Regina v Melissa Kay Reeves

[2002] NSWCCA 33

CITATION:	Regina v Melissa Kay Reeves [2002] NSWCCA 33
FILE NUMBER(S):	CCA 60454/01
HEARING DATE(S):	13 February 2002
JUDGMENT DATE:	13 February 2002
PARTIES :	Regina (Respondent) Melissa Kay Reeves (Applicant)
JUDGMENT OF:	Hidden J at 20; Buddin J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/31/0302
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL :	PJP Power (Crown - Respondent) H Dhanji (Applicant)
SOLICITORS:	S E O'Connor (Crown - Respondent) DJ Humphreys (Applicant)
CATCHWORDS:	Sentence - Appeal against severity - Pervert the course of justice - suspended sentence - breach of conditions thereof -"stale" offence - "special circumstances"
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Regina v Fahda (1999) NSWCCA 267 Regina v Giang [2001] NSWCCA 276 Regina v Kavich NSWCCA unreported, 26 October 1993 Regina v Mill (1988) 166 CLR 59 Regina v Shore (1992) 66 A Crim R 37 Regina v Thomson & Houlton [2000] 49 NSWLR 383 Regina v Todd (1982) 2 NSWLR 517 Regina v V NSWCCA unreported, 24 February 1998
DECISION:	Leave to appeal granted; Appeal allowed; Sentence passed in District Court quashed; Applicant sentenced to 15 months imprisonment commencing on 19 June 2001 and expiring on 18 September 2002. Non-parole period of 9 months is fixed to expire on 18 March 2002.

60454/01

HIDDEN J

BUDDIN J

13 FEBRUARY 2002

JUDGMENT

1 HIDDEN J:

We are in a position to give judgment. I will ask Buddin J to deliver the first judgment.

2 BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon her in the District Court on 22 June 2001 by Judge English. She was sentenced to a term of 18 months imprisonment commencing on 19 June 2001 with a non-parole period of 12 months imprisonment which is due to expire on 18 June 2002.

3 The applicant had originally pleaded guilty on 21 August 2000 to a charge of perverting the course of justice, the maximum penalty for which, pursuant to s 319 of the Crimes Act 1900, is 14 years imprisonment. On 31 August 2000 Judge Kirkham sentenced the applicant to a period of 18 months imprisonment commencing on that date. However, pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 his Honour made an order suspending execution of the sentence for the term of the sentence. The applicant was released from custody on condition that she enter a bond. The bond itself had a number of conditions in addition to a requirement that the applicant be of good behaviour. It was by reason of her failure to comply with the conditions of the bond that the applicant appeared before Judge English and received the sentence from which she now seeks leave to appeal.

4 The offence of perverting the course of justice had occurred back on 16 August 1995 when the applicant was in custody at Windsor Police Station along with her brother. Each had just been sentenced to terms of imprisonment and was awaiting transfer to prison facilities. The applicant had just received her first custodial sentence for taking part in the cultivation of a prohibited plant and failing to attend court for which she had received a fixed term of one month imprisonment. Her brother had received a sentence of 3 months’ imprisonment. The applicant's offence arose from her having removed from the charge room counter two commitment warrants pertaining to her brother's custodial circumstances which she had hidden beside the counter in the charge room. Little else concerning the circumstance giving rise to the offence is apparent from the material placed before the Court although there is nothing to suggest that it was other than a completely spontaneous act on her behalf. Suffice it to say that in the result the applicant's brother was released after having only served one month of the sentence imposed upon him.

5 The applicant was arrested on 11 October 1995 along with her brother who then proceeded to serve the balance of his term. The applicant, having made full admissions to the police, was charged with the offence which led to her appearance before Judge Kirkham. She was granted conditional bail. Following her failure to appear on 29 November 1995 a bench warrant was issued for her arrest. On 21 June 2000 she was arrested in respect of that warrant and again granted conditional bail.

6 A breach report, dated 4 April 2001, revealed that the applicant had been directed to attend an offender management programme on 26 October 2000. She failed to attend any of the sessions of the programme and was returned to supervision. She then failed to attend, as directed, appointments with the Probation and Parole Service on five separate occasions. Subsequent enquiries revealed that the applicant also breached a further condition of her bond in that she had not notified the Registrar of the relevant court that she had changed her residential address as she had been required to do.

7 The applicant apparently admitted the breaches of the bond imposed upon her by Judge Kirkham. In those circumstances it was inevitable that Judge English would revoke the order of Judge Kirkham suspending the sentence which His Honour had imposed. Her Honour satisfied herself pursuant to s 98 (3) of the Crimes (Sentencing Procedure) Act 1999, that the breaches were neither trivial nor were there good reasons for excusing the offender's failure to comply. No criticism is made, nor could there be, of Her Honour's decision in that respect.

8 Rather, it is complained that "the sentencing judge erred in failing to properly consider the facts and circumstances of the offence." There can be no doubt that the offence created by s 319 of the Crimes Act is regarded very seriously both by the legislature and by the courts. For example, in R v Giang [2001] NSWCCA 276 McClellan J said that:

“Section 319 of the Crimes Act and other similar provisions, which have as their purpose the protection of curial proceedings, have been considered by this Court on many occasions. In every case the court has been concerned to emphasise the need to impose a sentence which not only punishes the offender but will deter others from a similar course of action.

In R V Purtell [2001] NSWCCA 21, this Court considered a Crown appeal with respect to a matter where the sentencing judge, finding the charge proved, did not proceed to a conviction and imposed a good behaviour bond for a period of two years. The offender had provided a false reference to support his case on sentence for a conviction on an assault charge.

Before the sentencing judge the Crown had accepted that a suspended custodial sentence may be appropriate. However, this Court found that the sentencing judge had erred. Giles JA said:
The offence of perverting the course of justice carries a maximum sentence of imprisonment for fourteen years. This recognises the importance of protecting the integrity of the criminal justice system, and the offence has been described as striking at the heart of the judicial system (see R v Hakim , CCA, 5 September 1996, unreported; see also R v Taouk (1992) 65 A Crim R 387 at 392). Deterrence is an important consideration in this regard.

His Honour concluded that the sentence should be varied and said that he could "not exclude a custodial sentence as something which could have been pronounced by Judge Gibson." However, because of the attitude of the Crown before the sentencing judge, a full time custodial sentence was not imposed.

In that case, Hulme J said of the order made by the sentencing judge that, "it was a wholly inadequate way of dealing with the respondent's criminality." He said:

Indeed, in my view, the approach taken by the Crown at first instance was inadequate in that regard. It is to be inferred he benefited by his perversion of the course of justice, and neither the order made by Judge Gibson nor that indeed as originally sought by the Crown would have in any way deprived him of the benefits he received by his dishonest conduct.

In my view it could be an extremely rare case of which this is not one that the penalty imposed for the respondent's offence should be less than one which hurt significantly.
There can be little doubt that when the offender is the instigator of the act which is intended to compromise the integrity of the curial process and benefits or intends to benefit from the doing of the agreed act, extraordinary circumstances will be required before a custodial sentence is not appropriate.”
See also R v Jordan , NSWCCA unreported, 3 November 1997.

9 I am not persuaded that the sentencing judge was anything but totally cognizant of the importance of the objective gravity of the offence to the sentencing process. Nor do I consider that the sentencing judge erred in rejecting other possible sentencing options, namely, home detention and periodic detention, that were open to her Honour. It was within the scope of her Honour's wide discretion to reject alternatives to full-time imprisonment in all the circumstances of this case.

10 Indeed the submissions made on the applicant's behalf by her very experienced representative during the sentencing proceedings recognised as much. He said that given the present matter and others then outstanding against her in the Local Court, "the reality of a custodial sentence is almost overwhelming." As it happened the applicant appeared before Wyong Local Court some four days later and received a fixed term of eight months' imprisonment for various offences of dishonesty and three charges of driving whilst disqualified. These offences were all apparently committed whilst she was subject to the bond imposed by Judge Kirkham. An appeal to the District Court from those sentences was dismissed.

11 The applicant also submitted that "the sentencing judge erred in failing to consider the age of the offence." By the time the applicant came to be sentenced by Judge English the offence was almost 6 years old and was thus entitled to be regarded as "stale." The classic statement of the appropriate principles to be applied in such a case, emerges in the following passage from the judgment of Street CJ in R v Todd (1982) 2 NSWLR 517 in which his Honour said at 519:

Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

12 That principle has been applied in a variety of situations where there has been a delay in the sentencing process and it is certainly not confined to cases of which Todd itself was an example, involving interstate prisoners. See R v Kavich NSWCCA unreported 26 October 1993; R v Fahda (1999) NSWCCA 267. See R v Mill (1988) 166 CLR 59. Nor is it inevitable that leniency will be extended to an offender in every case in which a court is confronted with a "stale offence." See R v V NSWCCA unreported 24 February 1998. Each case will, of course, turn upon its own facts.

13 It is true a clear distinction needs to be drawn between cases where delay occurs because of circumstances entirely outside the offender's control, and cases such as the present where it is the offender's decision to abscond that occasions the delay. To allow leniency on account of delay alone could hardly be said to further the public interest. Nevertheless it is appropriate for a sentencing judge to give attention to the fact that a person living as a fugitive will always be fearful of apprehension. Nor is evidence of genuine rehabilitation during the relevant period to be entirely ignored. See R v Shore (1992) 66 A Crim R 37. In the present case there were some indicators of genuine rehabilitation at least in the period between when the applicant absconded and her appearance before Judge Kirkham.

14 The question of delay was a matter to which Judge Kirkham specifically adverted and it would appear that it was a major factor in persuading his Honour to extend leniency to the applicant. His Honour said:

“...the offence itself is quite stale and life has moved on. She now has three children, cares for one or two others during the course of the week, lives in accommodation where her father and grandmother live in one house, she and her children are living in another and, as I say, she minds children to augment her pension or whatever form the income she has takes.”

15 By way of contrast, Judge English made no reference to the matter whatsoever. In my view it is a matter of some importance in the sentencing process in this particular case and ought, in my view, to have received some, albeit limited, consideration.

16 There was also material before the sentencing judge that the applicant suffers from a blood disorder called Protein S deficiency, the result of a placenta eruption, for which she receives a daily injection of clexaine. The sentencing judge was also informed that she, her young children and parents were fearful of the considerable risk of injury at the hands of her ex-partner. Apparently a domestic violence order which had been taken out against him had been repeatedly breached. The family dynamics were such that the applicant's incarceration was creating particular hardship to her family. Her Honour made specific reference to each of these matters. Nevertheless, I am persuaded that the learned sentencing judge erred in not making specific reference to the issue of delay nor the fact that the applicant had admitted the breaches of the bond. Her stance in that respect had, at the very least, a utilitarian benefit for the community. See R v Thomson and Houlton [2000] 49 NSWLR 383. Judge Kirkham, by contrast, had specifically taken into account the applicant's plea of guilty.

17 It is now appropriate for the Court to consider afresh the question of the appropriate sentence to impose upon the applicant. For that purpose it has received an affidavit from the applicant affirmed on 7 February. The relevant parts of that affidavit are set out below.

“After I was sentenced on 22 June 2001 my three children went to live with my mother Kaye Reeves at 8/6 Sherry Street, Tumbi Umbi. My mother had my children until a date in October. After that time my 4 year old and 2 year old came to stay with me at Jacaranda at Mulawa. Jacaranda is a special unit for accommodation of mothers and their young children or babies. The 11 year old stayed with my mum and she would come and stay with me over the weekend in occasional care.
During the time that my children were with my mother my former partner Bradley James Wade, who is also the father of my two younger daughters, had access to his children. My mother would drive the children to his place and then she would pick them up. Bradley Wade tried to maintain access to his children after they came to stay with me at Mulawa. He turned up at the gaol one day and was very aggressive and threatening. The prison authorities called the police who took him away. He has been barred entry to the gaol by prison authorities except for the purpose of simply picking up his children and then returning them.
On 19 December 2001 Bradley Wade initiated proceedings in the Family Court for him to gain access to the two girls. We went to court on that day and he was granted access for 20/12/2001 - 22/12/2001. He took the children on 20/12/2001 but he has not returned them. As a result I have put on a Recovery Order in the Family Court of Newcastle. The police are looking for him. He has moved address. The Court has issued an order to his mother for her to advise them of his whereabouts and the whereabouts of the children because they believe that she knows where they are. This order also states that she must attend Court to be charged by a particular date if she has not disclosed the whereabouts of her son and granddaughters. I have been advised that if nothing comes of the current efforts further orders will be issued . These orders are a location order and a publication order.
I believe Bradley Wade uses drugs (speed and marijuana) and alcohol. As a result of this I am very worried about the children. I am coping but I spend most of the time in my room and do not mix much.
As a result of losing the children the gaol has now classified me as a security risk. They have done this because they are fearful that the stress that this has caused me may result in me escaping to go and look for the children. Consequently, my day leave was cancelled, I can't go shopping and I can't leave the gaol compound. The gaol has stopped all my progression and all of this through no fault of my own. I have had no adverse reports since being sentenced and I have progressed through the gaol uneventfully.”

18 That material clearly discloses that her imprisonment is causing a greater burden upon her than would otherwise be the case. In the light of that material together with the other matters to which I have earlier referred it is my view that there are "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Although Judge English did not state that she had found "special circumstances" it can be implied from the structure of the sentence which she imposed that she did so. I propose the following orders:

19 1. Application for leave to appeal granted.

2. Appeal allowed.

3. The applicant is sentenced to 15 months imprisonment commencing on 19 June 2001 and expiring 18 September 2002. A non-parole period of 9 months is fixed which will expire on 18 March 2002 which is the date on which she is to be released to parole. That parole is to be the subject of the supervision. She is to comply with all the requirements of the Probation Service, including attending Offender Management programmes and drug and alcohol counselling if considered appropriate by that service. She is to notify the Court and the Probation Service of any change of residential address.

: I agree.

The order of the court will be: Leave to appeal is granted. The appeal is allowed. The sentence passed in the District Court is quashed and in lieu the applicant is sentenced to 15 months imprisonment commencing of 19 June 2001 and expiring on 18 September 2002. A non-parole period of 9 months is fixed which will expire on 18 March 2002 which is the date upon which she is to be released to parole. That parole is to be the subject of supervision. She is to comply with all the requirements of the Probation Service, including attending Offender Management Programmes and drug and alcohol counselling if considered appropriate by that service. She is to notify the court and the Probation Service of any change of residential address.

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