Regina v Lestrange

[2001] NSWCCA 25

CITATION:	Regina v Lestrange [2001] NSWCCA 25
FILE NUMBER(S):	CCA 60805/99
HEARING DATE(S):	14/02/01
JUDGMENT DATE:	14 February 2001
PARTIES :	Regina v David Lestrange
JUDGMENT OF:	James J at 46; Whealy J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/0160; 97/21/0283
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

COUNSEL :	M. C. Marien - Crown Applicant in Person
SOLICITORS:	S. E. O'Connor - DPP
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Bailey (1988) 35 A Crim R 459 at 468 R v Smith (1987) 44 SASR 587 at 589 R v Peuna (Badgery-Parker J, NSWCCA 23 July 1992 unreported) R v L (NSWCCA 17 July 1996 unreported) Lowe v The Queen (1984) 154 CLR 606 Phelan v The Queen (1993) 66 A Crim R 446 at 449-450 Sellen v R (1991) 57 A Crim R 313 R v Henry (1999) 46 NSWLR 346 R v Vachalec (1981) 1 NSWLR 351, per Street CJ at 353-4 R v Martin (1990) 47 A Crim 168 R v Yousseff (CCA, unreported 4 September 1991) Sellan v The Queen (1991) 57 A Crim R 313 R v Henry (1999) 46 NSWLR 346
DECISION:	Leave to appeal granted. Appeal dismissed

IN THE COURT

OF CRIMINAL APPEAL

60805/99



JAMES J
WHEALY J


WEDNESDAY 14 February 2001


REGINA V David LESTRANGE


JUDGMENT

1    JAMES J: The Court is able to give an immediate decision. I call on Whealy J to give the first decision.

2    WHEALY J: The applicant, Mr Lestrange, was found guilty by a jury of robbery while in company (Crimes Act s 97(1)). The verdict was given on 6 July 1999. The facts may be very shortly stated. At 6.20pm on 23 December 1996 the applicant, with other persons, went to the Wareemba Liquorland store, Wareemba. There they accosted the victim and witnesses with a tyre lever. They demanded they lie on the floor whilst the store safe and cash register were pilfered. The applicant, with the other persons, then ransacked the cigarette cabinet, taking a quantity of cigarettes. They then left the store and were seen to enter a confirmed stolen motor vehicle and left the area.

3    The applicant appeared for himself, in the ultimate, when he came before Christie DCJ for sentence in the District Court on 3 December 1999. His Honour also dealt with three other matters where the applicant had on 13 August 1999 pleaded guilty. These were:

1. A count of aggravated robbery at Earlwood Post Office on 27 December 1996;

2. A count of robbery in company of one Sylvia Randall on 14 May 1998;

3. One count of robbery at the National Bank, Balmain on 14 May 1998, involving an amount of approximately $23,350.

4    There were also before his Honour a number of offences which were contained in a Form 1 document, and his Honour took those into account. There is no need to set those out in detail as they were set out in full in his Honour's judgment, but they related in the main, to a number of offences in May 1998, being robberies and associated matters. There was also an earlier aggravated robbery at Earlwood on 27 December 1996.

5    The robbery in company at the National Bank was committed while the applicant was on bail, and during the period of an additional term, while he was at liberty. The Wareemba offence was committed only a matter of days after his release from custody, after serving a two year sentence for larceny of a motor vehicle.

6    The applicant gave evidence before Christie DCJ and there was other evidence available as well. The applicant's evidence showed, as his Honour accepted, that the prisoner had suffered a very serious stroke while he was at large on bail. This apparently occurred, according to the chronology I have prepared, in October or November 1997. It seems therefore that the applicant committed the offences to which I have made reference in May 1998, while he was afflicted by the disability of a stroke.

7    The applicant's evidence was that he had two daughters. His mother was, herself, a foster child and had apparently suffered difficulties in her young life. The applicant grew up in Newtown. He never knew his father. His mother had become a heroin addict. He had spent a lot of time in boys homes and, after turning eighteen, experienced a number of periods of imprisonment. He described himself as living a life of self-destruction.

8    He made reference to his partner Tanya and to his new daughter, a relationship which obviously gave him great satisfaction and pleasure. He did have an older daughter aged at that time about seven, but had not seen her for some time.

9    A specific matter that the applicant put to the sentencing judge was that he wanted and was unable to receive adequately, he said, while in custody, physiotherapy and related treatment in relation to the physical and mental handicaps he was suffering as a stroke victim. I should interrupt to say that, as I understand it, the stroke was occasioned as a result of a drug overdose when it occurred. The applicant demonstrated that he was paralysed down one side and had restricted movements with his right hand, which made a number of ordinary physical manoeuvres such as tying up his shoelaces, difficult.

10    The applicant, as he acknowledged in his written submissions before this Court, had an absolutely appalling record. His Honour described it in this way:

"He has numerous previous convictions going right back to the Children's Court days. He has accumulated a very large number of convictions of various kinds involving stealing of motor vehicles, break enter and steal, various driving offences of different kinds, escape from lawful custody, malicious damage, larceny, illegal use of conveyance, driving in a manner dangerous, stealing motor vehicles, et cetera."

11    His Honour described the record in the ultimate as follows:

"His record is atrocious for a person only having been born in April 1974. I have seen worse, but not much."

12    After the spree of crimes in May 1998, which were committed some months after the applicant's stroke as I have said, he was returned to custody. This happened, as I read the papers, on 22 May 1998. In relation to the sentencing judge's assessment of the overall assessment of criminality involved in all of the offences with which he had to deal, his Honour said quite correctly that the type of crimes committed by Mr Lestrange should be discouraged, and other like minded citizens must be discouraged and "the element of general deterrence is particularly important in the very prevalent crime of robbery".

13    The sentencing judge then turned to set out the subjective matters relevant to the applicant's situation. He took into account his plea where appropriate, and his very serious physical condition. His Honour noted that it was obvious to him, from examining the applicant in the courtroom, that he was very seriously disabled and that any time he would spend in custody within the custodial system would be more difficult for him than for a person without the disability.

14    He referred to the fact that the applicant had complained about the lack of assistance and treatment he was receiving within the system and he noted that the applicant had been the subject of some remarks by Barr J before he refused the prisoner bail. In particular, he noted the remarks made by Barr J in giving a direction which requested the authorities to provide or make available to the applicant particular forms of treatment, including physiotherapy.

15    His Honour noted that the applicant's de facto partner had her mother in court and the mother had given evidence. The consequence of this was that his Honour also made a recommendation because he was of the view the sentence he was about to impose would be onerous enough without the applicant having to serve it without the assistance of whatever treatment that could be afforded him within the custodial system.

16    I should add his Honour had before him, and referred to in general terms, written material from the applicant. I note that this material included a report from Dr Westmore dated 29 July 1999, and also a report from a psychologist, Elizabeth Kusch. This Court has had the opportunity of reading in full that material.

17    The sentences imposed by his Honour were, in relation to the Wareemba offence, the imposition of a sentence of six years penal servitude with a minimum term of four and a half years and an additional term of one and a half years. This sentence was imposed in relation to the matter in respect of which the jury had returned a verdict of guilty. This sentence was backdated to 24 August 1997 to reflect the time during which he had been in custody.

18    His Honour specifically said concerning this sentence that were it not for the situation of the applicant’s health, he would have imposed a sentence of some nine years penal servitude. In relation to the first matter, to which the applicant had pleaded guilty before another judge on 13 August 1999, that is the aggravated robbery with wounding at Earlwood, which had occurred on 27 December 1996, his Honour sentenced him to nine years penal servitude with a minimum term of seven years and a two year additional term.

19    His Honour specifically said that if the applicant had been in satisfactory health and not entitled to some discount by reason of the serious nature of his health, he would have been prepared to impose a sentence of something in the order of twelve years. That sentence was also backdated to take into account the time the applicant had been in custody, and was made concurrent with the previous sentence to which I have referred.

20    The next matter his Honour dealt with was the robbery from Sylvia Randall on 14 May 1998. His Honour noted that that was an offence committed while the applicant was on bail and during the course of an additional term. It was, he said, an extremely aggravating factor. His Honour imposed a sentence of nine years with a minimum term of seven years, and an additional term of two years. His Honour specifically said that, given normal health, and absent the plea of guilty, he would have sentenced the applicant to a term of penal servitude for twelve years for this offence. His Honour backdated the commencement of the sentence and he made it partially concurrent with the earlier sentences.

21    The third count contained within the indictment, in respect of which a plea had been entered in August 1999, related to the robbery in company at Balmain of the National Bank of $23,350. At that point in the sentencing process, his Honour also took into account the various matters on Form 1, which he set out in detail. There were ten such matters. His Honour said, in relation to the bank robbery, that he was of the view that this was the most serious crime the applicant had committed, and it was, he repeated, committed while the applicant was on bail and subject to an additional term.

22    His Honour imposed a sentence in this matter, taking into account additionally the matters on the Form 1, by fixing a cumulative term. This was for a fixed term of imprisonment of nine months. That had this effect, that the prisoner, having regard to all of the sentences, was not eligible for parole until 23 February 2006. It is apparent that, having regard to those sentences, the applicant has a considerable number of years to serve in custody. It must be recognised, however, that there was allowed a substantial discount for the serious nature of the applicant's health, recognition of his disabilities and consequent difficulties in custody.

23    The applicant has provided this Court with a very extensive range of written submissions. I have read those submissions carefully and considered them. In addition, today an extra written submission was provided to us, to the essential effect of repeating, perhaps, submissions earlier made, that the applicant's physical condition warranted intervention by this Court arising out of his physical condition, disabilities and the need for treatment.

24    He has also provided the Court with certificates of attainment following the courses he has successfully finished while he has been in custody, and has also provided the Court with material of general interest relating to the treatment of people imprisoned with general disabilities such as strokes. I have had regard to that material as well.

25    The applicant continues to complain that he is not receiving adequate treatment while in gaol. The thrust of the applicant's submissions may be dealt with under a number of headings. The first is that the sentencing judge failed to take into account the applicant's mental and physical disabilities, or failed to give sufficient weight to them. The principles in relation to those matters are set out in the following authorities, amongst others, Bailey (1988) 35 A Crim R 459 at 468; R v Smith (1987) 44 SASR 587 at 589, in a passage that is often cited; R v Peuna (Badgery-Parker J, NSWCCA 23 July 1992 unreported); R v L (NSWCCA 17 July 1996 unreported).

26    The passage from Bailey is a short one and I propose to refer to it briefly. Lee J, at the bottom of page 462 and top of page 463, said that he agreed with what had been said in an earlier authority of King and Smith JJ at page 589, which his Honour cited:

“Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a greatly adverse effect on the offender’s health.”

27    His Honour continued:

"Of course I would stress that the provision of proper medical attention to the appellant is the responsibility of the prison authorities and this Court will not interfere in that regard: Vachalec [1981] 1 NSWLR 351."

28    In Peuna Badgery-Parker J said at page 4:

"The respondent's medical condition is undoubtedly serious and his Honour was entitled to take it into account not only in relation to such effect as it might have by way of mitigation of criminality, but also as attracting leniency to the extent that it would make a prison term more onerous for the respondent than for a healthy prisoner. The relevant principles have been discussed in a number of decisions of this Court - see for example, Regina v Bailey (1988) 35 A Crim R 458, R v Martin (1990) 47 A Crim 168, R v Yousseff (CCA, unreported 4 September 1991) (which was in fact a case of epilepsy). The fundamental position is that the provision of proper medical attention to a prisoner is the responsibility of the prison authorities. However, in the case where a prisoner suffers from some illness or disability of such nature as to make more onerous the sentence which he must serve, that is a matter which can be taken into account in mitigation".

29    Finally, in R v L the Court said at page 6:

"The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require. It is the responsibility of the executive to provide for the care and treatment of its prisoners: R v Vachalec (1981) 1 NSWLR 351, per Street CJ at 353-4."

30    In my opinion the sentencing judge made a very significant allowance in favour of the applicant; Far from being ignored, his condition, invoked considerable leniency on the part of his Honour. It could not be said his Honour erred in this regard.

31    The second matter, argued by the applicant is based on his dissatisfaction with his treatment while in custody. I have already set out the principles which are relevant (Bailey and Vachalec) that is proper medical attention is the responsibility of the prison authorities and not of this Court.

32    Christie DCJ recognised this and he made a recommendation at the time he passed sentence on the applicant. Barr J, in granting bail as I have said, also directed that a copy of his judgment be sent to the Governor of the prison where the applicant was being held and his Honour made a request in these terms:

"Those who have the care of the applicant are to ensure that all appropriate steps are taken to provide the applicant with proper treatment for his condition and, in particular, if facilities are available for the application of physiotherapy in relation to the prisoner. If transport is required to and from any place for physiotherapy treatment, that transport should be provided."

33    For my part I can only echo the sentiments which underlie both the recommendations made by Christie DCJ and Barr J to which I have made reference. I would similarly recommend in the strongest possible terms that those who have the care of the applicant should provide for him all appropriate steps and treatment for his condition and, if physiotherapy can only be provided outside the prison, that it should be so provided. I would ask that those representing the Crown do their best to ensure the recommendations made by this Court are conveyed to the relevant authorities.

34    The next matter raised in the written submissions was the argument that the sentence offended the parity principle. This is the principle stated in the well known decision of Lowe v The Queen (1984) 154 CLR 606, especially at 609. The respective positions of the applicant and the co-offender, Lario Ratuvou, were not, in my opinion, the same. Ratuvou was sentenced in relation to the Earlwood and Croydon post office robberies. He received a sentence of seven years with a minimum term of three years. The applicant, however, was sentenced for multiple robberies as well as for a number of other offences.

35    There is little value in comparing the sentences imposed and, in my opinion, there cannot, in this regard, be said to be a justifiable sense of grievance on the part of the applicant. This is compounded, I think, by the extent of the criminal record to which his Honour made reference.

36    The next matter was the submission that the sentence was manifestly excessive. The applicant submitted that the sentence was simply too high, it was for too long a period, there were powerful subjective circumstances in relation to his strong community ties, his relationship with his de facto partner and his new daughter. The applicant repeated those circumstances that related to his physical condition arising out of the disabilities consequent upon his stroke.

37    It must be said that his Honour took all of those subjective circumstances into account. On the other hand, it must be remembered that these were bad offences, there were a number of them and the matters on the Form 1 were extensive. The applicant himself conceded that he had an appalling criminal record. I must say this, looking at the submissions as a whole, it did seem to me that there was still, perhaps, inadequate recognition on the applicant's part of the objective seriousness and criminality of his previous behaviour.

38    The applicant said, in his submissions, that in many respects he had learned his lesson and believed that his drug related behaviour may be properly ascribed to his past history. This Court can only hope that that is so.

39    The facts of the various offences show that the offences were more serious in a number of respects than the model case in the guideline decision of R v Henry (1999) 46 NSWLR 346. There was, in addition, the matter of the applicant's record, the aggravated circumstances, the commission of the offences while he was on bail and the like and, in my respectful opinion, notwithstanding the subjective circumstances, it could not be said that the sentence was manifestly excessive.

40    The final matter argued was in relation to the judge's failure to find special circumstances. The applicant submitted that having regard to the circumstances of the case, special circumstances should have been found. In Phelan v The Queen (1993) 66 A Crim R 446 at 449 - 50, the Court said that "special" did not necessarily mean unusual, but it did mean something more than merely a subjective feature of the case.

41    The Court said that what constituted a special circumstance was the need or desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole. The starting point was the need or the desirability of a longer than usual additional term, not the need or the desirability of a shorter than usual minimum term.

42    It must be recognised that there are authorities which have stated that illnesses or disability may amount to special circumstances (Sellen v R (1991) 57 A Crim R 313). In Phelan itself the Court noted the need for a longer than usual additional term may arise from the prospect of particular periods of adjustment after long periods in custody.

43    A reading of his Honour's decision shows his Honour was well aware of the basic principles underlying the considerations which may give rise to the finding of special circumstances.

44    In my opinion no error has been shown in relation to his Honour's conclusion that no special circumstances were warranted in the present case.

45    As a consequence of all that I have said, it is my opinion that the applicant has been unable to point to any matter which would warrant this Court's intervention. In those circumstances I propose that leave be granted but the appeal be dismissed.

46    JAMES J: I agree with the judgment of Whealy J and the orders of the Court will be as proposed by his Honour.

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