R v Ridden

R v Ridden - [2016] NSWDC 2 - NSWDC 2015 case summary — Zoe

[3]

23 September 2013

In late September 2013 Roach obtained a shotgun; a dangerous weapon. The two planned to use it. They were joined by Anthony Woodman and Blake Weismantel. On 23 September their plans were executed. They had the shotgun and other weapons. They needed a car. To get it they approached Mr Brighton as he was parked in his driveway in Lane Cove and was about to drive his car into his garage. Mr Brighton was 87 years old. Someone said, "Give me the car keys, we're not going to hurt you." Out of fear for his safety he handed over his keys. His vehicle, a 2003 Nissan Pulsar was taken. Ms Ridden did not engage with Mr Brighton but she was present and able to assist if needed: Form 1.
Count 1: Within less than half an hour Roach, Woodman, Weismantel and Ms Ridden entered the Roseville Cinema. Roach carried a small axe. Another man had a sawn-off shotgun. Roach threatened an employee Mr Sheppard saying "Give us your money". Mr Sheppard told Mr Roach to "Get the fuck out of here". He then ran to trigger the silent alarm. Roach jumped over the candy bar. At the same time a co‑offender pointed a shotgun at Mr Sheppard and shouted, "Do you want to die?" The stills of the cinema's security CCTV are set out in the brief before me: Exhibit A, tab 13.
Roach was able to take about $500 from the till. While this was happening Woodman was threatening patrons, demanding their wallets. A number of them simply ignored his demands, but one older man, Mr Price, handed over his wallet with about $90 and other personal items: Form 1.
Ms Ridden acted as a look out during the robbery. She also demanded of patrons that they hand over their wallets.
Count 2: Later that evening the same group went to the Revesby Pacific Hotel. All were armed in some way. One had the shotgun, Mr Roach still had the axe and Ms Ridden carried a walking stick. The robbery was captured on CCTV and there are stills in the brief before me: Exhibit A, tab 13. They show the distress on the face of one of the employees. The tills were ransacked and $3,800 was taken, as well as a number of other items. Ms Ridden helped in taking things from behind the bar.
Count 3: Mr Brighton's motor vehicle was used in both robberies. It was set alight and destroyed.

[4]

24 September 2013

The following evening Ms Ridden and Roach were at the Kirrawee McDonald's. They were behaving badly. Staff called police. Constables Lawler and Nicholls responded. It was apparent to them that both offenders were well affected by an intoxicating substance. They sought to defuse the situation and get the two to leave, but Roach hit Constable Nicholls in the face with his fist. Lawler and Nicholls tried to force him to the ground, but he continued to resist. Ms Ridden involved herself in the struggle.
She, in turn, was forced to the ground and handcuffed. She continued to resist, kick and swear. She kicked Constable Lawler in the face: Count 7. Roach made an escape but was soon caught. Other police arrived. Ms Ridden continued to struggle, spitting at and abusing the officers. Constable Rial injured his elbow trying to restrain her: Count 2. Constable Murray-Swan was kicked in the thigh: Count 3. Constable Warner received a fist in her face: Count 6. Constable Markovich was kicked in the forearm and face: Count 5.
These were not trivial assaults. Actual harm was inflicted. Constable Markovich's lip was swollen and it was sore for days. Constable Lawler's cheek was bruised and he had a swollen lip. Constable Warner's face and knee were swollen; the swelling and the pain remained for some time.
Police searched the backpack that Ridden and Roach had with them at the McDonalds. In it they found the sawn‑off shotgun used in the previous day's robberies: Count 1. The shot gun was not loaded.
However, in the bag were three shotgun shells. She asks that I sentence her for this related matter. I will do so noting that the s 166 procedure applies because these matters are generally dealt with in the Local Court.
At Sutherland Police Station Ms Ridden, still drug affected, continued to yell, scream at, abuse and threaten police. She kicked and scratched the custody officer, Senior Constable Ott: Count 4. A tendon in his finger was injured requiring hospital treatment. He had to wear a brace for some weeks to aid recovery.

[11]

Maximum penalties and standard non-parole periods

Important guides to the exercise of my sentencing discretion are the maximum penalties and, where applicable, the standard non-parole periods fixed by Parliament. Here: 1. Robbery armed with a dangerous weapon - 25 years imprisonment - s 97(2) Crimes Act 1900 (NSW). 2. Destruction of a motor vehicle by fire - 11 years imprisonment - s 195(1A)(b) Crimes Act. 3. Possess unauthorised prohibited firearm - 14 years imprisonment with a standard non-parole period of three years - s 7(1) Firearms Act. 4. Assault police in execution of duty causing actual bodily harm - 7 years imprisonment with a standard non-parole period of three years - s 60(2) Crimes Act. 5. Assault police - five years imprisonment - s 60(1) Crimes Act. 6. Possess ammunition without authority - $5,500 Fine - s 65(3) Firearms Act. 7. Break, enter and steal - 14 years imprisonment (2 years if dealt with in the Local Court) - s 112(1) Crimes Act.
Careful attention to maximum penalties and any standard non-parole period is required. Not just because the Parliament has fixed them but also both provide measures to be balanced with all other relevant factors. One reason for the high maximum penalties and high standard non-parole periods is to ensure Courts have proper regard to the deterrent and retributive impact of sentences. They also invite a comparison between the instant case and other cases. That said it is not appropriate to look first to a maximum penalty or the standard non-parole period and then proceed by way of making a proportional deduction from it: Markarian v The Queen at [30] and [31].
Another important guide is the judgment of the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. The 23 September robbery matters clearly fall above that guideline. However, I note, as Spigelman CJ said in Legge v R [2007] NSWCCA 244 at [59]: "a guideline is not a tramline." The consistent application of principle requires careful consideration of this and other decisions of appellate courts, but as Justices Bell and Gageler noted recently in The Queen v Pham [2015] HCA 39 at [46], "…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.''
There are here reasons to depart from the standard non-parole period. They include giving proper recognition to the pleas of guilty, the subjective matters to which I am about to refer and my finding of special circumstances requiring a long period of supervision in the community when and if Ms Ridden earns release to parole.

[18]

Objection to defence evidence

Exhibit 4 is a report from Ms Vander Reest a victims' services counsellor at Dillwynia Correctional Centre. Ms Engel, solicitor, for the Director of Public Prosecutions, asked that the Evidence Act 1995 (NSW) apply and that I reject the opinions offered. I declined her application.
Most sentencing proceedings do not involve some general joinder of issue between prosecution and offender. Calling and testing evidence is required if an asserted fact is controverted or if the judge was not prepared to act on the assertion. Most often this comes up when a matter not on oath and repeated second hand is put forward as evidence going to an assessment of the objective circumstances of the offences: See R v Qutami [2001] NSWCCA 353.
Where there is a real dispute that will have a significant impact on sentence the party seeking to have the matter taken into account must bring that matter to the attention of the judge and, if necessary, call evidence about it: The Queen v Olbrich (1999) 199 CLR 270 at [25]. In such matters a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. If judge proposes to take matters into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities": R v Storey [1998] 1 VR 359 at 369.
However, sentencing, particularly in busy lists such as those at Campbelltown, is rarely capable of subtlety and refinement. Nor is it necessary in most cases. This is one of them.
Even where the Evidence Act does not apply a judge does not ignore the rules the policy and rationale underlying those rules: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256, per Evatt J. There is no reason to doubt the bona fides of Ms Vander Reest, however, a Judge is entitled to be sceptical of conclusions unsupported by any factual detail: Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [39].
I do caution myself that the history given to Ms Vander Reest and Mr Borenstein was not supported by evidence on oath from Ms Ridden. The focus of the exhibits was on subjective matters. This includes her suffering some early trauma and sexual abuse as a young teenager and that she is still traumatised by what occurred. The disputed material did not go to the objective seriousness of her many crimes. It was also in accord with other material before me. Primarily it was relevant to her prospects and future risk. The material also allows for some understanding of how she came to commit these crimes.

[19]

Subjective case for the offender

Ms Ridden was born on 10 December 1992. She grew up with her parents and brother in Sydney's northern beaches. The family were part of a strict religious community. As a young teenager Ms Ridden rejected that lifestyle and rebelled against its strictures. She left home and school early. She spent a short time in a hairdressing apprenticeship. She took up the use and abuse of drugs. She also came to notice of police and the courts. This continued until her arrest on 24 September 2013.
Since starting counselling with Ms Vander Reest last year she has been very proactive in addressing issues that have arisen during her childhood and adolescence. She has made considerable progress and is committed to continuing counselling.
In two reports Mr Borenstein, clinical psychologist, provides a history given to him by Ms Ridden. He details her early rebellion, binge drinking and drug abuse. He notes she was a victim of violence, including sexual assault. She developed a substance dependency and as Exhibit 2 makes clear had to be hospitalised and briefly scheduled under the Mental Health Act 2007 (NSW) in 2009 aged 16. The reports note depression, drug dependency and years of self-harm. She spent time at the Triple Care Farm rehabilitation facility.
By the time of the commission of these offences she had lost touch with pro-social friends and family. She had suffered a number of significant traumas. She had little concern for herself or others. She was alienated, anxious, lacking in trust and marginalised. Her brief association with her co-offender Roach exacerbated these feelings. She simply did not care about others or that she would be going to gaol.
Since coming into custody there has been a gradual but considerable change in attitude and behaviour. Her affect is now "normal". She is no longer drug dependant. She is reported as showing some insight and understanding. She told Mr Borenstein "her conscience had returned" and that she deserves punishment.
She has re-established contact with her family and family friends. She has their support; many came to court to support her. Her history and psychological testing leads Mr Borenstein to conclude she suffers from complex Post Traumatic Stress Disorder. In his professional opinion she needs ongoing and intensive psychological treatment and drug and alcohol counselling directed at relapse prevention.

[20]

Parity

On 19 February 2015 I sentenced Roach for his role in the taking Mr Brighton's car, the Roseville Cinema offences, the Revesby Hotel robbery and a number of other offences, some committed in association with Ms Ridden, some not. In all he will serve over 11 years with a minimum time that must be spent in gaol of 7 years. Roach entered early guilty pleas.
On 1 October 2015 Judge Nielson sentenced Weismantel for his role in the taking of Mr Brighton's car, the Roseville Cinema offences and the Revesby Hotel robbery, to an aggregate sentence of 8 years 6 months with a minimum term that must be served of 4 years 6 months. Weismantel was found guilty of one matter and entered late guilty pleas to the others.
On 9 October 2015 I sentenced Mr Woodman for his role in the stealing and destruction of Mr Brighton's car, the Roseville Cinema offences and the Revesby Hotel robbery to 8 years 6 months with a minimum term that must be served of 5 year 6 months. Woodman entered early guilty pleas.
Ms Engel, who appears for the Director, urged I find that Judge Neilson's sentences were manifestly inadequate and therefore should not be taken into account by me. In Gill v The Queen [2010] NSWCCA 236 Justice McColl noted the unattractiveness of responding to one wrong decision by making another wrong decision. As a Judge of this Court, I do not have to assess whether Judge Nielson's sentences were manifestly inadequate.
In Postiglione, Justice Kirby said the parity and totality principles are in the nature of checks required because the task of sentencing is not mechanical. Justices Dawson and Gaudron pointed out that disparity is not simply the imposition of different sentences for the same offence but a question of disproportion between them. Parity is a matter to be determined having regard to the circumstances of the co-offenders and their respective degrees of culpability. Those and other subjective matters may "justify a real difference in the time each will serve in prison" and "like must be compared with like": at 878. In Gill it was reiterated that like attracts like. I must have regard to what fell from the High Court in Postiglione and Lowe v The Queen (1984) 154 CLR 606. If the result of that is that I err on the side of leniency, so be it. Individual offenders should not have a justifiable sense of grievance when it comes to comparing like with like: R v Anderson, NSWCCA (unreported, 25 March 1993, Hunt CJ at CL).
Parity issues apply throughout the sentencing process including to any assessment of the ratio between head sentence and non-parole period. Each co-offender because of their background and mental health and drug issues has different prospects for the future. Different criminal histories and custodial patterns may "justify a real difference in the time each will serve in prison": Postiglione at 878.
Each offender must be held responsible for the crimes committed by co-offenders but there can be reasons why one offender is more or less objectively culpable than others. A lookout can be distinguished from those who use weapons and directly threaten victims: Johnson v R [2010] NSWCCA 124. So far as the 23 September matters are concerned Ms Ridden is not sentenced for taking Mr Brighton's car, only its subsequent destruction. Ms Ridden did not take an aggressive role in the robberies. That however does not significantly diminish her criminality because she was prepared, with the others, to carry out each offence and was a party to the planning of each of them.

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