R v White

R v White - [2022] NSWDC 265 - NSWDC 2022 case summary — Zoe

[4]

Agreed facts

There are agreed facts before the Court. White was born in 1996, she is 25 years old. Shortly before the commission of this offence she was effectively homeless, she had, for the first time, been arrested for offences and was on bail for those offences. It is clear from all the material before me that she was not coping well with living in the community. Since she was a young teenager she has been using and abusing illicit drugs.
She came to meet and spend a few days with the co‑offender, Michael Daniel. He was 42 years old. Their relationship was brief and on all the material before me characterised by two things. The first, mutual drug use. The second by the continuation of a pattern that developed since Ms White was very young of falling in with older and manipulative men. That pattern was repeated in the matters that bring her before this Court.
The facts indicate that Daniel was involved in other criminal activity. The facts do not indicate why the two were in a car at Mt Keira on the morning of 13 April 2021. That area is relatively isolated, there are some lookouts and a coalmine.
At around 9.30am the first victim in this matter, a truck driver was securing a backhoe on to the trailer of his truck, he was approached by Daniel who told him "I'm broken down up the road do you have any insulation tape?" The victim found some tape and gave it to Daniel. At this point Daniel produced what appeared to his victim to be a sawn-off shotgun. It was pointed at the victim and Daniel said, "You're coming with me." The victim was familiar with guns, he believed that the firearm was real, he was terrified and agreed to follow the offender. He was made to walk across the road to the coal loader, climb over barriers and told to keep walking. Behind him was Daniel holding the firearm. He was told to stop and sit on the ground.
It was at this point that the victim saw Ms White who was standing about 15 metres from where he was. She had duffle bags beside her. Daniel demanded his keys and phone; they were handed over. His wallet and cash was also taken. Daniel then used electrical tape to bind the victim's hands and feet. He indicated towards White and said, "She is going to keep an eye on you." He then went across the road and into the truck, started it, moving it closer. He asked the driver how to detach the trailer. He did, eventually, detach the trailer. He retrieved some items from the broken-down vehicle that he had stolen earlier and moved them into the truck.
White sang out to him "Hurry up." Daniel and White then entered the truck and drove away.
The victim estimates he was held for about 20 minutes. He was eventually able to flag down passing motorcyclist Police Triple‑0 was called.
Shortly afterwards the truck came to the Robertson Lookout car park at Mt Keira. There a second victim, who was about 26 years old, was parked in his Subaru Liberty. Daniel was having trouble driving the prime mover of the truck. He stopped close behind the second victim's car and yelled out, "Do you have jumper leads?" He then exited the cabin and approached the second victim. He had with him the dangerous weapon; what appeared to be a shortened double barrel shotgun. White remained sitting in the truck.
Daniel pointed the gun at the second victim and yelled, "Give me your keys, wallet, phone". The victim was frightened. He handed over his keyring, his phone and wallet that contained cards and a small amount of cash.
Daniel yelled at the victim "Walk towards the bush cunt." He was made to walk down a track and told to turn around and get on his knees. Later, he was told to run into the bush and keep running. The second victim was extremely scared. He quite understandably thought he would be shot or seriously injured if he did not do what was asked of him.
Soon after an attempt was made to destroy the truck by starting a fire in its cabin. The fire did not take but the interior of the truck was badly damaged. The two offenders then drove away in the second victim's vehicle. That victim was able to flag down a cyclist who also called Triple‑0.
Police were soon on the scene. DNA connecting both offenders to the offences was recovered. Daniel was arrested on 15 April 2021. He was with White but at that stage her involvement was not known, and she was released. After further forensic results were made available, she was spoken to by police and arrested on 12 May 2021. She has been in custody ever since. She took part in an electronically recorded interview where she made partial admissions.
In the agreed facts the Crown conceded it cannot prove who of the two physically set the truck alight. In her evidence today, which I am prepared to accept on balance, White says that until she was spoken to by police that she was even aware the truck had been set alight. Nevertheless, she has accepted her guilt for the mater on the Form 1 and to some extent that must be taken into account when I sentence her for Count 1.
She admitted to handling the firearm and she told me today she was aware he had it with him as she passed it to him and she saw him leave the broken down car with it prior to the approach to the truck driver.
A firearm was recovered. It fits the description of that produced to the two victims. An expert from the police ballistics investigation section determined that it was an imitation firearm. He said the item imitates the shortened double-barrelled shotgun. It is not in dispute that it is a dangerous weapon for the purposes of s 97(2) Crimes Act 1900.

[5]

Objective seriousness

There were two incidents here. The offender found herself in a predicament; she was in an isolated location for an unknown purpose. The car she was in had broken down. A suggestion she made to call someone for help had been rejected by Daniel. She and he needed some way of leaving the scene. Both victims were in isolated locations. Weapons were used on both victims. So far as the first victim was concerned there was a physical assault by Daniel because he was bound, and he was also detained for about 20 minutes.
So far as both victims are concerned there was a considerable psychological assault upon them. A dangerous weapon was used but there is a wide breadth of items that fall within the definition. While an imitation weapon could not have been used to cause a fatal injury by firing a projectile, neither victim knew this. Each victim thought that they could and possibly would be shot. I do not underestimate in any sense the psychological impact and trauma that a person would suffer in such circumstances.
There was little planning of these events but some pre‑knowledge by this offender and some active planning in a sense by Daniel. In many senses what they did was irrational. I am told and accept that White was using drugs including methylamphetamine and marijuana on an almost hourly basis and was using shortly before the commission of this offence. Such drug use does not and cannot mitigate. To the contrary it means that she and Daniel were more dangerous because what they were doing had an irrational aspect to it. They were not able to think about their own best interests let alone the interests of other citizens.
Not only were the victims confronted in isolated locations, they were also forced into vulnerable positions. They were confronted by two, apparently desperate individuals.
Such offences cause considerable disquiet in the community. I accept the lesser role was played but to a degree her role enabled some of the actions of the principal offender, Daniel. Where criminals are caught committing such offences the community can lose trust in the Courts if they do not punish such crimes and punish them severely.
The need for consistency in sentencing and the fear there was excessive leniency by sentencing judges led the highest of New South Wales to publish a guideline judgment designed to guide the sentencing discretions of judges in matters such as this: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149. There the Criminal Court of Criminal Appeal indicated in the ordinary case of an armed robbery sentences at the lower end of the range would be in the vicinity of four years for logging a late plea.

[6]

Role

That two people were involved in a joint criminal enterprise does not necessarily mean that each offender is sentenced on the basis their individual actions have the same objective criminality. This sentence must be determined by having regard to the circumstances of each co‑offender, their roles and their respective degrees of culpability. There is a difference between liability for criminal activity and culpability - "like must be compared with like" and different levels of culpability and personal and criminal histories can "justify a real difference in the time each will serve in prison.": Postiglione v The Queen (1997) 189 CLR 295
There are reasons here why this offender is less objectively culpable than the other involved. That does not mean that her role does not justify a significant punishment but her role and culpability while serious was much less than the co‑offender who took the more active and aggressive role. Up until she was beside the road with her bags out of the other car, not been premeditated.
So far as Count 1 was concerned she clearly had knowledge that Daniel had a firearm and was approaching someone intending to use it. The victim was moved closer to her where she stood with bags waiting to take advantage of the vehicle that Daniel was seeking to obtain. She played her role in watching over the bound victim. That there were two involved must have increased the trepidation that the victim felt, and she benefited from the theft.
While she has accepted the responsibility of the fire, I also accept her evidence so far as the Form 1 is concerned.
So far as the second armed robbery is concerned; she was clearly aware from when Daniel left the truck what his intentions were, and she benefited from what he did but she played no direct role in any confrontation.
The maximum penalty is 25 years. That maximum and the Henry guideline, while not prescriptive, must be taken into account when I come to exercising my sentencing discretion: s.42A Crimes (Sentencing Procedure) Act 1999: Moodie v R [2020] NSWCCA 160.

[10]

COVID-19

She has served her sentence during the COVID-19 pandemic. She told me that the gaols are regularly locked down. She spends considerably more time in cells than she would had she had been on remand in non‑pandemic circumstances. It is entirely understandable that gaols are quarantined to prevent the spread of the virus. Courts do not underestimate the impact that it has on prisoners. Prisoners have no control over how they can live their lives and they are subject to what appears to be random lock downs. They have less access to work, less access to exercise and things like gymnasiums and certainly no access to personal visits. They are however given more access to computer tablets and telephones.
I heard from Ms White. She has used her the time on remand had time to face some of her demons. She tells me that while she would engage in drug treatment the programs available in gaol are not suitable for someone with of her diagnosed conditions. She cannot benefit from personalised and focussed treatment as she has previously. In the past she has suffered the side effects from medication that were not tailored to her needs. She told me that on remand she has not had access to programs but expects to do so once she is a sentenced prisoner.
She has worked in the kitchen, and she has worked as a pod sweeper. She has never previously held any job apart from some part from her occasional work in prostitution. She confirmed her personal history given to Mr Jones, psychologist, and the matters to which I have already referred. She accepted that prior to the commission of these offences and up until the commission of these offences she had been using drugs to excess.
It was submitted by the prosecution that she sought to minimise her involvement. But given what she said in her record of interview and the agreed facts I do not regard it as minimisation. She was now able to put a sober perspective to what would have been a drug addled incident. It is not surprising that she sought to reduce her own culpability to some modest extent but what she was sentenced for primarily come from her own admissions and the statements of the two victims.
I am prepared to accept that she has positive plans for the future, and I am prepared to accept her expressions of remorse. She was practical and blunt about it. She told me that she could not take back what she had done but she did apologise to the extent she was able for the trauma that she had caused. She said that she would not like anyone to go through such an experience.

[12]

Drug use

Long term drug use is not an excuse to commit an armed robbery or any offence. It is not a matter of mitigation. It is however, relevant as a subjective circumstance, as the origin or the extent of the addiction is important and the efforts or plans to overcome the problems have an impact on the offender's prospects for recidivism or rehabilitation. Of particular importance here is that, that the use and abuse of alcohol but more particularly, illicit drugs, occurred when she was very young before she had the ability to exercise appropriate judgment or personal choice.
I accept Mr Fraser's submission that the offender's history of exposure to drug and alcohol abuse and experience of violence and trauma are likely to be a direct cause of her trajectory towards drug use and offending. Her criminal history comprises of mainly relatively minor charges. The present offences were directly related to an escalation of her drug use when in the company of a co‑offender. In that context the offender's moral culpability ought to be assessed as lessened such that the Court would be justified in placing greater emphasis on encouraging rehabilitation in the sentence to be imposed.
I have the benefit of a report from Mr Jones which sets out in detail White's personal history which given the hour I will not repeat. Psychological testing and his interview indicate that she is experiencing clinically severe levels of anxiety and depression. Those conditions are long standing not related to the predicament she finds herself, that is, being in custody; although obviously that will play a part. There is a long history of drug use with occasional interventions by mental health professionals.
Mr Jones frankly indicates that her scoring means that she is of medium high risk of reoffending, and she requires a medium high level of supervision. He identified areas of criminogenic need; education, employment, financial, family, marital, accommodation, leisure and recreation and associates. He notes her emotional personal problems and her alcohol and drug problems. If she were to reoffend the most likely risk scenario were to return to the community and relapse into illicit drug use. He puts forward a treatment plan which would give her some self‑esteem that she has never really had in her life involving cognitive behaviour therapy, drug relapse prevention, vocational education, psychotherapy and monitoring.
It seems critical, if she is to avoid re‑offending in any form, that she will need secure housing and work, something she has never had in her young life. A copy of Mr Jones' report should go to Corrective Services.

[16]

Synthesis

Synthesising all those matters. I note that a history such as that given in evidence and described by Mr Jones leaves a mark: Millwood v R [2012] NSWCCA 2; Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
Long term substance abusers and young women who becomes homeless at a very young age are very vulnerable to exploitation, violence and drug use. It is well recognised that some women can, if subject to the continuing exercise of power and control and dominance by criminal partners, and here multiple partners, can suffer long term self-esteem problems. These then make them susceptible to manipulation.
It is not suggested here that she was subject to any duress. She went along with what occurred. She went along because she had chosen to be with the man and use drugs with this man. She told Mr Jones at paragraph 5 when she was expressing to him her remorse and guilt, "I wish I had put my foot down and said no and not got involved in what happened. Nobody deserves to be terrorised like that."
But she did not put her foot down; she chose to be involved. While the choice may have been walking away in an isolated and lonely spot, she should have walked away. She did not do so and because she played her role as described she must be subject to significant punishment.
I will give full weight to the various traumas she has suffered as the Bugmy principles are concerned with the impact of sentencing of a history of disadvantage and deprivation: Irwin v R [2019] NSWCCA 133 at Simpson AJA at[ 2]: But a competing feature is inherent in the Henry guideline. General deterrence plays a part in this exercise; that is, by the severity of the sentence the Court send a message to others who might be tempted to offend as these offenders did. In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, the High Court said that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are relatively spontaneous and not premeditated. In such cases it can be said that heavy sentences are likely to be of little utility in reducing the general incidence of such crimes. They were talking of a different type of crime, but the same principles apply here. The High Court made it clear that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The Court then went on to say mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the incident offence.
In matters such as this sentencing courts have an obligation by the severity of the sentence to vindicate the dignity of each victim of these crimes and recognise the trauma that was inflicted upon them by both offenders and the courts have a duty to express the community's disapproval of offending such as this which strikes at the very heart of our community.
In such a case there is a community expectation which the Court should give effect to that offenders will suffer severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222 A proper sentence marks the Court's view of the seriousness of the crime and should that other wrong doers know the retribution which will fall upon them if they choose to involve themselves in such crime: R v Herring (1956) 73 WN (NSW) 203 at 205.
Having said that there is also a community benefit in the successful rehabilitation of offenders. This offender's past, tragic as it is and traumatic as it must have been for her, has not led previously to her committing offences such as this. If given assistance it is quite possible that she would, given her experience of gaol, not seek to repeat it. I accept she will take any help that is offered to her. The need for rehabilitation should never be lost sight of; it assumes particular importance here. White is effectively a first offender, although she has criminal habits relating to drug use and has now other matters of violence of significance on her record. She is not a lost cause but she will need a lot of help after she has served the minimum term. That need for rehabilitation is one of the reasons why I have made a substantial finding of special circumstances in this matter. It for the State Parole Authority to determine when she is to be released and on what conditions. They will not do so unless it is in the community interest, s 136 Crimes (Administration of Sentences) Act 1999.

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