Regina v Lloyd

[2003] NSWCCA 49

CITATION:	Regina v Lloyd [2003] NSWCCA 49
HEARING DATE(S):	24/02/03
JUDGMENT DATE:	26 February 2003
JUDGMENT OF:	O'Keefe J at 1; Bell J at 33
DECISION:	(i) Leave to appeal granted. (ii) Appeal allowed, sentences below set aside. (iii) In lieu of such sentences, the applicant is sentenced as follows:(a) In respect of the offence of stealing from the person in circumstances of aggravation - to a fixed term of imprisonment of 1 year and 6 months, to commence on 22 March 2002 and to end on 21 September 2003. This sentence is to be served concurrently with the sentence referred to below. In view of the fixed term sentence proposed, a non-parole period is not fixed in respect of this offence; (b) In respect of the offence of being armed with an offensive weapon with intent to commit a felony - to a term of imprisonment of 3 years to commence on 22 March 2002, and to end on 21 March 2005. The non-parole period in respect of this offence is fixed as 18 months, to commence on 22 March 2002 and to conclude on 21 September 2003, on which date the applicant is to be released on parole in accordance with the provisions of s 50(1) of the Crimes (Sentencing Procedure) Act 1999.
CATCHWORDS:	Criminal law - Appeal - Severity - Stealing from the person in circumstances of aggravation - Armed with offensive weapon with intent to commit robbery - Blood filled syringe - Hepatitis C affected blood - Young offender - Reasonable prospects of rehabilitation - No prior criminal record - Family support - Early plea of guilty - Utilitarian value not taken into account
LEGISLATION CITED:	Crimes Act 1900; ss 95(1), 114(1) Crimes (Sentencing Procedure) Act 1999; ss 45 (1)(c), 50(1)
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 Regina v Carr [2002] NSWCCA 434 Regina v Deluca [2002] NSWCCA 446 Regina v Dorsett [2002] NSWCCA 326 Regina v Fahda [1999] NSWCCA 267 Regina v Thompson and Houlton (2000) 49 NSWLR 383
PARTIES :	Regina Briallen Elizabeth Lloyd
FILE NUMBER(S):	CCA 60200/02
COUNSEL:	Mr H Dhanji - Applicant Mr R A Hulme SC - Crown
SOLICITORS:	Mr D J Humphreys - Applicant Ms S E O'Connor - Crown

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1184
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

- 13 -

60200/02

O’Keefe J
Bell J

26 February 2003

Regina v Lloyd

Judgment

O’KEEFE J:

Introduction

1 O’Keefe J: Briallen Elizabeth Lloyd (the Applicant) has sought leave to appeal from two concurrent sentences, each of four years imprisonment with a non-parole period of two years. They were imposed in the District Court on 22 March 2002 following pleas of guilty entered by her in respect of charges of:

1. having, on 17 February 2001, stolen from the person of Tom Zao an amount of $200 in circumstances of aggravation contrary to s 95(1) of the Crimes Act 1900; and

2. on the same date, being armed with an offensive weapon - namely a blood-filled syringe - with intent to commit armed robbery, contrary to s 114(1)(a) of the Crimes Act 1900.

2 The maximum penalty provided for the first charge is imprisonment for 20 years. The maximum penalty provided for the second charge is imprisonment for 7 years.

3 The Applicant was born on 26 October 1980, and is thus 22 years old at the present time and was 20 years at the time of commission of the offences. She has no previous convictions.

The circumstances and background

4 Late on the afternoon of 17 February 2001 the Applicant entered the mixed business of Tom Zao and his wife Lucy Qiu at Enmore. At the time she was wearing dark sunglasses, dark tracksuit pants, a dark top and a dark beanie or cap. She was armed with a syringe filled with her own blood (second charge). At the time the Applicant was suffering from hepatitis C, and so her blood had the capacity to cause quite serious illness. The Applicant entered a room adjacent to the shop in which Mr and Mrs Zao and their 13 year old daughter were seated at a table. The Applicant grabbed $200 from the table in the room (the first charge). She was restrained by Mr Zao and his wife, whilst their daughter ran outside the shop and called the police on a mobile phone.

5 During the course of the incident, the Applicant kicked Mr Zao, called out to the Zaos:

“Fuck, let me go, or I’ll stab you with it.”

and, having pointed the syringe at Mr Zao, sprayed the blood on him. It went onto his cheek near his mouth, and ran down onto his neck. Being concerned that it might adversely affect him, he washed some of the blood from his face and subsequently went to hospital, and later to a doctor, who took a blood sample from him which fortunately proved to be clear of infection or hepatitis.

6 The Sentencing Judge (the Judge) described the offences as extremely serious, involving threats and terror to the victims.

7 The Applicant came from a broken home, the father and mother having separated when she was about five. The evidence revealed that her parents’ marriage broke up because the father began cross dressing, and when the Applicant was about twelve or a little older, her father decided to have a sex change operation. The consequence of this was said to be that the Applicant drank a lot of alcohol and on one occasion was in a coma. Later she consumed excessive amounts of alcohol, took up smoking cannabis, and dropped out of school. She was then aged 16. At about this age, she became addicted to heroin, and on at least one occasion overdosed on it. Her history thereafter was one of attempted rehabilitation on at least two occasions, followed by relapses.

8 The Applicant freely participated in a record of interview, cooperated with police and made full admissions. She claimed to be addicted to heroin and to be looking for money at the time she committed the offences. The detailed description of the events on the day of the offences clearly establish that she was feeling sick, as she was withdrawing from the effects of drugs, was “hanging out”. She had no money and was unable to obtain any, so she decided to commit the offences in question in order to obtain money which, as a matter of inference, was to satisfy her drug habit. Whilst there was some planning for the offences, it was fairly rudimentary. She said:

“I walked around a bit, and thought about and that, I’ll do the place up, and I thought I’d try it and did.”

When asked if she made any preparations for the commission of the offences, she said:

“Well, I made a fit, and then filled it up with blood, so.”
Q: So what do you mean by a fit?
A: Make a needle, yeah.
Q: And you said you filled it up with blood?
A: Yeah.
Q: Whose blood was that?
A: Mine.
…
Q: And why did you fill it up with blood, sorry. Why did you fill the syringe with your blood?
A: Cause I was thinking about holding the place up.
Q: And what were you going to do with the syringe filled with blood?
A: Threaten someone.”

9 The Applicant expressed contrition and indicated that she would enter a plea of guilty at the earliest stage. She did so, and adhered to such pleas in the District Court.

10 A report dated 20 March 2002 from Dr Kipling Walker, a psychiatrist, was used on behalf of the Applicant at the sentence hearing. That report detailed a history in which the Applicant referred to frequent suicidal ideation and a number of attempts at suicide by drug overdose. Dr Walker diagnosed the Applicant as suffering from poly-substance dependence and chronic depression. He also opined that she met the diagnostic criteria for personality disorder. Whilst expressing the view that her experiences in relation to her father were unlikely to have been the cause of her depression, he was of the opinion that they may have contributed to it, but was not able to offer an opinion as to the relationship, if any, between her depression and her drug dependence. Significantly, Dr Walker thought she posed a risk to the community associated with her drug use, but gave no positive indication that methadone treatment or long term psychiatric treatment for her personality problems would reduce her risk to the community. The extent to which he could assist the Applicant was in terms of possible reduction in risk. At no time did he express the opinion that such risk could be eliminated.

11 On the hearing of the present application, conditional leave was sought to rely on two affidavits in the event that the Court determined that it should re-sentence the Applicant. A report of 11 February 2003 from a forensic psychiatrist, Dr Michael Giuffrida, was annexed to one of the affidavits. Dr Giuffrida’s report was more positive and favourable to the Applicant. He first saw her on 19 April 2002, and thereafter saw her frequently and for quite lengthy periods. Having taken a history and made an examination of her (a history different in some respects from that given to Dr Walker), he detailed her severe episodes of depression, panic attacks and accompanying symptoms. These were associated with family difficulties, depressive episodes and erratic and impulsive behaviour, which included increased use of drugs. Her behaviour led to a break-up of the relationship with her mother and her moving out of home when she was 15. He detailed the profound sense of worthlessness, helplessness and hopelessness described by the Applicant. These feelings were consistent with her deep depression. His diagnosis was of very serious poly-substance abuse and chronic depression, which at times achieved the severity of a major depressive disorder. He expressed the opinion that:

“There (are) certainly very significant traits of depressive personality disorder, although in all of the time that I have seen her, I have not found sufficient evidence to make a diagnosis of personality disorder, although she does also show some characteristics of a borderline personality disorder in terms of the history of substance abuse, reckless behaviour, impulsivity, intense and ambivalent relationships.”

12 Under Dr Giuffrida, the Applicant took prescribed anti-depressants from which she derived significant benefits, and he found that there had been a remarkable change in her over the time he was treating her and that:

“She has been able to develop some sense of trust and engagement in the therapy.”

13 During her time in prison, the Applicant has undertaken a number of educational courses and continued a methadone maintenance programme in which the dosage has been able to be cut down gradually, now approaching what is likely to be a minimum maintenance dose. Significantly during her time in prison, and despite the numerous temptations to the contrary, the Applicant has not at any time appeared to be affected by any drugs, and random drug screening of her urine has proved to be negative.

14 According to Dr Giuffrida, the Applicant does not fit into the jail subculture, and for that reason she has remained somewhat isolated and withdrawn, feeling fearful and vulnerable.

15 Dr Giuffrida had a much greater opportunity to observe the Applicant than Dr Walker. It is clear that he has given a good deal of attention to her medical condition. His report is detailed and, in my opinion, his conclusions are to be preferred to those of Dr Walker. Based on Dr Giuffrida’s report, I am satisfied that the prospects of rehabilitation of the Applicant are reasonable.

Challenges to the sentence

16 The challenges to the sentence were as follows:

(i) The Judge failed to sentence in accordance with Pearce v The Queen (1998) 194 CLR 610.

(ii) The Judge erred in failing to discount the Applicant’s sentence for the utilitarian value of her plea of guilty.

(iii) The Judge fell into error by failing to reduce the weight to be given to general deterrence in sentencing the Applicant.

The Judge did not refer explicitly to Pearce v The Queen (supra). In particular he has not done so at that part of his Remarks on Sentence at which the sentences were imposed. When sentencing the Applicant, he merely said:

“The sentences will be, in each case, four years imprisonment, which is to date from today.”

Such a rubric is more in accord with the mode of imposition of sentences that prevailed prior to the decision of the High Court in Pearce v The Queen (supra).

17 Whilst I am conscious that the Judge was very experienced, and am mindful of what was said by Howie J in this regard in Regina v Carr [2002] NSWCCA 434, nonetheless the principle in Pearce v The Queen (supra) is extremely important, and the absence of any reference to it, either explicit or implicit, will often indicate error.

18 In the present case, the Judge did not refer to such principle explicitly. Nor, in my opinion, did he refer to it implicitly. Indeed, he appears to have approached the question of sentencing in a global manner, without indicating the respective seriousness of each of the offences, or differentiating between them.

19 In my opinion, in doing so his Honour did fall into error in the way in which the sentences were imposed. The first challenge to the sentences is thus made out. Whilst this of itself would empower this Court to re-sentence the Applicant, error of the kind adverted to does not necessarily mean that the Court would impose a different sentence from that imposed by the sentencing Judge (Regina v Dorsett [2002] NSWCCA 326). In this regard, it will be necessary to bear in mind the objective gravity of the offences.

As to (ii)

20 Whilst it is clear from a reading of the Judge’s Remarks on Sentence that his Honour was conscious of the pleas of guilty and their time of entry, the basis on which such pleas were reflected in the sentences imposed is less clear. Thus, his Honour said:

“… you have entered pleas of guilty … before the Local Court … You have confirmed those pleas of guilty before this court. So it is clear from the start that you, by your admissions and by your actions in court, have entered a plea of guilty at the earliest possible opportunity. And thereby, disclosed contrition for the serious events which occurred.”

This reference occurs at the beginning of the Remarks on Sentence, and no express reference to it is made, nor is there any echo of it in that part of the Remarks on Sentence which immediately precedes the imposition of the sentences. Furthermore, in the passage referred to above, the ambit of effect of the pleas of guilty is expressly limited to the aspect of contrition, as the last sentence of the quoted passage indicates. No reference is made to the utilitarian value of the plea. If the discount to be afforded to the Applicant by reference to the utilitarian value of the plea was to be downgraded or even put to one side, the Remarks on Sentence should have included reasons for so doing. In addition, the matters which are stated as the subjective matters in mitigation of sentence are limited to the age, the drug problem and the prospects for rehabilitation of the Applicant.

21 I am conscious of the fact that not quantifying the extent of reduction in sentence by reference to the utilitarian value of a plea of guilty does not necessarily involve an error (Regina v Thompson and Houlton (2000) 49 NSWLR 383 at 401-402; Regina v Deluca [2002] NSWCCA 446), nonetheless, where there is no reference, either express or implied, to a discount for a plea of guilty, the absence of any quantification may tend to confirm that no discount has been given.

22 In the present case, the absence of any reference to the utilitarian value of the pleas of guilty entered by the Applicant and the absence of any quantification, together with the length of the sentence imposed, lead to the conclusion that the utilitarian value of the pleas was not given effect to by the Judge. This is an error, and in my opinion the second challenge to the sentences is made out.

As to (iii)

23 Counsel for the Applicant has argued that the sentence imposed must have included some element of general deterrence, and that in the circumstances of the Applicant, there should have been no element of general deterrence included in the sentences imposed. This submission depended on the report of the psychiatrist Dr Walker, to the effect that the Applicant suffered from a depressive illness and a personality disorder and relied on cases such as Regina v Fahda [1999] NSWCCA 267.

24 In the course of his short Remarks on Sentence, his Honour adverted to Dr Walker’s report. He detailed the history of the Applicant as included in such report, and adopted it as confirmatory of the evidence given by the Applicant’s mother. The fact that such report was dealt with at some length, and the context in which this occurred, suggest that the Judge was not only conscious of the contents of the report, but saw it as beneficial to the Applicant. Moreover, in the course of his Remarks the Judge detailed the “matters which are of significance”. These did not include any reference to general deterrence. From these considerations, in combination with the absence of any reference whatsoever to general deterrence, I am of opinion that it cannot be said that his Honour included as part of the sentence an element of general deterrence. As a consequence, it is unnecessary to deal with cases such as Regina v Fahda (supra) in the present context. I do not think that the third ground on which the sentences are challenged is made out.

Conclusion in relation to Leave to Appeal

25 For the foregoing reasons I am of opinion that error has been made out in respect of the sentences imposed on the Applicant, and that this Court should therefore give leave to the Applicant to appeal against the sentences imposed and should review such sentences on appeal.

Re-sentencing

26 The additional affidavit material tendered on behalf of the Applicant should be admitted into evidence unconditionally. As I have already indicated, the report from Dr Giuffrida is more favourable to the Applicant than that of Dr Walker. For the reasons indicated above, I am of opinion that Dr Giuffrida’s report should be preferred. From his report it is clear that the Applicant:

(i) is genuinely remorseful;

(ii) has seriously taken steps to overcome her drug addiction – notwithstanding the problems of doing so in the less-than-benign circumstances of prison;

(iii) does not have a personality defect of a kind that would militate inevitably, or even strongly, against her ultimate rehabilitation;

(iv) would appear to have been made aware of the seriousness of her actions and the adverse circumstances of prison and prison life as a result of her incarceration to date;

(v) has reasonable prospects for her rehabilitation;

(vi) has the capacity to further her education, including tertiary education, on release.

27 In addition, the Applicant is still young and, as her record reveals, has not embarked upon a life of crime. The absence of any prior convictions is a factor which should operate to mitigate the sentence which would otherwise be imposed for the serious offences to which she pleaded guilty. The absence of any such convictions in the past also supports her prospects of successful rehabilitation. Furthermore, whilst in prison she has successfully completed a number of educational programmes and has enrolled at the University of Southern Queensland.

28 The starting point for fixing the sentences for the Applicant is the objective seriousness of the crimes for which she is to be sentenced. As the Judge correctly said, the circumstances - especially the involvement of a syringe filled with hepatitis C affected blood – are very serious. That this Court so regards the offences should be made clear by the sentence imposed. However the plea of guilty at the earliest possible date, the cooperation with the authorities, and the other subjective factors referred to above, should operate not only in reduction of the head sentence, but also in respect of the non-parole period - for there are undoubtedly special circumstances which would entitle the Court to break the statutory nexus between head sentence and non-parole period in the instant case. These include, for example, the youth and absence of prior criminal record of the Applicant.

29 In determining the extent to which the head sentence should be reduced by reference to the plea of guilty, it should be borne in mind that the Crown case was very strong, quite straightforward and unlikely to be lengthy. The Applicant was apprehended immediately. Mr and Mrs Zao and their daughter clearly identified the Applicant and detailed her actions. The circumstances as deposed to by those three eye witnesses, together with the observations of the arresting police, did not suggest grounds of defence on which the Applicant could rely. In these circumstances, conformably with the approach taken in Regina v Thompson and Houlton (supra at 416-417), the extent of the discount to be afforded to the Applicant should be at the lower end of the range (supra at 418).

30 I am of opinion that a higher head sentence is appropriate respect of the second charge. Although the maximum penalty fixed for this offence is lower than that fixed for the first offence, the circumstances of the second offence mark it out as very serious in the range of offences which may fall within s 114(1) of the Crimes Act 1900. Whilst the first offence bears a higher maximum penalty, the nature of the offence involved in the present case, stripped of the elements for which the Applicant is to be punished in respect of the second offence, mark it out as not as serious, although it should be recognised that it was far from minor, since it involved both a degree of physical violence and an intrusion into a private section of the Zao premises.

31 When regard is had to the objective seriousness of the offences and the subjective factors to which I have referred, including her age, sex, previous attempts at rehabilitation, family support and absence of prior criminal record. I would propose that the Applicant should be sentenced to imprisonment for three years in respect of the second offence, to commence on 22 March 2002 and to end on 21 March 2005. In view of the finding of special circumstances, the non-parole period in respect of this offence should be fixed as 18 months, to commence on 22 March 2002 and to conclude on 21 September 2003, on which date the Applicant should be released on parole.

32 In respect of the first offence, I would propose that the Applicant be sentenced to a fixed term of imprisonment of one year and six months, to commence on 22 March 2002 and to end on 21 September 2003; such sentence to be served concurrently with the sentence referred to in paragraph 31 above. In view of the fixed term of this sentence, I would propose that the Court should decline to fix a non-parole period as contemplated by s 45 (1)(c) of the Crimes (Sentencing Procedure) Act 1999.

33 BELL J: I agree.

Formal Orders

(i) Leave to appeal granted.

(ii) Appeal allowed, sentences below set aside.

(iii) In lieu of such sentences, the applicant is sentenced as follows:


(a) In respect of the offence of stealing from the person in circumstances of aggravation - to a fixed term of imprisonment of 1 year and 6 months, to commence on 22 March 2002 and to end on 21 September 2003. This sentence is to be served concurrently with the sentence referred to below. In view of the fixed term sentence imposed, a non-parole period is not fixed in respect of this offence.

(b) In respect of the offence of being armed with an offensive weapon with intent to commit a felony – to a term of imprisonment of 3 years to commence on 22 March 2002, and to end on 21 March 2005. The non-parole period in respect of this offence is fixed as 18 months, to commence on 22 March 2002 and to conclude on 21 September 2003, on which date the applicant is to be released on parole in accordance with the provisions of s 50(1) of the Crimes (Sentencing Procedure) Act 1999.
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Last Modified: 03/04/2003