Regina v Allison
[2004] NSWCCA 11
•6 February 2004
CITATION: REGINA v. ALLISON [2004] NSWCCA 11 HEARING DATE(S): Friday 6 Februray 2004 JUDGMENT DATE:
6 February 2004JUDGMENT OF: Dunford J at 1/31; Greg James J at 2 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: Criminal law - leave to appeal against sentence - multiple offences - whether sentences excessive - concurrency - parity - no question of principle LEGISLATION CITED: Crimes Act 1900 CASES CITED: N/A PARTIES :
REGINA v.
ALLISON, Lorraine RachelFILE NUMBER(S): CCA No. 60310/03 COUNSEL: Crown: D.C. Frearson
App: In personSOLICITORS: Crown: C.K. Smith
App: In person
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/1123; 02/21/3367 LOWER COURT
JUDICIAL OFFICER :Morgan, DCJ.
No. 60310 of 2003
FRIDAY 6 FEBRUARY 2004DUNFORD, J.
GREG JAMES, J.
1 DUNFORD J: I ask Greg James J to give the first judgment.
2 GREG JAMES J: This is an application for leave to appeal against sentence. In the notice of application for leave to appeal against sentence the applicant referred to the sentences which she wished to appeal against, as including a sentence imposed for the offence of break and enter with intent and for the offences of assault with intent to rob whilst in company. She had, on 14 February 2003, been sentenced in the Penrith District Court by her Honour Morgan, DCJ. on her plea of guilty to sentences in respect of the offence of break and enter a warehouse of Watsilla NSD Australia Pty. Limited with intent to steal, a crime under s.113 of the Crimes Act 1900, and the offence of assault with intent to rob, the aggravating circumstance of which was being in company, an offence under s.97(1) of the Crimes Act 1900. The latter offence is punishable by a maximum penalty of 20 years imprisonment.
3 Her Honour also took into account two offences on a Form 1, the first being the offence of detain for advantage under s.90A of the Crimes Act 1900, punishable in the form of the offence, which is not the aggravated form, by a maximum term of imprisonment of 14 years; and the offence of being carried in a conveyance taken without the consent of the owner, under s.154A(b) of the Crimes Act 1900, the maximum penalty for which is five years imprisonment. It was to these offences that the plea of guilty to which I have earlier referred related, that is to say in particular the plea was entered in relation to the assault with intent to rob offence. Her Honour took into account, with the prisoner’s consent, the additional offences to which I have referred.
4 The prisoner had been found guilty following a trial in October 2002 of the break and enter offence. This two groups of offences were unrelated.
5 The facts relating to the break and enter offence were set out by her Honour in her Honour’s remarks on sentence. On 8 June 2002 police were driving in a marked police vehicle along Huntingwood Drive, Huntingwood. As they passed industrial premises they saw the prisoner in the driveway of those premises. The police turned around and returned to the direction of number 48 and saw the offender run to a white coloured van, which was parked at the side of the premises. They entered the driveway and parked in front of the van. The offender started pushing the horn in the van. The police walked towards the van and then saw a male come from the building via a side window, which had a lower glass panel missing. That male got into the driver’s seat of the van and drove it into the front of the police car, the impact forcing the police vehicle back approximately half a metre.
6 The male driver then reversed the vehicle, drove around the police car, and travelled west along Huntingwood Drive followed by the police vehicle. At the intersection of Huntingwood Drive and Horsley Road, which is controlled by a roundabout, the van drove around the roundabout three times before driving north along Horsley Road towards the Great Western Highway.
7 Approximately 100 metres north of the roundabout the van stopped. The applicant got out and ran into a nearby paddock. The driver reversed the van at high speed into the front of the police vehicle causing more damage and drove off at high speed. The police could not follow because of damage caused to the front of their vehicle. They pursued the applicant into the paddock instead and arrested her a short time later. The applicant was taken back to the Blacktown police station.
8 When police went to the industrial premises at Huntingwood Drive they saw that the majority of the drawers within the office complex had been pulled out and items scattered about. An alarm had been pulled from the wiring and the pane of glass had been removed from the side window from which the male person had exited.
9 The applicant was spoken to by police but exercised her right to silence. The male co-offender had not been identified and arrested.
10 The trial judge concluded, in accordance with the verdict from the jury, that the applicant’s account that she had no knowledge at all of a break-in to the premises was to be rejected and that she plainly acting as a lookout for her co-offender who was stealing from the premises.
11 Following that conviction the matter was stood over for sentence to enable the charges of assault with intent to rob and associated offences to be brought forward before her Honour also.
12 The applicant had, in company with her daughter and son, been charged with the offence of assault with intent to rob, although the other persons were charged with other offences in addition. She pleaded guilty before Sides, DCJ. to the offence of assault with intent to rob and asked that sentence be considered with the matters on the Form 1 which she sought should be taken into account on sentence.
13 The facts in relation to that offence are that at about 1.00 pm on 6 October the victim was parked in his vehicle at Mount Pritchard waiting for his girlfriend to finish work. He was seated in the driver’s seat of his car with the front window open. This applicant together with Bronwyn Russell and Mitchell Russell, her son and daughter, walked toward the car. The daughter was wearing a bag with eye holes cut out on her head and in her right hand she was carrying a knife. She pointed the knife at the victim and told him to move over. She climbed into the driver’s seat. The applicant took a seat in the back seat behind the driver with her son in the seat beside her. The car was driven towards Cabramatta. The victim’s girlfriend saw the vehicle leaving and had seen the three people get into her boyfriend’s car. She, with the assistance of a bystander and the use of his car pursued the vehicle.
14 During the drive the driver, the present applicant’s daughter, felt that she could not see very well because of the bag over her head and took it off although the applicant advised her against removing it. The son placed a knife near the left side of the victim’s face and told him that they were taking him to an ATM and that he should take out the maximum on his cards otherwise the son would stab him. The applicant said, “You’d better get us the money”.
15 As the vehicle approached the intersection of the Cumberland Highway and Cabramatta Road it collided with the rear of another vehicle stopped at the intersection. The vehicle stalled. The daughter asked the victim how to start the car. He offered to drive the car and take them wherever they wanted to go. The son put a knife to his throat and threatened him with it. The victim got out of the car and pretended to walk towards the driver’s side but fled to an adjacent BP service station. The daughter, however, managed to start the car, which sped off with the victim’s mobile telephone and wallet.
16 At about a quarter to two that day the applicant, her son and daughter entered the Goldmark jewellery store at Wetherill Park. They were recorded as doing so on shop security footage and attempted to utilise the credit cards of the victim to buy jewellery unsuccessfully. They were approached by a security guard at a nearby automatic teller machine and after a brief altercation the three went towards a car park. The applicant was picked up by her daughter but was arrested on 7 October. She was shown the security footage from the jewellery store, refused to be interviewed and refused a police line-up.
17 A number of witnesses were later shown an array of photographs that included that of the applicant and a number of other persons. It is sufficient to say that, although they identified her, they were not 100% positive in their identification.
18 The daughter had pleaded guilty before Sides, DCJ. to various offences, acknowledged her guilt of the offences on a Form 1 and was sentenced not only in respect of this matter but also for two charges of malicious wounding and a further charge of assault with intent to rob while armed with an offensive weapon. There were also further matters taken into account. In respect of the offence that the daughter had committed with this applicant a sentence of four years and three months with a non-parole period of two years was imposed but her overall sentence for all the matters on which she was sentenced by Sides, DCJ. was a sentence of six years with a non-parole period of three years.
19 At the time at which the applicant came forward for sentence her son had not then been dealt with and was due for trial.
20 Since one of the submissions made before us raises the question of the sentences imposed upon the daughter with the suggestion of a submission that some parity question might be raised I should turn to the information provided to us in the written submissions filed by the applicant, which were accompanied not only by a transcript of proceedings before the Parole Board, but also portions of a transcript of argument before the trial judge in the present matter and a letter from Mr Hails, solicitor, Prisoners Legal Aid Service, Legal Aid Commission, referring to the sentences imposed upon the daughter Bronwyn Russell and the son Mitchell Russell, apparently having had the extent of those sentences checked by reference to a computer print-out from the Department of Corrective Services.
21 Mitchell Russell’s sentence for the offence of assault with intent to rob whilst armed was a sentence of four years and three months with a two year non-parole period; for another offence of assault with intent to rob whilst armed a four year sentence cumulative on the non-parole period imposed in respect of the sentence I have referred to but also with a non-parole period of one year and, in addition, for two offences of malicious wounding he received a sentence of two years and six months fixed terms expiring on 6 April 2004. The end effect of all those sentences was that Mr. Russell was not entitled to be considered for parole until 6 October 2004. The sentences expire on 6 October 2007.
22 It becomes immediately apparent in respect of the sentences of both Bronwyn Russell and Mitchell Russell that the sentencing judge had applied the principle of totality, which requires that when sentencing for a multiplicity of offences although the appropriate sentence should be imposed for each offence attention should be given to making the sentences to some extent concurrent for the purposes of avoiding an overall sentence that exceeds the period that would otherwise be appropriate to be served for the overall criminality. That application of principle does not mean that it is appropriate in any given case, and particularly in light of this case, to translate from those sentences to the sentence the applicant had imposed upon her some parity requirement so that one might conclude she should have received less because her children had committed more offences so the sentence are such as to give rise to some justifiable sense of grievance on her part. I see no basis upon which she should have received shorter sentences for the crimes than were imposed upon her, notwithstanding that she submitted in her letter, which accompanied her notice of appeal dated 16 March that the sentence imposed upon her for the crime of assault with intent to rob and the other matters taken into account was too severe.
23 Having regard to the facts of that matter I am unable to see that any lesser sentence would have been appropriate.
24 The applicant has also raised in that letter that there should have been concurrency between the sentences imposed on the break, enter and steal charge with the sentence imposed on the other charges. It is apparent when the commencement date of the sentences for the assault with intent to rob is considered that the sentences were concurrent except for the period of six months. I do not see any error in this regard.
25 Further, she has contended that she was not given the appropriate discount for her plea of guilty in respect of the offences for which she was sentenced for assault with intent to rob yet it is apparent when reading the trial judge’s remarks on sentence that she received a discount of some 25%. I do not see there is any substance in that complaint.
26 The applicant also complained that the sentence was severe and was her first substantial sentence of full time custody. The applicant further complains it is a sentence under which she is undergoing some degree of hardship as she has, including the two co-accused, five children and two grandchildren who are finding her absence hard to cope with. At least her daughter Bronwyn and her son Mitchell are finding her absence hard to cope with but they are not at liberty.
27 The complaint also is that the first sentence should have been backdated, that is to say that the sentence on the charge of break, enter and steal for which she received 18 months imprisonment should have been backdated to commence earlier than 8 November 2001. In her written submissions dated 30 September 2003 and provided to us today, to which I have already referred, the applicant submitted that although she was imprisoned on 8 June 2001, the 18 month sentence not commencing until 8 November 2001, she has been deprived of the benefit of that period before the sentence was passed. With the documentation she has provided is a most confusing discussion before the Parole Board concerning revocation of periodic detention, to which she had been sentenced, and when one looks at the applicant’s prior record it can be seen that the recording may not have been precisely correct from time to time and that there has been a deal of confusion surrounding to what offences periods of custody should be made referable. That is of little moment here since, as the trial judge records in her remarks on sentence, having made an examination of the applicant’s immediately prior custodial record, whether correctly attributing that custody to one or other of her prior offence matters, both the Crown and Mr. Webb, who appeared for the applicant at the sentencing proceedings, had agreed that the most appropriate sentencing date for the commencement date to custody in relation to the offence of break, enter and steal was 8 November 2001. I do not see that it is now appropriate to reconsider that commencement date in those circumstances.
28 I have therefore concluded that notwithstanding the matters raised by the applicant there is no substance in the submissions she has put nor do I see any error in the sentences imposed by the learned trial judge. Indeed, as I have said in relation to the offence of assault with intent to rob in company, I do not see that any lesser sentence could have been imposed.
29 I point out that this was a very serious crime indeed, obviously committed with pre-planning, involving an intent to terrify the victim, to use a weapon and that the offence had been committed in company. It was an offence with a deal of seriousness and one could well consider that in the sentence the trial judge imposed the applicant was treated leniently.
30 In my view the application for leave to appeal should be granted since the matter has been fully argued but the appeal dismissed.
31 DUNFORD, J: I agree. The orders of the court will be: application for leave to appeal granted; appeal dismissed.
Last Modified: 02/18/2004
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