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36
Court of Criminal Appeal 11 March 2005

Regina v Wendy Olive LAWRENCE

[2005] NSWCCA 91

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE GUILTY PLEA CRIMINAL LAW APPEAL AGAINST SENTENCE SUBJECTIVE CIRCUMSTANCES

Citation: Regina v Wendy Olive Lawrence [2005] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 11 March 2005
Judges: Spigelman CJ, Grove J, Bell J

Background

The appellant pleaded guilty at arraignment to break and enter to commit stealing, contrary to s 112(1) of the Crimes Act 1900. The offence involved breaking into the flat of a 74-year-old widow living alone, stealing a stereo player in the early morning while she was present. The victim was described as traumatised by the incident.

The sentencing judge in the District Court (Goldring DCJ) imposed a non-parole period of 18 months and an additional term of nine months. At the time of sentencing, the appellant was also serving a separate sentence imposed by the Supreme Court, the non-parole period of which was set to expire on the same date: 1 October 2005. Following a separate successful appeal (R v Lawrence [2004] NSWCCA 404), that earlier non-parole period was reduced so it would now expire on 1 April 2005, six months earlier than before.

The appellant sought leave to appeal against the District Court sentence on multiple grounds, including that the sentencing judge failed to account for the guilty plea, gave insufficient weight to her subjective circumstances, and that the overall sentence was excessive.

  • Whether the sentencing judge erred by not explicitly acknowledging the guilty plea or quantifying the discount applied
  • Whether the appellant's Antisocial Personality Disorder and PolySubstance Dependence diagnosis, combined with her Aboriginality, difficult upbringing, and drug addiction, warranted reduced weight being given to general deterrence
  • Whether the successful appeal in the earlier matter created a miscarriage of sentencing procedure, given that the two non-parole periods no longer coincided
  • Whether the Court of Criminal Appeal should exercise its discretion to reinstate the sentencing judge's apparent intention that the two non-parole periods expire concurrently
  • Whether the sentence was, in all the circumstances, excessive

Decision

Guilty plea: The sentencing remarks did not explicitly state that the guilty plea had been taken into account, nor did the judge quantify any discount, as encouraged by the guideline in R v Thomson and Houlton (2000) 49 NSWLR 383. However, the Court of Criminal Appeal declined to find error. Given Goldring DCJ's experience and the structure and length of the sentence, the Court was satisfied the plea had been given appropriate weight. The Crown's plausible reconstruction of a 25 percent discount from a notional 36-month head sentence to 27 months supported this conclusion. The Court noted it would have been easy for the judge to state this explicitly.

Subjective circumstances and general deterrence: The appellant's psychological diagnoses, documented under the DSM-IV, her history of substance abuse, violent upbringing, and Aboriginality were each considered. The Court found no basis for concluding these factors required a reduction in the weight given to general deterrence. Antisocial Personality Disorder and PolySubstance Dependence, while relevant subjective factors, did not compel that outcome. The sentencing judge had addressed the Fernando principles and nothing in the final sentence suggested general deterrence had been given undue weight.

Concurrent release dates and the discretion to intervene: The successful earlier appeal had the unintended consequence of removing any additional penalty for the break-and-enter offence, as the non-parole periods no longer aligned. The Court acknowledged it would have been open to intervene and reinstate the original concurrent structure. However, the Court declined to do so. The appellant had not demonstrated significant steps toward rehabilitation. Custodial records showed drug use detected on multiple occasions after sentencing. Given the unrelated nature of the offences and the appellant's criminal history, the Court found the circumstances did not justify a lesser sentence.

Excessive sentence: The offence was of significant gravity, committed against a vulnerable victim in her own home. The appellant's criminal history provided no foundation for a finding that re-offending was unlikely. The sentence was not excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's failure to explicitly acknowledge a guilty plea or quantify the discount will not automatically establish error on appeal where the judge's experience and the structure of the sentence sufficiently indicate the plea was given appropriate weight, though the Court reiterated that explicit acknowledgment remains strongly preferable.
  • Diagnoses of Antisocial Personality Disorder and PolySubstance Dependence under the DSM-IV, while relevant subjective considerations, do not of themselves justify reducing the weight given to general deterrence in sentencing.
  • The Court of Criminal Appeal confirmed it has a discretion to intervene to restore a sentencing judge's apparent intention that concurrent non-parole periods coincide, where that alignment has been disrupted by a subsequent successful appeal in a related matter.
  • Exercising that discretion requires more than the disruption itself: the Court declined to intervene here because there was no evidence of meaningful steps toward rehabilitation and the offences were entirely unrelated.
  • In dismissing the appeal, the Court emphasised that an offender's criminal history and lack of evidence pointing away from re-offending are relevant factors in assessing whether a sentence is excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Sharma (2002) 54 NSWLR 300
- R v Fernando (1992) 76 A Crim R 58
- R v Lawrence [2004] NSWCCA 404
- R v Engert (1995) 84 A Crim R 67
- R v Henry and Ors (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Scognamiglio (1991) 56 A Crim R 81
- New South Wales v Seedsman [2000] NSWCA 119
- Vernon v Bosley (No 1) [1997] 1 All ER 577