Regina v Wicks

[2002] NSWCCA 445

CITATION:	Regina v WICKS [2002] NSWCCA 445
FILE NUMBER(S):	CCA 60187/02
HEARING DATE(S):	11/11/2002
JUDGMENT DATE:	11 November 2002
PARTIES :	Regina Leisa Lynette WICKS
JUDGMENT OF:	Wood CJ at CL at 1; Dowd J at 2; Bell J at 21

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	02/21/3004
LOWER COURT JUDICIAL OFFICER :	Blackmore DCJ

COUNSEL :	A Francis (Applicant) WG Dawe QC (Crown)
SOLICITORS:	D J Humphreys (Applicant) S E O'Connor (Crown)
CATCHWORDS:	Sentence appeal application - concurrent sentences subsume effect of R v Ellis - no lesser sentence appropriate.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Bavandra (2000) 115 ACR 152 R v Ellis (1986) 6 NSWLR 603 Ryan v R (2001) 206 CLR 267
DECISION:	Leave to appeal granted; appeal refused.

60187/02

WOOD CJ at CL
DOWD J
BELL J

Monday 11 November 2002

REGINA v LEISA LYNETTE WICKS

Judgment

1 WOOD CJ at CL: I agree with Dowd J.

2 DOWD J: The applicant seeks leave to appeal from sentences imposed by Blackmore DCJ on 21 March 2002 on a plea of guilty entered after a hand-up brief in respect firstly, of a count of break, enter and steal contrary to s112 (1) Crimes Act 1900 (“the Act”) which carries a maximum penalty of fourteen years imprisonment and two offences contrary to s154(a) of the Act carrying a penalty of five years of taking and driving a conveyance without consent.

3 On the break, enter and steal count the Court in sentencing took into account some twelve matters on a Form 1 being four counts of possessing car breaking implements, two counts of break and enter building with a view to commit a serious indictable offence, namely stealing, a charge of larceny, a charge of goods in custody, two charges of being carried on a conveyance without consent, two charges of take and drive conveyance without consent.

4 The applicant was sentenced on counts two and three to two concurrent sentences from 7 July 2001 which took into account eight months and two weeks of pre-sentence imprisonment until 6 July 2002, being concurrent sentences of one year.

5 The applicant was sentenced on count one, taking into account the Form 1 matters, to a total sentence of four years commencing at the conclusion of the previous sentences on 7 July 2002 expiring on 6 September 2006 with a non-parole period of two years commencing on 7 July 2002 and expiring on 6 July 2004.

6 The applicant had had previous offences at the time of sentence extending back to 1989, on four charges, being stealing, larceny, shoplifting and a high range PCA.

The Facts

7 On count two the applicant and a co-offender on 16 March 2001 stole a vehicle parked unattended in Campbelltown. The applicant and her co-offender were observed by police, the applicant escaping whilst her co-offender was caught. When the applicant was identified, tyres that had been stolen from the vehicle were recovered.

8 In relation to offence number three, the applicant had been arrested on other matters and when interviewed admitted the offence, there being no other source of police awareness of the offence.

9 The first count of break, enter and steal related to premises in Woodford whereby the applicant in a stolen car remained in that car whilst a co-offender smashed a window, entered the premises, ransacked the premises taking jewellery, a camera, camera equipment and then left with the property and the stolen vehicle.

Subjective Features

10 The applicant is some thirty-three years of age and at the time of sentence was residing with her parents. She has three children, a teenage son, another son approximately ten years, and a teenage daughter. Before entering into custody the daughter had lived with her, the two sons living with their respective fathers.

11 In a pre-sentence report the applicant stated that her pattern of offending came from the use of amphetamines, that she had been clear of this drug but became involved with a man who was using drugs and she was re-introduced to drug consumption. She had commenced when some twenty years of age and after entering into a methadone program at twenty-three claims that she stopped using heroine for several years.

12 His Honour the learned sentencing judge found that the only way to protect the community was to separate the applicant from her drug abuse. His Honour found there were special circumstances to reduce the non-parole period to less than three-quarters of the head sentence because of her need for drug rehabilitation on release, and because of the accumulation of the sentences, his Honour took into account the need for general deterrence as well as specific deterrence.

13 The applicant’s case is that his Honour gave insufficient weight to assistance provided by the applicant constituted by her disclosure of otherwise undetectable guilt, and in so doing did not apply the principles established in the R v Ellis (1986) 6 NSWLR 603 as affirmed by the High Court in Ryan v R (2001) 206 CLR 267.

14 The principle in Ellis is clear and, in addition, the actions of someone disclosing an offence otherwise not complete or not known is evidence of remorse or contrition. It is put also that, taking into the account the subjective features of the applicant’s case, a less severe penalty is warranted in law and that the sentence should be set aside. The applicant relies on the remarks of Justice Kirby in Ryan where at para 97 he said in relation to Ellis:

“To say this is not to fall into a mistake of ascribing to the words of Chief Justice Street in the R v Ellis or of Justice McHugh in AB v R a rigid or inflexible application, however words represent images that conjure up ideas re Kirby Esq. The words ‘significant’ and ‘considerable’ are adjectives of degree, prima facie a large deduction in sentence is appropriate in such a case, otherwise the judges concerned when they express the applicable rule could have used lesser adjectives such as modest or minimal or perhaps the ever enigmatic appropriate. For a long time now it has been the law, correct in my view that a significant discount should be given in a case such as the present, that is the law that should have been applied in sentencing the applicant”.

15 It is impossible, in looking at Ellis, not to take into consideration the fact that two sentences for totally unrelated matters were to be served concurrently. The Court cannot ignore the fact that in many matters concurrent sentences are imposed for totally unrelated matters. However, that is not universally the case and in this case, although there has been no formal reference by his Honour the sentencing judge to Ellis, the fact that the two sentences are made concurrent means that the effective sentence is not increased beyond the one offence, and in the circumstances of there being no additional penalty at all for the second offence his Honour, in a careful judgment on sentence, made it clear that he took into account at p9 the following:

“Except for one significant factor there is little to date in the objective evidence to suggest that those statements, that is expression of sorrow, represent any more than a hollow expression made in the face of the inevitable”.

16 His Honour then went on most importantly to say:

“That factor though is that she has pleaded guilty. She pleaded guilty at the earliest opportunity. It is noted also that in the facts she did readily admit to many of these offences. In the circumstances I accept that her plea and those admissions do show on her part contrition and remorse in relation to those offences”.

17 It is difficult to conceive that his Honour, in structuring the sentence as he did and in making the two sentences concurrent, did not take into account the Ellis point in the imposition of concurrent sentences.

18 In relation to the severity of the offence it is important to take into account that the number of matters taken into account on the Form 1 in respect of the offence break, enter and steal, which of itself was a very serious matter, that his Honour the sentencing judge was dealing with a large number of serious to not so serious offences, but they are large in number and in this respect I refer to what his Honour the presiding judge said in the R v Bavandra (2000) 115 ACR 152 at para 30:

“When serious offences are included in a Form 1 the sentence imposed in respect of a count for which they are taken into account must reflect the totality of the criminal involvement. It is not the case that the Form 1 offences need only be noted in passing or that little by way of additional penalty should be imposed by reason of their existence”. Citing R v Morgan (1193) 70 ACR 368 at 372 per Chief Judge Hunt.

19 His Honour then went on to say:

“The offences in the Form 1 are serious and indeed need to be reflected in the ultimate sentence passed by the Court, moreover a number of these offences were committed whilst the prisoner was on bail which as I find as a matter of aggravation on sentence …”

and his Honour in fact did find that seven further offences were committed after the grant of bail, two of which included breaking and entering the building.

20 The offence of break, enter and steal for which the applicant was sentenced was a very serious matter, as I have indicated. The Form 1 matters were mostly very serious matters and there was a large number of them and in this respect it is difficult to see how his Honour has erred, having given the Ellis discount in effect by concurrently sentencing and by having already given a full twenty-five per cent being the maximum appropriate discount for the plea of guilty, and in any event how another sentence other than that imposed could have been imposed.

21 His Honour found in the very difficult personal and subjective circumstances of the applicant, special circumstances for reducing the non-parole period below seventy-five per cent of the head sentences and it seems to me that the sentences imposed were the least sentences available, and that his Honour took into account all necessary matters and I would therefore grant leave but would refuse the appeal.

22 BELL J: I also agree.

23 WOOD CJ AT CL: The order of the Court will therefore be as proposed.

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