R v Thompson - [2000] NSWCCA 15

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Karen Ann THOMPSON [2000] NSWCCA 15

FILE NUMBER(S):
60411/99

HEARING DATE(S): 14/2/2000

JUDGMENT DATE: 14/02/2000

PARTIES:
Regina
Karen Ann Thompson

JUDGMENT OF: Sully J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/21/0108

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

COUNSEL:
L. M. Lamprati - Crown
Applicant - in person

SOLICITORS:
S. E. O'Connor - Crown
Applicant - in person

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60411/99

SULLY J
CARRUTHERS AJ

14 February 2000

REGINA v Karen Ann THOMPSON

JUDGMENT

SULLY J: Karen Ann Thompson applies for leave to appeal against a sentence which was imposed upon her by her Honour Karpin DCJ sitting in the District Court at Parramatta on 22 June 1999.
The applicant stood for sentence having pleaded guilty to a charge of assault and rob with an offensive weapon. Such an offence contravenes s 97(1) of the Crimes Act 1900 and it attracts upon conviction a statutory maximum penalty of penal servitude for twenty years. The sentence in fact passed upon the applicant was a sentence of penal servitude for four years, divided into a minimum term of eighteen months to run from 25 April 1999 to 24 October in the current year and an additional term of two and a half years to commence on 25 October of this year.
The facts can be shortly stated. On 25 April 1999 and in the early hours of that morning the applicant approached a certain taxi and the driver of that vehicle. She opened the driver's side door of the taxi. She presented in the direction of the driver a small folding knife which she was then holding and demanded money from him. She was, it would seem, waving the knife around. The driver got out of the cab and the prisoner said to him words to the effect that she was going to bite him and that she had AIDS. The taxi driver struggled with the applicant and sought assistance from a nearby hotel security guard. In the scrimmage which ensued the applicant kicked the victim in his left leg and managed to free herself, at least to some extent, dropping in the process the knife which she had been holding. She did not decamp, or so far as I can see from the evidence attempt to decamp. The police came, as it would seem, fairly promptly, the knife was located and the applicant was arrested.
The applicant contends that there is ample evidence to support the contention, - and the contention seems to have been accepted by the learned sentencing Judge, - that the offending behaviour that I have described was triggered by a combination of two things. One was the receipt in short order by the applicant of two extremely distressing pieces of information: one concerning one of her young children and the custody of that child: the other concerning the wholly unexpected, and fairly peremptory as it would seem, determination by her then de facto partner of that particular de facto relationship. Those emotional triggers had such an effect upon the applicant that she ingested drugs of various kinds and the effect upon her was such that she carried out the offence that I have described; and carried it out in a condition where she was obviously affected, and badly affected, by the drugs that she had ingested.
She was at the time five months pregnant; has since been delivered of her baby; and has in her present custody the complete custody and care of the baby.
The learned primary Judge, in very carefully drawn remarks on sentence, looked in every necessary detail at the subjective features of the applicant's case. There were plenty of those features; and some of them were, in purely human terms, very distressing, and apt to attract every proper sympathy. It is not necessary, I think, to go over them again in all their detail; but it is perhaps fair to observe in a general way that the applicant's past personal, social and family life has been in many ways a sad and deficient one.
When the applicant stood for sentence, she had a fairly extensive record. Some of the matters in it are of substance. The total effect of it was, to say the least, discouraging in terms of the picture of re-offending, and constant re-offending, that it showed. The learned sentencing Judge, as I understand her Honour's view of that material, treated it as having no very great accumulated weight, a view which, with great respect to her Honour, I would myself have thought was distinctly generous in approach.
There is no gainsaying that the sentencing task which her Honour faced was a difficult one. On the one hand, her Honour was constrained by the seriousness, in objective terms, of what had been done. Her Honour was fixed with the repeated exhortations of the Court of Criminal Appeal to primary sentencing Judges to treat an offence of the present kind for what it is: a serious breach of the criminal law, denominated as such by Parliament, seen as such by the Courts, and always to be punished on that objective footing. Her Honour had, on the other hand, the cumulative effect of the subjective matters to which I have, albeit briefly, referred.
The balance that her Honour struck was, on the material before her and in my respectful opinion, well within the range of what was open to her Honour in the circumstances. Her Honour found, and in my respectful view was manifestly correct in finding, special circumstances, so as to enable her Honour to apportion the total sentence in the way that she did.
The attack now made upon the sentence, as thus passed by her Honour, takes a number of forms.
The applicant complains that she was sentenced in a way that reflected the guideline judgment of the Court in Henry, when the fact is that she had offended at a time prior to the publishing of that guideline judgment. The applicant has the view, if I have followed her submission, that prior to the publishing of the guideline judgment in Henry the established regime of sentencing for offences of the kind here in question was such that she could, and would, have been sentenced more leniently than was in fact done. That is, in my view, a misapprehension. It is a misapprehension upon two counts. First, the fact of the matter is that when Karpin DCJ came to sentence, she was required to take into account the guidance given to primary sentencing Courts in Henry. Secondly, even had that not been the case, it does not seem to me at all to follow that an offence of the kind that I have described, even given the subjective matters to which I have referred, would necessarily have attracted a sentence more lenient than the one imposed.
The second point of attack has to do with the applicant's plea of guilty. The applicant contends, correctly, that she was entitled to some proper consideration in terms of leniency for the fact of that plea, and for the saving to the prosecuting authorities of time and cost. Some written points of argument put in by the applicant propound bluntly that the time normally allowed in that respect is, as she puts it "automatically one-third off". It is not surprising, if I may say so, that the applicant, who is unrepresented and who therefore has to deal with her present application with all the disadvantages that flow from a lack of legal representation, would be labouring under that particular misapprehension. Not a few of the counsel and solicitors who plead before the Court of Criminal Appeal are obviously under a similar misapprehension as to the availability of automatic, and automatically quantified, discounts for such things as a plea of guilty. I say again: the applicant was certainly entitled to some proper consideration for her plea; but I think that the remarks on sentence sufficiently warrant the view that the primary Judge did in fact apply her Honour's mind carefully and correctly to that particular matter.
The third point made by the applicant is that she should have been given the opportunity of passing into the care and control of the recently established Drug Court. It is the applicant's understanding that she satisfies the requisite guidelines in that behalf. The fact is that she does not, by reason of the particular provisions of the Act that mark out the profile of the comparatively restricted class of offenders who will be considered for the Drug Court program.
The balance of the attack made by the applicant comes I think to this. Since her present imprisonment commenced, she has made genuine and it would seem significantly successful, attempts to rehabilitate herself. She appears to have been able to come to grips, at least to some extent and in a real way, with her drug related problems. It is quite clear that she is devoted to the recently born baby, as indeed to all her children. That is a consideration that brings with it a proper measure of sympathetic consideration. It is to her credit, if I may say so without being in the slightest degree condescending, that since she went into prison in accordance with the sentence that she now challenges, she has made those attempts, and has made them in some measure successfully.
What I am about to say will not, I think, make a great deal of sense to an unrepresented layperson; but it is the case that, had this Court been able to discern some error in the sentencing process at first instance, so as to have become entitled to re-sentence the applicant for itself, then indeed, those matters that have occurred since the applicant went into her present custody would have been available for consideration. But before that point is reached it is necessary for any applicant for leave to appeal to demonstrate error in what has occurred in the primary sentencing Court. I do not think, for my own part, that the applicant has been able to do that in respect of the sentence imposed upon her by Karpin DCJ. For those reasons I would grant leave to appeal but I would dismiss the substantive appeal.
CARRUTHERS JA: I agree.
SULLY J: The orders of the Court will be as I have announced them.

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LAST UPDATED: 22/02/2000