Martha Isabel RUANO v R; Martha RUANO v R

Judgment 1McCLELLAN CJ at CL: I agree with Grove AJ. 2HIDDEN J: I agree with Grove AJ. 3GROVE AJ: This is an application for leave to appeal against severity of sentence imposed by Colefax DCJ at Sydney District Court. 4The applicant had been committed for sentence following pleas of guilty in the Local Court to 3 charges of stealing from a person contrary to s 94 of the Crimes Act 1900. That provision prescribes a maximum available penalty for a single offence of 14 years imprisonment. Without detailing orders for commencement and expiry, his Honour sentenced the applicant for the first offence to imprisonment for 2 years 3 months with a non parole period of 1 year 5 months 17 days; for the second offence to imprisonment for 1 year 10 months with a non parole period of 1 year 2 months 18 days and for the third offence to imprisonment for 3 years with a non parole period of 1 year 11 months 12 days. 5It was common ground between counsel for the applicant and for the Crown that, allowing for orders of partial cumulation, the overall effective sentence was 3 years 11 months with a non parole period of 2 years 10 months 12 days. 6The applicant appeared for sentence with a co-offender Jose Lues Rios and, as his Honour observed, the same facts related to them both. From an agreed statement he extracted this description of the offences: "The first offence occurred on 5 June 2008. On that day Mr Naime Mikael was aged seventy-nine years. He was doing his banking at the Commonwealth Bank at the Bankstown Shopping Centre. Mr Mikael withdrew $3,500 in cash from an account that he had at that bank. The money was to assist his son in Lebanon with medical expenses. After withdrawing the money Mr Mikael placed it in one of his trouser pockets and left the bank to walk to his car which was nearby. Whilst still within the shopping centre Mr Mikael felt a bump and someone touching his right side. He felt in his pocket. The money was gone. When police attended the scene they obtained access to CCTV footage which showed the offenders present in that part of the shopping centre where Mr Mikael had been robbed. This footage showed Mr Rios stepping in front of Mr Mikael causing him to stop and Ms Ruano then moving in and stealing the money. A third person (a male) named Carlos was seen to be helping her. A fourth person (Mr Augustine Bolanos who at one point was in the shopping centre with the other offenders) was waiting outside the shopping centre in his motor vehicle and drove the three other offenders from the scene. The second offence occurred on 28 May 2009. On that day Ms Fensury Wongjamrat was doing her banking in the St George Bank in Haymarket. Ms Wongjamrat was intending to make a deposit of an amount of $1,600. On entering the bank she sat on a seat in the public waiting area and counted the money she intended to deposit. When she finished that task, Ms Wongjamrat placed the money in an A4 envelope which in turn was placed in a small personal shopping cart. Mr Rios was lurking in the bank and watched Ms Wongjamrat counting her money. Whilst watching her Mr Rios made a mobile phone call to Ms Ruano who shortly thereafter entered the bank and had a conversation with Mr Rios. A third unknown person, a male, who was an associate of Mr Rios and Ms Ruano, also entered the branch at the same time as Ms Ruano. Mr Rios and Ms Ruano then made their move on Ms Wongjamrat. Ms Ruano took up a seat directly opposite her and Mr Rios took a seat directly behind her. Mr Rios then engaged Ms Wongjamrat in conversation. Whilst Ms Wongjamarut had turned to face Mr Rios, Ms Ruano reached into her trolley and removed the envelope. Both Mr Rios, Ms Ruano and the unknown male then swiftly left the premises. Ms Wongjamarut almost immediately thereafter realised that her money was missing. This incident was also recorded by CCTV in the bank. The third offence occurred on 10 August 2009. On that day Ms Phung went to the Westpac Bank in Haymarket where she withdrew on behalf of her employer the amount of $21,296 in cash. This money was placed in a hessian bag with the Westpac logo on it and given to Ms Phung. She then placed the hessian bag in her handbag and went to the ANZ Bank at Haymarket where it was her intention to deposit the money into another account of her employer. She collected a ticket from the automated ticketing machine and sat in the public area of the bank waiting for the number on that ticket to be called. While she was waiting Ms Phung removed the hessian bag from her handbag and the cash from the hessian bag and began to count it. Mr Rios was already in the ANZ Bank at the time Ms Phung entered. Upon seeing Ms Phung counting the money he made a mobile phone call and shortly thereafter Ms Ruano entered the bank with the same unknown man who was involved in the second offence, together with a fourth unknown man. All four offenders took up positions in the public waiting areas of the bank. Mr Rios approached Ms Phung and asked her to get up while he searched under her seat, saying that he had lost his credit card. Ms Phung placed the money back into the hessian bag which in turn was placed into her handbag and she moved to another seat. Mr Rios then repositioned himself behind Ms Phung and smeared a quantity of wasabi on her back. Ms Phung felt something touch her and got up from her seat to move away. When she got up the two unknown males approached her and said, "There is a lot of wasabi on your back and the chair." These two men then pretended to offer assistance to Ms Phung. Whilst she was distracted by this activity, Ms Ruano arranged to sit beside her. The unknown males continued to distract Ms Phung and in the deliberately designed confusion Ms Ruano reached into Ms Phung's bag and removed the hessian Westpac bag. After covering that bag with a scarf Ms Ruano left the bank, followed swiftly by Mr Rios and the other unknown male persons. The entirety of the third offence was also captured on CCTV. Both of the present offenders were arrested on 14 August 2009. On 19 August 2009 the police gained access to a room at the Westside Motor Inn at Ashfield in which the two offenders had been staying immediately before their arrest. Amongst the items found on that day was $17,000 in cash, $US3,700, 11,800 Euros and a small quantity of Vietnamese and New Zealand currency, some counterfeit Australian currency to the value of $400 and a quantity of jewellery." 7The Crown sought an order for forfeiture of the Australian and foreign currency found in the motel room. 8After some debate, an assertion by the Crown that the offenders were working as part of a highly organised syndicate of thieves across Sydney was acknowledged. 9The applicant's life had been one of deprivation and tragedy, but also, I regret to observe, of persistent criminal behaviour. His Honour's summary need not be repeated but background included her birth in Colombia, abandonment of her mother by her father whose identity she does not know and subjection to rape after entering domestic service at the age of 11. At 16 she began a relationship with a man over twice her age and they, apparently illegally, entered the United States where he taught her to be a thief, as a result of which she acquired a history of offences in that country, particularly in the New York area. She bore this man two children although he abandoned her before the second child was born and she subsequently learned that he had died. 10Later in life the applicant bore two more children to another man who also left her. She had become a heavy drinker and gambler and addicted to drugs. During the last decade of the Twentieth Century, she came to Australia with her two youngest children where she met another man whom she married. Following convictions for stealing, the last in 2002, she was deported in 2004 after serving sentences. Her younger children now reside with her eldest child in Colombia and the remaining child lives in Canada. 11On 12 August 2007 the applicant re-entered Australia under the alias Rosalba Herrera-Padilla. She discovered that her husband had formed a new relationship and subsequently she became associated with her co-offender, Rios. 12It is expected that she will again be deported when custody is complete. 13The applicant relies upon two grounds of appeal. Ground 1 asserts that the learned sentencing Judge erred in failing to have proper regard to the fact that each of the counts could have been dealt with in the Local Court and failed to have proper regard to the maximum penalty in such a case. 14His Honour did not overlook these circumstances. He said: "These offences could have been dealt with summarily , however the degree of planing involved and the amount particularly of the third offence meant that in my view it was appropriate for the sentencing process to be undertaken in this Court. But the fact that the Local Court could have been the Court in which the offender could have been sentenced is not irrelevant." 15It was submitted that his Honour's remark that the Local Court potential was not irrelevant was opaque and there should have been attention directed to the distinction between the first and the second offences on the one hand and the third offence on the other in that there was a lower Local Court maximum penalty for the first and second than that available for the third. The factor for differential was the amount of money involved. 16I do not find his Honour's remark opaque. It is consistent with the proposition that the existence of possible Local Court jurisdiction is a matter to be taken into account but not a universal factor for the reduction of sentence: R v Doan (2000) 50 NSWLR 115. 17The invitation specifically to advert to the graded penalties in the Local Court implies that they should provide some proportion or scaling to assessment of penalty. So to use them would be erroneous. In the light of the applicant's participation in the offences it could not be contended that it was inappropriate for the Crown to elect to prosecute in the District Court. The summary extracted above shows that on each occasion it was the applicant who physically removed the money from the targeted victim. This is consistent with her frank admission that from an early age in the USA she had been taught to be a thief. Untainted by error, once the election was made to prosecute in the District Court a sentencing Judge would use the maximum penalty prescribed by Parliament for the offence in the same way as it would be used for any offence cognisable within the jurisdiction of that Court. The weight, if any, to be given to the circumstance that Parliament has legislated that in some circumstances offences against a provision might be prosecuted in a Court of limited jurisdiction is a matter for judgment in each case. There was no error in his Honour gauging his assessments, inter alia , against the maximum penalty prescribed, nor in the conclusions as to impositions which he reached. 18Ground 2 asserted that the sentencing Judge erred in failing to structure the sentences imposed so far as to (i) give proper effect to s 44 Crimes (Sentencing Procedure) Act 1999, and (ii) to vary the statutory ratio having expressly stated his intention to do so. 19His Honour made an express finding: "I accept that imprisonment for her will be much harsher than for others because of her limited, almost non-existent English and her total lack of social support from friends or family. In these circumstances I am prepared to find special circumstances." 20It is not intended as criticism, but the somewhat unrounded terms of specification of non parole periods in particular make exact analysis awkward but the Crown has fairly acknowledged first, that it appears that it was his Honour's intention to depart from the formula in the statute when dividing the term into non parole period and balance term both in respect of the individual impositions and their total effect, second, that that division (to the advantage of the applicant) was not achieved when the total term and total non parole period is calculated and, third, that an adjustment to achieve approximately the same proportions in total term as was used for the individual sentences by reduction of about three months would not be argued against. 21Ordinarily, an adjustment being sought in the order of 3 months would not attract intervention by this Court but as it is, in effect, agreed that the likely explanation for not carrying out his Honour's intention was arithmetical rather than an error of principle, fairness would dictate that it should now be done. 22The result apparently intended by his Honour and not opposed by the Crown can, as a matter of practicability, be achieved conveniently by varying the sentence and orders in relation to the third count. 23I propose the following orders: