Regina v Anderson

IN THE COURT OF CRIMINAL APPEAL 60425/02

HEYDON JA HULME J HIDDEN J

Monday, 16 December, 2002 REGINA v Jennifer Eleja Aroha ANDERSON Judgment 1 HEYDON JA: But for the incident described in the last three paragraphs of Hidden J's reasons for judgment, the success of this Crown appeal would have been inevitable. However, that spontaneous incident, reflecting as it does much credit on the respondent as a human being, is an extremely compelling indication that the respondent has begun a process of rehabilitation and has significant prospects of rehabilitation which an increased sentence might damage. Good behaviour in the prisons of this State is something which badly needs to be encouraged, and taking the incident into account in the manner proposed by Hidden J may encourage it. For that reason I agree with the order proposed by Hidden J. 2 HULME J: I agree with the reasons for judgment of Heydon JA and with the order proposed by Hidden J. 3 HIDDEN J: This is an appeal by the Director of Public Prosecutions, pursuant to s 5B of the Criminal Appeal Act, against sentences passed upon the respondent after she pleaded guilty in the District Court to the following charges: · Aggravated kidnapping (s 86(2) of the Crimes Act, carrying a maximum penalty of twenty years imprisonment); · robbery in company (s 97(1) of the Crimes Act, also carrying a maximum of twenty years); · two charges of (deemed) larceny of a motor vehicle (ss 154A/117 of the Crimes Act, carrying a maximum of five years). 4 On the kidnapping charge, the respondent was sentenced to imprisonment for three years with a non-parole period of eighteen months. On the charge of robbery in company she was sentenced to a fixed term of twelve months, and on each of the motor vehicle charges to a fixed term of six months. All sentences were to date from 17 February 2002, the date of her arrest. The overall effective sentence, then, was imprisonment for three years with a non-parole period of eighteen months.

Facts 5 The four offences comprised a continuing course of criminal conduct which took place on Sunday, 17 February 2002. At about 2.30 am that day the respondent was in a Nissan sedan with two co-offenders, Ammin Bahsa and Wayne Holten, one of whom was driving. They saw the victim of the kidnapping charge, Matthew Drivilas, aged about seventeen, in William Street, Bankstown. The car stopped and the two male offenders alighted. The respondent remained in the car and did not see what then occurred. 6 Mr Drivilas noticed Holten and Bahsa watching him, and he walked towards a house to make it appear that he lived there. However, a dog barked and he walked back to the street. Holten, whom he recognised as a man he had known for several years, called out to him. 7 Mr Drivilas walked with Holten along William Street until he saw another person, Bahsa, who was wearing a balaclava. Bahsa put a balaclava over Mr Drivilas's head and his mobile phone, which he was holding, was snatched from his hand. He felt something cold and sharp pointed into the side of his neck and drawn across his throat. One of the men told him to be quiet or he would be killed. He was, of course, very frightened. 8 Mr Drivilas was dragged over a metal fence into a nearby school, where he was searched. He was asked for money but he had none. One of the offenders threatened to stab him. His shoes were removed and a set of keys were taken from his pocket. On the keyring was the key to his father's Mitsubishi Pajero. He was told that the men knew where he lived and that they were going to take that vehicle. 9 By this time about twenty to thirty minutes had elapsed. The respondent drove the Nissan sedan along the roadway where the men were and stopped nearby. She sounded the horn and told them to hurry up. Mr Drivilas was propelled to the car, feeling the sharp metal object being pressed into his ribs and kidney area. 10 The respondent remained at the wheel of the Nissan and suggested that they go to Redfern to purchase drugs. In fact, she drove around for about another ten minutes. She stopped, and the male offenders pulled Mr Drivilas out of the Nissan and led him to a Toyota Tarago, which had been stolen the previous evening or earlier that same morning from outside its owner's home in Greenacre. The men pushed Mr Drivilas onto the floor of the Tarago, removed his jumper and put it under his head. They pulled off his tracksuit pants and used them to tie his ankles together, and they tied his hands behind his back. 11 The Tarago, containing the respondent, the two co-offenders and Mr Drivilas, was then driven to the vicinity of Mr Drivilas's home. One of the men got out and returned, driving the Pajero belonging to Mr Drivilas's father. The other man remained in the Tarago with Mr Drivilas, holding a knife to his neck. Both vehicles were then driven for about fifteen minutes and stopped. The respondent, Bahsa and Holten discussed committing a robbery at a service station. 12 The robbery was committed at a service station at Enfield. The respondent drove there, with Mr Drivilas, in the Tarago. Holten and Bahsa drove there in the Pajero. By this time it was about 4 am. 13 Mr Shanker Manga, aged twenty seven, was working alone at the service station. Holten and Bahsa entered and demanded that Mr Manga open the safe. He said that he could not do so and he was made to lie on the floor. He was then pulled to a back room by his collar and asked to hand over the security video. Again, he said that he could not because the video was in the safe. He was then dragged to another room, where his face was pushed against the wall, his pockets were searched and his wallet, mobile phone and house keys were taken. 14 The two male offenders then dragged Mr Manga to the toilet and told him to face the wall. His glasses were knocked off his face and were broken. He was punched to the mouth and the side of his face, causing his mouth to bleed. The proceeds of the robbery were Mr Manga's wallet and his mobile phone, $167 from the cash register and cigarettes valued at $592. 15 While the robbery was taking place, the respondent waited nearby in the Tarago. Mr Drivilas was in the vehicle, still bound and with the balaclava covering his head. The respondent drove into the service station as Holten and Bahsa were leaving. The two men then drove the Pajero to Kings Cross, and the respondent followed them in the Tarago. On the way, she provided some comfort to Mr Drivilas by telling him that she would try to look after him. At Kings Cross she went to buy drugs. 16 Holten drove the Tarago, with Mr Drivilas still in it, back to Bankstown. The respondent followed in the Pajero, with Bahsa as her passenger. On the way to Bankstown, Holten untied Mr Drivilas and allowed him to sit in the front seat. He dropped him at Bankstown, threatening him not to call the police. Nevertheless, Mr Drivilas did just that. 17 Shortly thereafter, police drove with Mr Drivilas through Bankstown. They saw the respondent, who was still sitting in the driver's seat of the Pajero, and arrested her. The co-offenders were also arrested but they have not yet been dealt with. When first interviewed, the respondent denied any knowledge of the offences. However, she admitted her involvement in a second interview, although she refused to reveal the identity of her co-offenders.

Subjective case 18 The respondent was twenty four years old at the time of the offences, and is now twenty five. She has a criminal record for offences of dishonesty, but nothing of the seriousness of the offences the subject of this appeal. Her only prior custodial sentence was a term of two months imposed by a magistrate at Parramatta in March of this year for offences of larceny and receiving, but the sentencing judge in the present case concluded that those offences would not have been likely to have attracted prison terms but for the fact that the respondent was in custody, bail refused, in respect of these matters. 19 The respondent had a very disturbed upbringing. She was a member of a large family. Her father was extremely violent, both to her mother and the children. He also sexually abused the respondent, as did her uncle. She complained to her mother about this behaviour but, at the time, her mother did not believe her. She did not have the benefit of any counselling and no charges were laid. 20 At the age of seventeen, she entered into a relationship with a man and she bore two children, who are now being cared for by her mother. That relationship was close and dependent but, unfortunately, her partner was in prison when she was pregnant with each of the children. 21 It was during the second pregnancy that she began to use illicit drugs, becoming addicted to heroin. An attempt at rehabilitation through a methadone program was not successful and, as the sentencing judge observed, it was during "this period of instability" that the present offences occurred. The respondent told a Probation and Parole officer, who prepared a presentence report, that she was "hanging out" for heroin at the time. 22 After being taken into custody, the respondent undertook a methadone program and progressed well. She told the Probation and Parole officer that she saw the period in custody in a positive light, affording her "the opportunity to address her abuse of substances and to subsequently stabilise her life." 23 The sentencing judge viewed the respondent's prospects of rehabilitation favourably. Her Honour noted that the respondent enjoyed the support of her mother, who was willing to provide her with accommodation upon her release and to assist her to resume the care of her children. The mother planned to move to Brisbane and it was anticipated that the respondent would accompany her there, a move which the judge saw as beneficial. Her Honour also accepted that the respondent had "demonstrated true remorse and contrition." 24 It was in the light of this evidence that her Honour determined that there were special circumstances, a finding which has not been challenged on appeal.

The appeal 25 Before us, the Crown prosecutor argued that the twelve month sentence on the robbery in company charge is manifestly inadequate and that, in any event, the sentencing judge erred in failing to accumulate one or more of the sentences so as to ensure that the overall sentence reflected the totality of the respondent's criminality. It is necessary to examine how her Honour arrived at the length and structure of the sentences which were imposed. 26 But for the pleas of guilty, her Honour considered that the aggravating kidnapping charge called for a sentence of four years and the robbery in company charge a sentence of two years. She saw the pleas of guilty as warranting a reduction of each of those sentence by twenty five percent: leading to sentences of three years for the aggravating kidnapping and eighteen months for the robbery in company. However, while accepting that those two major offences were "separate offences", she also saw it as appropriate to treat them as one episode of criminality. In the result, she determined that the whole of the criminality of the four offences should be reflected by "an overall term of imprisonment" of three years. Having found special circumstances, she decided that "on an overall basis" there should be a non-parole period of eighteen months. It is in this context that her Honour arrived at the concurrent fixed terms of twelve months for the robbery charge and six months for each of the motor vehicle offences. 27 In determining the starting point of two years imprisonment for the robbery in company, her Honour had regard to this Court's guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346 at paras 162-5. That starting point is markedly less than the range of four to five years proposed in the guideline, but her Honour considered it justified by what she saw as the respondent's "relatively minor" involvement in the offence. I must say that it is not easy to determine from the evidence just what that involvement was. Her Honour concluded that the respondent was "waiting outside as the driver of the car, and also ready and able to assist if required during the commission of the offence." Although it was the subject of some argument by counsel for the respondent before us (who did not appear in the sentence proceedings), that was a finding available to her Honour and one which was consistent with the respondent's plea of guilty. 28 Clearly, the plea of guilty to the robbery charge was an admission of involvement as a principal in the second degree. An aider and abettor is not necessarily less culpable than the principal in the first degree, and the level of involvement of such an offender must be judged by the facts of the case at hand: R v Goundar [2001] NSWCCA 198, per Wood CJ at CL at paras 30-33. That was a case concerned with a principal in the second degree in an armed robbery, and the Chief Judge saw the Henry guideline as relevant (para 37). That said, it was well open to her Honour in the present case to assess the respondent's role in the robbery as she did. Certainly, it was very much less than that of her co-offenders. 29 I find it unnecessary to determine whether the sentence on the robbery charge, standing alone, is manifestly inadequate. It is sufficient to say that I am satisfied that the overall sentence of three years fails to reflect the extent of the respondent's criminality, particularly arising from the aggravated kidnapping and robbery charges, and is such as would warrant the intervention of this Court in the absence of any countervailing discretionary consideration. In so saying, I am mindful that her Honour faced a very difficult sentencing task, particularly in the light of the respondent's distressing subjective case. 30 However, I have reached the conclusion that this Court should not intervene. This is because, if we were to re-sentence the respondent, it would be necessary to take into account an important consideration arising since she was dealt with in the District Court, which would entitle her to a significant measure of leniency. On 8 July, 2002 she assisted a prison officer who was being attacked by another prisoner, earning a written commendation from the Governor of the Correctional Centre where she was housed. The Governor noted that, without the respondent's help, the officer may have been more seriously injured and she thanked the respondent for her "humanity and courage." She also observed that the respondent had risked not only her personal safety, but also "the displeasure of other inmates for coming to the assistance of an officer." 31 At the time of this incident, the respondent was aware that the Director of Public Prosecutions was considering an appeal against her sentence but the Notice of Appeal was not filed until 31 July, 2002, some weeks later. It does not appear that the respondent acted in defence of the officer in the hope that her conduct might influence the result of the present appeal (although, even if she had, it would still have been of significance.) Furthermore, her action on that occasion is consistent with other evidence we have received of her positive response to prison discipline, and rehabilitative facilities within the prison system, thus far. 32 Given these circumstances, it would not be appropriate for us to pass an effective sentence significantly greater than that which was imposed upon the respondent. In the exercise of this Court's residual discretion, I would dismiss the appeal.

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