Regina v Waterman

[2000] NSWCCA 29

CITATION:	REGINA v. WATERMAN [2000] NSWCCA 29
FILE NUMBER(S):	CCA 60795 of 1998
HEARING DATE(S):	Wednesday 23 February 2000
JUDGMENT DATE:	23 February 2000
PARTIES :	REGINA v. WATERMAN, Nelson
JUDGMENT OF:	Grove J at 14; Greg James J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0796
LOWER COURT JUDICIAL OFFICER :	Hosking, DCJ.

COUNSEL :	Crown: D.C. Frearson App: A.C. Scotting
SOLICITORS:	Crown: S.E. O'Connor App: Rummery Stewart
CATCHWORDS:	Criminal law - appeal - sentence - disparity
LEGISLATION CITED:	Crimes Act 1900 Correctional Sentence Act 1952
CASES CITED:	Lowe (1984) 154 CLR 606 Postiglione (1997) 187 CLR 295
DECISION:	Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

No. 60795 of 1998 CORAM: GROVE, J.

GREG JAMES, J.

WEDNESDAY 23 FEBRUARY 2000

REGINA v. NELSON WATERMAN

JUDGMENT

1 GREG JAMES, J: Application for leave to appeal is brought from sentences imposed by his Honour Judge Hosking in the District Court for two offences. The first involved an offence for which the applicant was arrested in the act on 25 August 1998, of disposing of stolen property under s.188 of the Crimes Act 1900 and was punishable by 10 years' imprisonment. The second was an offence of escape lawful custody on 12 August 1998, under s.34 of the Correctional Sentence Act 1952, also punishable by a maximum penalty of 10 years' imprisonment. The sentence for that latter offence is required by s.34(2) of that Act to be cumulative on all previous sentences imposed by the court, or to which the inmate is subject. It is necessary therefore that the sentence on count two commence at the expiration of the minimum term the applicant was then serving. 2 At the time of the escape in question the applicant was serving sentences that had been imposed on 24 February 1997 at the Wollongong District Court on counts of break, enter and steal, stealing from a dwelling and breach of recognisances granted in respect of other offences. It is not necessary to recite the detail of those sentences save and except that the relevant minimum term of 18 months expired on 5 October 1999. 3 The applicant has been returned to custody to serve the additional term of 18 months and faces confinement in maximum security as a result of being an escapee for the balance of his sentences. Consequent upon his escape, the prisoner was at liberty for 13 days. He will have to serve the equivalent of that time. 4 During the time when the applicant was an escapee, he came into possession of a considerable quantity of electrical goods, a Medicare card and a Bankcard and was apprehended seeking to pawn the electrical goods using the cards for identification. He decamped during that arrest but was apprehended again. These matters gave rise to the first offence for which he was sentenced. 5 His Honour in a careful judgment recited the circumstances of the offences and imposed on the charge of escape a sentence of penal servitude of 18 months to date from 18 October 1999 (his Honour took into account the 13 days at liberty) and imposed an additional term of one year expiring on 17 April 2002. On the charge relating to the stolen goods the applicant was sentenced to a fixed term of 18 months' penal servitude to date from 18 October 1999 with release on 17 April 2001, a term wholly concurrent with the minimum term on the escape charge. 6 His Honour had expressed the view, that whilst the prospects of rehabilitation might be considered with considerable reserve, the applicant would benefit from supervision for a period longer than he thought was open to him to impose. His Honour found special circumstances and found, in relation to the escape, that the prisoner had been at large for only 13 days, that it was an impulsive and foolish escape committed whilst gardening outside the minimum prison confines. He was at that time in custody "doing well" and had by reason, he asserted, of family hardship circumstances escaped only two weeks from being allowed out on work release. 7 As I have said, as a further consequence of escaping, as well as the sentence being cumulative and the prospect of liberty at or about the end of the minimum term being forfeit, the applicant will be treated within the prison system as an escapee and be subject to maximum security. His Honour considered this and adverted to the recent increase in the maximum penalty to that now applicable for the offence. His Honour correctly adverted to the aggravating circumstance of the commission of a further offence whilst in custody. 8 His Honour came to sentence the applicant for these offences before a co-accused, one Nicholas Scott Seymour who had escaped with the applicant and who in due course was charged with the escaping offence and one count of break, enter and steal, a matter which was dealt with on a schedule. 9 A number of grounds have been here advanced submitting that his Honour fell into error. One of the matters to which our attention is drawn is the fact when his Honour came to deal with the applicant he was informed that no question of parity with the co-accused presently arose and that was because the co-accused was to be sentenced after this applicant. 10 It was necessary for the sentence of this applicant before his Honour to proceed when it did rather than to have the matter adjourned as his Honour would not have been sitting for some months following the matter coming forward, and his Honour was of the view that it was appropriate in those circumstances to deal with the applicant but that a copy of his remarks should be provided to that judge before whom the co-accused came for sentence. 11 We are informed by the affidavit of Martin Green which was read on this appeal and sworn 11 February 2000, that the remarks on sentence of the Chief Judge of the District Court who dealt with the co-accused are not presently available, but that on 14 January 1999 Seymour was sentenced to a minimum of three months and an additional term of nine months on the charge escape lawful custody. As I have said the charge of break and enter was put on a schedule and taken into account. 12 On the hearing of the appeal enquiry was made of both the learned prosecutor and the learned counsel for the applicant as to whether there was any distinguishing feature which might indicate that regard should not be had to the co-accused's sentence in the light of the principles expressed by the High Court of Australia in Lowe v. The Queen (1984) 154 CLR 606 and Postiglione v. The Queen (1997) 187 CLR 295, and we were informed that there was no such distinguishing matter. Indeed the Crown Prosecutor conceded that there appeared to be no good reason why in the circumstances the applicant should not have received a sentence of the same general nature and extent as that imposed upon the co-accused. In those circumstances I for my part would not find it necessary to go on to consider the other grounds as asserted except to say that in my view they would not succeed to the extent of producing a sentence that would be likely to be of the range of a parity with that imposed on the co-accused. It may well be that parity with the sentence imposed on the co-accused would produce a sentence which would appear to be entirely inadequate in all the circumstances. Nonetheless there is clear authority from the High Court of Australia, particularly in Lowe (supra), that occasions may well occur when a sentence that is otherwise appropriate might, having regard to the principle of parity, be reduced to avoid a justifiable sense of grievance arising from the imposition on a co-accused of a sentence otherwise seen to be inadequate. This would, it seems to me, be one of those cases. In the circumstances I am of the view that it is necessary for the court to intervene. 13 I would grant leave to appeal. I would allow the appeal and quash the sentences imposed in the District Court. In lieu thereof I would sentence the appellant to a fixed term expiring today on count two, that term to commence on 18 October 1999. I would propose a sentence on count one, that is the receiving count, of a fixed term of six months to date from 25 August 1998. 14 GROVE, J: I agree with the orders proposed and the reasons of Greg James, J. as given. The order of the court, therefore, will be as proposed by Greg James, J.