R v Mules [2007] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION: R v Mules [2007] QCA 47

PARTIES: R v MULES, Tammy Ann (applicant/appellant)

FILE NO/S: CA No 297 of 2006 / DC No 415 of 2006

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 23 February 2007

DELIVERED AT: Brisbane

HEARING DATE: 12 February 2007

JUDGES: McMurdo P, Keane JA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Grant the application for leave to appeal against sentence / 2. Allow the appeal / 3. Vacate the sentences imposed at first instance / 4. Instead, order on each count that the applicant be sentenced to three years imprisonment and that the date the applicant be released on parole be fixed at 20 June 2007 after serving a period of nine months

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where primary judge erred in finding that the co-offender had no criminal history for offences of violence – where the primary judge failed to give sufficient weight to youth and prospects of rehabilitation – whether sentence was manifestly excessive / Penalties and Sentences Act 1992 (Qld) s 160B, s 160B(3), s 160C, s 160C(5) / R v Sowden [2004] QCA 13, CA No 335 of 2003, 9 February 2004, distinguished / R v Horne [2005] QCA 218, CA No 104 of 2005, 22 June 2005, followed

COUNSEL: The applicant appeared on her own behalf / D R Mackenzie for the respondent

SOLICITORS: The applicant appeared on her own behalf / Director of Public Prosecutions (Queensland) for the respondent

MCMURDO P: The applicant pleaded guilty on 20 September 2006 to one count of attempted armed robbery with personal violence and one count of robbery with personal violence, both offences being committed on 30 May 2005. She applies for leave to appeal against her sentence of three years and four months imprisonment with a recommendation for parole eligibility on 20 September 2007, that is after 12 months. She contends the sentence was manifestly excessive. She was sentenced together with her co-accused, Michael John Elliott, who also pleaded guilty to like charges. He was sentenced to three years imprisonment to be released on parole after serving seven months on 20 April 2007.

She is self-represented on this application but at sentence both she and Elliott shared the same legal representatives.

The applicant had turned 20 years old the month before committing the offences. She was 21 at sentence. She had some criminal history. She was placed on 12 months probation without conviction in 2002 for wilful damage and ordered to pay restitution of $285. She was then 17 years old. She was fined $350 without conviction for assault occasioning bodily harm on 18 March 2003. Those offences occurred on 1 December 2002 so that they were committed in breach of the probation order, also when she was 17 years old. She was convicted and fined $250 in June 2004 for breaching a bail undertaking. Later that month she was convicted of breaching her probation order and re-sentenced for the original offence for which she was convicted and fined $200. On 30 June 2006 she was convicted and fined $120 for committing a public nuisance on 8 June 2006, this offence occurring subsequent to the two robberies.

Elliott was 27 years old and had a longer and more significant criminal history than the applicant. It commenced in 1996 with a breach of the Bail Act 1980 (Qld) for which he was fined. He was next placed on probation for property offences in 1997. He had some apparently relatively minor drug convictions for which he was convicted and fined in 1997 and 2002. He breached a fine option order in 1998 and a bail undertaking in 2002. Later that year he was convicted and sentenced for fraud and property offences to three months imprisonment wholly suspended for two years with orders to pay restitution. The next month he was convicted and sentenced to 14 days imprisonment for breach of his bail undertaking and for breaching the suspended sentence imposed earlier that year. A few days later he was convicted and sentenced to one months imprisonment for assaulting a police officer on 28 August 2002. In March 2003 he was convicted and fined for wilful trespass on a railway. In September that year he was convicted and fined for possession of property suspected of being tainted property and for contravening a direction or requirement, those offences occurring in April 2001. On 28 January 2004 he was convicted and sentenced to two years probation for an assortment of property offences and ordered to pay compensation of $370. The present offences breached that probation order. In May 2005 he was convicted and fined for stealing and fraud. In July 2005 he was found to have breached his probation imposed in 2004 and was re-sentenced for the original offences. Convictions were recorded and he was sentenced to a further 18 months probation. He also had a lengthy and serious traffic history. He had been in custody prior to sentence since 22 April 2006 when he was charged with further offences.

The facts of the serious offences the subject of this application were as follows. The complainants in count one ran a newsagency at Bundamba. On Monday, 30 May 2005 at about 5.30 pm the applicant entered their newsagency carrying a long neck beer bottle in one hand and something else in the other. She placed the bottle under her shirt. She said to the female complainant, "Give me all the money now." The female complainant was taken aback and did not reply. The male complainant moved closer to the counter behind the applicant. The applicant repeated to the male complainant, "Give it to me now" pulling her hand with the bottle from underneath her shirt and swinging it at him. He deflected the bottle with his hand so that it grazed rather than hit his head. The female complainant pressed the emergency button in the office. The male complainant struggled with the applicant and disarmed her. She ran from the shop without obtaining any money. The male complainant saw her run up the road and enter the passenger door of a parked car which then drove off.

The second offence occurred a very short time later, apparently within minutes. The complainant, a 17 year old, worked alone at a video store at Bundamba. She heard someone attempting to open the fixed front door. She signalled to the applicant that the store was open and indicated how to push the door to enter. The applicant came inside. She smiled and thanked the helpful young store attendant. The applicant was wearing a black hooded pullover. There were other customers in the store. The applicant walked behind the front counter. The complainant intended to ask what she was doing but, before she could do so, the applicant approached her and punched her in the upper left cheek. The blow forced her back against the counter. She felt moderate pain in her face. The applicant yelled, "Open the till." The complainant immediately did as ordered. The applicant said, "I've got a gun. It's in my bag. I'll use it." The applicant took money from the till and ordered the complainant to assist her in removing money. As soon as she left the store the complainant yelled out to a male customer, "We've been robbed" and rang triple 0. She received bruising and swelling to her face.

No victim impact statements were tendered but it may be inferred the complainants in each count found the offences a traumatic life-event.

The applicant's DNA was located at one of the crime scenes. Police then attended at the address of the applicant and Elliott. Both agreed to be interviewed. The applicant said she was drunk at the time; she did not have much memory of the offences; they committed the robberies to pay a drug debt because she was being pressured and was concerned her children might be hurt. She told police she punched the complainant in the video store in retaliation after the complainant pushed her, and denied threatening that complainant with a gun. The prosecution disputed those assertions and the applicant did not put forward that account at sentence. She estimated to police that she obtained about $300 from the second robbery. In fact, over $500 was taken. She told police that with the proceeds she was able to keep her drug creditors at bay for a couple of months. She minimised to police Elliott's involvement in the robbery. Elliott in his police interview made plain that he was involved in the robberies by driving the car and that the robberies were committed to meet a drug debt.

The prosecutor at sentence made the following submissions. The offences were serious and there was a need for general deterrence when sentencing both offenders. An appropriate head sentence for each offender was in the range of three to four years. In Elliott's case the release date should take into account his period in custody and his sentence could either be suspended or include a recommendation for release on parole about five months earlier than otherwise to reflect his time in custody. In the applicant's case a sentence of three years imprisonment with release after about one-third was an appropriate sentence.

It is a little surprising that the applicant and Elliott were not separately represented: there was an apparent potential for conflict between them and even if their accounts tallied difficulties could easily have arisen when attempting to make the most favourable submissions on behalf of each offender. There is, however, no suggestion that defence counsel did not make all relevant submissions on behalf of both clients.

Defence counsel at sentence emphasised that both offenders entered a timely plea of guilty after a handup committal and cooperated with the administration of justice by fully admitting their responsibility. Defence counsel explained that the offenders had been in a relationship for about six years. Elliott had a dysfunctional and troubled upbringing. He had an amphetamine abuse problem which was at the root of his criminal history. Elliott and the applicant had two children then aged three and 17 months. He had been in custody since 22 April 2006. He had been drug free since and had attempted unsuccessfully to enrol in a drug and alcohol counselling program. He had been working whilst in prison. Counsel submitted that a sentence of no more than three years imprisonment with parole after seven months to reflect his time in custody was appropriate in Elliott's case.

In respect of the applicant, defence counsel emphasised that she had only recently turned 20 when she committed the offences and she had a lesser criminal history than Elliott. She had the sole care of the two children since Elliott was imprisoned and was now emotionally supported by her own mother who attended court for the sentencing proceedings. He tendered a psychological report in respect of the applicant prepared by Ms Fiona Podolak.

Ms Podolak's report included the following. The applicant appeared to answer questions in an honest manner. She had a dysfunctional background. She stated she was sexually and physically abused by her alcoholic father. She and her elder sister were at one time removed from the family by the State. Her parents' relationship ended when she was 11 years old. She claimed she resided with her three younger brothers and her father to protect her younger siblings from his abuse. She claimed he sexually abused her from the age of two or three and this continued until her sister told her mother about the alleged abuse when the applicant was 14 years old. The applicant reported the alleged abuse to police and provided a statement but later decided not to pursue charges. Unsurprisingly, she was a troubled teenager and turned to poly-substance abuse which increased when she formed a relationship with Elliott. From time to time her children were removed from her by the Department of Families. Her drug abuse escalated although she had periods of abstinence. She also abused alcohol. The catalyst for these offences was threats of violence against her and her children from her previous drug supplier because of her unpaid drug debts. The applicant continues to suffer the residual effects of her dysfunctional childhood. She understood that her actions in committing these offences were wrong and had accepted responsibility for her behaviour. After Elliott's incarceration in April 2006 her alcohol abuse increased and the children were temporarily removed from her care. She has abstained from alcohol and drugs since July 2006. She was receiving support from her mother and was again able to provide real care to her daughter and son. She appeared committed to maintaining permanent care of her children. Ms Podolak concluded:

"While she is currently maintaining a period of abstinence, it is my assessment that participation in a drug and alcohol program and supportive counselling will increase her capacity to remain drug and alcohol free and significantly reduce any likelihood of reoffending."

The applicant's barrister ultimately submitted that a wholly suspended three year term of imprisonment was appropriate in all the circumstances in her case.

The sentencing judge properly took into account the period of almost five months which Elliott had spent in pre-sentence custody. Her Honour noted that Elliott's criminal history did not involve violence. The judge accepted that Elliott's culpability was less than that of the applicant because he drove to and from the robberies and was a "somewhat reluctant participant".

Those findings are perhaps, with respect, difficult to maintain, despite his less active role as driver, in the light of his more extensive criminal history (including an assault of a police officer for which he was imprisoned), their relationship and his greater maturity and the fact that he was involved in both robberies.

Her Honour rightly noted her concern about the violent aspects of both offences, the choice of "soft targets" (stores without security systems) and that there were two episodes of offending. Her Honour noted the applicant's "history, whilst nowhere near as extreme as Mr Elliott, is relevant because of the offence of violence" and that she had previously had the benefit of a community based order which she had breached. The judge stated that she took into account Ms Podolak's report, the applicant's youth and personal circumstances and that the applicant was now showing some remorse and insight. Her Honour also noted the early pleas and cooperation of both offenders and that she found some assistance in the somewhat comparable case of R v Sowden.¹

In that case Sowden unsuccessfully applied for leave to appeal against an effective sentence of three years and four months imprisonment suspended after 20 months with a five year operational period imposed for an offence of robbery and other property offences. He was 24 years old at the time of the offences and was on probation for offences of burglary and fraud which had been committed when on another probation order for offences of housebreaking and stealing. He had a history of drug abuse and paranoid schizophrenia which at sentence was in remission. He robbed a lone woman in a dry-cleaning shop of $250 by menacing her with a knife held close to her chest. He was soon apprehended but not before he tried to enter the home of an acquaintance and wilfully damaged a car.

The applicant's oral submissions in this application were articulate and emotional. She reiterated her remorse, her determination to remain drug and alcohol free and to be a decent mother to her children when released and apologised to the complainants (especially her 17 year old victim). She asked the Court to allow the appeal and to impose a lesser sentence than at first instance, one of three years imprisonment, so that a firm release date could be set (see s 160B, Penalties & Sentences Act 1992 (Qld), especially s 160B(3) and cf s 160C especially s 160C(5)).

Sowden, which seems to have assisted her Honour in setting the applicant's sentence of three years and four months, involved different facts to the present case. The present applicant is younger, has a much less significant criminal history, is a mother of young children and misguidedly acted out of desperation to protect them from the threats of drug-dealing thugs. That was no excuse: she should have sought the protection of the law instead of breaking it by grievously violating the rights of the complainants. No doubt her judgment was impaired by her substance abuse, but that too was her own doing. Of particular importance in her case are her impressive and promising efforts at rehabilitation despite her extremely dysfunctional background.

Deterrence is an unquestionably important factor in sentencing offenders like the applicant who commit robberies of vulnerable small businesses. Her Honour was right to recognise that, despite the mitigating factors, both offenders had to serve a significant term of actual custody. Her Honour was also right to take into account Elliott's time in custody in reducing both the head sentence and parole eligibility. I am persuaded however that her Honour erred in not taking into account sufficiently the following mitigating factors in the applicant's case. Her criminal history was relatively minor. Although she had an entry for assault occasioning bodily harm committed in December 2002, the penalty, a $350 fine without conviction, does not suggest this was a serious matter. Whilst the applicant was not a first offender, the judge seems to have placed undue weight on her criminal history whilst wrongly treating Elliott as having no history of violence. Unlike Elliott, she was not on probation at the time of the offences. The applicant was the physical perpetrator of the offences and inflicted actual violence on the complainants. That is an aggravating feature. She was, however, barely 20 years old when she committed the offences and her judgment was affected by alcohol and drugs. Importantly, she has since made promising efforts at rehabilitation, abstained from alcohol and drugs, shown remorse and insight into her conduct, cared for her young children, rebuilt her relationship with her mother and begun to come to terms with her past sexual and physical abuse. She seems at last to be taking responsibility for her past wrong actions and choices. According to Ms Podolak, she seems committed to maintaining permanent care of her children. This Court's decision in R v Horne,² a case to which her Honour unfortunately was not referred, makes clear that youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed serious offences like these, should receive more leniency from courts than would otherwise be appropriate. That is because rehabilitation of young offenders is in the community interest and especially so where the offender is the carer of young children.

Because of that error I would grant the application for leave to appeal against sentence, allow the appeal and exercise the sentencing discretion afresh. A sentence of three years imprisonment with parole fixed after nine months appropriately balances the gravely serious aspects of the offences with the many mitigating features unusually present in combination in the applicant's case. This sentence maintains appropriate parity with that imposed on Elliott, despite his less active role and pre-sentence custody; he was much older than she, had a more serious criminal history, had committed these offences whilst on probation and it was not suggested he had the applicant's promising rehabilitative prospects.

ORDERS:

Grant the application for leave to appeal against sentence.

Allow the appeal.

Vacate the sentences imposed at first instance.

Instead, order on each count that the applicant be sentenced to three years imprisonment and that the date the applicant be released on parole be fixed at 20 June 2007 after serving a period of nine months.

KEANE JA: I agree with the reasons of the President and with the orders proposed by her Honour.

MULLINS J: I agree with the President.

Footnotes

1. [2004] QCA 13, CA No 335 of 2003, 9 February 2004. ↩

2. [2005] QCA 218, CA No 104 of 2005, 22 June 2005. ↩