REGINA v. JANCEK [1999] NSWSC 1126

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: The prisoner has pleaded guilty before me to one offence under s.97(1) of the Crimes Act 1900, a subsequent offence under s.97(2) as an accessory before the fact and an offence under s.33B committed at the same time and place as the latter offence. The offence under s.97(1) is punishable by a maximum of 20 years penal servitude, the further offence under s.97(2), by a maximum of 25 years penal servitude. The offence under s.33B is punishable by 12 years penal servitude. 2 It will be necessary in this case of multiple offences to have regard to the totality principle and also the principles referred to by the High Court in The Queen v. Pearce (1998) 156 ALR 684. 3 The facts of these offences are as follows:-

Assault with intent to rob being armed with an offensive instrument at Blacktown on 4 August 1997 "At about midday on Monday 4 August 1997, the prisoner went to the Blacktown East Totalizer Agency Board (the "TAB") with an unknown male person, where she had a brief conversation with the 26 year old TAB manager Neil Flockhart. The male accomplice of the prisoner was seen to flick through results books whilst the prisoner looked around at security cameras. The prisoner and the male accomplice were in the TAB for about five minutes. A regular patron of the TAB who was there at the time took particular notice of the prisoner. The patron was still in the TAB with about eight other adult male customers when two bandits entered the TAB about 4.15 pm the same day, one being an unknown male, the other being the prisoner. Both of the bandits wore dark coloured full face balaclavas, gloves, padded clothing on the top half of their bodies, track pants and shoes. The male offender carried what resembled a hand gun. He threatened customers in the TAB with the gun upon entry to the TAB, demanding that they lie on the floor. The prisoner said 'get down, get down on the floor'. The TAB manager was working alone at the time, but was behind an enclosed, secure area which accessed the back of the premises. He saw the offenders. Fearing that he was about to be held up, he made good his exit into the back room. He was able to activate hold up alarms. The prisoner and her accomplice banged on the outside of the enclosed area. Her accomplice was heard to say words to the effect of 'I need the money'. The prisoner was heard to say 'come on let's get out'. They were unable to obtain money or other property. There was cash on the premises at the time. As the prisoner and her accomplice were leaving the TAB, her accomplice said words to the effect of 'We ought to pop one of these cunts off', referring to the customers who were lying on the floor of the TAB. The prisoner said words to the effect of 'No fuck that, fuck that, let's go'. They then ran off, but were photographed by TAB security cameras. It is unclear how the prisoner and her accomplice travelled to and from the TAB. A subsequent search of premises at Lethbridge Park which had been occupied by the prisoner led to the seizure of footwear and clothing, some of which appears to be the same as items worn during the TAB robbery. Enquiries led to the prisoner being identified from photographs as the female who was in the TAB earlier in the day prior to the robbery. It has not been established who the male accomplice was. The prisoner was electronically interviewed at Blacktown Police Station on 30 December 1998. During the interview, the prisoner admitted that she went to the TAB wearing a balaclava with an intent to rob, but she denied being armed herself. She stated that her role in the robbery was to keep watch if anyone came into the TAB. She was otherwise non-specific about details of the incident and did not name her accomplice, allegedly due to fears for her safety." Assault with intent to rob whilst armed with a dangerous weapon; use offensive weapon to prevent apprehension at Lurnea on 26 October 1997 "At about 5.30 pm on Sunday 26 October 1997, the prisoner Mandie Jancek and a co-offender Frank Petrinovic drove to the vicinity of the Liquorland Bottle Shop, located at the corner of Hill Road and Reilly Street, Lurnea. Both Petrinovic and Jancek travelled there in vehicle MOW-739, a 1983 Holden Commodore sedan owned by Petrinovic. Petrinovic got out of the vehicle in Reilly Street. He put on a black balaclava and surgical gloves and armed himself with a loaded .32 calibre Argentina brand revolver. At the time he was also carrying a red plastic Grace Bros. shopping bag. The prisoner remained in the vehicle in Reilly Street. Petrinovic walked into the Liquorland Bottle Shop through the Reilly Street entrance. He walked towards the cash register and confronted the two employees on duty, Ian Hagarty and Troy Stephens. Petrinovic ordered the two employees to the ground. Both complied. Petrinovic stood over both employees and pointed the loaded revolver in their direction. Petrinovic threw the Grace Bros. bag he was carrying behind the counter and said 'fill up the bag'. Mr. Hagarty stood up and said 'Alright mate, I'll do it'. At that point a struggle started between Petrinovic and Mr. Hagarty. During the struggle, two shots were discharged from the revolver by Petrinovic. Mr. Hagarty continued to struggle with Petrinovic after the shots were fired, eventually taking the revolver off Petrinovic and staggering away. Around this time, a number of the customers in the shop came to the aid of Mr. Hagarty. Petrinovic was restrained by the customers in the driveway area. At that point the prisoner entered the shop on foot and attempted to pull away the customers who were restraining Petrinovic. She was unsuccessful and she left the shop. The prisoner then returned a short time later driving vehicle MOW-739. She drove the vehicle into the bottle shop via the exit into Reilly Street, and drove at Petrinovic and the customers, narrowly missing a number of people. This resulted in Petrinovic breaking free of the customers for a short time. Petrinovic attempted to get into the vehicle driven by the prisoner, but was unable to do so. Petrinovic then picked up a house brick and threatened the witnesses who were trying to detain him. The prisoner remained in the vehicle whilst all of this was happening. A witness removed the keys from the ignition of the vehicle, preventing the prisoner from driving away. The prisoner's vehicle was surrounded by a number of witnesses, preventing her from escaping. Petrinovic ran out onto the footpath of Reilly Street where he was again restrained by customers until police arrived. The prisoner was taken into custody by police, together with the co-offender Petrinovic. Located at the scene was the loaded revolver used by Petrinovic, the balaclava worn by Petrinovic which was removed by one of the witnesses who tried to detain him, surgical gloves worn by Petrinovic, and the Grace Bros. shopping bag. A search was made of the vehicle which the prisoner was driving. Located in the vehicle was a radio scanner which was set on the police channel for the Liverpool area, and a box of surgical gloves. The prisoner was taken by police to Liverpool Police Station where she was interviewed. The prisoner stated that she did not wish to comment about what had occurred." 4 Although on the plea there were tendered numerous statements, that recital of the facts was unchallenged. It is notable that the statement "we ought to pop one of these cunts off" by the prisoner's accomplice on 4 August 1997 presaged the death of Mr. Hagarty on 26 October 1997. It must be remembered that the present prisoner is not charged with any complicity in the murder or death of Mr. Hagarty. 5 I have had the benefit of substantial documentary material and extensive written submissions from both the prisoner and the Crown. By consent I was to have regard to that written material as provided on behalf of the prisoner in that form. There was no challenge by the Crown to its content. 6 The prisoner was arrested on 26 October 1997 and although released for a time on bail, has been in custody for this offence for a period of almost one year. Since there has been a broken period of custody, the appropriate course will be to give the prisoner the credit for that time as affecting both the minimum and additional term components of the total sentence and I will do so. 7 The prisoner was born on 11 September 1973 and her prior criminal record commences with the imposition of a recognizance for assault on 5 November 1990. On 1 October 1993 she received a recognizance for stealing and was ordered to perform 150 hours community service and to pay compensation in respect of an offence of break, enter and steal. In 1994 she was found to be in breach of a community service order and was the subject of a further community service order. She has been fined for entering enclosed land and possessing prohibited drugs. She has not previously received a gaol sentence. 8 Although her co-offender on 4 August 1997 has not been affirmatively identified and she did not admit it to be Frank Petrinovic, her co-accused in respect of the attempted robbery at Lurnea on 26 October 1997, when interviewed, she did assert that she was not identifying the person in question in that interview because of fears of that person's violent nature and for her own safety. Considering the violence that person showed and threatened, and that this prisoner attempted to dissuade her accomplice from the further act he suggested, I can see a real basis for her fears and I consider that her reticence should not be held against her. 9 Although some of the evidence suggests she was the more talkative of the two on 4 August, nonetheless, it does not appear that I could be satisfied that she had the replica firearm charged. That she successfully dissuaded her associate from carrying out any further violence to the persons present is a matter which should be held to her credit. 10 The Crown has put forward her culpability as being involved on two occasions in joint criminal enterprises to rob and in attempting to rescue her associate when the robbery went wrong. Although jointly responsible with her co-offender(s) for the crimes, I accept her role as less culpable. 11 She had originally been charged with more serious offences in relation to the events of 26 October 1997 but shortly before trial a plea was offered and accepted by the Crown to the offences of which she has presently been indicted. 12 She is entitled to some benefit under s.439 of the Crimes Act because of the pleas and her co-operation, particularly in relation to the offence of 4 August 1997, to which she confessed. Although one at least of the victims of that offence was easily able to identify her, without that confession she may have had some argument such that the Crown case against her on that offence was not as strong as it was against her on the other. But, as to the events of 26 October 1997, she was apprehended at the scene. The offences had been committed in the presence of many witnesses. The case against her was overwhelming. 13 She is also entitled to some more substantial benefit for the pragmatic value of her pleas avoiding lengthy and costly proceedings and in all the circumstances, entered, if not at the first available opportunity, at a time such as to avoid the costs to the community and early enough to support its use as indicating contrition. Indeed, as was submitted on her behalf, the fact of her pleading guilty may go some way to acknowledging the harm caused in these offences to the victims. 14 I have been provided with the Judicial Commission Sentencing Statistics for offences under s.97(2) and s.33B. Whilst I have had regard to those statistics, I have also had regard to the guideline judgment of this court in Regina v. Henry & Ors [1999] NSWCCA 111, not only in relation to the appropriate ranges of sentence for offences of armed robbery and attempted armed robbery, but also with respect to the issue of the relevance of drug addiction for the reasons to which I shall refer later. 15 The prisoner did not give evidence on her plea but without objection I was provided with a two page statement from her. In that statement she refers to her two small children aged 10 and three respectively; her addiction and her lack of a similar record in the past. She asserts that she has undergone a tremendous change whilst at the Mulawa Detention Centre and expresses deep remorse at the harm she has caused to others. She informed me that she had chosen not to go on the methadone programme and had, whilst in gaol, been selected to work in telemarketing, having obtained a certificate in that regard. 16 The prospect of her rehabilitation is attested to by a school friend, Catherine Trent, who had visited the prisoner in gaol and noted her health improvement. A reference was provided by the general manager of Call Centre Services Pty. Limited as to her commitment, ability, effort and her bright and cheerful personality. The welfare officer at Mulawa has provided a statement that she has assisted the prisoner attend to the placement of her two children with family members and arranged through the Department of Housing to ensure that the prisoner may be re-housed at the completion of her sentence. 17 Reports from the Department of Corrective Services show that she has enrolled as a full-time student in a range of courses including painting and decorating trade course, information technology, desktop publishing and adult further education at TAFE but has not yet managed to develop a consistent approach to study or a level of development which would define her as an adult learner. A further report indicates that her behaviour within the system is acceptable, it having shown a marked change from the initial problems she had adjusting to the environment. I am informed that she seems to have made an effort to address her alcohol and other drug problems, childhood, family and related social and psychological issues, although in the circumstances with which I was provided with those reports by that Department, very little detail has been given. She has attained her TAFE qualification by way of Outreach Access certificate and other course completion certificates. 18 Major Hindle of the Salvation Army had assessed the prisoner for bail purposes and found her to be highly motivated to break her life on drugs. Her motivation had been watched and assessed over a period of two months whilst in Mulawa. He confirmed her family support. He offered the Salvation Army Bridge Programme to assist with rehabilitation. That programme deals with all aspects of rehabilitation and is a residential programme conducted through the William Booth Institute. 19 In consequence of that assessment, the prisoner was bailed to that programme but developed withdrawal and psychological reactions to a 30 milligram daily dose of methadone and left the programme on 6 February to reside in full-time Salvation Army care under medical supervision, returning to custody on 2 March 1999. She had previously attempted residential anti-addiction programmes with the Salvation Army at Selah Farm and with WHO's at the New Beginnings Therapeutic Community. 20 A report from Dr. Lucas was provided. He elicited a most useful history. 21 The prisoner had been born to Aboriginal parents but fostered from the age of six weeks. Unfortunately the marriage of the foster parents also failed. She had other placements but when pregnant at 15, left foster care. Her education was only to Year Nine level. She has the two children to whom she referred in her statement. Her relationship with her co-offender was referred to as relatively brief. She has tested positive to Hepatitis C but, otherwise than having been a heroin addict whose use of the drug is reported as recently increased prior to her entering custody, especially after her association with her co-offender, she apparently has no significant medical or psychiatric problems. 22 She had confirmed to Dr. Lucas that the offence which resulted in the death of Mr. Hagarty had occurred when she and her co-accused were experiencing the effect of lack of heroin, having no money with which to get it. Her role in the expected robbery apparently was as driver of the vehicle and lookout. When things went wrong and her associate was being forcibly attacked by the people at the bottle shop, they were also yelling at her and, she told the doctor:- "Without even thinking she got into the car wondering what to do and how to get heroin. She drove the car to where people holding her companion (sic) and dragged him into the car. Someone threw a brick through a car window and a woman took the car keys." 23 She confirmed that the previous hold up at the TAB was an attempt to get money to remedy a lack of heroin. She told Dr. Lucas she was ashamed and felt sick in her stomach talking about the offence and believed she had done something really wrong:- "She thought it was time to pay back for the wrong so she could get out and start with a clean slate. She would make sure she would not do anything like this again." 24 She had also said to Dr. Lucas that the longest she had been off heroin had been seven months but that she had managed periods of abstinence on methadone. Dr. Lucas expressed the view that her educational level did not represent a true measure of her abilities. The impression he gained was that she was of good intelligence and could well pursue further education and training. She told Dr. Lucas that she did not feel emotionally mature and that she had sustained considerable physical abuse from her male partners. 25 Dr. Lucas refers to the interaction of her heroin dependence and her involvement with Mr. Petrinovic in the light of her emotionally deprived upbringing and personal difficulties. He has expressed the view that he was in no doubt that she was ashamed and contrite and accepting of the fact that she would be punished. He expressed the view that she was forward looking, willing to better herself and strongly attached to her children. He believed that with support, supervision and abstinence from drugs she could do well and benefit from education and training. He was of the view that a substantial period of supervision on release combined with appropriate drug counselling would be necessary. 26 She has participated in drug counselling programmes whilst in custody and although she is anxious about her children, has apparently acted appropriately in the view of Dr. Sefton, the Director Womens' Corrections Health Service. There have apparently been no incidents relating to illicit drug use. 27 Dr. Lisa Brown, consultant psychiatrist at the Mulawa Correctional Centre also provided a report which was to the same effect as that of Dr. Sefton in noting the prisoner's anxiety and concern for her family. Dr. Brown noted expressions of remorse and the attendance at psychological and drug and alcohol counselling. 28 Subsequently, additional material was provided to me by consent in written form. That material included numerous Mulawa Correctional Centre reports by various officers including classification, vocational, welfare and other reports. There was in addition a psychologist's report and a letter from her former partner dealing with the disruptive effects of her custody on her children. The material establishes that although the prisoner's case suits the profile of the mother's and children's Programme, she is not eligible for the options which would permit more contact with her children whilst she is in custody until sentenced and her present status is producing a negative effect on her children such that by reason of her deep concern for them, is affecting her. The material is confirmatory of what she put in her letter to which I have referred and of her recent history in custody as given to the psychologist and the psychiatrist. She is plainly deeply concerned for her relationship with her children and to be reunited with them. She is currently, apparently, off both heroin and methadone and has shown an ability to stay off for an extended period. She is actively pursuing obtaining vocational qualifications and is engaged in a degree of employment. It is said that she has some insight into her prior relationships and that a combination of all these factors are such as to indicate some positive prospects that she might be able to deal with her addiction and the personality the psychologist describes as dependent. 29 To some considerable extent the views of the psychologist and psychiatrist appear borne out by the primary material by way of report from the various Corrective Services officers. The history given to the psychiatrist and the psychologist is similar. The deprived and disrupted childhood, her foster placements and her difficulties with foster parents appear to underlie the predilection to addiction 30 The effect of the professional assessments of the medical practitioners is that there is a basis for a real prospect of rehabilitation if the prisoner is able, with support to deal with her drug addiction and no doubt that involves her avoidance of such associates as might also have access to that drug. It is clear that upon release from the custodial portion of her sentence the prisoner will require substantial support and supervision. Her position is complicated by the apparent lack of supportive immediate family. The evidence before me does not disclose that the prisoner is likely to resume the relationship which had been of some duration with the partner with whom she lived prior to meeting Mr. Petrinovic. In the circumstances, perhaps it is unlikely that that relationship will be resumed. 31 The prisoner's lack of prior record and the fact that these offences were committed during the time of her association with Mr. Petrinovic (even though the evidence does not allow me to hold that Mr. Petrinovic was her associate in the TAB robbery) leads me to the conclusion that, notwithstanding her lengthy involvement with heroin, Mr. Petrinovic was a substantial influence in the relationship and had a substantial effect in causing this prisoner to act in a way out of accord with her prior behaviour. In this regard the views of the psychologist that she has a dependent personality and Dr. Lucas' observations are most relevant. 32 I would not, however, regard her criminality in the context of her heroin addiction as completely aberrant. The consequences of heroin addiction and the likelihood of embarking on serious crime in order to feed it are all too well known to everyone in the community, including those so affected, even if their habit prevents them having the usual moral restraints from involvement in serious crime. I am also satisfied that the prisoner is motivated and has been trying to address the very problem of her addiction which has led her into this substantial criminality and divorced her from her children. 33 The offences are now two years old and during that time, which for her has been apparently attended by some degree of anxiety in relation to the children, she has, by her behaviour, given an indication that she has the potential to avoid the drug addict's usual life of criminality. It appears to be accepted that the delays in the disposition of the matter are not her fault. 34 In my view she falls within that class described by Spigelman, CJ. in Henry & Ors (supra):- "It may be inferred in many cases (and the present case is very much in point) that the offender would almost certainly never have become a thief but for loss of control of an ordered life through drug addiction. The propositions the results of drug addiction are self-inflicted is half true and therefore dangerous. The offender must, of course, be held responsible for his or her own actions. The drug addiction is not an excuse; but it is a factor that may tell the court that the real weakness of character is that of a drug addict rather than that of a robber. That may be by no means inconsequential. It is, however, a two edged factor; it may also tell the court that rehabilitation is going to be difficult." 35 The circumstances of this prisoner can be considered in the light of her drug addiction according to the principles laid down by Wood, CJ. at CL. in Henry (supra) as including an apparently impulsive offence with limited planning; an impairment of judgment under the influence of the drugs, a condition that would render rehabilitation more difficult but which in this case professional opinion considers the offender will try to achieve and that the addiction was attributable at least to a substantial extent to circumstances for which the prisoner was not primarily responsible. Although the Crown submitted that in respect of the first offence, that of 4 August 1997, the prisoner would fall within the guideline promulgated in Henry & Ors (supra), it also submitted that the second offence took the matter outside the guidelines and required a more severe penalty be imposed for that offence. I do not consider that the circumstance that I am dealing with two offences disqualifies these observations from applying here. 36 Her prior circumstances clearly enough raise the very matters that his Honour also considered in Regina v. Fernando (1992) 76 A. Crim. R. 58 at 62 to 63 albeit in the context of heroin rather than alcohol. 37 The prisoner's attachment for and regard to her children, insofar as hardship is occasioned to them by reason of the absence from their mother, is not a matter which would normally mitigate sentence (see Regina v. Day (1998) 100 A. Crim. R. 275). However, it is also clear that because of her separation from the children in the circumstances the prisoner will serve the time she spends in custody away from them in circumstances more onerous than others. Although she may be able to resume that contact in custody, nonetheless the impact upon her of that separation is a matter that has to be considered. 38 Further, it is important from a point of view of rehabilitation to have regard to the closeness of her association and concern for her children particularly since it appears to be a factor which strongly points towards a willingness on her behalf to avoid the drugs and other criminality if given sufficient support, that is, her relationship with her children can operate under supervision as a support mechanism. I was asked to recommend to the Department of Corrective Services that she be considered for any appropriate programme that would, in the Department's view, be available to support her contact with and care of the children. Plainly in her case if such a course is considered to meet the various exigencies including the views of the childrens' present carers, it would be appropriate for the Department to put it into effect in her interests and, insofar as it assists with rehabilitation, the community's also. 39 My attention was drawn also to the fact that in her attempts to achieve rehabilitation, she had spent in residential programmes a period of some six months and 18 days. I do not feel that there should be any mathematical application of the time thus spent to the period of sentence that I must otherwise pass. However, I am prepared to take into account, particularly as showing her willingness to attempt to achieve rehabilitation, the time she has spent in residential programmes. 40 The Crown submitted that whilst an appropriate sentence had to be fixed for each offence and then the question of cumulation or concurrence considered (see Pearce v. The Queen (supra)) nonetheless it accepted that it was open to me ultimately to impose concurrent sentences. I am not aware that the Crown was in any way contending that the sentences in this case should be other than concurrent. I am of the view that in this case, bearing in mind the underlying common factors, despite the fact that the offences were some months apart, it would be appropriate that the armed robbery offences as well as the offence of using the vehicle with intent to avoid apprehension be the subject of concurrent sentences. 41 It is submitted that this prisoner is "at the crossroads". Such a submission is often made and in the case of heroin addicts committing serious crimes of violence, is one which the courts must understandably treat with very great caution. It would only be where experienced professional assistance has been provided to a court and that assistance itself expresses what appears to be a firm basis for the prospect of rehabilitation that such a submission might find favour. In this case I have that experienced professional assistance apparently firmly based upon the efforts the prisoner has made and the reports available in respect of those efforts within the gaol system. I have reached the view that in this case it would be appropriate in passing sentence to put substantial emphasis on the prospects of rehabilitation of this prisoner in the light of the material to which I have already referred. 42 Nonetheless, the crimes were of considerable seriousness and although she should not be sentenced on the basis that she caused or was liable for the death of Mr. Hagarty, that matter cannot be put aside entirely. Armed robberies have the potential to kill. They do cause terror. Those who participate in them, even in a lesser role, must realise that the courts are required to pass sentences which are not disproportionate to the gravity of the crime. In this case I accept that as part of the sentencing complex, proportionality requirements may be met by reducing a sentence from what it might otherwise have been by reason of the mitigatory factors I have referred to above and more importantly the prospects of achieving, by the rehabilitation of this prisoner, the avoidance of further crime. 43 There seems to be a real basis to believe, in this prisoner's case, that it will be in the best interests of society if she is permitted to be at liberty with her children under supervision for an extensive period of time. I take into account both on the minimum term and on the additional term the time in custody pending sentence and the periods in residential rehabilitation to which I have referred. She has either been in custody or in restrictive rehabilitation schemes for the greater part of the past two years comprising a period in actual custody of almost 12 months and a period in residential programmes. 44 There are plainly here special circumstances under s.5(2) of the Sentencing Act including the need for supervision during an extended period arising from her addiction, her comparatively young age, her children, her attempts at rehabilitation and obtaining education and employment. In the light of her dependent personality and earlier deprived circumstances, such a longer period of supervision would appear highly desirable. 45 Mandie Tanya Jancek, on the first charge, you are sentenced to penal servitude for four years. On the second charge, you are sentenced to penal servitude for six years. On the third charge, you are sentenced to penal servitude by way of a fixed term for two years. That fixed term is imposed having regard to the other sentences I am imposing, in respect of each of which I impose a minimum term of two years. I impose in respect of the first charge an additional term of two years; in respect of the second charge an additional term of four years. 46 Mandie Tanya Jancek the effect of those sentences is that you are sentenced to penal servitude for a total of six years. The sentences are to be served concurrently and are comprised as follows. There will be a minimum term of two years commencing today, 23 November 1999 which will expire on 22 November 2001 and an additional term thereafter of four years which, having commenced on 23 November 2001 will expire 22 November 2005. The earliest date upon which you will be eligible for release on parole is 22 November 2001.

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