Towers v The Queen

[2008] NSWCCA 283

New South Wales
Court of Criminal Appeal

CITATION:	Towers v R [2008] NSWCCA 283
HEARING DATE(S):	19/11/08
JUDGMENT DATE:	22 December 2008
JUDGMENT OF:	Beazley JA at 1; Kirby J at 2; Hall J at 76
DECISION:	(1) Leave to appeal granted. (2) The appeal allowed. (3) The sentence imposed by Bennett DCJ is quashed and, in lieu thereof: Count 2: Taking account of the offences on the Form 1, a non parole period of 2 years to commence on 19.7.07 and to expire on 18.7.09; with an additional term of 2 years 6 months to commence on 19.7.09 and to expire on 18.1.12. Counts 3 and 4: In each case, a fixed term of 1 years imprisonment to commence on 19.7.07 and to expire on 18.7.08. Count 5: A fixed term of 9 months to commence on 19.7.07 and to expire on 18.4.08. The earliest date upon which the applicant will become eligible to be released on parole is 18.7.09.
CATCHWORDS:	Criminal Practice & Procedure - appeal against sentence - home invasion and assault - matters of aggravation - whether double punishment to use violence to aggravate home invasion and charge assault - vulnerability of victim - victims in early 60's - revocation of parole - whether sentence should be backdated - whether sentence manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Correctional Centres Act 1952 (NSW) Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	R v Kerrie-Ellen Robyn Knight [2005] NSWCCA 253 R v Wickham [2004] NSWCCA 193 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Lucy Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371 Kokaua v Regina [2008] NSWCCA 111 R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 Postiglione v The Queen [1997] HCA 26; (1996-1997) 189 CLR 295 Callaghan v Regina [2006] NSWCCA 58; (2006) 160 A Crim R 145 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 SGJ v R; KU v R [2008] NSWCCA 258
PARTIES:	Alicia Lee Towers (Appl) Regina (Resp)
FILE NUMBER(S):	CCA 2007/5106
COUNSEL:	H Cox (Appl) V Lydiard (Resp/Crown)
SOLICITORS:	K Wells - ALS (Appl) S Kavanagh (Resp/Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/31/0143
LOWER COURT JUDICIAL OFFICER:	Bennett DCJ
LOWER COURT DATE OF DECISION:	26/10/07

CCA 2007/5106

BEAZLEY JA
KIRBY J
HALL J

Monday 22 December 2008

Alicia Lee TOWERS v REGINA

Judgment

1 BEAZLEY JA: I agree with Kirby J.

2 KIRBY J: On 19 October 2007, Alicia Towers (the applicant) was arraigned before Bennett DCJ in Newcastle upon an indictment which may be summarised as follows:

Count 1: On 1 December 2005, aggravated break, enter and commit a serious indictable offence (assault occasioning actual bodily harm) (contrary to s 112(2) of Crimes Act 1900) (“the Act”) (maximum penalty: 20 years imprisonment).
In the alternative
Count 2: On 1 December 2005, aggravated break and enter with intent to steal (contrary to s 113(2) of the Act) (maximum penalty: 14 years imprisonment).
Counts 3 and 4: On 1 December 2005, assault occasioning actual bodily harm to Mr and Mrs Crittenden (contrary to s 59(1) of the Act) (maximum penalty: 5 years imprisonment).
Count 5: On 17 November 2006, receiving stolen goods (contrary to s 189 of the Act) (maximum penalty: 3 years imprisonment).

3 Mrs Towers pleaded guilty to the alternative charge (Count 2) and the remaining charges. The Crown accepted that plea in full satisfaction of the indictment. The applicant also asked his Honour, when sentencing in respect of the most serious charge (Count 2), to take into account the following offences on a Form 1:

Offences 1 to 8: That on 17 November 2006, she made or used a false instrument with intent (contrary to ss 300(1) or 300(2) of the Act) (maximum penalty: 10 years imprisonment).
Offences 9 to 12: That on 18 November 2006, she made or used a false instrument with intent.
Offences 13 and 14: That on 20 November 2006, she made or used a false instrument with intent.
Offence 15: That on 28 November 2006, she committed the offence of larceny (contrary to s 117 of the Act) (maximum penalty 5 years imprisonment).
Offence 16: That on 20 November 2006, she received stolen property (contrary to s 189 of the Act) (maximum penalty: 3 years imprisonment).
Offence 17: That on 20 November 2006, she committed the offence of common assault (contrary to s 61 of the Act) (maximum penalty: 2 years imprisonment).

4 On 26 October 2007, Bennett DCJ imposed the following sentences upon Ms Towers:

Counts 3 and 4: On each count, a fixed term of 12 months imprisonment to commence on 19.7.07 and expire on 18.7.08.
Count 5: A fixed term of 1 year and 6 months imprisonment to commence on 19.1.08 and expire on 18.7.09.
Count 2: Taking account of the offences on the Form 1, a non parole period of 2 years imprisonment to commence on 19.1.08 and expire on 18.1.10, with a balance of term of 3 years to commence on 19.1.10 and expire on 18.1.13.

5 The aggregate term was imprisonment for 5 years 6 months, with a non parole period of 2 years 6 months. The applicant seeks leave to appeal against the sentences imposed.

6 At the conclusion of argument, the court reserved its decision. When preparing this judgment, an error was discovered which had not been raised by the parties. His Honour, in his sentencing remarks, referred to Count 5 (receiving) as an offence “contrary to section 189 of the Crimes Act 1900 for which the maximum penalty is ten years imprisonment”. Section 189 is the offence of receiving where the maximum penalty is three years imprisonment. Section 188 is also concerned with receiving stolen property, the maximum penalty being ten years imprisonment. The difference between the two sections is concerned with the circumstances in which the goods received were stolen. Section 188 contemplates “stealing” amounting to “a serious indictable offence”, whereas section 189 presupposes stealing involving a “minor indictable offence”.

7 Was his Honour’s reference to section 189 a slip, where he was intending to refer to section 188? The terms of the indictment, Count 5, do not assist. They speak of “receiving a credit card”. The back of the indictment, listing the sections relevant to the charges, does refer to s 189. The Particulars of Trial repeat the error in the sentencing remarks, combining s 189 and a maximum penalty of ten years imprisonment. The Agreed Statement of Facts provide no assistance. They do not disclose the circumstances in which the goods were stolen.

8 I believe that there was error and that the appropriate section was s 189, as set out on the back of the indictment. The maximum penalty was therefore three years imprisonment. I make the same assumption in respect of the receiving charge on the Form 1 (Offence 16). What, then, should be done about the error? Should the court reassemble? The sentence imposed on Count 5 was wholly concurrent with Count 2. I do not believe it was material to the ultimate sentence imposed or, for the reasons which will emerge, to the disposition of this appeal (cf R v Kerrie-Ellen Robyn Knight [2005] NSWCCA 253 at [82]–[84]). The description of the indictment above incorporates the correction.

9 Before dealing with the grounds of appeal, I should first describe the circumstances in which each offence was committed.

The offences.

10 The Crown tendered an agreed statement of facts. The victims of the aggravated break and enter and the assaults were Mr and Mrs Crittenden. They lived at Merewether. Mr Crittenden was aged 62 years and his wife 60. On 1 December 2005, Mr Crittenden worked on the roof of his home attempting to fix Christmas lights. The front garage door was open. He ceased work once it became dark. At about 9:45 pm he and his wife were watching television when Mr Crittenden noticed that the kitchen light was on. He knew that he had turned it off shortly before. He therefore walked to the kitchen to investigate. Once in the kitchen, he immediately saw Ms Towers. According to the agreed statement, their conversation was as follows:

“He said to the offender, ‘What are you doing in my kitchen?’ . The offender replied, ‘There’s someone in your back yard.’ Mr Crittenden said to the offender, ‘I don’t care who is in the back yard what are you doing in my kitchen?’. The offender replied, ‘I’m pregnant.’ ”

11 Meanwhile, Mrs Crittenden entered the kitchen. Her husband asked her to ring the police. As she picked up the phone, Ms Towers lunged forward and ripped the phone from her hand and from the socket in the wall. Mr Crittenden then told his wife to call the police on her mobile.

12 Ms Towers responded by saying: “There is someone in your garage going through the car.” Mr Crittenden realised that he had left the garage door open. He directed his wife to keep an eye on Ms Towers whilst he checked the garage. As he walked towards the front of the house, Ms Towers ran towards the back door. Mrs Crittenden endeavoured to stop her. Ms Towers grabbed Mrs Crittenden’s left arm with force and pulled her out of the way. Mr Crittenden, meanwhile, joined in the chase, taking hold of Ms Towers in an attempt to stop her. She then bit him on the left wrist and he let her go.

13 Immediately after she left, Mr Crittenden went outside and saw Ms Towers as she ran up their street. She jumped into the passenger’s seat of a motor vehicle, which then drove away without its headlights on.

14 Mrs Crittenden suffered extensive bruising to her upper arm as a result of the assault. Mr Crittenden, likewise, had a bruise to his left wrist. They rang the police. Whilst waiting for the police, Mr Crittenden went into the garage to see if any property had been stolen. He saw a cigarette butt on the garage floor, which he gave to the police once they arrived. It was sent to the Department of Analytical Laboratories for examination. The forensic investigation took some time to complete. It yielded a DNA profile which matched that of Ms Towers. Ms Towers was charged with the aggravated break and enter and the assaults approximately one year later (7 December 2006).

15 Moving to Count 5, the charge of receiving, the statement of facts was in these terms:

“On Friday 17 November 2006 the offender was in possession of two Newcastle Permanent Visa cards issued to Barbara Quarello. The visa cards had been stolen from premises situated at 62 Belmore St, Adamstown, earlier that day.”

The Form 1 offences.

16 The first 14 of the Form 1 offences concerned the use by Ms Towers of Barbara Quarello’s visa credit card. The agreed statement of facts was in these terms:

“At about 2.13 pm on Friday 17 November 2006 the offender attended the Newcastle Permanent Building Society in Hamilton purporting to be Barbara Quarello. The offender completed a withdrawal slip for $500 in the name of Barbara Quarello. She presented the withdrawal slip together with one of the stolen Newcastle Permanent Building Society visa cards she was in possession of to a bank teller. The offender was handed $500 in cash which was withdrawn from the visa account of Barbara Quarello. As the transaction was in progress the offender stated that she may need more money.
At about 2.19 pm on Friday 17 November 2006 the offender returned to the Newcastle Permanent Building Society in Hamilton purporting to be Barbara Quarello. The offender completed a further withdrawal slip in the name of Barbara Quarello. The offender presented the withdrawal slip and one of the stolen Newcastle Permanent Building Society visa cards she was in possession of to a bank teller. The offender was handed $400 in cash which was with withdrawn from the visa account of Barbara Quarello.
At about 3.05 pm on Friday 17 November 2006 the offender returned to the Newcastle Permanent Building Society in Hamilton purporting to be Barbara Quarello. The offender completed a withdrawal slip for $1000.00 in the name of Barbara Quarello. The offender presented the withdrawal slip together with one of the stolen Newcastle Permanent Building Society visa cards she was in possession of to the bank teller. The offender was handed the sum of $1000.00 which was withdrawn from the visa account of Barbara Quarello.
At about 3.07 pm on Friday 17 November 2006 the offender returned to the Newcastle Permanent Building Society in Hamilton and completed a further withdrawal slip for $1000.00 in the name of Barbara Quarello. The offender presented the withdrawal slip together with one of the stolen Newcastle Permanent Building Society visa cards she was in possession of to the bank teller. The offender was handed $1000.00 cash which was withdrawn from the visa account of Barbara Quarello.
On 18 November 2006 the offender attended the Newcastle Permanent Building Society branch in Hamilton on two occasions purporting to be Barbara Quarello. On both occasions the offender completed a withdrawal slip in the name of Barbara Quarello and on both occasions she presented the withdrawal slip to the teller together with the stolen Permanent Building Society visa card she was in possession of. Both transactions were refused and the stolen visa cards were retained by the teller.
All these transactions were captured on CCTV within the Newcastle Permanent Building society branch.”

17 Offence 16 on the Form 1 related to receiving stolen property. The agreed facts were in these terms:

“On Monday 21 November 2007 the offender was in possession of a stolen Newcastle Permanent Visa card in the name of Diana Edwards. The visa card had been stolen the previous day from the victim’s residence at 209 Beaumont Street, Hamilton.
At about 11.43 am on 21 November the offender attended the Newcastle Permanent Building society branch at Kotara purporting to be Diana Edwards. The offender walked in and asked for a balance on account number 96351101. The offender then completed a withdrawal slip for $1000.00 in the name of Diana Edwards. The offender presented the withdrawal slip to the teller. The signature did not match the signature on the card so the teller requested that the offender sign the signature again. The offender did so and the signature still did not match. The teller asked the offender if the account was hers. The offender responded ‘yes’. The offender was advised that the visa card was registering as a ‘hot flag’. The offender told the teller that she had reported the card lost/stolen the previous day. The offender was unable to provide the correct address details attached to the card. The teller became suspicious and refused the transaction. He retained the withdrawal slip and the visa card.
This transaction was captured on CCTV within the Newcastle Permanent Building society branch.”

18 Offence 17 charged common assault and the agreed facts were as follows:

“Later that day 21 November the offender attended the residence of Diana and Robin Edwards at 182 Beaumont Street Hamilton. The offender knocked on the front door. The victim Robin Edwards answered the door. The offender asked for ‘Cathy’. The victim told the offender that he had lived at that address for 10 years and no one lived there by that name. The offender then told the victim that she lived next door with her parents. The victim challenged the offender about this and suggested that they go next door and talk to her parent[s]. The offender panicked and attempted to run off. The victim tried to prevent the offender from escaping and during this incident the offender bit the victim on the shoulder. She then ran off.”

19 The remaining offence on the Form 1 (Offence 15), was a charge of larceny where Ms Towers went to the Aldi supermarket at Hamilton, selected a number of items, and left the store without paying for them.

Subjective case.

20 The Crown acknowledged that Ms Towers had a very strong subjective case (T 19: 19.10.07). Her life had been marked by tragedy. She was born in October 1984. She was therefore 21 years old at the time of the Crittenden offences (Counts 2, 3 and 4) and 22 years old at the time of the receiving charge (Count 5) and the offences on the Form 1.

21 Ms Towers is Aboriginal. She had a difficult childhood. Both parents openly used drugs in her presence and the presence of her siblings. They were generally unemployed. They later separated. Ms Towers went to live with her father until she was 11 or 12. Thereafter she lived with her aunt until she was about 14 years old. At that point she moved in with her boyfriend. Ms Towers attended a number of schools. She had learning difficulties. When she left school at an early age she was barely literate.

22 In October 1999, when Ms Towers was just 15 years old, she was raped. She and her cousin were offered a free lift by a taxi driver. Once they reached their destination the taxi driver produced a knife. He threatened to cut their throats and sexually assaulted both. He was later sentenced for these crimes.

23 Ms Towers was referred to a psychologist. She underwent counselling for a number of years. Remarkably, she did not, at that point, turn to drugs. However, in 2001, at the age of 17, she fell pregnant. Her partner was abusive and they later separated. On 15 February 2002, she was raped for a second time. Her attacker was an American. She reported the matter to the police. His Honour summarised the outcome of the police investigation in these terms: (ROS 11/12)

“The offender then took the police to the scene of where she had suffered this crime. At that location they found a used condom with blood and other items from which they were able to harvest forensic material sufficient to identify the offender, presently in the United States where he has been prosecuted for similar behaviour. According to the COPS entry, the police have been told that he has to face penalties of 240 years to life before there is any hope of extradition to this country.”

24 The second rape occurred one month after Ms Towers had completed therapy in respect of the first rape. Ms Anita Duffy, a psychologist, furnished a report in which she described the consequences in these terms: (p 8)

“Alicia’s presentation at our session together, the history she gave me and results of objective personality assessment reveal a young woman with chronic symptoms of Post Traumatic Stress Disorder specifically arising from two incidents of rape which occurred when she was 14 and again at 17 years of age. The second experience so profoundly disturbed her that it triggered off an extreme use of drugs in order to cope. She used crystal methamphetamine to stay vigilant and awake, to best protect herself and indirectly her family. In the latter two years she has also used heroin heavily.”

25 Within a matter of weeks, Ms Towers turned to crime to raise money to pay for drugs. On 28 August 2002, she was brought before the Children’s Court on a number of counts of robbery, assault and larceny. She was placed on probation for 12 months and required to undergo counselling. She was also obliged to accept the supervision of the Department of Juvenile Justice.

26 In the years that followed Ms Towers repeatedly came before the Newcastle Local Court. Many of the charges concerned motor vehicles, the absence of a licence or insurance, and offences of that sort. She was also charged with larceny and shoplifting. On 25 January 2005, she was sentenced to three months imprisonment in respect of several charges of larceny, goods in possession, assault and other offences. The pattern was repeated later the same year, when she was again sentenced to three months imprisonment (8.12.05 to 7.3.06). It will be remembered that the offences concerning Mr and Mrs Crittenden (Counts 2, 3 and 4) were committed on 1 December 2005, that is, a week before this sentence was imposed.

27 On 13 July 2006, Ms Towers again came before the Newcastle Local Court. She was charged with a number of offences of dishonesty, including break enter and steal. She was sentenced to 15 months imprisonment, with a non parole period of 6 months. The sentence was backdated to 28 March 2006, so that she was released to parole on 27 September 2006.

28 On 24 November 2006, the Parole Authority, at a private meeting, revoked Ms Towers’ parole. She was, at this time, pregnant and about to give birth to her second child. The child was born on 4 December 2006 and was severely disabled. She was found to be both blind and incapable of sitting up because of a spinal defect. She is presently cared for by the Department of Community Services (“DOCS”).

29 On 6 December 2006, following the revocation of her parole, Ms Towers was again arrested. She was obliged to serve the balance of her sentence, which was said to expire on 19 July 2007. As set out above, it was the day after her arrest (7 December 2006) that she was charged with the offences which had been committed a year earlier (Counts 2, 3 and 4) concerning the Crittendens.

The Notice of Appeal.

30 The notice seeking leave to appeal relies upon the following grounds:

1. His Honour erred by imposing “double punishment” in finding that the offence of breaking and entering with intent in circumstances of aggravation contrary to s 113(2) Crimes Act 1900 was aggravated by the fact that the offence involved the actual use of violence, given that the actual use of violence constituted the gravamen of the two offences of assault occasioning actual bodily harm contrary to s 59(1) Crimes Act 1900 for which the applicant was separately sentenced by his Honour.

2. His Honour erred by finding that the offences were aggravated pursuant to s 21A(2)(l) in that the victims were vulnerable.

3. His Honour failed to properly consider and apply the principle of totality to the sentence imposed.

4. The sentences imposed were manifestly excessive.

31 I will deal with each ground in turn.

Ground 1: Aggravation of Count 2 because of violence.

32 His Honour, in his sentencing remarks, turned to s 21A of the Crimes (Sentencing Procedure) Act 1999 and considered matters aggravating and mitigating the offences. Section 21A(2) identifies, as a matter of aggravation, the following:

“s 21A(2) …
(b) the offence involved the actual or threatened use of violence”

33 Section 21A(2) concludes with these words:

“The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”

34 Further, the Court may not have regard to any aggravating (or mitigating) factor if it would be contrary to any rule of law to do so (s 21A(4)).

35 In that context, his Honour said this: (ROS 16)

“The Act requires that I also turn my mind to relevant aggravating and mitigating factors. One needs to assess where the objective seriousness of these offences should be placed, bearing in mind the circumstances of the offences themselves, the circumstances of aggravation that are relevant to the offence, and, the mitigating factors that are relevant to the offence, as opposed to those relevant to the offender herself.
I note that one of the factors of aggravation is that the offence involved the actual use of violence, towards both Mrs Crittenden and Mr Crittenden, and then in the other event to Mr Edwards.
Of course, in the assault occasioning actual bodily harm charges, violence is the essence of the crime.”

36 The applicant submitted that his Honour was carefully distinguishing between, on the one hand, Count 2 (aggravated break and enter) and Counts 3 and 4 (assault). He was stating that violence could not be taken into account in respect of Counts 3 and 4 because it was an element of the offence of assault occasioning actual bodily harm. However, it could be taken into account as an aggravating factor in respect of Count 2. That, according to the applicant, amounted to double punishment, since Ms Towers had been separately charged with her acts of violence against Mr and Mrs Crittenden in Counts 3 and 4. There was, accordingly, error.

37 Counsel for the applicant drew attention to the sentences which were in fact imposed. The error had an impact upon the sentencing discretion. His Honour determined that it was appropriate to partially accumulate the sentences in respect of Counts 2, 3 and 4. Having imposed concurrent fixed terms in respect of the assaults (Counts 3 and 4), his Honour delayed the commencement of the sentences on Count 2 (aggravated break and enter) and Count 5 (receiving) by six months.

38 The Crown, in response, drew attention to his Honour’s introductory words. According to the Crown, his Honour was reminding himself that violence was not to be taken into account in respect of the offence of aggravated break and enter. Alternatively, if that be wrong, and violence was taken into account, it would not, according to the Crown, amount to double counting “of aggravating features of an offence” (R v Wickham [2004] NSWCCA 193 [22]) (emphasis in the original).

39 Dealing with these submissions, I believe his Honour did use violence as an aggravating feature of Count 2. Was it open to him to do so? The offence under s 113(2) concerns breaking into a house with intent to commit a serious indictable offence (larceny) in “circumstances of aggravation”. That phrase is defined in s 105A(1) to include six alternatives, amongst which there are the following:

“s 105A(1) …
(c) the alleged offender uses corporal violence on any person,
(d) the alleged offender maliciously inflicts actual bodily harm on any person …
(f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.”

40 There is no definition of “corporal violence” which, presumably, means physical violence. Here, the Crown identified paragraph (f) as the circumstance of aggravation. Accordingly, violence was not an element of the offence. The use of violence as an aggravating factor does not offend the prohibition in the concluding words of s 21A(2).

41 Does it, however, offend the prohibition in s 21A(4), that “the Court is not to have regard to any such aggravating … factor in sentencing if it would be contrary to any … rule of law to do so”? There is a rule of law, or at least a recognised sentencing practice, that there should not be double punishment for whatever is done. In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, the Court was concerned with two charges, one under s 33 of the Crimes Act (the malicious infliction of grievous bodily harm) and the other under s 110 of the same Act (breaking and entering a dwelling house and whilst therein inflicting grievous bodily harm). A single act, the infliction of grievous bodily harm, was an element of each offence (Pearce [42]). The appellant had been convicted of both. In that context, McHugh, Hayne and Callinan JJ said this: (at 623)

“[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

42 Their Honours added: (at 623)

“[41] In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law (cf R v Hoar (1981) 148 CLR 32 at 38). There is nothing in ss 33 or 110 of the Crimes Act more generally which suggests that Parliament intended that an offender such as the appellant should be twice punished for his inflicting grievous bodily harm on his victim. Nor do we consider that any such intention can be gathered from s 57 of the Interpretation Act1987 (NSW). As stated above, that section merely supplements and does not supplant the practice or rule with which we now deal.
[42] It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by ‘excessive subtleties and refinements’ (Barry, The Courts and Criminal Punishments (1969) p 14). It should be approached as a matter of common sense, not as a matter of semantics.”

43 These statements were concerned with convicting Pearce with two offences having common elements. Even where the gravamen of each offence is different, such that each conviction may stand, there are still issues of double punishment.

44 McHugh, Hayne and Callinan JJ said this: (at 623)

“[43] The trial sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was double punished for the one act.”

45 Their Honours added: (at 624)

“[49] Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. … “

46 In Lucy Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371, the offender hijacked a helicopter at gunpoint and rescued an inmate from Silverwater gaol. She was charged with a number of offences. There was a charge under s 32 of the Correctional Centres Act 1952 (NSW) that, “by force” she had rescued an inmate from lawful custody. There was a further charge of having assaulted the helicopter pilot, contrary to s 206 of the Crimes Act 1900. That section, relevantly, is in these terms:

“A person who, while on board an aircraft or vessel, assaults or threatens with violence a member of the crew of the aircraft or vessel:
(a) so as to interfere with the functions or duties performed by the crew member in connection with the safe operation of the aircraft or vessel, or
…
is liable to imprisonment for 14 years.”

47 Ms Dudko challenged her conviction for each offence, and the sentences imposed. Although the issue on this appeal concerns sentence, it is instructive to examine what was said by the Chief Justice on the separate convictions in respect of each offence.

48 The submissions of the appellant, Ms Dudko, on conviction, were as follows: (at 389)

“102 She stated that the essential part of the offence under count 1, namely the element of ‘force’, was the actual element of the other charge, namely assaulting the member of an aircraft crew.”

49 Spigelman CJ (Simpson J and Blanch AJ agreeing) dealt with the issue in these terms: (at 390)

“108 In Pearce , the High Court dealt both with the issue of double conviction and double punishment. That case involved two charges under ss 33 and 110 of the Crime Act which, respectively, applied to the malicious infliction of grievous bodily harm and breaking and entering a dwelling house and, while therein, inflicting grievous bodily harm. As can be seen the gravamen of both these offences is the same, that is, the infliction of grievous bodily harm. Accordingly in Pearce it was held that the single act founded both convictions. …”

50 His Honour continued: (at 390/1)

“109 So here the gist or gravamen of the offence under s 32 of the Correctional Centres Act is the rescue, whereas the gist or gravamen of the offence under s 206 of the Crimes Act is the diversion of a pilot from his functions and duties, that is, the hijack. That the element of force in one and the element of assault in the other was, apparently, said to be constituted by the same conduct, does not detract from the proposition that there were two quite distinct offences. In my opinion, there was no double conviction or double punishment.”

51 The Chief Justice returned to the issue when dealing with sentence. Counsel for Ms Dudko made the following submission: (at 389)

“103 … Mr S G Odgers SC submitted:
‘Approached as a matter of common sense … a single act was an element of both offences. The wholly concurrent and identical terms of imprisonment imposed indicate that the applicant was doubly punished for the one act and the sentences were accordingly flawed.’”

52 The Chief Justice dealt with this argument in these terms: (at 391)

“113 As I have indicated above, the gravamen of the two offences in this case was quite distinct. Although both offences carried maximum penalties of 14 years, in one case the focus was on a rescue by force and in the other case, on a hijack by threat. Even though the force and the threat was constituted by the same act, it cannot be concluded in this case, unlike Pearce , that the appellant has been ‘doubly punished for a single act’. In Pearce , the single act was the infliction of grievous bodily harm. That was much more than simply an element of the offence, it was the gist or gravamen of the criminal behaviour. In the present case the gist or gravamen of the criminal behaviour was not the same in the two offences. In my opinion it is not correct to say that there was a double punishment on the facts of this case.”

53 Here, there could be no objection to the conviction of Ms Towers on Count 2 (aggravated break and enter) and Counts 3 and 4 (the assaults). The gravamen of each offence was quite different. The issue is whether there was double punishment in separately charging the assaults (Counts 3 and 4) and then using the same act (the assaults) as an aggravation of the break and enter (cf s 21A(4)). I believe there was. Had there not been separate counts for the assaults, the sentencing Judge could have used the assaults upon the Crittendens as a matter of aggravation of the aggravated break and enter under s 21A(2)(b). However, there being separate charges, I believe there was error in using the assaults as a matter of aggravation.

Ground 2: Aggravation because of vulnerability.

54 In his remarks on sentence, while still dealing with matters of aggravation, his Honour said this: (ROS 16/17)

“There is also the vulnerability of Mr and Mrs Crittenden in their home at the time the break and enter with intent was committed upon their premises. I take note of the fact that they were both sixty and sixty two years of age respectively.”

55 His Honour was adverting to s 21A(2)(l), which is in these terms:

“s 21A(2) …
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as taxi driver, bus driver or other public transport worker, bank teller or service station attendant) …”

56 Counsel for the applicant suggested his Honour was in error in a number of respects. First, the Crown had, as mentioned, identified as the circumstance of aggravation for s 113(2) that the applicant knew that there “were persons in the house” (s 105A(1)(f)). There was, in these circumstances, an element of double punishment to use the vulnerability of the victim as a matter of aggravation for many of the same reasons as given in respect of Ground 1. Alternatively, the mere fact that the victims were 60 and 62 could not ground a finding that they were vulnerable. The facts demonstrated that they were not. Mr and Mrs Crittenden, when faced with Ms Towers as an intruder, had given a good account of themselves.

57 The Crown acknowledged, on the basis of his Honour’s remarks, that the circumstance of aggravation was taken into account in respect of s 113(2) (Count 2). However, the age of the victims was, according to the Crown, enough to make them vulnerable. Reference is made to Kokaua v Regina [2008] NSWCCA 111, where the victim was 62 years old. The sentencing Judge in that case had mistakenly referred to the victim as also having a walking stick. He found that the offence was aggravated by reason of the victim’s “vulnerability”. On appeal, Hoeben J said this:

“[31] I am not persuaded that his Honour’s error in this regard had any effect on the sentence. It is not in dispute that the victim was vulnerable because of his age. I infer from the sentence ‘The victim followed by walking as quickly as he could’ in the context of the applicant running after the dog, that in some respects the victim’s mobility was impaired. Whether this was because he needed to use a stick or for some other reason is not material. Conceptually the difference between a person being vulnerable because of age and some impairment of mobility and a person being vulnerable because of age and the requirement to use a stick for mobility is marginal at most.”
(emphasis added)

58 It was submitted by the Crown that there had been no error.

59 I am persuaded, however, that there was error although not for the reasons given by the applicant. Kokaua v Regina involved a charge of assault with intent to rob. The offender was a young man born in 1987. The victim was aged 62 years. The offender approached the victim in order to rob him when he was walking his dog. The offender therefore knew that he was dealing with a man in his sixties. Similarly Ms Towers, once she was in the house, was in a position to form an appreciation of the victims. She was confronted by a couple in their sixties. The assaults which were then perpetrated (Counts 3 and 4) were aggravated by reason of the vulnerability of the victims.

60 His Honour did not, in his remarks, expressly identify the offences he regarded as having been aggravated by the vulnerability of the victims. The Crown, as stated, suggested that his Honour had in mind s 113(2) (Count 2). That is probably a fair reading of his remarks. However, I do not believe that Count 2 can be regarded as having been aggravated by reason of the victims’ ages. Section 21A(2)(l) is dealing with crimes against particular classes of victims who, by reason of their age, their disablement, or their occupations, are vulnerable. In R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740, the sentencing Judge was dealing with a number of offences involving identity theft. The offender had a number of documents relating to particular individuals and thereafter used those documents to provide him with a false identity. He thereby obtained money by fraud. The sentencing Judge said that his crimes had, amongst other things, been aggravated by reason of the vulnerability of the victims. On appeal, Howie J (Grove and Hall JJ agreeing) said this: (at 746)

“[24] … But there was no evidence that any of the victims fell within the examples of the categories of victims given in s 21A(1)(l) or that they came within any analogous category. They were either persons working in unremarkable businesses who just happened to have acted on the false documents shown to them, or they were private individuals who parted with their money because they happened to believe the applicant’s promise to carry out the work that they paid to have performed. It may be, although there is no evidence of it, that one or more of them were more easily persuaded to part with property or money than some other members in the community might have been, but that fact would not make them vulnerable for the purpose of the section.”

61 Here, there was no suggestion that the offender knew the Crittendens, or that she knew there was a couple in their sixties in the house. By her plea of guilty, she may be taken to have simply known there were “persons in the house”. There was no basis for inferring that she had targeted the house because she knew the victims were in their sixties and vulnerable. The house, one infers, was chosen at random. It was chosen for reasons unrelated to the characteristics of the occupants. It was not open, in those circumstances, in my view, to regard the offence in Count 2 as having been committed in circumstances of aggravation under s 21A(2)(l). Accordingly, there was error in respect of Count 2, although not in respect of Counts 3 and 4.

Grounds 3: Totality and the revocation of parole.

62 Error having been established, it is unnecessary to deal at length with Grounds 3 and 4, except insofar as they throw light upon the issues which remain, namely, whether under s 6(3) of the Criminal Appeal Act 1912, some other sentence is warranted in law and should have been passed and, if so, the appropriate sentence.

63 However, it is useful to discuss the applicant’s complaint concerning totality (Ground 3). His Honour, when sentencing the applicant, said this: (ROS 9)

“The Crown has thoughtfully provided a summary of the background circumstances of her custody up to the point of when she was arrested in relation to these matters. Drawing from that material, Towers was admitted to parole on 27 September 2006, revoked on 24 November 2006, it would appear, following her detection in relation to these matters presently before me. She was thereafter subject to imprisonment for that sentence, which expired in July of this year.
She has been in custody solely in relation to these matters since 19 July 2007. The sentences I am to impose will commence on that date.
Offences in the Form 1 committed in 2006 were at a time when she was subject to that period of parole, revoked on 24 November 2006.
She was also subject to parole at the time of the offence of receiving included in the indictment and upon which I am to sentence her.”

64 Counsel for the applicant drew attention to the principles stated in Postiglione v The Queen [1997] HCA 26; (1996-1997) 189 CLR 295 by McHugh J at 307/8, that when a Court sentences an offender for multiple offences, including in circumstances where the offender is already serving a sentence for other offences, it is fundamental that the sentencing Judge ensures that the aggregate of all sentences is “a just and appropriate measure of the total criminality involved”.

65 Here, according to the applicant, his Honour was confronted by an offender who was serving an existing sentence once parole had been revoked. His Honour, it was submitted, had mechanically dated the sentences he was dealing with from the expiration of the parole period. He did not advert to the effect of the additional seven months in custody (from 6.12.06) upon the total sentence that he was imposing or upon the non parole period. Nor did he acknowledge any discretion that he may have had in relation to the commencement date of the sentences he was about to impose.

66 The Crown, responding to these submissions, tendered an affidavit. The affidavit annexed a copy of the State Parole Authority’s reasons for revoking Ms Towers’ parole on 24 November 2006. The letter included the following:

“ … a breach of Prescribed Condition (c) and Supervision Condition (a) i.e. – unable to adapt to normal lawful community life (and drug use) and fail to obey all reasonable directions of the supervising officer. This revocation was made effective from 14 November 2006.”

67 The revocation, contrary to his Honour’s assumption, had nothing to do with the offending behaviour in the counts that he was dealing with. The reasons for the revocation of parole may be material to the discretion to backdate a sentence as Simpson J explained in Callaghan v Regina [2006] NSWCCA 58; (2006) 160 A Crim R 145, where her Honour said this (at 149-150):

“[21] That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly , the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced.
[22] I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule.
[23] It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.
[34] However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.”

68 Here, the additional period in custody was also “quite short”, namely, seven months (see also Kokaua v The Queen (supra) per Hoeben J [43]-[46]; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 [27]-[29]). His Honour had a discretion to backdate the sentence to a date before the expiration of the non parole period if he thought it appropriate. There was no error in failing to do so.

Ground 4: The sentence was manifestly excessive.

69 Counsel for the applicant drew attention to a number of findings by his Honour favourable to Ms Towers. His Honour was plainly moved by her tragic history and the circumstances which led to her use of drugs. He characterised that explanation as affording “a level of mitigation” referring to Wood CJ at CL in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273]. He saw Ms Towers as being at “the cross roads” (R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394). He believed her remorse was genuine. She had, in his view, “good prospects of rehabilitation”. One can add to the list that his Honour allowed a discount of 33% “to reflect the pleas of guilty” (ROS 17).

70 The applicant also drew attention to the fact that, these findings notwithstanding, his Honour then imposed a sentence, according to the statistics, in the top 20% of sentences imposed in respect of this offence, although he made a generous allowance for special circumstances. Acknowledging that statistics were a blunt instrument, it was nonetheless submitted that the sentence was manifestly excessive. No property had been taken in the break and enter. The injuries to Mr and Mrs Crittenden involved bruising. No permanent injury had been inflicted.

Resentence.

71 I am persuaded that s 6(3) of the Criminal Appeal Act is satisfied and that the Court should intervene. I do so, although I differ, with respect, from some of the findings of the sentencing Judge. The applicant’s use of drugs was not, in my view, a matter of mitigation (cf R v Henry (supra), Wood CL at CL [273] at 346, proposition (a)). Nor could the applicant be characterised as being at “the cross roads”, as that term is usually understood. She was a young offender, with limited experience of gaol, who was attempting (with some success) to remain drug free. Further, there was no warrant, in my view, for a discount exceeding 25% for the plea of guilty (R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 and especially [41]-[44]).

72 Nonetheless, I believe the sentence should be reduced, both in terms of the aggregate term and the non parole period. Again, it is appropriate to find special circumstances, for the reasons his Honour gave. Counts 2, 3 and 4 were part of the one episode. That may suggest that concurrent sentences are appropriate (cf R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66, per Simpson J at 67), provided that they adequately comprehend the criminality involved (Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at 47, para [27]). Here there were multiple victims, each injured, although only superficially. On balance, I believe that concurrent sentences are appropriate. For the reasons his Honour gave, there is no utility in fixing a parole period in respect of Counts 3 and 4.

73 Count 5 (receiving a credit card) relates to a separate aspect of the applicant’s criminality, and occurred almost one year later. Ordinarily, some accumulation may be appropriate. However, the Form 1 offences, many of which involved the use of the stolen card, were dealt with in the context of Count 2. That was illogical. The offences were plainly relevant to Count 5, as his Honour remarked. It would have been better, from the viewpoint of sentencing, had they been taken into account in the context of that charge (SGJ v R; KU v R [2008] NSWCCA 258, [27]-[29]). The separation of Count 5 from the companion Form 1 offences undermines the case for accumulation. In the circumstances, I believe the sentence on Count 5 should also be made concurrent. The total sentence therefore would involve a non parole period of 2 years with an additional term of 2 years 6 months.

Orders.

74 The orders that I propose are as follows:

1. Leave to appeal granted.

2. The appeal allowed.

3. The sentence imposed by Bennett DCJ quashed and, in lieu thereof:

Count 2: Taking account of the offences on the Form 1, a non parole period of 2 years to commence on 19.7.07 and to expire on 18.7.09; with an additional term of 2 years 6 months to commence on 19.7.09 and to expire on 18.1.12.

Counts 3 and 4: In each case, a fixed term of 1 years imprisonment to commence on 19.7.07 and to expire on 18.7.08.
Count 5: A fixed term of 9 months to commence on 19.7.07 and to expire on 18.4.08.

The earliest date upon which the applicant will become eligible to be released on parole is 18.7.09.

75 HALL J: I agree with Kirby J.

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