Regina v Fisher [2002] NSWCCA 188

Reported Decision : (2002) 54 NSWLR 467

New South Wales Court of Criminal Appeal

CITATION : Regina v Fisher [2002] NSWCCA 188 revised - 16/07/2002 FILE NUMBER(S) : CCA 60092/01 HEARING DATE(S) : 14 May 2002 JUDGMENT DATE : 14 May 2002

PARTIES : Regina (Respondent) Sondra Ann Fisher (Appellant) JUDGMENT OF : Stein JA at 1; Kirby J at 40; Carruthers AJ at 41

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1157 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER :

COUNSEL : T S Corish (Appellant) G I Rowlings (Respondent) SOLICITORS : D J Humphreys (Appellant) S E O'Connor (Respondent) CATCHWORDS : CRIMINAL LAW - appeal against conviction - common assault - whether common assault is an indictable offence - whether District Court has jurisdiction to deal with charge of common assault - statutory construction and interpretation - appeal against severity of sentence - parity of sentence with co-offender - whether sentence was manifestly excessive - D Crimes Act 1900, s 61 LEGISLATION CITED : Criminal Appeal Act 1912, s 6(3) Criminal Procedure Act 1986, s 3, s 7(2), s 8, s 18, s 20(2), Table 2 to Sch 1, Div 3 Interpretation Act 1987, s 21, s 33, s 35 R v Cook [2002] NSWCCA 140 CASES CITED: R v Pearce [1998] HCA 57 R v Simpson [2001] NSWCCA 534 DECISION : 1) Extend time to lodge appeal against conviction on common assault s 61 Crimes Act 2) Appeal against conviction in (1) dismissed 3) Leave to appeal against sentence granted 4) Appeal against sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL 60092/01

STEIN JA KIRBY J CARRUTHERS AJ

Tuesday, 14 May 2002 Regina v Sondra Ann FISHER Judgment 1 STEIN JA:

Conviction appeal – s 61 Crimes Act 2 The applicant, Sondra Ann Fisher, appeals against her conviction for common assault under s 61 of the Crimes Act 1900. She needs leave to appeal out of time and, accepting the reasons advanced by her counsel, I see no reason why leave should not be granted. She also seeks leave to appeal against the severity of the sentences imposed on her in the District Court by O'Reilly DCJ on 9 February 2001.

3 In relation to the s 61 offence of common assault, the appellant had pleaded guilty and was committed for sentence. The plea was affirmed in the District Court together with a plea of guilty to eight other offences. In total there were five counts of break, enter and steal; two counts of assault occasioning actual bodily harm (both with respect to the same victim) and one count of escape from lawful custody, in addition to the common assault under s 61 of the Crimes Act. Matters comprising six further offences were also taken into account on two Form 1s.

4 With respect to the common assault count, the applicant was sentenced to a fixed term of 12 months imprisonment to commence from 1 August 2000, but this was subsumed into the other sentences which I will detail later.

5 The appellant submits that the District Court had no jurisdiction to deal with the charge of common assault under s 61 of the Crimes Act because of s 8 of the Criminal Procedure Act 1986. It is submitted that s 8 operates to require that the offence must be dealt with summarily. On behalf of the appellant, Mr Corish submits that s 61 of the Crimes Act is no longer to be characterised as an indictable offence. I should mention that the relevant offence, admitted by the appellant, was an assault on Teresa Kelly on 27 January 2000.

6 An indictable offence is one that may be prosecuted on indictment; see definition in s 3 of the Criminal Procedure Act. There is also a definition of indictable offence in s 21 of the Interpretation Act 1987.

7 The appellant relies upon s 8 of the Criminal Procedure Act which provides that the following offences must be dealt with summarily: (a) an offence that under this or any other Act is required to be dealt with summarily,

(b) an offence that under this or any other Act is described as a summary offence,

(c) an offence (not being an offence that under this or any other Act is required to be dealt with on indictment) for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more that 2 years.

8 In particular, reliance is placed upon sub-para (c). Common assault under s 61 of the Crimes Act carries a maximum penalty of two years imprisonment and it is submitted that it is not an offence which is required to be dealt with on indictment.

9 Section 8 in its current form commenced to operate on 1 January 2000. Prior to that date the appellant accepts that a s 61 common assault offence could be dealt with on indictment if the prosecutor so elected. See s 20(2) of the Criminal Procedure Act and Table 2 to Schedule 1 of the Act. 10 However, it is submitted, that this procedure is no longer available. Since the amendment commenced to s 8, common assault under s 61 of the Crimes Act can no longer be described as an offence which may be prosecuted on indictment.

11 What should also be noted concerning the relevant legislation in Division 3 of the Criminal Procedure Act is that the division is headed 'Summary Disposal of Indictable Offences By Local Courts'. Section 18 contains the objects of the Division and refers to Tables of indictable offences to be dealt with summarily unless the prosecutor elects otherwise.

12 Section 18(b) refers to Table 2 in Schedule 1 to the Act. This Table is headed 'Indictable offences that are to be dealt with summarily unless the prosecuting authority elects otherwise'. The Table includes a reference to s 61 of the Crimes Act, the offence of common assault.

13 Section 20 of the Criminal Procedure Act is relevant and in ss (2) provides: An indictable offence listed in Table 2 to Schedule 1 is to be dealt with summarily by a Local Court unless the prosecuting authority elects in accordance with this Division to have the offence dealt with on indictment. 14 Turning to the Crimes Act, it may be noted that s 61 is headed 'Common assault prosecuted by indictment'. When s 8 of the Criminal Procedure Act was amended, no change was made to the form of s 61 of the Crimes Act, such as to change or delete the header. More importantly, no change was made so as to delete the reference to s 61 of the Crimes Act from Table 2 of Schedule 1 of the Criminal Procedure Act.

15 In his written submissions, counsel for the appellant accepts that these matters present some difficulties for his argument but submits that provision in s 8 (1)(c) is unambiguous. 16 Section 35 of the Interpretation Act provides that 'Headings to a part, division or sub-division of an Act and to a Schedule to an Act, shall be taken to be part of the Act'. 17 It is the submission on behalf of the respondent that Parliament has indicated that, subject to s 20, the offence of common assault is to be tried on indictment.

18 Section 18 of the Criminal Procedure Act refers to the objects of the division and includes the preservation of jurisdiction to deal with the offence of common assault on indictment. Section 33 of the Interpretation Act provides that an interpretation which would promote the purpose or object underlying an Act is to be preferred to one which does not.

19 There are other provisions in the Criminal Procedure Act which should also be noted, in particular s 7(2) and s 20(2). They refer to the continuing jurisdiction to deal with certain offences on indictment.

20 If the submission of the appellant is correct, then it seems that s 8(1)(c) would give s 20 and Table 2 in Schedule 1 relating, for example, to common assault under s 61 of the Crimes Act, little or no practicable field of operation.

21 For my part I accept and prefer the submission of the respondent that the courts should strive to give each of the two provisions a field of operation on the basis that it is unlikely to have been the parliamentary intention to include a provision in an enactment which has virtually no practicable effect.

22 A reasonable result should be sought by the courts consistent with proper construction. In my opinion, that can readily be achieved by treating the expression in s 8(1)(c) 'required to be dealt with on indictment' as subject to s 20 of the Act. If Parliament had intended by the amendment of s 8 that common assault under s 61 of the Crimes Act no longer be prosecuted on indictment, it would have been a simple matter to have removed the heading to s 61 of the Crimes Act and also to remove the reference to s 61 from the Table to the Criminal Procedure Act. 23 That Parliament did not see fit to do so supports the respondent's analysis of the legislation and the submission that s 8 did not intend to remove common assault under s 61 of the Crimes Act from being prosecuted on indictment. In my opinion, the appeal against conviction should be dismissed.

Sentence appeal

24 I turn, therefore, to the applicant's application for leave to appeal against sentence. The total effective sentence imposed upon the applicant was six years imprisonment commencing on 2 August 2000 and concluding on 1 August 2006. A non-parole period was fixed for three years and the applicant is not eligible to apply for parole until 1 August 2003.

25 There are two bases submitted in support of the application. First, one of parity with the co-offender and, secondly, a submission that the sentence was manifestly excessive. 26 The sentences imposed on the applicant were as follows: For three break, enter and steal offences the applicant was sentenced to a term of imprisonment for a period of six years to commence on 2 August 2000 and expire on 1 August 2006 with a non-parole period of three years to expire on 1 August 2003. For the two other break, enter and steal offences, the applicant was also sentenced to a fixed term of imprisonment for two and a half years to commence on 2 August 2000 and expire on 1 February 2003. The applicant was also sentenced to a fixed term of three years imprisonment for the assault occasioning actual bodily harm offences - there were two of them - to commence on 2 August 2000 and expire on 1 August 2003, and she was sentenced to a fixed term of 12 months imprisonment for the common assault under s 61 of the Crimes Act and the escape from lawful custody. They were also to commence on 1 August 2000. 27 In his Honour's judgment on sentence and in the Crown's submissions in summary of the trial, the bare facts of each of the offences are set forth and I will not take time now to reiterate them. In his reasons for sentence the learned sentencing judge outlined what he regarded as the appropriate sentences for each matter if they had been dealt with in isolation. These are set out in his Honour's reasons for sentence.

28 His Honour then totalled the sentences and, having regard to the pleas of guilty entered and adhered to by the applicant, to the principle of totality and the subjective features of the case, concluded that the overall appropriate sentence was six years.

29 As to the parity argument, the applicant relies on the sentencing of the co-offender on the break, enter and steals. He was originally sentenced to three years and on a re-sentencing, because he failed the programme set for him in the Drug Court, he was on 19 December 2001 sentenced to two years and three months imprisonment with a non-parole period of one year and eight months set.

30 The applicant's counsel relies on the disparity between the sentences imposed on the co-offender and the sentence indication for the applicant. He submits that this would lead to the applicant having a justifiable sense of grievance that she was dealt with much more harshly than her co-offender, Mr Jackson.

31 In my view the parity argument fails. There is no doubt, and I do not think it is disputed, that the offences of the applicant were serious and aggravated by being committed while she was on parole. Her criminal record included offences of break, enter and steal, robbery and an offence of violence. In addition to the nine offences for which she was sentenced, six other matters were to be taken into account on two Form 1s before the Court. 32 The nine offences included two very serious assaults occasioning actual bodily harm, as well as the common assault under s 61, which in itself was quite serious on its facts. Therefore, the imposition of a substantial sentence of imprisonment was required. 33 The big difference between the offences for which the applicant was sentenced as compared to the co-offender, was that he did not face any charges of assault. His Honour indicated that the largest penalty was attracted by the offence of assault occasioning actual bodily harm, which was the most serious offence. The injuries occasioned by the applicant to the victim were severe and his Honour rejected the applicant's expression of contrition, as he was entitled to do.

34 In my opinion, it cannot be concluded that the applicant has a justifiable sense of grievance at the lesser penalty imposed on the co-offender.

35 The second aspect of the application for leave to appeal against sentence is the contention that the sentence imposed by his Honour was manifestly excessive. Bearing in mind the number of offences and their nature there was an infinite number of possible permutations which the sentencing judge could have alighted upon in the sentencing process. It may be that the way his Honour structured the sentence could be seen to be unconventional or in breach of R v Pearce [1998] HCA 57.

36 However, when one examines each individual offence and possible alternative structuring of the sentences, it must involve an accumulation. Accumulation itself presents difficulties and problems. In my view, the Court should not proceed to re-sentence the applicant principally because the total or overall sentence imposed by his Honour of six years, with a non-parole period of three years backdated as it was to 2 August 2000, (which was a lenient thing for his Honour to do) means that it has not been shown that a lesser sentence is warranted by law. 37 In R v Simpson [2001] NSWCCA 534 the Court addressed s 6(3) of the Criminal Appeal Act 1912 and in particular Spigelman CJ had something to say about the approach of the Court of Criminal Appeal. In para 79 of the judgment the Chief Justice said:

Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process.' That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence ... is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore' is not satisfied.

38 Sully J was of a like view in the remarks that he made. See also R v Cook [2002] NSWCCA 140 at para 20.

39 In my opinion, when one examines the facts of the offences and all of the other relevant circumstances which must be taken into account, it cannot be concluded that some other sentence or a lesser sentence than passed is warranted in law and should have been passed. It seems to me that it cannot be said that the sentences were manifestly excessive. I would grant leave to appeal but dismiss the appeal against sentence and dismiss the appeal against the conviction on the common assault under s 61 of the Crimes Act.

40 KIRBY J: I agree.

41 CARRUTHERS AJ: I also agree.

42 STEIN JA: Accordingly, the orders of the Court will be as I have just announced.

oOo

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.