Courts Cannot Increase Sentences Due to Factors Inherent in the Offence or Unknown to Offenders

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By Paul Gregoire and Ugur Nedim

Mr Crittenden, a resident of the Newcastle suburb of Merewether, was watching television with his wife on the evening of 1 December 2005, when he noticed the light in his kitchen, which he’d recently switched off, had been turned on.

On entering the kitchen to investigate, the 62-year-old found Alicia Lee Towers standing in the room. Mr Crittenden asked the woman what she was doing there, to which she replied, “There’s someone in your backyard.”

Crittenden said he was more concerned with what she was doing in his kitchen. Ms Towers replied, “I’m pregnant.” Mrs Crittenden then entered the room. Her husband told her to call the police, but as she reached for the phone, Ms Towers ripped it off the wall.

The intruder then stated, “There is someone in your garage going through the car.” On realising he’d left the garage door open, Mr Crittenden told his wife to watch Ms Towers, while he checked the garage.

As soon as Mr Crittenden left the room, Ms Towers made a run for the backdoor. Mrs Crittenden tried to stop her. The trespasser then grabbed the 60-year-old woman’s arm with force and pulled her out of the way.

Mr Crittenden re-entered the room and took hold of Ms Towers, who bit him on the left wrist. He then let her go, and Towers took off up the street and jumped into the passenger seat of a car. She was then driven away.

Following the escape, Mr Crittenden inspected his garage and found a cigarette on the floor. The Department of Analytical Laboratories matched the DNA taken from the cigarette to Ms Towers’ profile.

The forensic investigation took some time to complete, and Ms Towers was charged a year later.

Offender pleads guilty

On 19 October 2007, Ms Towers pleaded guilty to four charges in Newcastle Local Court. The first was aggravated break and enter with intent to steal, contrary to section 113(2) of the Crimes Act 1900. The offence carries a maximum penalty of 14 years imprisonment.

She also entered guilty pleas to two counts of assault occasioning actual bodily harm, under section 59(1) of the Crimes Act. The maximum penalty for this offence is 5 years.

The next charge to which Towers pleaded guilty was receiving stolen goods, contrary to section 189 of the Crimes Act. The maximum for this offence is 3 years.

The final charge was being found in the possession of two stolen credit cards on 17 November 2006.

The matter was then committed to the District Court for sentencing.

The sentencing hearing

The District Court heard that Ms Towers’ life “had been marked by tragedy.” She’d been sexually assaulted twice at the ages of 14 and 17. Following the second attack, which left her with chronic PTSD, she turned to drugs which led her into a life of crime to support her habit.

The young mother was only 21 at the time of the offence at the Crittenden residence. She was charged with the current offences after being arrested on 6 December 2006, having had her parole revoked, which related to a 15 month prison sentence for a number of other convictions.

NSW District Court Judge James Bennett “was plainly moved” by Ms Towers’ tragic story. He found she showed remorse and had good prospects for rehabilitation. The judge allowed for a 33 percent discount to due to her guilty pleas and other factors.

On 26 October 2007, his Honour sentenced Ms Towers to a total of 5 years and 6 months imprisonment, with a non-parole period 2 years and 6 months. The sentences for each count were to be served with partial concurrence.

Double punishment

Ms Towers appealed her sentence to the NSW Court of Criminal Appeal (NSWCCA) on 19 November 2008. She did so on four grounds.

The first was that the sentencing judge had imposed double punishment when finding that the count of break, enter and steal was aggravated by the fact that the offence involved violence, as the actual use of violence was contained within the nature of the assault charges.

NSWCCA Justice David Kirby agreed that the sentencing judge had indeed made an error in considering violence an aggravating factor.

Section 21A of the NSW Crimes (Sentencing Procedures) Act 1999 acts as a checklist of aggravating and mitigating factors, which a sentencing court must take into account if they are “relevant and known to the court.”

Justice Kirby drew attention to the fact that section 21A states that “the court may not have regard to any aggravating… factor if it would be contrary to any rule of law to do so.” His Honour said avoiding double punishment is a rule of law or a “recognised sentencing practice.”

In the present case, the justice found that the sentencing judge had imposed double punishment. If there were no separate charges for assault, Judge Bennett could have considered violence as an aggravating factor for breaking and entering, but as there were assault charges he could not.

Vulnerable victims

The second ground of appeal was that the sentencing judge had made an error by finding that the break and enter offence was aggravated by the victim’s vulnerability, which was due to their elderly age. And Justice Kirby upheld this ground as well.

His Honour said that the crime could not be aggravated by the victim’s vulnerability merely because they were in their early sixties. He also stated that the account of how they reacted during the intrusion revealed that they weren’t vulnerable.

Justice Kirby explained that there was no suggestion that Ms Towers knew that the Crittendens were an elderly couple, when she entered their house. And as she was unaware of this, the justice found her crime was not aggravated by it.

The final grounds

Ms Towers’ lawyers also argued that Judge Bennett had failed to apply the principle of totality correctly when sentencing, as the judge had set the commencement date of the sentence he was handing down on the date that her previous sentence expired and not beforehand.

But Justice Kirby didn’t agree with them on this matter.

The principle of totality stipulates that when a court sentences an offender for more than one crime, or when they are already serving an existing sentence, the aggregate sentence must be “just and appropriate” when taking into account the overall offending conduct.

His Honour said that while the sentencing judge had the discretion to backdate the new sentence “to a date before the expiration of the non-parole period if he thought it appropriate, there was no error in failing to do so.”

The last ground of appeal was that the sentence was manifestly excessive. Justice Kirby ruled this was so, as despite the number of “favourable” findings the judge made in relation to Ms Towers, the sentence imposed was in the top 20 percent of sentences handed down for such an offence.

The orders of the appeals court

Justice Kirby ordered the sentence imposed by Judge Bennett be quashed, and that the new sentences imposed by the NSWCCA for each offence were to be served concurrently.

Ms Towers was re-sentenced to 4 years and 6 months behind bars, with a non-parole period of 2 years.

Both Justice Margaret Beazley and Justice Peter Hall agreed with Justice Kirby.

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