Whitfield v Regina

[2006] NSWCCA 362

CITATION:	WHITFIELD v REGINA [2006] NSWCCA 362
HEARING DATE(S):	30 June 2006
JUDGMENT DATE:	16 November 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Adams J at 2; Latham J at 17
DECISION:	1. Grant leave to appeal; 2. Allow the appeal; 3. Reduce the non-parole period to a period of two years and three months commencing 7 September 2004 and ending 6 December 2006.
CATCHWORDS:	CRIMINAL LAW - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - possession of a firearm - without a licence or permit - unregistered - prohibited firearm - whether the sentencing judge erred in not considering special circumstances - alteration of statutory ration - on conditional liberty - subjective feature - tragic death of son - sixty years of age - whether psychologist’s report considered - dysthymic depressive disorder - good prospects of rehabilitation - no similar prior convictions
LEGISLATION CITED:	Firearms Act 1996 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Henry [2004] NSWCCA 306
PARTIES:	Carole Whitfield (Appl) The Crown
FILE NUMBER(S):	CCA 2006/551
COUNSEL:	M Johnston (Appl) D C Frearson SC (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/31/0309
LOWER COURT JUDICIAL OFFICER:	O'Connor DCJ
LOWER COURT DATE OF DECISION:	9 June 2005

2006/551

McCLELLAN CJ at CL
ADAMS J
LATHAM J

THURSDAY 16 NOVEMBER 2006

WHITFIELD, Carole v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Adams J.

2 ADAMS J: On 7 June 2005 the applicant, Carole Whitfield was convicted following trial of two charges relating to the possession of a .22 calibre self loading pistol. The first of those charges arose under s 7(1) of the Firearms Act 1996 which prohibits the possession of a prohibited firearm unless the person is authorised so to do by a licence or permit and provides for a maximum penalty of fourteen years imprisonment. The second charge, which was in relation to the same weapon, was brought under s 36(1) of the Act which prohibits the possession of a firearm that is not registered and, if the firearm concerned is a prohibited firearm, imposes a maximum penalty of ten years’ imprisonment. Section 54A of the Crimes (Sentencing Procedure) Act 1999 imposes a standard non-parole period of three years for an offence in the middle of the range of objective seriousness. The applicant was sentenced to an overall term of imprisonment of four years with a non-parole period of three years commencing on 7 September 2004. In respect of the second offence a wholly concurrent fixed term of twelve months commencing on 7 September 2004 was imposed. The applicant seeks leave to appeal from the sentence imposed on the first count.

Facts

3 The issue at trial was whether the applicant was aware of the presence of the weapon. The following facts were not in dispute for the purposes of the sentencing hearing. On 7 January 2004 police executed a search warrant at the applicant’s property in Wyee. The property, of about five acres, was in a semi rural area. The applicant rented it from her daughter and lived there with her grandson. Accommodation comprised converted shipping containers, one occupied by her, another occupied by her grandson, while two others were used for the storage of tools and as an office.

4 During execution of the search warrant, police found the pistol in a plastic bag in the wardrobe in the applicant’s bedroom. It was unloaded and in working order. The serial number of the gun had been obliterated. With the gun was another plastic bag with a magazine for the pistol containing four rounds and in the bedside drawer a further seventeen rounds were found. In the tool shed the cardboard box which had originally contained the pistol was also located. It is obvious that the weapon was not properly secured. The residence was accessible, without the need to force locks to enter, by the applicant’s grandson and others who had been staying at the property from time to time.

5 At the time of the offences, the applicant was on bail for an offence of supplying a prohibited drug committed on 9 June 2002. She was sentenced for this offence to a term of two years imprisonment with a non-parole period of eighteen months commencing 6 February 2004. The non-parole period expired on 5 August 2005 and, accordingly, was current on 9 June 2005 when the present sentences were imposed. In the result, there was a significant degree of concurrency between the present sentences and the sentence imposed on 18 June 2004.

Subjective features

6 The applicant was sixty years of age as at the date of sentence. She was divorced and had four adult children whose ages ranged from twenty-three years to thirty nine years. Tragically, one son was accidentally killed in a shooting accident. The applicant’s daughter gave birth when she was fourteen years old and the applicant has raised her grandson. The applicant had not completed her higher school certificate. She had worked in various occupations and was operating a demolition business when she was arrested.

7 A brief report by a consultant psychologist, Mr Clark-Saunders, was tendered on sentence without objection. The report noted that the applicant expressed deep grief over the death of her son. Mr Clark-Saunders diagnosed the applicant as suffering from a dysthymic depressive disorder of at least two years duration following this event. There were no other signs of psychological compromise. Mr Clark-Saunders said that he planned to refer the applicant to a doctor for assessment of a suitable anti-depressant medication regime as part of her case management plan. The material does not disclose whether this in fact occurred. Mr Clark-Saunders considered that the applicant will require intensive psychological counselling upon her release from custody and proposed a systematic case management plan involving implementation of cognitive behavioural therapy. I should mention that the applicant gave evidence at the sentencing proceedings verifying, amongst other things, the history and other factual information given to Mr Clark-Saunders.

8 The applicant’s criminal record disclosed a number of traffic and drug offences, including the cultivation of a prohibited plant (for which she was fined $1000) the supply charge I have already mentioned and two charges of possession of goods reasonably suspected of being stolen (for which she was sentenced to fixed terms of four months, to be served concurrently with the sentence for the supply offence).

The Grounds of Appeal

9 The only ground relied on by the applicant is the contention that the learned sentencing judge erred by not considering the question of special circumstances. The two matters relied on as requiring the finding of special circumstances and adjusting the non-parole period accordingly were the applicant’s subjective case and the accumulation of the sentences. The consequence of the accumulation is that the applicant will serve an effective non-parole period of three years and seven months and an overall sentence of four years and seven months. The non-parole period, accordingly, comprises about seventy eight percent of the overall sentence. In R v Henry [2004] NSWCCA 306 Simpson J said:

“The accumulation of sentences means, as I have set out earlier, that the applicant’s total sentence was of four years and eight months with a non-parole period of three years and eleven months – giving him a period of parole of only nine months. This alone is, as counsel for the applicant has argued, sufficient to warrant a finding of special circumstances: see R v Simpson , unreported, NSW CCA 18 June 1992, R v Clark (1995) 78 A Crim R 226; R v Clissold (Ian Raymond) [2002] NSWCCA 356, unreported, 19 August 2002. His Honour did not mention the accumulation of sentences as a consideration relevant to the determination of whether special circumstances existed, and, in this case, I would infer that he did not turn his mind to it.
That inference is strengthened by the fact that his Honour was not referred to that circumstance as a basis for a finding of special circumstances. Although it was urged upon him that he should find special circumstances, the only basis which was put to him for such a finding concerned the need for rehabilitation.
In my opinion, error has been demonstrated in this respect. I would not find that his Honour would have been obliged, had he given proper consideration to the question, to find special circumstances, although an examination of the figures that result, which I have mentioned, does, in my opinion, speak strongly for such a finding. It is unnecessary for the applicant to go so far as to show that his Honour would have been obliged to make a finding of special circumstances.
The basis for intervention by this Court is established by demonstrating that consideration was not given to a matter which required consideration. I would conclude that error has been demonstrated and it is, therefore, necessary for this Court to make its own determination on this question.”

10 The learned sentencing judge did not advert to the special circumstances in his reasons for sentence, stipulating the commencement date as recognising “relevant sentencing considerations including proportionality, totality, deterrence and denunciation” and, having found that the matter fell within the middle of the range of objective seriousness, determined that the standard non-parole period of three years should be imposed. The additional term of one year reflecting, of course, the statutory ratio referred to in s 44 of the Crimes (Sentencing Procedure) Act 1999. It is, however, important to note that the standard non-parole period refers to a case that is in the middle of the range of objective seriousness. It follows that, having concluded that a case is in this class, if there are relevant subjective features that justify mitigation, then, even though the sentence objectively is in the middle of the range, effect should nevertheless be given to the relevant subjective features and, hence, a lesser non-parole period would be appropriate. As this point was not taken up on appeal, I say no more about it.

11 Neither counsel for the Crown nor counsel for the defence pointed out to his Honour that it might be necessary to adjust the non-parole period because the effect of accumulation was to depart upwardly from the statutory ratio. Counsel for the applicant, however, contended that there should be a significantly greater degree of concurrency with the earlier sentence than would have been the case had the commencement date been, as the Crown contended for, the date ultimately fixed on by the learned sentencing judge.

12 In this appeal, counsel for the applicant submitted that, quite apart from the accumulation, the circumstances justified variation of the customary ratio relying on the following:

(i) this is the applicant’s first time in fulltime custody at the age of sixty years;
(ii) there is no relevant prior criminal history for offences involving the possession of firearms;
(iii) she is suffering from a major depressive disorder;
(iv) she needs intensive psychological counselling upon release; and
(v) there were good prospects for rehabilitation.

13 The learned sentencing judge said, in connection with the report:

“The report is silent on the history of Dr Saunders-Clark obtained. The prisoner gave evidence before me on the sentence hearing. She did not describe any of the features the subject of the definition of the dysthymic, depressive condition diagnosed by Dr Saunders Clark. This may be because the report is over twelve months old. In any event, it is not surprising that the prisoner may be somewhat depressed having been in prison now for over twelve months.”

14 It appears to me, with respect, that a somewhat dismissive approach to the report is not justified. The report was plainly tendered upon the basis that it was relevant to the applicant’s condition as at the date of sentencing. Aside from anything else, the fact that the report referred to post custodial psychotherapy necessarily implied that the psychologist thought that the applicant’s condition would be longstanding. There was no suggestion put to the applicant by the Crown prosecutor that the applicant did not still suffer from the symptoms which she had described to the psychologist. Nor did the prosecutor submit to his Honour that the report ought not to be accepted as describing the applicant’s current condition. The case was clearly conducted upon the basis that it was accepted by both parties that the report was both relevant and current. Furthermore, in light of the psychologist’s view about the commencement of the major depressive illness, namely that it occurred following the death of the applicant’s son, whilst no doubt it was reasonable to ascribe some part of the applicant’s condition to the fact that she was in jail, to consider that as an explanation for the condition diagnosed by Mr Clark-Saunders seems to me to be in error, especially since no such submission was put to his Honour by the Crown prosecutor.

Conclusion

15 In my view the learned sentencing judge did not consider adjusting the non-parole period that he had decided to impose since he had concluded that the standard non-parole period should apply and, thus, that no downward amendment was appropriate. With respect, this was an error. In a case falling within the middle of the range of objective seriousness, consideration still needs to be given to the question whether the standard non-parole period may need adjustment because of the subjective features of the case or the existence of special circumstances justify a variation of the statutory ratio. Accepting that this was a case that fell within the middle of the range of objective seriousness for offences of this kind, in my opinion both the applicant’s subjective circumstances and the accumulation of the sentence on those which she was already serving, required a downward departure from the standard non-parole period of three years. These matters were also special circumstances warranting a variation of the statutory ratio. It is simpler in the present circumstances to vary the sentence on the latter basis.

16 The relevant matters comprising special circumstances in this case warranting variation of the statutory ratio are the accumulation of the sentence, the age of the applicant, the fact that this is an extension of her first experience of prison and her depressive disorder. Accordingly, I propose the following orders:

1. Grant leave to appeal.
2. Allow the appeal.
3. Reduce the non-parole period to a period of two years and three months commencing 7 September 2004 and ending 6 December 2006.

17 LATHAM J: I agree with Adams J.

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