R v Crossley [2008] VSCA 134

3 On 14 December 2006 Rowena Crossley pleaded guilty before a judge in the Trial Division to eight counts of armed robbery,[1] six counts of attempted armed robbery,[2] one count of obtaining property by deception,[3] and one count of attempting to obtain property by deception.[4] On 13 February 2007 the learned judge imposed sentences which yielded a total effective sentence of six years and three months' imprisonment.[5] He fixed a non-parole period of four years, and made a

4 Now, by leave, Ms Crossley appeals against sentence. On the hearing of her appeal, counsel relied upon the following grounds:

1. By virtue of the orders for cumulation, the total effective sentence is manifestly excessive.

5 The appellant, a woman born 4 July 1971, was aged 34 at time of offending, and aged 36 at time of sentence. She, and an alleged co-offender, a man named Stephens, engaged in a spate of armed robberies and attempted armed robberies in the period which began on 14 April 2006 and which ended on 27 May 2006. In each instance the appellant was the person who directly confronted the victim, Stephens (on the appellant's account) loitering nearby. The single purpose of the criminal conduct was to obtain money for the purchase of drugs. The appellant and Stephens were drug addicts. In all, there were 14 victims of the offending, all of them women, some old, some young, one with a baby in a pusher.

6 The appellant's offending had some very unusual characteristics. To an extent, those characteristics were revealed in the careful sentencing remarks of the learned judge below. He described the offending this way:

The circumstances in which you committed these offences were as follows: Count 1 (armed robbery)

At about 6.30 a.m. on 14 April 2006, while walking in Ormond Road, Elwood, you approached Ai Wei Ng, produced a knife and demanded her bag. The demand was resisted and, after some negotiations, you took $105.00 in cash from Ms Ng and left the scene.

At approximately 7.15 a.m. on 15 April 2006 Piroska Jozsa, then aged 72 years, was sitting at a bus station in Elwood. You approached her wearing a hooded long jacket. You asked her for her purse. When Ms Jozsa refused, you produced a knife 30 centimetres long, and demanded her purse. When she asked you if $50.00 would do, you took the $50.00 and walked off.

At approximately 9.30 p.m. on 17 April 2006 while walking along Herbert Street, Elwood, you approached Tiffany Goggin and asked her for her bag. When she asked you what you meant, you produced a knife saying you did not want to hurt her and only wanted the money. The wallet was taken although you said that you would leave it near the van. The statement is not clear on the matter but it would appear the wallet was never recovered. As well as the normal contents of her wallet, Ms Goggin thinks there would have been something in the region of $10.00 in currency in the wallet.

At approximately 9.30 p.m. on 2 May 2006 Rebecca Webster was walking in Glenhuntly Road. You approached her and said you did not want to hurt her, produced a knife and demanded her bag. Ms Webster refused to give it to you but gave you an amount of cash (in the region of $100.00) and ran away.

On 15 May 2006 at approximately 5.40 p.m. Maria Caferella, then aged 76 years, was walking in Elwood. You approached her and attempted to grab her bag, demanding money. The attempt was unsuccessful.

Count 6 (armed robbery) and count 7 (obtain property by deception)

At approximately 8.45 p.m. on 16 May 2006 Sharmine Muthu was walking in Westbury Street, East St. Kilda. You crossed the street and stood in front of her, produced a knife and demanded she hand over her bag. You took her wallet, saying you would leave it behind after removing the money. The wallet had approximately $5.00 in it and other items including credit cards. A short time later you used a credit card owned by Ms Muthu to purchase alcohol and cigarettes (totalling $81.79) from the Railway Hotel in Chapel Street, Windsor.

Samantha Hayes was walking in May Road, Toorak at about 7.00 p.m. on 18 May 2006. You approached her and demanded her purse. When she resisted, you produced a knife and pointed it towards her stomach. Ms Hayes swung a bag at you and started to scream and you walked away.

Fiona Haig was walking in Osborne Street, South Yarra at approximately 8.00 p.m. on 18 May 2006. You approached her, said you needed her money and produced a knife, saying "I don't want to hurt you." You took approximately $10.00 from Ms Haig's purse. As you left, you said "only carrying $10.00, what a waste of time."

In the mid afternoon of 22 May 2006 Natalya Maluytina was walking in a street in St. Kilda. You approached her and demanded money. At the time of the demand you had a knife in your left hand. Ms Maluytina screamed and you grabbed her by her jacket. She broke free and ran away.

Count 11 (armed robbery) and count 12 (attempt to obtain property by deception)

At approximately 9.00 p.m. on 23 May 2006 Jackie Wykes was walking in Evelyn Street, St. Kilda. You approached her from behind and said you wanted her bag but did not want to hurt her. You then stood directly in front of her and produced what was described as a large kitchen knife. You allowed Ms Wykes to take a licence from her wallet, then thanked her and ran off. In the wallet there was a credit card which you used in an unsuccessful attempt to purchase two cartons of cigarettes from a Coles Supermarket.

In the evening of 24 May 2006 Kelly Nugent was walking in York Street, Prahran. You approached her and demanded her purse. At the time you were armed with a knife. Ms Nugent screamed and ran towards her house, and your attempt to rob her of her purse was unsuccessful.

At about 9.15 p.m. on 24 May 2006 Hazel Hafey, aged 68 years, was walking in Brookville Road, Toorak. You approached her from behind while armed with a knife and apologetically demanded money. Ms Hafey gave you $150.00.

At approximately 5.20 p.m. on 26 May 2006 Choy Chang Man was walking in Mooltan Avenue, East St. Kilda. She noticed a male and female sitting on a bench near the apartment building in which she lived. You approached her, produced a knife and demanded money. She screamed and you ran away saying "I know you live here." At the time Ms Man was pregnant.

At about 5.30 p.m. on 26 May 2006 Michelle Pinchin was walking in Sommers Street, East St. Kilda She was pushing her three year old son in a pram. You approached her and demanded her purse. At the time you had a knife in your hand. Ms Pinchin said that she did not have a purse and you ran away.

The statement you made to the police reveals the offences were all committed in a similar way. Your co-accused - who was your boyfriend at the time - would drive you around in a car looking for potential robbery targets. When you found a female on her own, he would park the car a safe distance away while you would commit the robbery with a kitchen knife as a weapon. You would then both use the money obtained to buy heroin.

7 Further reflecting the particular characteristics of the offending, the learned sentencing judge said this:

. . . I acknowledge your crimes lack the aggravating features often associated with crimes of this kind. You threatened your victims with a knife, but did no more. You often apologised to them at the time and were prepared to negotiate to get the money you really wanted without harming them. The amounts of money involved were small, in some cases paltry. The crimes were committed in such a way that detection was ultimately inevitable. Your actions were desperate - even pathetic.

8 Even so, I think that the appellant's record of interview, to which I will refer in a moment, more completely captures the quality of the offending.

9 The appellant was arrested on 31 May 2006. She was interviewed and made admissions. She made a witness statement on the day of her arrest in which she implicated her alleged co-offender. She indicated her willingness to give evidence against him.

10 I interpolate this: the court was informed from the bar table that Stephens had now stood his trial. The appellant, as she had undertaken to do, had given evidence against him. He had been convicted of some offences, but acquitted of many others. That is not surprising, if only because the appellant was by her own account a significant heroin user at the time of offending and because her record of interview showed that in respect of some matters her memory was incomplete or unreliable. The significant matter, however, is not that Stephens was convicted or acquitted of individual offences; but rather that the appellant made good her promise of assistance in respect of a co-offender against whom, apart from her evidence, there was a dearth of evidence.

11 I return to the record of interview. It is not in debate that, to the extent of her recollection, the appellant attempted to give a full account of what she had done. Beyond that, the flavour of the offending - at least from the appellant's standpoint - can be discerned from some of what she said. Describing the second armed robbery, the appellant said that she remembered it because the victim was 'a lovely lady'. Then there were these questions and answers:

She just - she just said to me that she was poor once and that - not to do this, I'll get caught eventually. And I look like a lovely, nice lady - you know what I mean?

And she said, "I can't afford to give you my money, but how about I give you $50. Will that help?'

And I said, "Yes, that would be lovely. Thank you."

12 I mention her account of the fifth armed robbery:

I asked her for her money and she said that - she said, "No. Please, no. I've only got - I've got all my rent on me," and - and she goes, "It's my rent. I can't" - you know, "I'm really poor too. I'm behind in my rent." And so then I said, "Well, what can you give me?" and she pulled out $80 and gave me - she said, "Is 80 enough?" and I said, "Yep, that's great. Thank you."

13 I should also mention the following interchange, initially in response to a question as to her 'normal routine':

Normal routine was we either never took the wallet, we only just got the cash, or we left the wallet behind - like, we told them where we'd leave the wallet. Or if we didn't tell them, we left the wallets in obvious places like in the middle of the footpath, so someone would pick it up and hand it in or whatever.

I'm just tryin' to think. Yeah, we did. I did. I kept one purse, 'cos it was a really nice purse.

14 I note, in passing, the appellant's somewhat naïve way of admitting that she had retained one of the victim's purses. It was in keeping with much of her presentation during the interview, and with the opinion of the psychologist, Mr Newton,[6] that she 'is an extremely immature woman for her age'.

15 Although ground 1 focuses upon the order for cumulation, I think that not much is to be gained by considering the minutiae of the sentence. For as I see it, in the end result his Honour imposed a total effective sentence which was manifestly excessive.

16 I do not ignore the fact that the appellant offended on a considerable number of occasions, that all her victims were women, and that they were of different ages. Neither do I ignore the circumstances that the appellant was armed, and that - whilst it may be accepted that she never intended to use the knife which she had with her - yet she evidently, and understandably caused some of her victims considerable distress. In this last connection, the learned sentencing judge summarised the situation as follows:

. . . You caused them to suffer significant trauma. I was given victim impact statements from Maria Caferella, Ai Wei Ng, Sharmine Muthu, Kelly Nugent, Hazel Hafey and Michelle Pinchin. They tell of women being left in a state of continuing fear of being robbed again, of being threatened by an unknown person with a long knife, of always looking over their shoulder, of not going out after dark, of being afraid to be at home alone and of living a life changed forever. As one victim put it, you took away her freedom, her ability to feel safe and her trust in people. The statements were each read out in full in open court during the hearing of your plea on sentence, so you will appreciate the impact of your crimes upon these defenceless, innocent women.

Having myself examined the victim impact statements, I accept the broad accuracy of that summation.

17 Armed robbery and attempted armed robbery, committed at all hours of the day, in public places, against vulnerable victims, committed in order to feed a drug habit (as was here the case) are serious offences. Considerations of just punishment, denunciation and general and specific deterrence are evidently important. The learned judge recognised that this was so.

18 On the other hand, there were some very particular features of both the offending and the offender in this case which ran more or less weightily in the appellant's favour.

19 First, by no means were these offences in the worst class of armed robberies or attempted armed robberies. I should say that it was the converse.

20 Second, the appellant, within her capacity, made relevant admissions at the very outset; and, consistently with that position, pleaded guilty to the offences charged.

21 Third, the appellant undertook to assist police in respect of the prosecution of Stephens; and she made good her promise.

22 Fourth, the testimonial of Ms Kerry Tucker, introduced on the plea, gave life to the particular difficulties faced by an informer, and a judge's daughter to boot, in the prison population.

23 Fifth, although the appellant was drug addicted at time of offending, there was evidence that she had made real attempts, both before and after her apprehension, to break her habit. The learned sentencing judge summarised the material which was before him - accurately, in my respectful opinion - this way:

. . . You began using drugs in your early 20's but, unusually, it was not until your mid 30's that you developed a severe addiction to heroin. You shared that addiction with your boyfriend. It consumed your joint resources and dominated your lives.

Before committing these offences you made various attempts to overcome your addiction to drugs. The most recent attempts are described in the report of your treating doctor, Jodi Gostan. Only 10 days prior to committing the offence in count 1, you attended the South City Clinic for help with your addiction, but did not follow this through. Sadly, in 2005 you made an unsuccessful attempt to end your life.

While in remand for these offences, it is clear you have been trying your hardest to achieve your reform. I see this in the evidence of Patrick Newton, your forensic and treating psychologist, who described you as having a determination to change your lifestyle. I see it in the long letter from Kerry Tucker who, as an incarcerated person herself, is a Lead Peer Educator in the orientation and support program at the Dame Phyllis Frost Centre. Ms Tucker eloquently describes the difficulties that someone with your background experiences in prison. I see it in the personal development courses you have completed. I see it in the methadone program you have successfully undertaken in prison to get off heroin. Now you do not need to take that medicine. On 26 September 2006 you undertook urine sample analysis, which revealed you were free of all drugs. You know you will be a recovering addict for the rest of your life, and are committed to staying off drugs.

There was, in the event, prospect of the appellant's rehabilitation; prospect that would nonetheless require, if it was to come to anything, close and lengthy supervision once the appellant was released from prison.

24 Further as to the appellant's prospect of rehabilitation, the judge said that 'your prospects of rehabilitation would be best enhanced by a shorter than normal period of minimum sentence'. I do not doubt that he meant that he considered it proper to set a shorter non-parole period than he would otherwise have done in order to facilitate a lengthy period of post imprisonment supervision.

25 Sixth, the appellant's drug addiction seems not to have been a lifestyle choice, but rather her response to a serious and chronic personality disorder which had, as the learned judge put it, 'plagued you from a young age, disturbs your behaviour and makes you socially dysfunctional'.

26 Recognising that it bore upon the appellant's moral culpability, the learned judge said this about the appellant's illness:

Your personality disorder has brought great sorrow to the life of you and your family. I believe you have been taking drugs to obtain relief from that sorrow, and committed the offences to obtain money for the drugs. A substantial cause of the offending is therefore the illness, which significantly impairs your capacity for personal judgment and operates to reduce your moral culpability for the crimes. I therefore accept your counsel's submission that I should moderate your sentence as sensibly as I can.

27 Seventh, whilst the appellant had some prior criminal history, it was not of great consequence. She had been before the courts on 4 occasions between 1995 and 2005. On three of those occasions the proceedings had been adjourned without conviction. Once she had been fined $500.

28 In all, in my respectful opinion, his Honour identified the various circumstances that bore on sentence. As counsel for the Crown submitted in this Court, the appellant could demonstrate no specific error. But absence of specific error does not deny the possibility that a sentence is manifestly excessive. Sentence imposed may simply fail to reflect the circumstances of the offending and the offender as delineated in the sentencing remarks, this leading to the result that the sentence imposed is so wide of the mark as to require judicial intervention.

29 In the present case, leaving aside altogether the other weighty matters standing in mitigation, the informer's discount was in my opinion a significant factor going in mitigation of sentence. His Honour described it as 'a matter of high significance', and he announced, pursuant to s5(2AB) of the Sentencing Act 1991 (Vic) that he was imposing a less severe sentence than he would otherwise have done on that account.

30 His Honour, in accordance with Victorian authorities,[7] and with observations of the majority of the High Court in The Queen v Markarian,[8] did not quantify the informer discount. Whilst it has been accepted, in this State and in other jurisdictions, that an informer's discount may yield a sentence which is more than 50% less than the sentence which would otherwise have been passed, the extent of the discount in any particular case must depend upon all the circumstances. As Nettle JA said in R v Johnston:

. . . While there are decisions which suggest a discount of 50% or, perhaps even as much as two thirds,[9] it is inevitable that circumstances will differ between cases. For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive.[10] In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough.[11] Other relevant considerations include the nature and gravity of the crime, the offender's moral culpability, prevalence and the need for deterrence of the crime in question,[12] and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind.[13]

31 In this instance, I think that the informer's discount should be accounted considerable, though not of the highest order. Whilst it is true that the appellant gave up on a co-offender who might have been identified as the appellant's partner even if she had said nothing, it was another thing altogether to have connected him with the offending by admissible evidence. There, the appellant's assistance was invaluable. Again, the appellant took the step, which must have been considerable for her, of giving up on the one person with whom, it seems, she had shared much of an intimate relationship in adult life. Further, I think that it is a matter of broad importance that persons who rob in company should be encouraged to inform one against the other. Still further, the appellant ran a risk as a prisoner - a risk of which there was some evidence in her case - by reason of being an informer.

32 Counsel for the Crown submitted that the informer's discount had been given all permissible scope in the individual sentences which the judge imposed. By reference to sentencing statistics, he developed an argument that the individual sentences imposed for the armed robberies and the attempted armed robberies were less than the average sentences for those offences, and that such sentences took account of all pertinent sentencing considerations in the instant case.

33 I do not accept counsel's argument;[14] and in any event, it leaves an important aspect of the sentencing disposition untouched. The statistics, which cannot be of more than general value - because every case is unique - do not suggest that relatively low level offences of the particular kinds are likely to attract individual sentences much in excess of the sentences imposed in this case. But in any event the significance of mitigating circumstances does not begin and end in the individual sentences which are passed. Their significance bears upon totality; and in this instance the learned judge ordered quite substantial cumulation so as to achieve the head sentence which he did.

34 In all, I consider that the total effective sentence imposed by the learned judge inadequately reflected the various mitigating circumstances which the appellant could call in aid - most obviously, because it was a mitigating circumstance which should have affected sentence considerably, the informer's discount.

35 My impression that, all things considered, the head sentence was manifestly excessive is reinforced by what might be called a check test. The intuitive synthesis approach to sentencing and criticism of two stage sentencing means that it is - at least generally - wrong to sever out one sentencing factor when analysing a sentence passed. Even so, the total effective sentence which the judge imposed implies, I think, a head sentence of about 9 years' imprisonment absent the informer's discount which in my opinion was appropriate; or else implies that his Honour valued the discount - contrary to his observation that the appellant's assistance was of 'high significance' - very modestly indeed. Either way, in my opinion it assists to make the point that the head sentence in fact imposed was manifestly excessive.

36 I would accordingly allow the appeal and re-sentence the appellant. In that event it is unnecessary to say anything about ground 3 other than this: that in my opinion the learned judge, by fixing a non-parole period of 4 years on a head sentence of 6 years and 3 months, failed to achieve what he evidently intended to do - that is, impose a quite short non-parole period in order to facilitate the appellant's incipient rehabilitation. On re-sentencing, I consider that effect should be given to that intention.

37 In re-sentencing the appellant, I think that there should be some discrimination in the sentences imposed for the armed robberies and the attempted armed robberies. In some instances the victim was particularly vulnerable or shown to have been particularly affected. Other than that, necessary orders for cumulation should reflect consideration of totality having regard to all the circumstances of the case.

38 I propose that the appellant be re-sentenced to the following periods of imprisonment: on count 1, 20 months; on count 2, 18 months; on count 3, 18 months; on count 4, 18 months; on count 5, 14 months; on count 6, 18 months; on count 7, 1 month; on count 8, 10 months; on count 9, 18 months; on count 10, 10 months; on count 11, 18 months; on count 12, 14 days; on count 13, 10 months; on count 14, 22 months; on count 15, 10 months; on count 16, 14 months.

39 Taking the sentence on count 14 as the base sentence, I would cumulate 4 months of the sentence on count 1, 3 months of the sentence on count 2, 3 months of the sentence on count 3, 3 months of the sentence on count 4, 4 months of the sentence on count 5, 3 months of the sentence on count 6, 2 months of the sentence on count 8, 3 months of the sentence on count 9, 2 months of the sentence on count 10, 3 months of the sentence on count 11, 2 months of the sentence on count 13, 2 months of the sentence on count 15 and 4 months of the sentence on count 16 on each other and on the sentence on count 14, this yielding a total effective sentence of 5 years imprisonment. I would fix a non-parole period of 2 years and 6 months.

[1] Counts 1, 2, 3, 4, 6, 9, 11 and 14. Offence contrary to Crimes Act 1958 (Vic), s 75A. Maximum penalty 25 years' imprisonment.

[2] Counts 5, 8, 10, 13, 15 and 16. Offence contrary to Crimes Act, s321M. Maximum penalty, Crimes Act, s 321P, 20 years' imprisonment.

[3] Count 7, offence contrary to Crimes Act, s 81. Maximum penalty 10 years' imprisonment.

[4] Count 12. Offence contrary to Crimes Act, s321M. Maximum penalty, Crimes Act, s 321P, five years' imprisonment.

[5] The individual sentence, and orders for cumulation, were as follows:

[6] Whose report dated 7 December 2006 was admitted on the plea.

[7] Recently analysed by Nettle JA in R v Johnston [2008] VSCA 133.

[8] [2005] HCA 25; (2005) 228 CLR 357, 375 [39].

[9] See, for example, R v Perrier (No 2) [1991] VicRp 38; [1991] 1 VR 717, 726 (McGarvie, J).

[10] R v Cartwright (1989) 17 NSWLR 243, 252-3; R v Su [1997] 1 VR 1, 78-9.

[11] R v Lindstrom [2008] NSWCCA 160 [58]-[60].

[12] R v Downie and Dandy [1998] 2 VR 517,520-522; cf. R v Lim and Ko [1998] VSCA 54 [31]-34].

[13] R v Johnston [2008] VSCA 133, [18].

[14] The Sentencing Advisory Council's Sentencing Snapshots numbers 35 (Armed Robbery) and 36 (Attempted Armed Robbery), each addressing the period 2002-03 to 2006-07, show, inter alia, that (1) over the period, only about 61% of offenders were gaoled for armed robbery; (2) of those gaoled, very few were women; (3) the average term of imprisonment of women who were gaoled for the principal offence of armed robbery, at just over 2 years, was less than the average term of imprisonment of men who were gaoled; (4) where a total effective sentence was imposed, the average term for women ranged between 2 years and 4 months and 3 years and 3 months; (5) the average number of offences committed, where a total effective sentence was imposed, was (as I understand it) about 3 and a half; (6) in the case of attempted armed robbery, about 59% of offenders were gaoled; (7) of those gaoled, very few were women; (8) the median length of imprisonment (there being no separate statistics for men and women) was 2 years; (9) where a total effective sentence was imposed, the median was 2 years; (10) the average number of offences committed was (as I understand it) 2.32. The fact that the appellant committed a considerable number of offences gives some explanation why her total effective sentence should have exceeded the median, particularly in the case of the armed robberies.