Citation: Regina v Melissa Kay Reeves [2002] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 13 February 2002
Judge(s): Hidden J; Buddin J
Background
The applicant had pleaded guilty in August 2000 to perverting the course of justice. The offence dated back to August 1995, when she removed two commitment warrants from a charge room counter at Windsor Police Station, resulting in her brother being released after serving only one month of a three-month sentence. The applicant was arrested shortly after, made full admissions, but then failed to appear in court and was not arrested on the outstanding warrant until June 2000, some five years later.
In August 2000, a District Court judge sentenced the applicant to 18 months imprisonment but suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999, releasing her on a bond with conditions including participation in an offender management programme and notification of any change of address. The applicant breached those conditions on multiple occasions: she failed to attend any sessions of the offender management programme, missed five supervision appointments with Probation and Parole, and failed to notify the court of a change of address.
When the matter returned before Judge English in the District Court, the suspended sentence was revoked and the applicant was re-sentenced to 18 months imprisonment with a non-parole period of 12 months. She then sought leave to appeal against the severity of that sentence.
Legal Issues
- Whether the District Court judge failed to properly consider the facts and circumstances of the underlying offence, including its age ("staleness"), when re-sentencing after the breach
- Whether the sentence of 18 months with a 12-month non-parole period was excessive, having regard to all relevant circumstances
- Whether "special circumstances" existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 that warranted a greater proportion of the sentence being served on parole
Decision
The Court of Criminal Appeal was not persuaded that Judge English had failed to appreciate the objective gravity of the perverting the course of justice offence. The Court noted that such offences are treated seriously by both the legislature and the courts, with the maximum penalty being 14 years imprisonment under s 319 of the Crimes Act 1900. Deterrence is a significant sentencing consideration for offences of this kind.
However, the Court accepted that the sentence required adjustment. The offence was "stale," having occurred in 1995 and not coming to sentence until 2000. While the applicant bore responsibility for part of that delay through her failure to appear, the staleness of the offence was a mitigating factor that warranted some reduction in the overall term.
The more significant adjustment related to special circumstances. Evidence before the Court revealed that the applicant's children had been removed from her care during her imprisonment and that the correctional facility had classified her as a security risk as a result, restricting her movements and halting her progression through the prison system. The Court found that these circumstances made her imprisonment more burdensome than usual, constituting "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. This warranted a greater proportion of the sentence being served on parole, with consequent adjustment to both the total term and the non-parole period.
Orders Made
- Leave to appeal granted
- Appeal allowed
- The sentence imposed in the District Court is quashed
- The applicant is sentenced to 15 months imprisonment commencing 19 June 2001 and expiring 18 September 2002
- A non-parole period of 9 months is fixed, expiring 18 March 2002, on which date the applicant is to be released to supervised parole
- Parole conditions include compliance with all Probation Service requirements, attendance at Offender Management Programmes, drug and alcohol counselling if directed, and notification of any change of residential address
Key Takeaways
- Perverting the course of justice under s 319 of the Crimes Act 1900 is treated as a serious offence by the courts, with deterrence carrying significant weight at sentencing regardless of whether the act was spontaneous.
- A "stale" offence, particularly one where delay was partly attributable to the offender absconding, can still attract some mitigation in sentencing, though the weight given to staleness will depend on the circumstances of each case.
- Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, "special circumstances" justifying a reduced non-parole period can arise where imprisonment is demonstrated to impose burdens on the offender beyond those ordinarily expected, such as the removal of children from the offender's care combined with consequential security restrictions.
- Where a sentencing judge does not expressly state a finding of special circumstances, the Court of Criminal Appeal may infer such a finding from the structure of the sentence imposed.
- In dismissing the primary challenge to the revocation of the suspended sentence, the Court confirmed that once the breaches of bond conditions were established as non-trivial and lacking good excuse, revocation was inevitable under s 98(3) of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 44(2), 98(3)
Cases:
- Regina v Fahda (1999) NSWCCA 267
- Regina v Giang [2001] NSWCCA 276
- Regina v Kavich, NSWCCA, unreported, 26 October 1993
- Regina v Mill (1988) 166 CLR 59
- Regina v Shore (1992) 66 A Crim R 37
- Regina v Thomson & Houlton [2000] 49 NSWLR 383
- Regina v Todd (1982) 2 NSWLR 517
- Regina v V, NSWCCA, unreported, 24 February 1998