R v SOK [2000] NSWCCA 121 | Case summary

Friday, 14 April 2000 REGINA -v-Samantha SOK JUDGMENT 1 HULME J: On 20 August 1999 the Applicant was sentenced by Judge Moore to penal servitude for 5 years including a minimum term of 3 years, both periods dating from 14 January 1999 when Ms Sok went into custody. Ms Sok seeks leave to appeal from the sentence imposed. 2 The charge for which the sentence was imposed was of robbery in company, an offence which under Section 97(1) of the Crimes Act and which carries a maximum penalty of 20 years imprisonment. His Honour was also asked to take into account on a Form 1, three instances of shop lifting committed on 11 December 1998. Judge Moore described these offences as taking the familiar forms of taking goods from a retail store, being observed and arrested and some but not all of the goods recovered. 3 The principle offence occurred on 14 January. It's circumstances were as follows. The victim, a Mrs Serafern was 72 years old and at home. The Applicant and a male co-offender knew her, the latter believing that she would have money in her house. On the morning of 14 January 199 the two offenders conceived a plan to rob her. They wore black and the co-offender covered his face with a mask and the Applicant pulled her hat down to minimise the chance of recognition. The Applicant gave the co-offender permission to take her meat clever. The Applicant herself took a Stanley knife "just in case" although she did not use it. They made observations of the premises and determined on a plan to gain entry. 4 They went to the back door and when Mrs Serafern opened it, the two offenders pulled it completely opened and went into the house. There were two children there also, one aged 6 and one aged 3½. The co-offender went up to Mrs Serafern, put his arm around her neck and presented the meat clever at her throat. Such was the extent of Mrs Serafern's terror, that she had to be resuscitated afterwards with oxygen. 5 Inside the house the Applicant played a subsidiary role but did lift up Mrs Serafern's clothing to obtain access to, and take, $200 concealed underneath. At that point the 6 year old girl who had been clinging on to Mrs Serafern in a terrified fashion, ran screaming from the house next door to her mother's place. She was in a state of extreme agitation such that her mother had never seen in her life. In due course she yelled "Mummy, mummy, there's a man over at Scottie's house with a knife to kill his grandmother" or words to that effect. 6 The girl's mother and brother then went into Mrs Serafern's house and after some altercation involving one or both of them and the meat cleaver, the offenders ran away. They were pursued and apprehended. Judge Moore did not think it appropriate to take into account this later altercation with the meat clever and I am prepared to proceed on the assumption that this court should not either. 7 Judge Moore referred to the Applicant has having a compelling subjective case. Her father was apparently an alcoholic who was abusive and violent towards her mother. The Applicant had been surrendered by her mother or parents to the Department of Community Services when she was 12 or 13 and thereafter has had no emotional support from them. She suffered a motor vehicle accident at some stage and His Honour took the view that on that or other account allowance should be made for the fact that she might well be suffering from some psychological deficiency. She started using heroin when she was 15 having been introduced to it by her older sister and at the time of the offence was a heroin addict. 8 She had, however, been well supported by a de facto husband of 7 years. He was not an addict, had no criminal record and was regarded by Judge Moore as impressive. His Honour recorded that when the Applicant went to jail her husband might well have to look after their 20 month old daughter and give up his job to do so. His Honour also recorded that the Applicant had pleaded guilty, had expressed remorse and that since the commission of the offence, the Applicant had not used heroin and although she had used amphetamines for a short period, for 2 months up to the time of sentence she had ceased using those also. His Honour noted that, at the time of sentence, the Applicant believed she was again pregnant. 9 It should, however, also be recorded that both in an ERISP and in evidence given before His Honour, the Applicant gave accounts of her involvement in the offence which pjlaced that involvement significantly less than His Honour found. A psychologist's report of 19 July 1999 tendered at the sentencing hearing indicated that at that stage the Applicant was denying involvement in the offence. 10 In support of the appeal, an affidavit of the Applicant was read, it being accepted by the Crown that at least in part it provided evidence of matters which the Court should receive. These included that the Applicant was in fact pregnant and that this state and jail impacted on one another so as to make both worse than they otherwise would have been. Medical treatment to assist her in her pregnancy was available but not ideal. Until recently the Applicant was able to have her daughter stay with her but because of the imminent birth of the baby, her daughter had had to go back to the Applicant's husband. 11 It was submitted on behalf of the Applicant that in the circumstances of the case, the sentence which had been imposed on her was manifestly excessive. A starting point in any consideration of that proposition is, of course, the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346 where the Chief Justice with the concurrence of a majority of the Court expressed the view that sentences for an offence of a nature identified by His Honour by reference to seven stated characteristics should generally fall between 4 and 5 years by way of full term (at p. 380). 12 Of course, any difference between the circumstances for which such a sentence was regarded as appropriate and those here must be recognised but, subject to the possible existence and significance of the matters upon which counsel for the Applicant particularly relied, there were none. 13 The particular matters were: the Applicant's plea, her role in the offence her age, background and other subjective matters, including psychological problems, and the additional hardship her pregnancy in goal was causing. 14 It was submitted that once regard was had to these matters, a sentence at the top of the range indicated in R v Henry could not be justified. 15 That submission gives inadequate weight to the clear statement of this Court in R v Jurisic (1998) 45 NSWLR 209 at 220, and followed in R v Henry at p357, to the effect that the guidelines were but that, guidelines. They are not a statement to the effect that if there are mitigating factors not reflected in the 7 characteristics by reference to which the guideline was stated, a sentencing judge must impose a sentence lower than 5 years, and even if no offsetting factors are present. 16 In any event a number of the matters upon which reliance is put are encompassed within the 7 characteristics to which I have referred. These are the Applicant's plea of guilty and young age. It may be acknowledged that the other matters argue for a lesser rather than a greater sentence but it is clear that the sentencing judge was conscious of all of these (other, possibly, than those associated with the Applicant's pregnancy which at the time of sentence was in some doubt). 17 But there are also some features of the Applicant's offence which do not fall within the 7 characteristics adopted in R v Henry and which tend to aggravate her criminality. There were 2 offenders, not just one. The presence of either company or an offensive weapon distinguishes an offence under s97 from the lesser offence of simple robbery under s94. Other things being equal, the presence of both might reasonably be thought to make an offence worse than one where only one was present. Other aggravating features were that the offence occurred in the victim's home, that she was 72 and needed resuscitation afterwards and that the offence was committed in the obvious presence of, and terrified, a 6 year old child. If authority is needed for the proposition that most of these matters are relevant, it can be found in R v Henry at p381. Some weight, even if relatively small, should also have been given by the sentencing judge to the matters on the Form 1. 18 Nor does the further evidence tendered in this Court as to the combined effect of the Applicant's pregnancy and jail lead me to the view that the sentence was excessive. I would take that view even apart from the matter of the Applicant's other child but it may not be inappropriate to mention that the fact that the Applicant has had her elder child in goal with her is a situation less disadvantageous than his Honour thought would occur in that connection. 19 In my view the sentence imposed by Moore J was not excessive, let alone manifestly so. Because of the length of the sentence, I took the view that the court should grant leave to appeal. However the appeal was one which should be dismissed. These were the orders made by the Court at the conclusion of the hearing on Wednesday of this week. 20 DOWD J I agree.

R v SOK

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