REGINA v. HORNE [1999] NSWCCA 391

No. 60358 of 1999 CORAM: MASON, P. NEWMAN, J. GREG JAMES, J.

1 MASON, P: I will ask Greg James, J. to deliver the first judgment. 2 GREG JAMES, J: An appeal against an asserted inadequacy of sentence has been brought by the Director of Public Prosecutions from the sentence imposed upon Sharon Michelle Horne in the District Court of New South Wales at Campbelltown following her plea of guilty to one count of armed robbery under s.97 of the Crimes Act 1900. 3 The respondent was sentenced to a total sentence of 25 months and seven days penal servitude to commence on 12 November 1998 and comprising a minimum term of seven months and seven days and an additional term of 18 months. 4 The short facts appear in the remarks of the sentencing judge as follows:- "At about 11.06 pm on 11 November 1998, the respondent together with her co-offender, Daniel Willy Marks, drove to the vicinity of the BP Service Station at 930 King Georges Road, South Hurstville. They were travelling in a Holden Kingswood sedan registration number LFU 783. After observing the service station for some time, they parked their car some 300 metres down a side street and walked to the service station. At the service station, the respondent maintained a position at the door to the shop area while Marks approached the victim, Nigel Cameron Goghlan, who was standing behind the counter. Marks was armed with a large chef's knife which he pointed and waved towards the victim when demanding money and cigarettes. An approximate sum of $44 was handed over to Marks, together with some four packets of Horizon cigarettes. Both the respondent and Marks then left the service station. At the time of the robbery, Marks had on a back balaclava and the respondent had on a beige coloured one. At about 12.05 am on 12 November 1998, police observed a Holden sedan parked on Heathcote Road, Heathcote. Upon approach, they observed the respondent seated in the driver seat and Marks seated in the passenger seat. Police located a large quantity of coins, three kitchen knives, four packets of horizon cigarettes, two balaclavas - one black and one beige coloured and a Triple M black backpack. Police were at this stage unaware that a robbery had been committed at the BP Service Station. Marks was arrested in relation to another matter and conveyed to Sutherland Police Station. The respondent followed them in the Holden sedan. At the police station following certain enquiries having been made, police became aware of the robbery at the BP station and consequently both the respondent and Marks were charged. The respondent participated in an electronic record of interview wherein she made full admissions. She asserts that both she and Marks drove past the BP station. It was Marks' idea to rob the station and that she was not keen to do so. She stood just outside the BP shop door while Marks went in with the knife and demanded money and cigarettes. The money was put into Marks' Triple M black backpack. The large quantity of coins found in the console of the car were part of the proceeds from the robbery, as were the Horizon cigarettes. From where she stood, she heard the conversation between Marks and the victim. At the time, Marks was wearing a black balaclava and she had a beige beanie on her head. They had used part of the proceeds of the robbery to purchase amphetamines. All the knives, bar one (which belonged to Marks) were hers for use in her work as an apprentice chef." 5 There had been some delay, not the respondent's fault, in dealing with her plea and indeed she had admitted the offence at the earliest possible occasion, co-operated with the authorities, afforded valuable assistance to them and his Honour went so far as to describe her conduct since arrest as "at the top of the ladder as these things go". She had been an ideal prisoner and, with the assistance of her family, who are deeply religious, she had returned to the church and had embarked upon evangelising activities. She had stayed completely clean of the drugs, the abuse of which had underlain the commission of the crime and has attempted to commence the rehabilitation process. She had reconciled with her family and her parents were eager to receive her back into the home. His Honour accepted her account that she attempted to dissuade her co-offender from committing the crime and put herself in the middle of the door of the service station when they went there, telling him not to do it, but eventually she went along with it at his instigation. 6 His Honour properly held that although she was equally liable for the offence with her co-offender, her role was sufficiently distinguishable from his that she ought to be regarded as having a materially lower level of culpability. He accepted the exceptionally strong subjective case she made. He noted that she had only one prior entry in her record and had been only 19 at the time the crime was committed; that her drug abuse had led to a breakdown of her relationship with her family and the breakdown of a promising career, a career that she has resumed, so we are told, since having been liberated at the conclusion of the minimum term. If the appeal were upheld a return to custody would be necessary. 7 Submissions had been put before his Honour that in all the circumstances she should not be required to serve actual imprisonment beyond the date of his Honour's passing sentence. She had been in custody for more than seven months prior to his Honour passing sentence. Those submissions were put in the context of the assistance she had furnished to the authorities, the prospects of rehabilitation and the desirability to avoid the deleterious effects of imprisonment on the prospects of rehabilitation that might have been occasioned and which would have been adverse to the community's interests. 8 The Crown conceded that it is necessary that there be shown error in the course taken by the trial judge below, either in principle or by way of manifest inadequacy. It is not necessary to review the numerous cases on the exercise of the court's power on an appeal by the Crown in these circumstances. In Regina v. King [1999] NSWCCA 16; Regina v. Menzies [1999] NSWCCA 222 and Regina v. Chmait [1999] NSWCCA 217, Newman J and I had identified the relevant principles. 9 In Regina v. Henry, Barber, Tran, Silver, Tsoukatos, Kyroglou & Jenkins [1999] NSWCCA 111 this court gave a guideline judgment in respect of six Crown appeals and one severity appeal on the offence of armed robbery. In particular, it had regard to armed robberies committed by young persons under the influence of drug addiction. That judgment and the consequent individual judgments dealt with a range of sentences to which regard should be had on a policy basis when sentencing by trial judges. It was not intended that that decision should prescribe rigid limits or a tariff but a guideline to which sentencing judges should have regard to avoid untoward inconsistency. That this was so was clearly made out when, in the exercise of discretion, the Crown appeal in respect of the particular appeal in the matter of Kyroglou was dismissed. A most important factor in that regard was that it would have been necessary to return the respondent to custody in the event the appeal were upheld. 10 The cases establishing the discretion not to interfere with a sentence which might otherwise be inadequate in a Crown appeal in those circumstances are too well known to require repetition here. 11 His Honour made no reference to the guideline judgment in Henry (supra), nor specific reference to the principles in it in this case. In this respect his Honour appears to have failed to apply this important decision of this court. Absent the particular circumstances of this case and the double jeopardy considerations underlying the discretion on Crown appeals, I would regard this as a serious error of principle which, except for the matters to which I later refer, would warrant interference by this court. 12 It is submitted that both the total sentence and the minimum term were manifestly inadequate. The criticism of the sentence and the assertion of particular errors is powerful, however in this case, in my view, it is not necessary to determine whether that submission on the overall sentence, or the submissions asserting particular errors of principle, including an assertion of excessive judicial focus on the matter of assistance and an untoward reduction of the minimum term, are well founded when one considers whether the discretion to intervene should be exercised in the peculiar and special circumstances of this case. 13 In various of the judgments in Henry (supra) including in the judgments of the Chief Justice and the Chief Judge at Common Law appear examinations of the relevance of drug addiction to the commission of the offence. Insofar as it shows that the real weakness of character that led to the offence is that of a drug addict rather than a robber, and where rehabilitation appears to have been undertaken, and where that addiction arose, at least to a substantial extent, from circumstances for which the prisoner was not primarily responsible (for example as here, where she had been introduced to drugs by another during relationships in which she was physically abused) it is open to a trial judge to consider that the prospective rehabilitation of the offender in the community's interests is a matter which should receive great weight. Particularly that matter is one which would weigh heavily with a court concerned to consider whether a Crown appeal should be entertained in discretion. 14 Having regard to those matters, the limited role of the respondent in the offence and particularly to her assistance to the authorities and the prospects of rehabilitation, in the peculiar and special circumstances of this case where, if the appeal were to succeed, a return to custody would be required, in my view the discretion should be exercised to allow the sentence to stand. I would, in those circumstances, propose the appeal be dismissed. 15 MASON, P: I agree. Judges who turn the blind eye to an applicable guideline judgment must realise that a Crown appeal is very likely to succeed, with the consequence that the offender is placed into custody or returned to custody. The hardship that this imposes upon a young offender is manifest, yet it is a necessary consequence of giving effect to proper sentencing principles. Misguided judicial kindness thus becomes unintended cruelty. 16 I have considered anxiously whether this is such a case. In my view Judge Moore erred in his approach to the task before him. He should have addressed the recently published sentencing guidelines in Regina v. Henry [1999] 46 NSWLR 346. 17 The sentence was unduly lenient, notwithstanding the comparatively limited and reluctant role adopted by the respondent. 18 However, the objective and subjective circumstances of this particular offence, and this particular offender, the so-called double jeopardy principle and the favourable signs of rehabilitation lead me to the view that it is a proper case to exercise the discretion not to uphold the Crown appeal. 19 The respondent must realise that she is treading on eggshells as she serves the lengthy additional term of her sentence. She has had an experience of imprisonment which, I trust, will be salutary. She must not think that the court would look with any favour upon relapse to drug dependence or associated criminal activity. 20 I agree with the orders proposed. 21 NEWMAN, J: I also agree with the orders proposed and I agree with the remarks of my brethren, particularly those of the President. 22 MASON, P: The appeal is dismissed.

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