R v Croaker

Court of Criminal Appeal (NSW)|2004-12-14|Before: Wood CJ, Simpson J, Barr J, Dr P

CITATION : R v Croaker [2004] NSWCCA 470 HEARING DATE(S) : 14 December 2004 JUDGMENT DATE : 14 December 2004

JUDGMENT OF : Wood CJ at CL at 1, 38, 40; Simpson J at 2; Barr J at 39 DECISION : (1) Crown appeal allowed; (2) Sentences set aside; (3) Respondent re-sentenced as follows: In relation to the first count, to imprisonment with a non-parole period of eighteen months commencing today, 14 December 2004, and the balance of term of six months expiring on 13 December 2006; pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999, the whole of the sentence suspended on the respondent entering into a bond (to be entered within seven days at Moree) conditioned to be of good behaviour and to accept the supervision of the Probation and Parole Service; on the second count, the respondent sentenced to imprisonment for a fixed term of six months, to date from today, 14 December 2004; that sentence suspended pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 on the same terms and conditions as the sentence in relation to count one.

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0185 FILE NUMBER(S) : LOWER COURT Finnane DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2448

WOOD CJ at CL SIMPSON J BARR J

Tuesday 14 December 2004 REGINA v Kristy CROAKER Judgment 1 WOOD CJ at CL: I will ask Simpson J to deliver the first judgment. 2 SIMPSON J: This is a Crown appeal against the asserted manifest inadequacy of sentences imposed upon the respondent by Finnane DCJ in the District Court at Moree on 10 August 2004 following the respondent's pleas of guilty to two charges, one of maliciously inflict grievous bodily harm, and one of malicious damage to property, both committed during the course of a single episode during the evening of 11 March 2003 at the Wee Waa Hotel. Pursuant to s34(1)(b) of the Crimes Act 1900, the first offence carries a maximum penalty of imprisonment for seven years, the second, pursuant to s195(a), a maximum penalty of imprisonment for five years. 3 Although, by reason of the date of the commission of the offences, the provisions of Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Act") apply, neither offence is one in relation to which the legislature has specified a standard non-parole period. The latest version of s44 does, however, apply, requiring that the Court first fix a non-parole period and then a balance of term. 4 On the first count, Finnane DCJ sentenced the respondent to imprisonment with a non-parole period of 18 months and a balance of term of six months. On the second count he sentenced the respondent to a fixed term of imprisonment for six months. He purported to defer the commencement of each sentence, ordering that each commence on 6 January 2005. Pursuant to s12 of the Act, he ordered that execution of the whole of each sentence be suspended upon the respondent entering into a good behaviour bond. He ordered, as a condition of the bond in each case, that the respondent submit to the supervision of the Probation and Parole Service, attend immediately and remain at the Roy Thorne Rehabilitation Centre and undertake its programme and any further programmes suggested by the Probation and Parole Service, and be of good behaviour. 5 The reason for the purported deferral of the starting point of the sentences appears to lie in another matter before Finnane DCJ at the same time. This involved an appeal against a sentence imposed by a magistrate on 15 July 2004 in relation to an offence of assault occasioning actual bodily harm, committed on 1 July 2004. On that charge the magistrate sentenced the respondent to a fixed term of imprisonment for six months, commencing on 6 July 2004 and expiring on 5 January 2005. On appeal, Finnane DCJ confirmed the sentence but ordered that it, too, be suspended, on conditions identical to those already mentioned. There is no role in this Court for any review of that decision. The offence is, however, of some relevance. 6 The grounds of appeal pleaded on behalf of the Crown are:

his Honour erred by postdating the two suspended sentences;

the sentences are manifestly inadequate by reason of the suspension: each offence warranted a period of full-time custody;

the sentences are manifestly inadequate by reason of insufficient weight having been given to their aggravating features.

facts 7 It is convenient first to examine the facts of the two offences. They occurred at about 10.30 pm on the evening of 11 March 2003, a Tuesday. The respondent was with her sister Justina, and others, at the Wee Waa Hotel. One of the party, Jason Croaker, purchased a bottle of beer from Mrs Ryan, the publican's wife, walked outside with it, and handed it to another person. Mrs Ryan suspected that the bottle had been passed to a minor and investigated, and believed that her suspicion was confirmed. She confiscated the bottle and was returning with it to the hotel when Justina Croaker confronted her. Mrs Ryan broke the bottle into a nearby bin. This seems to have been interpreted by Justina Croaker as a "menacing" gesture, something denied by Mrs Ryan. Mrs Ryan sought to speak to Jason Croaker, and was then confronted by the respondent and Justina Croaker. Mrs Ryan hit the respondent, who hit back and a melee ensued. Bystanders intervened in an attempt to break up the fight. Justina Croaker left the hotel, smashing a glass door as she did so. The respondent was evicted by Mrs Ryan's husband and the door was locked. Those outside the hotel threw bricks, bottles and stones at the hotel. Mrs Ryan went outside to ask them to stop. The respondent approached her, punched her to the ground, head-butted her and continued to assault her. 8 Mrs Ryan suffered extensive injuries - a broken nose, a split in the internal tissue between lip and nose, a black eye, bruising and soft tissue injury to the face, cheek, temple, neck, back, left side of body, internal and external bleeding around the eyes and a cut between the right eye and nose. Some idea of the seriousness of her injuries can be gained from the fact that she remained hospitalised for one week. 9 The respondent was arrested on 27 March 2003 and was granted bail later that day.

subjective features 10 Pre-sentence reports, dated 30 January 2004 and 2 August 2004, written by Ms JL Hibberd, who also gave oral evidence, were put before Finnane DCJ. The respondent herself gave evidence. From these the following emerged. The respondent was born on 19 May 1981. She was not quite 22 at the time of the offences. She already had a criminal record, with five instances of convictions for violence or property damage. In 2002 she had served the six month non-parole period of a nine month term of imprisonment. 11 The respondent is of Aboriginal descent, and the pattern of disadvantage, including family violence, alcohol abuse and poverty that sometimes characterises Aboriginal heritage described by Wood J (as the Chief Judge then was) in R v Fernando (1992) 76 A Crim R 58 was evident. 12 The respondent lived with her mother, and her own two small children (then aged three and two) in a rented home in Wee Waa. The respondent was separated from the father of the children. Her mother, who has then undiagnosed or unspecified health problems, was also known to and under the supervision of the Probation and Parole Service. The respondent was anxious and stressed about her mother's condition. She (the respondent) suffered from what appears to be quite serious depression and had, before the birth of her children, made two attempts at suicide. She had a history of alcohol abuse which had commenced at the age of 13, although she had been making attempts to reduce her consumption. She used cannabis heavily and daily. She had made some limited attempts to address her drug and alcohol use. This appears to have been during her incarceration, and she was unable to sustain her motivation on her release. 13 During 2004 a general practitioner diagnosed depression and anxiety disorder, and prescribed medication and counselling. 14 On 31 May 2001 the respondent was convicted in the Local Court of assault occasioning actual bodily harm and a bond for two years was imposed. She was still subject to that bond at the time of the commission of these offences. 15 The respondent's custodial history is of some relevance. The respondent was initially arrested on 27 March 2003, but was released on condition bail later that day. She was again arrested, in relation to the offence dealt with in the Local Court, on 6 July 2004. She remained in custody until she was sentenced for that offence on 15 July, and thereafter until all matters came before Finnane DCJ on 30 January 2004 when Finnane DCJ harnted her bail. She was subject to a lengthy remand, and on bail, a condition of which was that she submit to the supervision of the Probation and Parole Service. 16 Thus, by the time she gave evidence, Ms Hibberd, the Probation and Parole officer, was well acquainted with the circumstances of the respondent's life. She gave very favourable evidence. She said that, at the commencement of the supervision period, the respondent was displaying symptoms of severe depression, with suicidal ideation, and a firm plan to commit suicide, and that medical intervention was secured as a priority. She said the respondent was responding well to the supervision. 17 Ms Hibberd, however, believed that the respondent was in need of more intensive assistance than the resources of the Probation and Parole Service could provide. She recommended that the respondent participate in a programme specifically designed to assist Aboriginal offenders, and which involved Aboriginal women elders. This, presumably, although it was not spelled out in the evidence, was the Roy Thorne programme, the subject of the terms of the bond imposed as a condition of the suspension of the sentences. 18 The respondent also gave evidence, firstly on 30 January 2004, and again on 10 August 2004. She explained the circumstances of the 1 July offence as having arisen out of difficulties within the family. The victim was, in fact, a relative. The respondent had apologised to her the day after the offence. 19 In her evidence in August the respondent was asked what she though she would gain by going to Roy Thorne House. She answered: "I really want to help myself your Honour. I need to rehabilitate myself. I want to become a better person. I know I can't just go around assaulting people for any kind of reason but the grog and the drugs and the depression drives me to do things and I really want to help myself your Honour because I've got two children."

The transcript suggests that she had gained considerable insight since the offences. 20 In any event, the respondent's sincerity impressed Finnane DCJ. After cautioning himself against placing too much weight upon self-interested evidence of rehabilitation from offenders facing sentence, his Honour said: However, I formed a favourable impression of her. She answered any questions that I asked in a very direct fashion. She was subjected to some short but quite fierce cross-examination ... but more importantly I think she accepted that she was responsible. Nobody else was responsible but her and she said she wanted to do something about her problems of anger and her alcohol and drug problems ... She clearly wants to do something more with her life." 21 By the time the respondent gave evidence she had been in custody serving the magistrate's sentence for just over a month.

the Crown appeal 22 The first ground of the Crown appeal concerns the post-dating of the sentences. Since senior counsel for the respondent conceded that Finnane DCJ was in error in purporting to post-date the commencement of the sentences, it is unnecessary to elaborate. For reasons given in Abdullah v DPP [2004] NSWSC, unreported, 11 October 2004, and R v Tolley [2004] NSWCCA 165, there was no power to post-date the commencement of the sentences. Senior counsel for the respondent, however, argued that appeal is not the appropriate mechanism for correction of the error; the appropriate mechanism is that provided by s43 of the Act. If that is the only error identified, senior counsel may well be correct. However, the substance of the Crown appeal concerned manifest inadequacy, brought about by the suspension of sentences in relation to offences which, the Crown contended, called for a period of full-time custody, and asserted inadequate regard to aggravating features. 23 It is therefore necessary to look at the substance of the appeal. The Crown's attack is not against the terms of the sentences, but upon their suspension. The Crown pointed to the serious nature of the offence of violence against Mrs Ryan, by reference to the extent of her injuries and her week long period of hospitalisation; and the respondent's previous record of violence. 24 The Crown acknowledged that, when the matters first came before Finnane DCJ in January 2004, the Crown Prosecutor then appearing did not seek to dissuade his Honour from remanding the respondent for a lengthy period in accordance with the order that was the subject of the appeal to the High Court in Griffiths v The Queen [1977] HCA 44; 137 CLR 293 but argued that the respondent was deprived of any benefit she might otherwise have obtained from that concession when she committed the further offence on 1 July. Certainly his Honour was entitled, and probably obliged, to take that offence into account on assessing the extent of the respondent's rehabilitation. 25 A good deal of the Crown's written argument in support of this ground concerned the manner in which the Fernando principles are to be applied. In my opinion, that reliance is misplaced. Finnane DCJ declared those principles to be "relevant", an observation which is, in my opinion, unarguably correct. His Honour correctly said: "I am certainly not treating her as someone who should not be punished because she is Aboriginal but her background is such that the offences that she has committed, it seems to me, can be said to come from some deep anger within her." 26 The Crown, however, argued that the suspension of the sentences calls into question the application of the correctly stated principle. I would reject this. The Fernando principles were correctly applied. 27 The second matter to which the Crown referred concerned his Honour's consideration of aggravating features. One of these was that the respondent was subject to the 2001 two year bond. The Crown also pointed to the fact that, when she committed the 1 July offence, the respondent was subject to the conditional bail order, including a condition that she be of good behaviour, made by Finnane DCJ on 10 January 2004. It is important not to overemphasise the commission of that offence in relation to the two offences with which this Court has to concern itself. As I see it, the only relevance of that offence is as giving some indication of the extent, if any, to which the respondent had achieved rehabilitation. But the sentences are not to be increased by reason of the commission of a subsequent offence. Pursuant to s21A(2)(d) a respondent's record of previous convictions for offences of violence was an aggravating feature. However, as the Crown acknowledge, Finnane DCJ mentioned all of these except the fact that the offence was committed in company. There is no reason to surmise that he did not properly take them into account. The fact that the offences were committed in company was perfectly obvious. 28 In my opinion, the sentences imposed were certainly lenient when regard is had to what the respondent did. The attack upon Mrs Ryan was sustained and fierce. But, in my opinion, the key to the sentencing decision lay in the evidence of rehabilitation. This was impressive, and I maintain that view, notwithstanding the lapse which occurred on 1 July. A single lapse is not necessarily indicative of the loss of progress towards rehabilitation, although it is, clearly, a worrying factor. 29 In my opinion, it was open to his Honour to take the course that he did. I would, accordingly, dismiss the Crown appeal. 30 However, in deference to those who take a different view, and to the arguments of the Crown, I should refer to some additional evidence. This was tendered, in affidavit form, to this Court for use in the event that this Court concluded that error had been demonstrated and proceeded to re-sentence. It is also relevant on a consideration of the exercise of the Court's residual discretion to dismiss a Crown appeal even where error had been shown. 31 The evidence consisted of an affidavit from the respondent's solicitor annexing a report from the Roy Thorne Substance Misuse Rehabilitation Centre; and an affidavit of the respondent's. The report of the Roy Thorne Centre vindicates the decision of Finnane DCJ. At the time it was written, 22 November 2004, the respondent had completed three and a half months of a four month programme. She had withdrawn from the use of benzodiazepines, having had a long struggle with pills. She had returned negative results to urine testing for drugs. She had successfully negotiated periods of leave, returning late on only one occasion when she had missed the train. She was described as displaying potential, as indicated by completing tasks when directed, high participation levels in group discussion, and willingness to engage in the counselling process. The author of the report had little doubt that she would complete the programme. It was recognised that she would continue to require substantial support. 32 The respondent's affidavit was encouraging. She said: "I have had a wonderful experience at the Roy Thorne House and I am committed to completing the programme." 33 She said that she chairs Alcoholics Anonymous groups, using her experience to encourage others, and obtained considerable self esteem as a result. She said she had never been tempted to use drugs since entering the centre. 34 On the hearing of the appeal further affidavits were filed in court, bringing the evidence up to date. These confirmed the impression created by the earlier affidavit evidence and the evidence that was before Finnane DCJ. The court was told that the respondent has completed the four-month programme of the Roy Thorne Centre and remains there, undertaking a voluntary programme. 35 In my opinion, it would be altogether too harsh, and indeed too dangerous, to threaten this almost completed success story by now sentencing the respondent to a period of full-time custody. I propose that the Crown appeal be dismissed. 36 On behalf of the respondent it was conceded that it would be appropriate to order that the sentences which this Court must impose commence from today but they should be in otherwise identical terms. I would accept that, except that it is no longer necessary to impose a direction that the respondent submit herself to the care of the Roy Thorne Centre. 37 The orders I propose are:

(1) That the Crown appeal be allowed. (2) That the sentences be set aside. (3) That the respondent be re-sentenced as follows: In relation to the first count, to imprisonment with a non-parole period of eighteen months commencing today, 14 December 2004, and the balance of the term of six months expiring on 13 December 2006. Pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 , the whole of the sentence be suspended on the respondent entering into a bond (to be entered within seven days at Moree) conditioned to be of good behaviour and to accept the supervision of the Probation and Parole Service.

On the second count, the respondent be sentenced to imprisonment for a fixed term of six months, to date from today, 14 December 2004. That sentence be suspended pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 on the same terms and conditions as the sentence in relation to count one. 38 WOOD CJ at CL: I agree. 39 BARR J: I also agree. 40 WOOD CJ at CL: The order of the Court will be as proposed.

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