Ridgeway v The Queen

[2016] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ridgeway v R [2016] NSWCCA 184

Hearing dates:

8 August 2016

Decision date:

23 August 2016

Before:

Payne JA at [1];
RA Hulme J at [57];
Adamson J at [58].

Decision:

(1)   Leave to appeal granted.

 

(2)   Appeal allowed.

 

(3) Quash the sentence for the offence against s 112(2) of the Crimes Act committed on 26 or 27 October 2012 imposed on 1 May 2015 in the District Court.

 

(4) In lieu thereof, for the offence against s 112(2) of the Crimes Act committed on 26 or 27 October 2012, the applicant be sentenced to a period of imprisonment of 3 years commencing on 5 November 2014 and expiring on 4 November 2017, comprising a non-parole period of 2 years commencing on 5 November 2014 and expiring on 4 November 2016, and a balance of term of 12 months expiring on 4 November 2017.

(5) The applicant is to be released on parole at the end of the non-parole period. Parole is to be subject to the standard conditions prescribed under the Crimes (Administration of Sentences) Act 1999 including as to supervision by the Probation and Parole Service.

Catchwords:

CRIMINAL – Appeal – Sentence – whether sentence manifestly excessive – break and enter with intent to commit larceny – delay in prosecution

Legislation Cited:

Crimes Act 1900 (NSW) ss 112, 117
Criminal Appeal Act 1912 (NSW) s 5
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Blanco v R [1999] NSWCCA 121; 106 A Crim R 303
Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581
Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Campbell [2014] NSWCCA 102
R v Gay [2002] NSWCCA 6; 49 ATR 78
R v Schwabegger [1998] 4 VR 649
R v Van Ryn [2016] NSWCCA 1
Sabra v R [2015] NSWCCA 38

Category:

Principal judgment

Parties:

Bradley (aka Koesha) Ward Ridgeway (applicant)
Regina (respondent)

Representation:

Counsel:
Ms H Cox (applicant)
Mr H Baker (Crown)

  Solicitors:
Aboriginal Legal Service (NSW/ACT) (applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2013/3341452013/361965

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

1 May 2015

Before:

Syme DCJ

File Number(s):

2013/334145
2013/361965

Judgment

1. PAYNE JA: On 1 May 2015 the applicant, Ms Ridgeway, was sentenced in the District Court for two offences committed in 2013 and one offence committed in 2012. The applicant pleaded guilty to all of the offences.

2. The 2013 offences were first, an offence of aggravated break and enter with intent to commit larceny contrary to s 112(2) of the Crimes Act1900 (NSW) and, second, an offence of larceny contrary to s 117 of the Crimes Act. Both offences took place on 5 November 2013. The applicant was sentenced to periods of imprisonment of 2 years and 6 months respectively, each to date from 5 November 2013. At the time of hearing this appeal, those sentences had both been completed.

3. The 2012 offence was an aggravated break and enter with intent to commit larceny contrary to s 112(2) of the Crimes Act, that occurred in October 2012. The applicant was sentenced to a period of imprisonment of 4 years to commence on 5 November 2014. A non-parole period of 2 years and 9 months was fixed to commence on 5 November 2014 and expire on 4 August 2017, with a balance of term of 1 year and 3 months to expire on 4 November 2018.

4. The applicant seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act1912 (NSW) only in respect of the 2012 offence.

Brief facts

5. On either 26 or 27 October 2012, the applicant entered a home at Waterloo, while the occupants were asleep at the premises, and stole personal items being a laptop, two mobile phones, a wallet, a ring worth $400, a bankcard, a backpack and $375 in cash.

6. At the time, the applicant was on parole and subject to a bond under s 9 of the Crimes (Sentencing Procedure) Act1999 (NSW). Although the applicant’s parole had been revoked shortly before the date of this offence, she had not yet been apprehended.

7. Fingerprints were taken from the premises at Waterloo by the investigating police and matched to the applicant within a matter of days; that is in late October 2012.

8. Despite the applicant being in custody from 2 November 2012 until 2 July 2013 serving the balance of her parole, she was not charged with this offence until 2 December 2013.

Sentencing remarks

9. The sentencing judge commenced her remarks by observing that the maximum sentence for this offence is 20 years imprisonment. The offence carries a standard non-parole period of 5 years.

Objective seriousness

10. With regards to the objective seriousness of the offence, the sentencing judge commented that:

The circumstances of the offending, the objective circumstances of the offending, as I have mentioned, are not particularly contentious nor are they particularly unusual for this sort of offence.

Subjective circumstances

11. The sentencing judge took into account the subjective circumstances of the applicant, observing that:

Firstly, she is now 47 years of age. I have noted her criminal antecedents. They are very significant criminal antecedents as an adult and include the commission of a number of motor vehicle offences, a number of offences relating to violence or assaults and wounding, and a very significant number of dishonesty offences: break and enter; break, enter and steal; larceny offences and the like.

Ms Ridgeway was first imprisoned as an adult with respect to dishonesty offences in 1996 and since then has been sentenced to terms of imprisonment, on my count, on at least seven occasions, but on some of those occasions [sic] have been concurrent sentences. In 2005 I note that she was sentenced to a term of imprisonment with respect to her first aggravated break, enter and steal offence, and the recommendations to the Parole authority at that time included a recommendation that she receive counselling with respect to the issues that were then presenting, which included substance abuse and trauma from sexual assaults.

…

Some of my reasons for dealing with it in that way and for dealing with the sentence in the way I propose are contained in the evidence in the psychological report. The psychological report which was tendered by consent contains what appears to be a history of Ms Ridgeway’s background. She was born and raised in Taree. The report describes in general terms what I will summarise as being a very dysfunctional family background in which alcohol abuse, lack of adequate adult role models and lack of adult emotional availability were features of her life as a young child. The offender had difficulty with her own gender identification and a troubled understanding of her own sexuality or gender from a relatively young age. The community in which she was living was generally described in the report as being largely a dysfunctional community in which there was significant alcohol abuse and significant violence. The offender was subject to repeated sexual abuse as a young person and she left her family home at age 16.

12. The sentencing judge also noted that the applicant:

• attended school to about year 8;

• attended TAFE courses, college courses and spent a short time at university in Queensland, however her studies were not completed as she was incarcerated around that time;

• informed the psychologist that she worked in an administrative job while studying, however, it is unclear to what extent she has had gainful employment;

• had little community support, as the people she associated with also abused substances;

• was receiving hormone therapy while in prison, and was otherwise in good health.

Delay

13. Regarding the delay in charging and prosecuting the applicant for this offence, the sentencing judge said:

It could have been and should have been the case, as there was a fingerprint match and the authorities knew where the offender was, that the charge for this matter could have been and should have been laid well before that time. I am not going to speculate what may have happened had the charge been laid earlier. It may have been that the offender would have pleaded guilty at the first available opportunity, as she did when this charge was laid. It may have been, most likely, that an imprisonment term would have been imposed at that time. It may have been there would have been other consequent actions.

As it turned out, and there is not proper explanation from the Crown as the Crown rightly concedes, there is no proper explanation for the delay. Similarly there is no evidence before me as to the consequences of the delay, whether they be good or bad, on the offender. As it was she was released from custody on 2 July 2013 and was not charged with this particular offence until she was arrested on subsequent offences.

Now I have been referred to several cases concerning this matter, one of which is the case of Sabra, with which I am particularly familiar. In that case I do note that the District Court found that there was a detrimental consequence of the delay for Mr Sabra, and that was referred to in the initial decision and in Bellew J’s decision. I do not have such evidence in this case.

…I can certainly see and understand that generally a sentence for a stale crime should take into account the fact that it is a stale crime, but on this occasion the offender was released from custody…

I will take into account, as much as I can, any consequences of the delay. It is a matter that I will take into account to some extent in mitigation, but the delay and the mitigation that presents to the Court is taken over by all of the other matters that I would take into account with respect to sentencing Ms Ridgeway, to which I will refer later.

The notice of appeal

14. Three grounds were advanced by the applicant as follows:

Ground one: Her Honour failed to make an assessment of the objective seriousness of the offence contrary to s 112(2) Crimes Act 1900.

Ground two: Her Honour erred in finding that the mitigating factor of delay otherwise operating in the applicant’s favour was subsumed by other matters that would be taken into account when sentencing her.

Ground three: The sentence imposed is manifestly excessive.

Leave to appeal

15. For the reasons that follow, the applicant’s grounds have substance and, accordingly, I would grant leave to appeal.

Ground one of the notice of appeal

16. The applicant submitted that while the sentencing judge had set out the facts of the offending, the Remarks on Sentence do not reveal how her Honour applied those facts in determining the objective seriousness of the offence.

17. In this regard, counsel for the applicant referred extensively to R v Van Ryn [2016] NSWCCA 1, where this Court emphasised a sentencing judge’s duty to assess the objective seriousness of an offence. Counsel also relied upon R v Campbell [2014] NSWCCA 102 at [27] where Simpson J (as her Honour then was) discussed the need to assess the objective seriousness of an offence, and said:

In my opinion, the assessment of objective seriousness is, and has always been, a critical component of the sentencing process…There is nothing in [Muldrock v The Queen [2011] HCA 39; 240 CLR 120] that cuts across the principle stated.

18. The importance of an assessment of the seriousness of an offence emphasised in Van Ryn should be acknowledged. So too, however, should be the caution expressed in that judgment about prescribing too closely the use of a particular verbal formula in making an assessment of the objective seriousness of offending conduct.

19. In Van Ryn the Court specifically referred to the earlier remarks of Hoeben CJ at CL in Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581 where his Honour addressed this subject. His Honour said at [56]:

While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account. (italics added)

20. Those remarks are apposite in the present case. While the sentencing judge did not explicitly outline her process of reasoning in assessing the objective seriousness of the offence, she clearly gave careful consideration to the nature of the offending conduct and the circumstances in which it occurred.

21. In particular, in relation to objective seriousness, her Honour found that the offending:

1. was opportunistic and not apparently premeditated;

2. was aggravated by virtue of the occupants of the property being home, and mitigated by the fact that they were not disturbed or aware of the offending until the following morning;

3. involved opening a closed door, but did not involve any property damage. It was unlikely that the offender was in the house for a lengthy period; and

4. resulted in some property of value being taken and not recovered.

22. Finally, after considering the facts as described above, her Honour said that other than the fact of the applicant’s status as a parolee and being subject to a s 9 bond, there were no other particularly aggravating factors in this case.

23. Only very limited submissions were made by counsel for the applicant and the Crown about the objective seriousness of the offending. It was in this context that the sentencing judge remarked that the objective circumstances of the applicant’s offending were not “particularly contentious” or “unusual”.

24. In my view, having made the findings about objective seriousness described at paragraphs [21] and [22] above, it cannot be said that her Honour fell into the error described in ground one of this appeal.

25. I am satisfied that in this case the objective factors relating to the seriousness of the offence to which her Honour referred were relevant and important and given proper weight in the sentencing process.

26. While her Honour did not expressly determine the objective criminality of the offences, she did so implicitly and clearly took the objective seriousness of the offending into account.

27. No error has been shown and ground one of the notice of appeal should be dismissed.

Ground two of the notice of appeal

28. The applicant submitted that her Honour erred in finding that the mitigating factor of delay otherwise operating in the applicant’s favour was subsumed by other matters that would be taken into account when sentencing her.

29. The applicant emphasised that the chronology of the matter was important to her case and the way the sentencing judge dealt with it disclosed error.

30. It will be recalled that the relevant offence was committed on 26 or 27 October 2012. Fingerprints located by the police at the scene were matched with the applicant on 29 October 2012.

31. The applicant was in custody serving the reminder of her parole from 2 November 2012 until she was released on 2 July 2013. It may be concluded that the applicant’s location could have been confirmed almost instantly if any attempt had been made to find the applicant from early November 2012. The applicant, however, was not charged with this offence until 2 December 2013.

32. Her Honour’s ultimate findings about delay were that she would:

…take into account, as much as I can, any consequences of the delay. It is a matter that I will take into account to some extent in mitigation, but the delay and the mitigation that presents to the Court is taken over by all of the other matters that I would take into account with respect to sentencing Ms Ridgeway…(italics added)

33. In Blanco v R [1999] NSWCCA 121; 106 A Crim R 303, Wood CJ at CL said at [17]:

The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach

…

The present was not a case where the applicant had been arrested and had spent a long time awaiting sentence, or in a state of suspense as to whether he might be charged; nor is it a case where he had shown any commitment towards rehabilitation after having realised the error of the ways. However, it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account on sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly…

(italics added; citations omitted)

34. In Sabra v R [2015] NSWCCA 38, Bellew J, at [33], cited with approval the Victorian Court of Appeal decision in R v Schwabegger [1998] 4 VR 649 at 569:

Delay which is not attributable to the offender, of course, constitutes “a powerful mitigatory factor”: R. v Liang and Li (1995) 124 F.L.R. 350 at 356; 82 A. Crim. R. 39 at 45. It can have relevance at a number of levels. In Duncan v R. (1983) 47 A.L.R. 746; 9 A. Crim. R. 354 the Court of Criminal Appeal of Western Australia stated at A.L.R. 749; A. Crim. R. 356-7:

… where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.

… The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.

Further, there is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion.

35. In R v Gay [2002] NSWCCA 6; 49 ATR 78, Mason P (RS Hulme and Hidden JJ agreeing) said at [18]:

The public interest as well as the legitimate private interests of the offender require a matter such as this to be brought to justice quickly. A failure by the authorities to do so will mitigate an otherwise appropriate sentence.

36. The Crown in its submissions concentrated on the first two parts of the relevant effect of delay identified by Wood CJ at CL in Blanco, namely increased hardship to the applicant in being kept in suspense about whether he or she would be charged with the offence and the undesirable effects of delay upon an offender’s efforts at rehabilitation. The absence of these factors in the present case may be accepted.

37. It is the third category explained by Wood CJ at CL in Blanco which was of principal relevance here. That is, the measure of understanding and flexibility of approach in imposing a sentence for an offence where there has been delay.

36. In my view, insufficient weight in the sentencing process was given to this question of delay. The applicant was, throughout much of that period, between 2 November 2012 and 2 July 2013, in custody and could readily be located. This was a case where the relevant delay mitigated what would otherwise have been an appropriate sentence.

37. It is tolerably clear that if the applicant had been charged with the 2012 offence soon after her fingerprints were identified at the end of October 2012, it is likely that she would have entered an early plea and been dealt with reasonably promptly, most likely early in 2013. She certainly lost an opportunity for that to occur by reason of the delay. This was an archetypal case for the application of a measure of understanding and flexibility of approach to sentencing.

38. If the matter had proceeded in early 2013, the sentencing judge would have ordered the sentence to commence from the date of imposition of the sentence: s 47 Crimes (Sentencing Procedure) Act. It is likely in those circumstances that there would have been some concurrency with the balance of the applicant’s parole period.

39. The Crown accepted that delay was relevant but submitted that the sentencing judge was correct to find that the fact that the offence was committed while the applicant was on a bond and on parole, together with the sentencing judge’s conclusion about the applicant’s poor prospects of rehabilitation and her lack of intention to address her substance abuse issues, “swamped” the question of delay.

40. In my view that was not a useful comparison. All of the things which the Crown pointed to would have been equally true if the applicant had been sentenced a year earlier for this offence. No doubt they were important matters to be taken into account, but the effect of delay in this case was an independent issue.

41. The sentencing judge, while acknowledging the delay in this case, did not adequately take into account the applicant’s considerable lost opportunity by reason of the delay in prosecuting the 2012 offence. That delay was not a matter “swamped” by the other considerations to which her Honour referred.

42. By treating delay in this way the sentencing judge failed to afford the applicant the measure of understanding and flexibility of approach to sentencing that the delay in this case required. As a result, ground two of the notice of appeal should be upheld.

Ground three of the notice of appeal

45. Having upheld ground two it is unnecessary to determine ground three as it is necessary for this Court to re-exercise the sentencing discretion: Kentwell v The Queen [2015] HCA 37; 252 CLR 601 at 617‑618 [42].

Resentencing by this Court

46. The maximum penalty for this offence is 20 years imprisonment. The standard non-parole period for this offence of 5 years is also a relevant factor.

47. This offence, whilst serious, was at the lower end of the scale of objective seriousness for offences of this type. While the applicant committed the offence while on parole and in circumstances where the occupants were inside the home:

1. the occupants were not aware of the offence until the following morning;

2. there was no element of planning or premeditation on the part of the applicant;

3. the applicant did not cause any property damage to the home;

4. there was no suggestion of any kind of violent conduct on the part of the applicant.

48. The applicant’s subjective case was compelling, and comprised the following factors:

• the applicant was brought up in a dysfunctional family and in a community where violence and alcohol was rife;

• she was subjected to continuous sexual abuse as a child by an uncle;

• she started using drugs at age 13, having grown up in a community where drugs and alcohol were prevalent and without any stable adult role models;

• she suffered from gender dysphoria and began dressing as a woman in her late teens;

• she was required to reside in a male gaol, with associated social isolation and restricted opportunities for education and employment within the gaol system;

• the risk of the applicant becoming institutionalised was real, given the amount of time she had spent in custody in her adult life.

49. On this appeal, an affidavit of Ms Ridgeway, affirmed on 5 August 2016, was read. In that affidavit, she stated that she has made some progress towards rehabilitation since being sentenced and had completed courses and obtained employment within the gaol system. Ms Ridgeway also stated that she acknowledges the effect of substance abuse on her life and is committed to stopping using drugs. An affidavit of the applicant’s instructing solicitor, Mr Elliott affirmed 5 August 2016, was also read. This largely confirmed the matters relating to the applicant’s employment and behaviour in prison.

50. Acknowledging that these are tentative first steps in a very long road to rehabilitation, they are nonetheless matters properly to be taken into account in the applicant’s favour.

51. In all of the circumstances, having regard the relatively low objective seriousness of the offence, the applicant’s powerful subjective case and the applicant’s lost opportunity to by reason of delay which I have described above, and after applying a utilitarian discount of 25 per cent for her plea of guilty, a sentence of 3 years imprisonment is appropriate.

52. In this case there should be the same twelve month period of accumulation as was fixed by the primary judge in relation to the 2013 offences for which the applicant was originally sentenced. The sentence of imprisonment should thus commence on 5 November 2014 and expire on 4 November 2017.

53. It will be recalled that the applicant was sentenced by the sentencing judge to two fixed periods of imprisonment for the two 2013 offences, of 6 months and 2 years respectively, each to commence on 5 November 2013. To reflect the fact of this earlier period of continuous custody, the sentencing judge made an adjustment to the non-parole period fixed for the 2012 offence in isolation, so as to give effect to the statutory ratio and apply it to the total effective sentence for the 2013 and 2012 offences.

54. There is in my view a need to make a finding of special circumstances in this case so as to reflect the statutory ratio as applying to the total effective sentence for the 2013 and 2012 offences.

55. Accordingly I would impose a non-parole period of 2 years for this offence commencing on 5 November 2014 and expiring on 4 November 2016 with a balance of term of one year. This has the effect that the applicant, at the expiry of the non-parole period on 4 November 2016, will have served a period of 3 years full time custody for the 2012 and 2013 offences and will have a balance of term of 1 year.

Orders

56. For the forgoing reasons, the orders I propose are:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence for the offence against s 112(2) of the Crimes Act committed on 26 or 27 October 2012 imposed on 1 May 2015 in the District Court.

4. In lieu thereof, for the offence against s 112(2) of the Crimes Act committed on 26 or 27 October 2012, the applicant be sentenced to a period of imprisonment of 3 years commencing on 5 November 2014 and expiring on 4 November 2017, comprising a non-parole period of 2 years commencing on 5 November 2014 and expiring on 4 November 2016, and a balance of term of 12 months expiring on 4 November 2017.

5. The applicant is to be released on parole at the end of the non-parole period. Parole is to be subject to the standard conditions prescribed under the Crimes (Administration of Sentences) Act 1999 including as to supervision by the Probation and Parole Service.

57. R A HULME J: I agree with Payne JA.

58. ADAMSON J: I agree with Payne JA.

**********

Decision last updated: 23 August 2016