Ridgeway v R

1. [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. [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 Act 1900 (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. [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. [4]

   The applicant seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) only in respect of the 2012 offence.

Brief facts

1. [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.

2. [6]

   At the time, the applicant was on parole and subject to a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Although the applicant’s parole had been revoked shortly before the date of this offence, she had not yet been apprehended.

3. [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.

4. [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

1. [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.

2. [10]

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

3. [11]

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

4. [12]

   The sentencing judge also noted that the applicant:

5. [13]

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

The notice of appeal

1. [14]

   Three grounds were advanced by the applicant as follows:

Leave to appeal

1. [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

1. [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.

2. [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:

3. [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.

4. [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]:

5. [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.

6. [21]

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

   1. (1)

      was opportunistic and not apparently premeditated;

   2. (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. (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. (4)

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

7. [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.

8. [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”.

9. [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.

10. [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.

11. [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.

12. [27]

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

Ground two of the notice of appeal

1. [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.

2. [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.

3. [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.

4. [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.

5. [32]

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

6. [33]

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

7. [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:

8. [35]

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

9. [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.

10. [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.

11. [38]

    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.

12. [39]

    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.

13. [40]

    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.

14. [41]

    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.

15. [42]

    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.

16. [43]

    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.

17. [44]

    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

1. [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

1. [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.

2. [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. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

3. [48]

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

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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.

10. [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

1. [56]

   For the forgoing reasons, the orders I propose are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (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. (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. (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.

2. [57]

   R A HULME J: I agree with Payne JA.

3. [58]

   ADAMSON J: I agree with Payne JA.