Regina v Scott

[2005] NSWCCA 51

CITATION:	Regina v Scott [2005] NSWCCA 51
HEARING DATE(S):	18/02/2005
JUDGMENT DATE:	1 March 2005
JUDGMENT OF:	Bryson JA at 1; Barr J at 2; Hoeben J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.

CATCHWORDS:	CRIMINAL LAW - s154AA(1) Crimes Act - steal motor vehicle - objective seriousness - use of subjective features - concurrency and accumulation.
LEGISLATION CITED:	Crimes Act 1900 Crimes Sentencing Procedure Act 1999
CASES CITED:	R v Pearce (1998) 194 CLR 610 R v Wheeler [2000] NSWCCA 34
PARTIES:	Tracey Lee-Ann Scott - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2004/2611
COUNSEL:	John P Punch - Applicant D Arnott - Crown
SOLICITORS:	Ryan and Bosscher - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0004
LOWER COURT JUDICIAL OFFICER:	Delaney DCJ

2004/2611

BRYSON JA
BARR J
HOEBEN J

Tuesday, 1 March, 2005

REGINA v Tracey Lee-Ann SCOTT

JUDGMENT

1 BRYSON JA: I agree with Hoeben J.

2 BARR J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence
On 18 December 2003 the applicant pleaded guilty to four counts of steal a motor vehicle under s154AA(1) of the Crimes Act 1900. The offences occurred on 1 March 2003, 23 March 2003, 3 May 2003 and 11 May 2003. The maximum penalty for each offence is 10 years imprisonment.

4 On 21 June 2004 the applicant came before his Honour Delaney DCJ for sentence. The sentences imposed by his Honour were:

(i) For the offence of 1 March 2003 – a fixed term of imprisonment of 18 months to commence 21 June 2004 and to expire on 20 December 2005.

(ii) For the offence of 23 March 2003 – a fixed term of imprisonment of 18 months to commence on 21 December 2004 and to expire on 20 June 2006.

(iii) For the offence of 3 May 2003 – a fixed term of imprisonment of 18 months to commence on 21 June 2005 and to expire on 20 December 2006.

(iv) In respect of the offence of 11 May 2003 – a non-parole period of 18 months imprisonment to commence on 20 September 2005 and to expire on 20 March 2007 with a parole period of 12 months to commence on 21 March 2007 and expire on 20 March 2008.

In summary the applicant was sentenced to a total period of imprisonment of 3 years and 9 months with a non-parole period of 2 years and 9 months.

Factual background

5 Because of the way in which the appeal was argued, it is necessary to set out briefly the factual circumstances surrounding each offence.

6 On Saturday 1 March 2003 the applicant attended the Asquith and Johnson Car Dealership. She there test drove a Peugeot 406 coupe. In order to do so she carefully dressed herself in a business suit and produced a driver’s licence in a false name, Samantha Maree Jones. The false licence bore the applicant’s photograph. The applicant persuaded the salesman to allow her to take the Peugeot for a test drive. She did not return it. The value of the Peugeot was approximately $60,000.

7 On 23 March 2003 the applicant attended a Lexus car dealership in Church Street, Parramatta. Dressed in a similar fashion and using the same false name and licence, she test-drove a Lexus IS300 sedan. She did not return it. The vehicle was valued at $66,000.

8 On 3 May 2003 the applicant attended New Rowley Motors at 393 Pacific Highway, Artarmon and test-drove a Jaguar Sovereign saloon. Again she used a false name and a false licence. The vehicle was not returned. The Jaguar was valued at approximately $60,000.

9 On 11 May 2003 the applicant attended the Audi Centre Car Dealership at 49-53 Church Street, Parramatta and test-drove an Audi All Road station wagon. As with all of the other offences, the applicant wore a business suit, provided a false story as to why she intended to buy the car, used a false name and licence, test drove the Audi and did not return it. The value of the Audi was approximately $88,900.

10 The Peugeot and Audi were made available to the applicant’s de facto husband, Jason Palinko, who exchanged parts of the stolen vehicles with damaged vehicles of similar make so as to “rebirth” an apparently undamaged vehicle. It was while the applicant was a passenger in the “rebirthed” Peugeot that she was arrested for the motor vehicle thefts on 18 July 2003. The two stolen vehicles, which were used in the “rebirthing” procedure, were destroyed. The parts, which were not used in the “rebirthing” activity, were sold and otherwise disposed of. The applicant entered a plea of guilty to the four offences on 18 December 2003, which was accepted as the earliest point in time that she could reasonably do so.

11 The applicant gave evidence in the sentencing procedures. The effect of that evidence was that she had stolen the Jaguar and Lexus motor vehicles because she had always wanted to drive such expensive vehicles but knew she could not afford to do so. Having driven each vehicle for some hours she then panicked and abandoned it with its keys and was unable to advise the court further as to what happened to each vehicle. His Honour did not accept that evidence. His Honour was not told what had happened to those vehicles.

Remarks on sentence

12 His Honour analysed in considerable detail the statements which had been obtained from the various salesmen, who had been duped by the applicant, in relation to the theft of each vehicle. These statements formed part of the agreed facts which were before his Honour. Having done so his Honour concluded:

“I have reached the conclusion from a consideration of the evidence of the offender, a comparison of the statements, that in relation to the manner in which these offences were carried out, they showed concentration, memory, judgment and logical and rational thought on the part of the offender, together with a studied patience and cunning to persuade the car salesmen to part with their vehicles despite in some of the cases their clear directions not to permit a person to take the cars in the circumstances, without going with the person taking them.” (ROS 5)

13 His Honour went on to say:

“One of the reasons that I have outlined in the detail which I have, the statements made by the car salesmen is to indicate that by the method of speaking to the car salesmen, her mode of dress and appearance, and the careful way in which she waited for the opportunity to be able to take the vehicle on her own were all matters which I have taken into account in determining the extent of the criminality of this case.” (ROS 14)

14 It had been submitted on behalf of the applicant that at the time when the offences took place she was suffering from post natal depression (her child having been born approximately ten months before) and that in some fashion she was not fully responsible for her actions. His Honour rejected that submission:

“These facts are in my opinion, inconsistent with any claim to be depressed or upset or concerned when, in the situations that I have now outlined, the offences were committed.
Indeed as I have said already, I am satisfied this was a deliberate course of conduct on her part. I reject the explanation that she has given about the way in which she disposed of the second and third vehicles.
In saying that, there is material which indicates that not only was she unlikely to have panicked after she had undertaken the course of deception that I have outlined but that it is unlikely that she would have just left the vehicles as she said that she did and abandon them to their fate.” (ROS 14-15)

15 His Honour noted that the applicant had no previous convictions. In relation to her plea of guilty he considered that there was real utilitarian value in it and allowed in her favour a twenty five percent discount on sentence. His Honour also had regard to the following specific subjective features.

(i) The applicant was born on 5 February 1981 and was therefore twenty-two at the time of the offences.

(ii) She had some problems at home in the early stages of her life, worked for approximately fourteen months after she left school and formed a relationship with Mr Palinko from the age of sixteen.

(iii) As a result of the relationship with Mr Palinko, the applicant gave birth to a child in July 2002. The birth of this child apparently caused difficulties between the applicant and Mr Palinko and at the time of the offences, the applicant was living with her child separately from Mr Palinko.

(iv) The applicant had been a reasonably heavy user of cannabis since the age of eighteen.

(v) At the time of the offences the applicant was in financial difficulty in that Mr Palinko was not paying regular child maintenance. She had become depressed, but had not sought any counselling or psychiatric assistance.

16 His Honour found that little weight should be given to the applicant’s expressions of remorse and contrition, except insofar as they were raised by the early plea of guilty. He made that finding on the basis of the way in which the offences had been committed and the applicant’s explanation as to why she stole the vehicles, the subject of counts 2 and 3.

17 His Honour did have specific regard to the potential hardship to which the applicant’s child would be exposed if the applicant were sentenced to a fulltime period of imprisonment. His Honour noted, however, that there were provisions for very young children to be allowed to stay with their mothers in prison in certain circumstances. While taking this matter into account, his Honour did not find that it constituted exceptional circumstances.

18 His Honour made reference to s21A of the Crimes Sentencing Procedure Act and had regard to aggravating and mitigating factors referred to therein. Specifically his Honour noted that the applicant had no criminal record and had not previously been subject to a term of imprisonment.

19 His Honour did find special circumstances which favoured the applicant. He identified those special circumstances as being the youth of the applicant, the need for rehabilitation to be undertaken after her release, the fact that this was her first time in custody and that she was a person of previous good character with no other convictions. His Honour also noted that the value of the vehicles stolen was well in excess of $200,000.

20 In fixing the sentences his Honour had specific regard to the objective seriousness of each offence (R v Pearce (1998) 194 CLR 610) but also to the principle of totality in relation to all of the sentences awarded by him (R v Wheeler [2000] NSWCCA 34). It was as a result of that analysis that his Honour awarded the sentences referred to.

Appeal

Ground 1 – The aggregate sentence was too severe, having regard to the objective features of the offences

21 The submissions in support of this ground are misconceived. They depend upon an acceptance of the evidence of the applicant that she abandoned the Jaguar and Lexus (counts 2 and 3) because she panicked after she stole them and abandoned those vehicles at unknown locations in the city. Those assertions by the applicant were not accepted by his Honour.

22 The submission also fails to have regard to the detailed consideration which his Honour gave to the statements from salesmen, who had been deceived by the applicant, and his findings as to the relatively high level of culpability associated with each offence. Error has not been demonstrated, either in his Honour’s consideration of each individual offence or in the totality of the sentences awarded by his Honour in relation to all four offences. This ground of appeal fails.

Ground 2 – The aggregate sentence was too severe, having regard to the subjective features of the applicant

23 The submission in support of this ground of appeal replicates the subjective matters to which his Honour specifically referred in his remarks on sentence. The complaint made by the applicant is that his Honour did not give sufficient weight to the subjective considerations. The weight to be given to such subjective considerations is an essentially discretionary matter. Provided his Honour adequately considered those subjective matters (which he did) no error in his Honour’s approach has been demonstrated.

24 Although there was evidence from a psychiatrist that at the time of the offences the applicant was suffering from post-natal depression, his Honour was not obliged to find that the condition contributed to the offences. His Honour was entitled to have regard to the ingenuity exhibited by the applicant when dealing with unexpected situations which arose during the course of the commission of the offences. This was inconsistent with an inability of the applicant to think rationally. This ground of appeal is not made out.

Ground 3 – The sentencing judge should not have found that “there is no other penalty appropriate, other than a sentence of fulltime imprisonment”.

25 The submission in support of this ground appears to be based on a comment made by the Crown in the course of submissions before the evidence was complete that:

“I don’t think the court would be in appealable error at all with a suspended sentence in this matter ….”

26 It is trite to say that a sentencing judge is not bound by such a concession. The sentencing judge is obliged to make an assessment having regard to the objective seriousness of the offence and established sentencing principles. In any event this concession by the Crown was subsequently withdrawn in the course of final submissions after further evidence.

27 His Honour considered whether an alternative to a sentence of fulltime imprisonment was appropriate but rejected that option in a reasoned and logical way. No error has been demonstrated in his Honour’s approach to that question. This ground of appeal fails.

Ground 4 – His Honour should have ordered the sentences to be served concurrently

28 The submission in support of this ground was that because the modus operandi in each offence was the same, the sentences awarded should have been served concurrently. It was also submitted that rehabilitation had already been achieved at the time of the applicant’s arrest since two months had passed since her last offence.

29 His Honour set out clearly his reasons for partially accumulating the sentences. He had regard to the number of offences and their seriousness. Each offence occurred on a different date and a different entity suffered damage. No error in his Honour’s reasoning in relation to accumulation has been demonstrated. Similarly, the fact that two months had passed between the applicant’s last offence and her arrest provided no basis for the submission that without the arrest her course of criminality would not have continued. This ground of appeal fails.

Conclusion

30 As has often been stated, this is a Court of error not a court of rehearing. Unless error is demonstrated this Court does not intervene. His Honour’s findings were open to him on the evidence and his analysis was in accordance with proper sentencing principles. No error has been demonstrated.

31 The orders which I propose are:

(i) Leave to appeal granted.

(ii) Appeal dismissed.

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