R v Bell [2003] NSWCCA 132 (2 May 2003)

Last Updated: 14 May 2003

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Bell [2003] NSWCCA 132

FILE NUMBER(S):

60040/03

HEARING DATE(S): 2 May 2003

JUDGMENT DATE: 02/05/2003

PARTIES:

Crown - Respondent

Cecilia Ann Bell - Applicant

JUDGMENT OF: Levine J Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3213

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

COUNSEL:

DM Howard - Crown

L Flannery - Applicant

SOLICITORS:

SE O'Connor - Crown

DJ Humphreys - Applicant

CATCHWORDS:

application for leave to appeal

severity of sentence

plea of guilty

parity of sentence imposed on co-offender

LEGISLATION CITED:

Crimes Act 1900

DECISION:

(i) leave to appeal granted

(ii) appeal allowed

(iii) sentence imposed quashed

(iv) applicant sentenced to imprisonment for a term of four years and ten months with a non-parole period of three years

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60040/03

LEVINE J

SIMPSON J

Friday 2 May 2003

REGINA v Cecilia Ann BELL

Judgment

1 SIMPSON J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by Sorby DCJ in the District Court on 23 August 2002 following her plea of guilty to a charge of robbery in company. Pursuant to s97(1) of the Crimes Act 1900, the offence exposed the applicant to a maximum penalty of imprisonment for twenty years. Sorby DCJ sentenced her to imprisonment for six and a half years with a non-parole period of four years. In doing so his Honour found that special circumstances within the meaning of s44 of the Crimes (sentencing Procedure) Act 1999 existed justifying a departure from the ratio otherwise specified within that section.

the facts

2 The offence was committed a little after 1.00 a.m. on 14 February 2002 in an arcade at Cabramatta. The applicant, with her co-offender, Lucinda McMillan accosted the victim, Vanessa Berg. It appears that it was the applicant who initially approached Ms Berg and that an argument over money in relation to the purchase of cocaine eventuated. The applicant grabbed Ms Berg's hair and pulled her head forward, and, while Ms Berg struggled to get away, continued to push her. The applicant attempted to take hold of Ms Berg's handbag and pulled her across the arcade whilst holding on to the straps of the bag. The applicant pushed Ms Berg backwards into a closed roller shutter door. She punched Ms Berg a number of times to the facial area and caused her to stagger. The applicant head-butted Ms Berg in the face, causing a broken nose and two minor lacerations to her nose. The applicant then left the area temporarily and met Ms McMillan. The two then ran back towards Ms Berg who remained in the arcade. Ms McMillan threw three punches in the direction of Ms Berg's head. When Ms Berg raised her arms to prevent the assault the applicant punched her several times to the head. The applicant again grabbed Ms Berg's handbag and pulled it from her. At an early stage in the altercation the applicant told Ms Burg to hand over the money and said that she had a knife. Ms Berg ran away and took a taxi. She was so traumatised by the attack that she lost control of her bodily functions and urinated.

3 What I have just said is drawn from the statement of facts that were put before the sentencing judge and from a statement made by Ms Burg. The whole incident was recorded on close-circuit television and in the course of hearing this application the court has viewed the relevant segment of the videotape. It accords with the description of the events given to the sentencing judge.

4 The applicant and Ms McMillan were apprehended. The applicant was heavily drug affected and as a result she was not interviewed.

subjective circumstances

5 The applicant was born on 27 July 1968. She was thirty-three years of age at the time of the offence. She was raised in the Campbelltown area, the fifth of seven children whose parents separated following her birth as a result of her father's violence and abuse of alcohol. She is of Aboriginal descent. Her mother commenced a new relationship when the applicant was aged about nine and this continued until she was about fourteen. The man physically and sexually abused the applicant. He was violent towards the applicant's mother.

6 In her early teens the applicant began to use illicit drugs and left home in order to escape the abuse she encountered there. She lived with other family members for several years. She commenced a de facto relationship at the age of about sixteen, with a man who was then about thirty-three years of age. Two children were born of this relationship, but the man left after about six years. The two children are now approximately seventeen and fourteen years old. They are in the custody of the applicant's mother. The applicant was devastated by the termination of the relationship and resumed her use of illicit drugs, which had ceased during the relationship.

7 The applicant has had at least one other de facto relationship, this with an abusive alcoholic who inflicted serious injuries upon her. There is a nine year old boy from this relationship who is also in the custody of the applicant's mother. There appears to have been a third de facto relationship, which, again, was characterised by violence. In February 1997, when she was seven months pregnant, the applicant miscarried and subsequently attempted suicide.

8 The applicant has used a variety of drugs, beginning with cannabis at the age of thirteen and progressing to amphetamines, heroin, and cocaine. She told an officer of the Probation and Parole Service, who reported to the court, that her life had revolved around using drugs. At the time of the report, July 2002, the applicant was on a methadone program.

9 At the time of the offence she was subject to two recognisances imposed upon her on 25 May 2001 as a result of shoplifting and goods in custody charges.

10 She was arrested on the day of the offence (14 February 2002) and was granted conditional bail on 22 February. She soon breached her bail conditions, and was taken back into custody on 27 February 2002. She was again released to bail on 2 March and again, after breach of bail conditions, was arrested on 17 April 2002. Thereafter she remained in continuous custody to the date of sentence.

11 While in custody (and during the previous period of incarceration) the applicant has been examined and treated by a psychiatrist, Dr Leila Kavanagh. Dr Kavanagh first saw the applicant in November 2001 and treated her for symptoms of depression. At that time the applicant was receiving methadone and anti-depressant medication. She continued to show symptoms of depression up to about July 2002 when she was reported as appearing "bright, cheerful and reactive". Dr Kavanagh reported that the applicant had been the victim of a gang rape about eighteen months before the date of the report, and that this event would have triggered distressing memories of the applicant's childhood sexual abuse. Dr Kavanagh also reported that the applicant had suffered a head injury about four years earlier after being assaulted with a motor cycle chain by her then boyfriend.

12 Dr Kavanagh considered the prognosis to be guarded, although she recognised that the applicant appeared committed to remaining drug free, this being particularly related to concerns about her son who was showing some signs of disruptive behaviour.

13 Both the applicant and her mother provided handwritten letters addressed to the sentencing judge. The applicant's letter shows positive signs of determination to put the unhappy past behind her and to achieve rehabilitation. The mother's letter is also encouraging as it suggests a real level of support. However, it must be recognised that this level of support has not availed the applicant in the past. She has quite a lengthy record, commencing in 1989 with a charge of behaving in an offensive manner. Since then she has been convicted of malicious damage, break, enter and steal, receiving, possession of prohibited drugs (cannabis), common assault and offences of dishonesty. This is by no means a complete catalogue of the items on the offender's record but provides a fair sample. She has been diagnosed as suffering from hepatitis C.

the application for leave to appeal

14 On behalf of the applicant, it was submitted that the sentence is manifestly excessive and that the remarks on sentence disclose one error of law in the approach to sentencing. This concerns the sentencing judge's assessment of the utilitarian value of the plea of guilty. A second ground of appeal concerns the disparity between the sentence imposed upon the applicant and the sentence subsequently imposed upon the co-offender, Lucinda McMillan.

(i) the plea of guilty

15 Dealing firstly with the submissions made in relation to the plea of guilty, the sentencing judge said this:

"The prisoner pleaded guilty at the first opportunity but in the circumstances of an overwhelming Crown case. She is entitled to a small discount because of this plea and it did have a utilitarian value of saving the victim from giving evidence and the State the cost of a trial."

16 On behalf of the applicant it was argued that, in approaching the matter in this way, the sentencing judge took into account the strength of the Crown case in evaluating the utilitarian value of the applicant's plea of guilty. Although the strength of the Crown case is a relevant consideration in determining questions of contrition, it is not relevant to the evaluation of the utilitarian value of a plea: R v Thomson and Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383.

17 In response to this argument, the Crown has submitted that it is incorrect to read the observation in the remarks on sentence as indicating that the judge took into account, as part of the utilitarian value of the plea, the strength of the Crown case. Emphasis was placed on the word "and". The passage is not entirely clear and it is, I my opinion at least, capable of the interpretation that the judge did consider the strength of the Crown case as bearing upon the utilitarian value of the plea and accordingly, the discount to which she was entitled. That interpretation is strengthened by what immediately followed when his Honour stated that the applicant was entitled only to a small discount, he already giving observed that the plea was entered at the first opportunity.

18 There are other factors relevant to the assessment of the utilitarian value of a plea. Timing is relevant because an early plea produces a greater saving in costs of investigation and preparation. The projected length and complexity of a trial is another relevant factor. Matters such as the number and identity of witnesses who would, on a trail, have to be called are also material.

19 When those matters are considered it can be seen that a trial on this charge would not have been likely to have been lengthy or complex, in part because of the recording of the whole incident on close-circuit television. However, it would have been necessary for Ms Berg to have been called to give evidence and this no doubt would have been traumatic for her as well as inconvenient. I think, therefore, there is some substance in the complaint that the trial judge was in error in the approach that he took in relation to the plea of guilty. That may have occurred because he took into account the strength of the Crown case in relation to the plea.

20 The difficulty is compounded because his Honour did not quantify the extent of the discount he allowed the applicant. In those circumstances it is necessary to give full weight to his description of the discount as "small". In my opinion, the applicant was entitled to something more than a discount characterised as small.

(ii) disparity

21 The next matter that was raised on behalf of the applicant was disparity with the sentence imposed on the co-offender by Morgan DCJ on 1 November 2002. Her Honour imposed a term of imprisonment of four years with a non-parole period of two and half years. In doing so, she differentiated between the two cases. She referred to the applicant's age which is four years greater than that of the Ms McMillan, that she was on two bonds at the time of the offence, that she had a more extensive involvement in the commission of the offence, had demanded money and made a threat about the use of a knife. Morgan DCJ accordingly held that she was not bound by principles of parity to impose the same sentence of Ms McMillan.

22 No complaint can be made about the individual factors that I have just mentioned. However, Morgan DCJ also held that the applicant's criminal record was more extensive than that of Ms McMillan. In fact, and I think this was almost conceded by the Crown, the records of the two women were not dissimilar, if anything it may be that Ms McMillan had a greater history of violence than the applicant.

(iii) manifestly excessive sentence

23 The last point raised on behalf of the applicant is that the sentence was manifestly excessive and in this respect we were provided with statistics from the Judicial Commission and also with an analysis of other cases of a broadly similar kind. The statistics indicate that the head sentence imposed upon the applicant is within the top nine per cent of all sentences imposed for armed robbery in company since the guideline judgment in R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 was delivered, and that the non-parole period is within the top ten per cent of all such sentences.

24 More compelling is the analysis contained in a table annexed to the applicant's written submissions showing salient features of a large number of cases and this indicates that only in a small minority of cases was an equivalent or heavier sentence imposed in relation to those offences.

25 It is difficult to draw too much from the relatively brief information contained in this document but it does tend to suggest that where heavier or equivalent sentences have been imposed there have been either a number of offences or the use of a weapon or some other aggravating feature which is not present in this case.

26 Counsel for the applicant referred to the profile of offender and offences set out in Henry and sought to bring the applicant's case within that but in this respect I accept the Crown's response that there are significant features of differentiation, for example, the applicant is not young, she does not have a limited criminal record; and there is no doubt that there was, although no weapon involved, a significant level of violence in the commission of this offence.

27 Having regard to the conclusion I have reached about the way the sentencing judge treated the plea of guilty and having regard to the analysis of cases that I have mentioned, it seems to me that the applicant has made good her contention that the sentence imposed was not just at the top of the range available but outside that range. That has to be seen in the light of the circumstances of the offence which was indeed a particularly serious instance of robbery in company being committed in the middle of the night, accompanied by a considerable level of violence and over an extended period of time and involving the applicant in two separate instances of assault upon the victim.

28 Even having regard to those circumstances it seems to me that error has been established. Leave to appeal should be granted, and the sentence imposed by Sorby DCJ be set aside. We have had regard to material provided and accepted by the Court against the possibility that this Court would re-sentence and also to the psychiatric evidence.

29 Having regard to those matters, the starting point in my opinion should be a head sentence of six years. I would allow a discount for the plea of guilty of twenty per cent resulting in a head sentence of four years and ten months. Sorby DCJ found special circumstances justifying departure from the statutory ratio and I would not depart from that finding. I would propose a non parole period of three years.

30 Accordingly, the orders I propose are:

(i) leave to appeal be granted;

(ii) the appeal be allowed;

(iii) the sentence imposed be quashed;

(iv) the applicant be sentenced to imprisonment for a term of four years and ten months with a non-parole period of three years.

31 LEVINE J: I agree with Justice Simpson and the orders will be as proposed by her. The commencing date will be the same. The exhibits may be returned.

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LAST UPDATED: 13/05/2003