to the need for general deterrence. Although one might assume, as an experienced Judge, his Honour had the need for general deterrence in mind, in this case, he clearly allowed this consideration to be overlooked on account of the subjective features. It is, therefore, appropriate, that I turn to those subjective features. 24 The respondent was the elder of her mother's 2 children and grew up in the Liverpool area. Her mother's de facto relationship with the respondent's father broke up about 2 years after the respondent's birth. 25 Her mother then married about 2 years later and the marriage lasted for 7 years, after which her mother had a number of same sex and heterosexual short-term relationships, until she was murdered by her latest partner with whom she had recently broken up in 1986 when the respondent was 14 years old, and when she had returned to their former premises to recover her furniture. 26 She claims that she was sexually abused by a number of family members and such abuse, and the traumatic effect of her mother's murder, was confirmed to the Probation and Parole Service by her grandmother, and is noted in the Pre-Sentence Report. 27 The respondent then went to live with her grandmother but, having attended 4 different high schools and having completed her School Certificate, she left school part-way through Year 11 and at the same time left her grandmother's house, and lived on the streets for about 2 years, engaging in prostitution during that time although, during that period, she also had employment at McDonalds, the Pack and Saddle, and as a process worker at Rainfords. 28 She married in 1989 and there are 2 children, one of whom suffers from ADHD. The marriage broke up in 1997 and the respondent claims, and this is not disputed, that during the latter part of that relationship her husband became emotionally and physically abusive towards her, and the family was apparently subject to a lot of professional intervention because of the level of dysfunction. 29 When they separated, her husband obtained custody of 1 child and the respondent of the other, but she lost custody of that child shortly before the events giving rise to the present charges. 30 She then had an 18 month same sex relationship with the alleged co-offender, Sanders, who was also violent and unpredictable. The respondent had been using cannabis from age 12, until she stopped earlier this year, and she was also using heroin during 1997 and 1998, up to the time of her arrest; but she apparently dried out during the month in goal and has not used it since. 31 Apart from the employment already mentioned, she has also had a number of other positions, in particular, during 1999, after her arrest but before her trial, she worked at El Prima Italian Restaurant and received excellent work and personal references from her employer, who, in particular, noted that he had seen a change in her during the previous couple of months due to a change in her lifestyle. 32 Then, in February 2000, she commenced a two-year full-time diploma of business studies course at the Liverpool College of TAFE and there was before the Sentencing Judge a reference describing her as a regular attender, a good and attentive student whose tests and assignments were on time, and the teacher expressed the view that she would have no trouble in finding full-time employment of her choice after completing the course. 33 As already noted, the offences, particularly the offence under s 33B, were serious and the objective gravity of that offence and, to a lesser degree, of the others, in my view called for a full-time custodial sentence, and his Honour was in error in failing to impose such a sentence. 34 This was a case of a young woman who had had an unsettled, troubled and traumatic childhood and youth including sexual abuse and the murder of her mother at the age of 14 years. She had become involved with criminal associates and the use of illegal drugs which culminated in the commission of these offences which, with one exception, were her first offences. 35 Apart from 1 month in custody before being admitted to bail, she had never been in custody. She was not the instigator or principal of the offences and none of the other offenders had been prosecuted. She had severed her association with her criminal associates including the partner, Sanders, and had given up the use of heroin and cannabis. She had engaged in employment and was in the course of undertaking, with persistence and success, a TAFE course which would better equip her for full-time lawful employment. 36 This was not a case where the respondent or her psychologist were merely suggesting a desire for, or prospect of, rehabilitation. Rehabilitation was already under way and there was considerable force in the Sentencing Judge's Remarks that it would be extraordinarily unfortunate if she were to be put in goal where she could not complete that course which would lead to employment and open up a new and lawful chapter in her life. 37 These were, in the circumstances, proper considerations to be taken into account, but I nevertheless consider that the objective gravity of the offences, particularly the s 33B offence, called for a full-time custodial sentence, and this Court should intervene. 38 However, when this Court does intervene in Crown appeals, it has a wide discretion and it is necessary and appropriate to take into account the principle of double jeopardy, the delay that has necessarily occurred since she was first sentenced, and events which have happened in the meantime. 39 In the present case, the applicant has completed 100 hours of community service which the Department considers is all that is required. It was not, but she has already done an extra 16 hours and acknowledges that the order should have been for 200 hours. 40 An affidavit has been filed setting out her progress since then. The person in charge of the place where she has done the community service speaks highly of her performance, and this is of significance because he is a former police inspector and is aware of the offences she committed and therefore realises the importance of protecting police against such offences. 41 She has, in addition, given evidence for the Crown in a prosecution against one of the alleged co-offenders, Andrew Ingram, in proceedings in which he was convicted of 1 count of stealing a motor vehicle. This was not related to the offence in which she was involved, but in relation to another offence. It is still significant in that it indicates, or further demonstrates, a break with her former criminal associates. 42 She has served the month in goal before being admitted to bail to which I have already referred, and although she has discontinued the full-time course at TAFE, this is because she has been engaged in paid employment to pay off her debts. 43 Therefore, although, as I have already indicated, I consider the learned Sentencing Judge fell into error in not imposing a full-time custodial sentence of some severity for the offence under s 33B, I consider that the circumstances of this case are wholly exceptional and, having taken into account the principles of double jeopardy, the fact that she has completed 100 hours community service and done extra hours as well, that she has assisted police and the Crown in giving evidence against a former associate, the time served in custody before being admitted to bail, and the evidence of her continued rehabilitation, I consider that this is a case where it is not necessary or appropriate to impose a full-time custodial sentence at this time, and that a sentence to be served by way of periodic detention would be sufficient. 44 In relation to the 4 other offences, that is, the 2 offences involving the theft of motor vehicles and the 2 break enter and steals, I would propose that the Crown Appeal be dismissed and the 100 hours community service that she has already served be attributed to those offences. 45 In relation to the sentence of 100 hours community service for the offence under s 33B, I propose that the Crown appeal be allowed, the sentence quashed and in lieu thereof that the respondent be imprisoned for 18 months with a non-parole period of 12 months and that the sentence be served by way of periodic detention. Arrangements will have to be made to determine when and where she is to report. 46 WOOD CJ AT CL. I announce my agreement with the proposed orders and the reason for them announced by Dunford J. 47 CARRUTHERS. I also agree. 48 WOOD CJ AT CL. The sentence imposed below for the s 33B offence is quashed and in lieu thereof the respondent is sentenced to 18 months imprisonment with a non-parole period of 12 months, that sentence to be served by periodic detention and the respondent is directed to report to the Norma Parker Centre at Parramatta, to commence that sentence on 6 December next. 49 DUNFORD J. Otherwise, the appeal is dismissed in respect of the other sentences.

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