REGINA v DARBY

Judgment 1McCLELLAN CJ at CL: I agree with Hoeben J. 2BLANCH J: I agree with Hoeben J. 3HOEBEN J: Offence and sentence On 13 September 2010 the respondent pleaded guilty to an alternative count on indictment that on 14 March 2009 at Tomago she assaulted Robert Stojkovski with intent to rob him. This is an offence contrary to s94 of the Crimes Act 1900 for which there was a prescribed maximum penalty of imprisonment for 14 years. 4The respondent also requested the sentencing judge to take into account on a Form 1 document an offence of doing an act with intent to pervert the course of justice contrary to s319 of the Crimes Act 1900. 5On 24 November 2010 his Honour sentenced the applicant to the performance of 500 hours community service work (pursuant to s8 of the Crimes (Sentencing Procedure) Act 1999, to accept the supervision of the Probation and Parole Service and to undergo a development plan to be devised by that Service, which was to include assistance in relation to drug relapse prevention, family and personal relationships and anti-social influences, particularly in relation to her co-offender (pursuant to s90 of the Crimes (Sentencing Procedure) Act 1999. 6The Crown appeals pursuant to s5D of the Criminal Appeal Act 1912 against this sentence. Factual Background 7The respondent was employed by the victim who operated a take away food store in an industrial area. As the victim arrived at work at about 5.45am a man wearing a balaclava and carrying a claw hammer told him to lie down on the floor and struck him a number of blows to the head and face with the hammer. The attacker was the respondent's half-brother, Robert Tompkins. 8The victim yelled for help and managed to escape by climbing over a fence. Tompkins fled, having failed to steal any property or money from the victim. In due course Tompkins pleaded guilty to an offence of intended armed robbery causing wounding and was sentenced to a non-parole period of 5 years with an additional term of 7 years. Tompkins had a very serious criminal record. 9The respondent's role was that she provided Tompkins with information about the routine followed by the victim when he opened up the store and that she drove him to and from the scene. She saw him put on a balaclava and gloves near the shop when they arrived and she then noticed for the first time that Tompkins had a claw hammer. 10When Tompkins left the car, he took the hammer with him. The respondent had not anticipated that Tompkins would be armed and it was accepted that she "had no opportunity to take issue with him about the hammer". It was accepted that until she saw the claw hammer, she "understood that Tompkins would confront the victim and commit the robbery and that her role would be to drive him to and from the premises". 11When Tompkins returned to the car, he was upset and in an agitated state. The respondent asked him what had happened and he told her that he had assaulted the victim. Upon hearing this, the respondent panicked and drove her car into a retaining wall causing some minor damage. She then drove some distance from the scene of the attempted robbery, where she stopped the car to allow Tompkins to dump some of the clothing he had been wearing and the hammer. 12Later that same day, the respondent asked a friend, Mr Sager, to provide her with a false alibi. Mr Sager refused to do so. It was this incident which formed the basis of the Form 1 charge. 13The respondent denied any involvement when the police interviewed her a couple of days later. However, she told the police that Tompkins had told her in a telephone conversation that he had robbed the victim and dumped the bag containing incriminating items at a particular location. The police were then able to recover the hammer and other clothing items, all of which were blood stained. Forensic testing matched Tompkins' DNA to those items. 14On 9 December 2009 Tompkins was arrested and made a number of admissions. The respondent was arrested on 23 December 2009 but continued to deny any involvement in the offence and claimed that Tompkins had taken her car for the purpose of the robbery without her consent. 15It was only a short time before the trial that the respondent entered into negotiations with the Crown which resulted in the plea of guilty and its acceptance in discharge of the indictment by the Crown. Remarks on sentence 16In view of the late plea of guilty, his Honour assessed its utilitarian value as entitling her to a discount of 15 percent from the sentence which would otherwise be passed. 17His Honour then considered her subjective case. He highlighted the following matters. 18The respondent was born in 1977 and was aged 31 years at the time of the offence and 33 at the time of sentence. She had had a number of convictions for relatively minor dishonesty offences between 2000 and 2008. Her most serious offence was one of demanding money with menaces in 2006 which she had committed in company with Tompkins and her then partner against one of her customers (she was working as a prostitute at the time). His Honour noted that she had been treated very leniently in relation to that offence when she received a s9 bond. His Honour observed that the 2006 offence had "troubling resonances" with the current offence. 19The respondent had had a difficult early life. She had been sexually assaulted by a neighbour when a child, her family was blended and Tompkins was the only sibling with whom she had a good relationship. Her father had not played any significant role in the family and her mother had a serious alcohol problem. His Honour accepted that since her childhood, her half-brother Tompkins had retained a "strange and powerful hold over her into her adulthood". 20The respondent's other siblings had alcohol problems and on visits would drink heavily with their mother. She had developed a resentment for police, who had intervened on occasions when disputes had arisen between family members, but now accepted that they were only doing their duty. As a teenager she had been regularly exposed to intravenous drug use by Tompkins and had herself developed a heroin addiction by her early twenties. At that time she had been using heroin heavily and funded that addiction by prostitution and minor acts of dishonesty. 21She had had her first relationship at the age of 15 years and had a child when she was aged 16. That relationship lasted 7 years, during which her partner was violent towards her. There were 2 children from that relationship who were aged 12 and 16 at the time of sentence. There was a second relationship which lasted about 4 years which was characterised by mutual drug use and domestic violence directed against the applicant. During that second relationship, she placed her children in the care of the children's paternal grandmother. 22Following the end of that relationship, the respondent saw her children more regularly and the younger of them was residing with her and her third partner at the time of the sentence proceedings. The respondent had ceased heroin use and had worked for about a year before the offence at the shop of the victim. She had been making significant efforts to remain drug free and had been on a methadone program for 5 years. She had also ceased using amphetamines, which she had been using whilst with her second partner. She had returned to heroin use in the period leading up this offence. His Honour found this offence had in part been committed to provide funds for drugs. 23A report from the Probation and Parole Service was before his Honour. The report stated that since the offence the respondent had made significant improvements in her ability to self-manage and maintain her relapse prevention program. It noted that Tompkins being in custody had provided her with an opportunity to separate from his "negative and manipulative influence". The report assessed the respondent as suitable for minimum level intervention by the Service. His Honour took into account that the author of the report was sufficiently impressed by the respondent to assess her as suitable for a Community Service Order. 24In relation to the objective seriousness of the s94 offence, his Honour accepted that the respondent had abused a position of trust and that there was a degree of planning. By way of mitigation, his Honour took into account that the respondent had provided the police with information which, in effect, proved the case against Tompkins. He accepted that the respondent had shown progress towards rehabilitation and that she was genuine in her expressions of remorse. 25His Honour accepted that there was a significant difference in culpability between the respondent's conduct and that of Tompkins. He took into account that Tompkins was the dominant and moving party in the enterprise, who had not hesitated to use his psychological dominance over the respondent to lead her into criminal activity. Despite these mitigating features, his Honour said that there was "no getting away from the seriousness of her own part in the affair and her own offence". 26His Honour said that he was somewhat cynical about the notion of offenders being "at the crossroads", but in the case of the respondent he thought that this was an accurate description of her current situation. In that regard, his Honour had specific regard to her upbringing and to her attempts, particularly in recent times, to rehabilitate herself. 27His Honour thought that a head sentence of 3 years would be appropriate. In that regard, he found special circumstances in that the respondent had never previously been in gaol and would require a long period of supervision. Accordingly, he fixed the non-parole period at "something under 1 year". 28His Honour then went on to say (ROS 8.8): "The case, in my opinion, is a borderline one. However, one can deduce that in the hierarchy of non-custodial sentencing dispositions, a community service order now stands at the apex. And it is clear, since community service orders are available for sentences that attract prison terms - would otherwise attract the prison term of 3 years, that the legislature's intention was that they should be available in relation to crimes of some real seriousness, as this one undoubtedly is. In the circumstances it seems to me that as the matter is a borderline one and she has been assessed as suitable for community service, that I should fall on the side of making that order. It seems to me very likely that if she were to be imprisoned for a shortish term then her progress towards rehabilitation would likely be very impaired." 29In justifying a community service order, his Honour also referred to the effect on the respondent's family which he described as "traumatic" particularly the effect on her teenage daughter, who was experiencing problems, which would then increase the pressures on the respondent. His Honour also referred to consequential traumatic effects on the respondent from the stress she felt about her family situation and finding herself amongst other women who had been imprisoned. His Honour noted that since there was no women's correctional centre in Newcastle, it would be more difficult for visitors and other supporters to see the respondent. Appeal 30The essential complaint of the Crown was that the sentence passed by his Honour was manifestly inadequate. The Crown raised four issues: Ground 1: The learned sentencing judge erred by imposing a sentence that is manifestly inadequate by reason of having misconstrued the prerequisites for the proper imposition of a sentence consisting of a community service order. Ground 2: The learned sentencing judge erred by imposing a sentence that is manifestly inadequate by reason of having taken into account the effect of a sentence of imprisonment upon the family of the respondent. Ground 3: The learned sentencing judge erred by imposing a sentence consisting of a community service order that is manifestly inadequate because that disposition fails to reflect the increment required by reason that the s319 offence on the Form 1 was taken into account. Ground 4: The learned sentencing judge erred by imposing a sentence of community service order that is manifestly inadequate. Ground 1 31It was agreed by the parties that the extract from the Remarks on Sentence quoted above where his Honour spoke in terms of a community service order standing at the apex of the hierarchy of non-custodial sentencing dispositions, indicated error on his Honour's part. It is clear from that extract that his Honour misunderstood the prerequisites for imposing a community service order under s8 of the Crimes (Sentencing Procedure) Act 1999 and over estimated the relative position of such orders in relation to Intensive Correctional Orders and home detention. Apart from the remarks on sentence, that was made clear in the sentencing proceedings when his Honour said: "I agree it is a serious matter but the point is this that Community Service Orders are available for really serious crimes". (T. 10.28) 32Even though his Honour fell into error in that way, it should also be noted that when his Honour specifically raised this matter with the legal representatives for the respondent and for the Crown, they both agreed that his Honour's approach was correct. (T.8.34) 33By way of further background, and in order to understand his Honour's approach and the exchanges with the parties' legal advisers, the legislative position at the time of sentencing needs to be understood. On 1 October 2010 (about 8 weeks before the sentencing proceedings), the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010, amended the Crimes (Sentencing Procedure) Act 1999. The amending Act removed the provisions which empowered a sentencing court to make an order that a sentence of imprisonment of 3 years or less be served by way of periodic detention (s6 pre-amendment). Other amendments made at the same time had the effect of moving the power to make a home detention order (for sentences up to 18 months) to s6 (from s7 pre-amendment) and provided a new power for a sentencing court to make an Intensive Correction Order pursuant to the new s7. 34Accordingly, at the time of the sentencing proceedings the amendments had repealed the provisions which gave the power to make periodic detention orders (for sentences up to 3 years) but added a new option to make Intensive Correction Orders (for sentences up to 2 years). The power to make home detention orders remained. An Intensive Correction Order was a "custodial sentence" for the purposes of Part 2 Division 2 of the Crimes (Sentencing Procedure) Act 1999 and (as in the case of periodic detention and home detention) such an order could not be made unless a term of imprisonment was imposed and the term was 2 years or Iess (s7(1)). 35That is to be contrasted with the situation in relation to a periodic detention order which, from 1999 until the date of these amendments, had limited the making of such orders to a sentence of imprisonment having a term of 3 years or less. Over that same period and following the amendments, there was no equivalent requirement in respect of community service orders. There was no requirement that community service orders might only be made in lieu of a custodial sentence imposed for any prescribed period, whether 3 years or otherwise. 36Against that background, it would be fair to say that the regime of non-fulltime custodial sentences and non-custodial sentences was at the time of sentencing misunderstood by his Honour and also by the legal representatives of the parties. Given the change of legislation, his Honour did not receive the assistance he was entitled to from those legal advisers. 37The submissions of the Crown are relatively straightforward and the grounds of appeal can be dealt with together. By reference to such cases as Regina v Zamagias [2002] NSWCCA 17 and Regina v Hamieh [2010] NSWCCA 189 the Crown submitted that his Honour did not follow the reasoning process set out in those cases: (i) To consider all non-custodial alternatives to determine whether any is sufficient in all the relevant circumstances. (ii) If none of those alternatives provides a suitable disposition of the matter, set a term of the sentence of imprisonment in the conventional manner by reference to relevant objective and subjective considerations. (iii) To consider whether there is any custodial alternative to fulltime imprisonment available and determine whether any such alternative should be applied. 38Since his Honour failed to follow that line of reasoning and clearly misunderstood the sentencing regime relating to non-custodial and non- fulltime custodial sentences, the Crown submitted that this Court had to re- sentence the respondent. Thereafter, the Crown's submissions were directed to that issue and were to the effect that a fulltime custodial sentence should be imposed. 39The matter which the Crown stressed was the objective seriousness of the offence, even though the respondent had no part in its violent aspects, and did not know of Tompkins' intentions. The Crown referred to the breach of trust and degree of planning. The Crown also referred to the effect of the Form 1 offence and what it regarded as his Honour's erroneous consideration of the effect of a fulltime custodial sentence on the respondent's family. 40The respondent submitted that what had occurred was not the sort of error which required this Court to re-sentence. She characterised what had occurred as "an error of process". I do not agree. Apart from the error in approach identified by the Crown, it is clear that his Honour's misunderstanding of the sentencing options available to him was of such a fundamental kind as to require the intervention of this Court. This is despite the fact that the Crown contributed to his Honour's misunderstanding (R v JW [2010] NSWCCA 49 at [149]-[150], [212]). Accordingly, it is necessary to re-exercise the sentencing discretion in respect of the respondent. 41The Court had before it additional evidence for the purpose of resentencing. From the Crown's point of view, that evidence indicated that as of the date of the appeal, the respondent had completed 76 hours of community service but there had been a number of occasions when she had failed to attend for work. Some of those occasions were explained by medical certificates, but others were not. 42From the respondent's point of view, she had been diagnosed with cancer of the cervix following the sentencing proceedings. The nature of the diagnosis was set out in a report from her general practitioner, dated 15 March 2011 as follows: "Miss Darby also has a high grade squamo-epithelial lesion of the cervix." 43In January of this year the respondent had an episode of dysfunctional uterine bleeding probably associated with that condition. The respondent's general practitioner had made appointments for the respondent to be investigated at the John Hunter Hospital but the respondent had failed to attend those appointments. In an affidavit she said that she was afraid of what the investigations might reveal. 44In re-sentencing the respondent, the Court is conscious of the provisions of s68A of the Crimes (Appeal and Review) Act 2001 which abolished the doctrine of double jeopardy with respect to a Crown appeal against sentence. The Court is also conscious of the guidance provided by R v JW how to apply that section. 45In re-sentencing the respondent, the first step to be taken was succinctly summarised by Johnson J in R v Douar [2005] 159 A Crim R 154 at [70] where his Honour said: "The first question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 prohibits a Court from imposing a sentence of imprisonment unless the Court is satisfied, having considered all possible alternatives, that no other penalty other than imprisonment is appropriate. At this stage in the process, the only consideration is whether a sentence of imprisonment should be imposed, and not the manner in which the sentence of imprisonment is to be served: Zamagias at para [25]". 46When undertaking that exercise, an important consideration is the objective seriousness of the offence. The Crown has identified the serious nature of the offence and its aggravating features. That, however, does not tell the whole story. There were significant ameliorating features. The respondent was not the principal offender, she did not discover that Tompkins had a weapon until it was too late and she did not anticipate the violence with which he committed his part of the offence. Her role was to provide information to Tompkins and to act as his driver. 47Other matters to be taken into account when considering the objective seriousness of the offence are the malign influence of Tompkins over her and to a lesser extent her drug addiction. 48That such matters can be taken into account when considering the objective seriousness of an offence was made clear in R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 at [86] where the Court said: "86 Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the Tightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 20 ALR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment." In relation to drug addiction, Wood CJ at CL made a similar observation in R v Henry [1999] 46 NSWLR 346 at [273]. 49I have concluded that despite the seriousness of the offence, it is to be properly assessed as being in the low range of offences of that kind. 50Another matter to be taken into account is the respondent's powerful subjective case. She had an extremely difficult early life characterised by abuse, violence, alcoholism and drug addiction on the part of older members of her family. There was no challenge in the appeal to his Honour's important finding that at the time of sentencing the respondent was "at the crossroads". His Honour did not make the finding lightly and it was a finding of fact open to him on the evidence. 51In that regard, the oft quoted observations of the King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213, (1982) 5 A Crim R 394 at 394 can legitimately be applied: "It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has traditionally been extended even to offenders with back records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform." 52His Honour found that the respondent had made serious efforts to be drug free and had made real progress. She was residing for the first time in what appeared to be positive domestic circumstances. She was in a stable relationship with her partner with whom she resided, together with his son and her adolescent daughter. The separation from Tompkins over an extended period of time had provided an opportunity to become free of his influence. The author of the pre-sentence report was of the opinion that the respondent had accepted responsibility for her offending behaviour. 53I have concluded that in the particular circumstances of this case, the fact that the respondent was "at the crossroads" does justify special consideration. This is particularly so when almost two years had passed from the date of the offence to the date of sentence, during which time the respondent had demonstrated significant rehabilitation. 54While it is unfortunate that his Honour referred to the hardship of fulltime imprisonment on the respondent's family, it is clear from the context and totality of his remarks that the pivotal reason for him determining that a Community Service Order was appropriate, was the negative effect, even of a short period of imprisonment, on her rehabilitation. 55The Form 1 offence was the asking of her friend, Mr Sager, to make a false statement to the police investigating the robbery by providing the respondent with a false alibi. The offence occurred on the day of the attempted robbery. While offences of this kind are always serious, it is clear that Mr Sager did not actually provide a false statement and there was not any significant waste of time or resources in investigating the false alibi. It is also significant that in the same interview with police, when the respondent gave the false alibi, she also provided information which led to the arrest and conviction of Tompkins. Accordingly, I accept that the objective seriousness of the Form 1 offence was in the low range for offences of this kind. 56It is not clear to what extent his Honour took the respondent's assistance to the police into account. His Honour said that it was a factor to be taken into account in mitigation, but otherwise did not refer to it. Specifically, he did not allow any discrete discount for this assistance. In the circumstances of this case, it seems to me that the police may well have had difficulty in successfully prosecuting Tompkins without the assistance of the respondent. 57In those circumstances, when it is not clear what use his Honour made of that assistance, the existence of the Form 1 offence does not preclude a Community Service Order as a sentencing option. 58A Community Service Order remains an available option which, while lenient, is not manifestly inadequate in the unusual circumstances of this case i.e. the low range of objective seriousness of both the s94 offence and the Form 1 offence and his Honour's finding that the respondent was "at the crossroads". In any event, being subject to a Community Service Order is a form of conditional liberty - R v Cicekdag [2004] NSWCCA 357. The order made by his Honour was for the maximum time allowable, 500 hours, which of itself is not an insignificant penalty. 59In the somewhat unusual circumstances of this case, I have concluded that it is appropriate for the Court to impose the same sentence as was imposed by his Honour. It is not without significance that his Honour imposed a number of conditions on that Community Service Order. 60Accordingly, the order which I propose is that the appeal be dismissed.