Anderson v The Queen

[2010] NSWCCA 287

New South Wales
Court of Criminal Appeal

CITATION:	ANDERSON v R [2010] NSWCCA 287 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11 August 2010
JUDGMENT DATE:	7 December 2010
JUDGMENT OF:	McClellan CJatCL at 1; Hulme J at 2; Davies J at 38
DECISION:	Leave to appeal granted. Appeal dismissed.
PARTIES:	Karlene ANDERSON Regina
FILE NUMBER(S):	CCA 2007/7892
COUNSEL:	Applicant: M Johnson Respondent: PM Miller
SOLICITORS:	Applicant: S O'Connor Respondent: S Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Black DCJ

- 1 -

2007/7892

McCLELLAN CJ AT CL
RS HULME J
DAVIES J

Tuesday, 7 December 2010

Karlene Maree ANDERSON v R

Judgment

1 McCLELLAN CJ AT CL: I agree with RS Hulme J.

On 13 May 2009 an indictment alleging four offences was presented against the Applicant and a co-offender. In summary the charges were:-

(i) That the Applicant and Mark Edward Walsh had, in company with each other, robbed AR;
(ii) That the Applicant did have sexual intercourse with AR without consent and knowing he was not consenting;
(iii) That Mark Edward Walsh did take and drive a conveyance without the consent of the owner AR; and
(iv) That the Applicant knowingly allowed herself to be carried in a conveyance taken without the consent of the owner.

3 Although not all of the relevant material was included in the appeal book, it seems that on 11 May a jury had been empanelled to try these charges but that trial was aborted. On 13 May pleas of guilty were entered to all but the second charge and on 14 May Black QC DCJ commenced a judge-alone trial in respect of that second charge. That trial seems to have been adjourned to 30 July. Some submissions were made on that day and his Honour made a decision which, it is to be inferred, was in favour of the Applicant on that charge. On 31 July proceedings on sentence in respect of the other charges and involving both offenders took place.

4 A matter in issue during the sentencing proceedings was whether a knife had been used during the robbery. Some evidence on the topic had been given during the sexual intercourse trial and the relevant parts of that transcript became exhibit D on sentence. During the sentencing proceedings further evidence was given by the victim and another witness and both the Applicant and Mr Walsh also gave evidence. On 31 July his Honour gave a judgment on the issue of the knife. Proceedings were adjourned and resumed on 18 September 2009 when sentence was passed.

5 The sentences imposed on the Applicant and Mr Walsh in respect of the charges listed above were:-

The Applicant
1. Robbery in company – imprisonment for 4 years including a non-parole period of 2 years and 3 months, both such periods commencing on 10 January 2009; and
2. Knowingly allowing herself to be carried in a conveyance taken without the consent of the owner – imprisonment for a fixed term of 12 months commencing on 10 January 2009.

Mr Walsh
3. Robbery in company - imprisonment for 4 years including a non-parole period of 2 years and 3 months both such periods commencing on 31 January 2010; and
4. Taking and driving a conveyance without the consent of the owner – imprisonment for a fixed term of 18 months commencing on 31 January 2010.

6 In sentencing Mr Walsh his Honour took into account an offence on a Form 1 and which his Honour described as “against s 53 of the road traffic legislation namely, that whilst in charge of a motor vehicle he caused AR bodily harm”. In fact the offence was one that arose pursuant to s 53 of the Crimes Act 1900 and, if charged, carried a penalty of 2 years imprisonment.

7 The offences so far mentioned occurred on 11 August 2006. In addition, his Honour imposed on Mr Walsh a sentence for an offence that had occurred on 29 November 2006 of assaulting a police officer in the execution of his duty and thereby causing actual bodily harm. The sentence imposed for this offence was of imprisonment for a fixed term of 2 years commencing on 31 July 2008.

8 Thus the effective sentences imposed on the Applicant and Mr Walsh for the offences in which both were involved were the same. Mr Walsh suffered imprisonment for an additional 18 months for his November 2006 offence but nothing more for the Form 1 offence.

9 The only ground of appeal advanced was that the Applicant has a justifiable sense of grievance arising from the sentencing Judge’s failure to make due allowance for the difference between the co-offenders.

10 To put this complaint in context it is desirable to give some account of the Applicant’s offending.

11 His Honour’s description of the circumstances of the offences was as follows:-

Now to return to the robbery, there had been an encounter between the parties involved involving a lot of alcohol, it may or may not have involved drugs as well, it is not necessarily for me to make any finding about that, but the offender Walsh had gone off to some licensed premises with the victim and it was after the arrival there of Ms Anderson because other problems had developed back at the motel where all this started that they prevailed upon AR to give them a lift back to the motel because it was raining.
Now at some stage, it had become apparent that AR had a substantial amount of cash in his wallet. He may have had other things that they were interested in but they were not charged with robbing him of that and when they got back to the motel, they then – well initially Mr Walsh made it clear that he wanted AR to hand over his money and a knife was used as I found, and I incorporate in these remarks the finding on the disputed issue about the use of a knife that I had made on an earlier occasion. The knife I found was produced and just to deal with it, it did not as far as I found inflict any injury but it was used in a threatening way and I think the view I expressed was that in reality, it did not have that much impact upon AR because it certainly did not make him give in; he fought to the end of this incident. However I did also accept that during the subsequent fight, the offender Ms Anderson was inviting Mr Walsh to make active use of the knife by calling out to “Stick him”; he did not do so fortunately.
Well then what happened was the most unseemly fight in the forecourt of this motel witnessed by a young lady who gave evidence and the upshot of it all was that in order possibly to disable AR and make good their escape, possibly for other reasons, they removed his trousers and unclothing and they were able to get hold of the wallet and off they went in his car.
Although AR was calling out for assistance and there apparently were people around, unfortunately nobody took part and as I have already said, in departing, the car ran over AR foot.

12 In the course of his reasons of 31 July for concluding that a knife had been used, his Honour remarked that he found it difficult to place any reliance whatsoever on the evidence of the offenders, indicated some problems with the evidence of the victim and another witness and continued:-

I am satisfied having borne all these warnings and deficiencies in the evidence, that none of these witnesses are very satisfactory but on the account given about the events in the car park on the night the prize for being most unsatisfactory goes to the two offenders and therefore I feel entitled to accept parts of AR’s evidence about what happened to him and I am satisfied beyond reasonable doubt that in that car before the fight developed (on the ground in the car park) a knife featured in the way described by AR, namely that Mr Walsh came at him with a knife.

...
Whether or not there was actual intention to rob before AR got out the car (sic) is perhaps moot but again applying the proper burden I am satisfied… there was an intention to steal from him.
The knife was involved at that stage but on the evidence that is given in this case I do not regard the knife as having had the slightest effect on AR…
So perhaps unfairly to paraphrase what the Crown says technically there was a knife involved. I am satisfied of that but I am not satisfied that it should feature to any appreciable extent as an aggravating feature and that is the finding I make.

13 AR’s evidence was that as the car he was driving reached the front of the motel, Mr Walsh said he felt sick, jumped out the car and then reached back into the car through the front passenger side door, held the knife to AR’s throat and ordered him out of the car and to come around to the front bonnet. AR did so. So did Mr Walsh. At this time the Respondent was getting her pram and baby out of the back of the car.

14 At the front of the car Mr Walsh still had the knife in his hand, there was some pushing and shoving and the Applicant was saying “Stick him, stick him, just stick him”. AR said he was yelling, that the Respondent put her hand over his mouth, then she undid his belt and Mr Walsh pulled AR’s trousers and underpants down to his ankles. When re-called, AR said the knife was not at his throat at any stage after the car incident and while he was wrestling with Mr Walsh.

15 There was some discussion concerning the knife during the submissions on sentence. Shortly prior to the conclusion of those submissions there was the following exchange between his Honour and Mr Walsh’s legal representative:-

HH: Yes, she was staying “stick him”.
…
HH: But the dispute was the defence said no knife at all.

Cusack: … Your Honour in my submission it’s not a matter that your Honour would take into account in terms of a circumstance of aggravation because of the nature of the charge itself and your Honour’s findings in relation to that issue.
…
HH: I follow that but where it gets me to is that it’s not a basis for differentiating because of the evidence relating to your client. … I accept that he produced it and that Ms Anderson invited the use of it, that’s the point.

16 The difference in the commencing dates of their sentences largely reflected the period each offender had spent in pre-sentence custody. However his Honour also allowed the Applicant credit for time she had spent in custody on an unrelated charge. That charge arose out of an incident when she was on bail for the robbery offence but eventually was not proceeded with. The argument on behalf of the Applicant was that, but for the robbery offence she would have received bail for the unrelated offence and hence her custody that followed that charge was at least in part due to the robbery charge. His Honour said that he proposed to give the Applicant credit for just over half of the time she had been so incarcerated.

17 By reference to remarks he made a little earlier while sentencing Mr Walsh, his Honour allowed the Applicant a discount of six months on account of her plea and found special circumstances in efforts to overcome a drug addiction. His Honour also found special circumstances in Mr Walsh’s case “because of the personal matters referred to in the reports and the efforts he has valiantly been making to get rid of his drug addictions”.

18 As has been said, the only ground of appeal advanced was that the Applicant has a justifiable sense of grievance arising from the sentencing Judge’s failure to make due allowance for the difference between the co-offenders. Three particular matters are relied upon. The first was a difference in their criminal histories. The second was the Form 1 offence that was to be taken into account in sentencing Mr Walsh and thirdly what is submitted are disparate subjective circumstances of the parties.

The Respective Records

19 In arriving at the sentences imposed, his Honour recorded that:-

Mr Walsh has a far worse record than the Applicant who has nothing particularly serious prior to this but that does not detract from the fact that this is a particularly unpleasant and serious kind of offence. So although there is a disparity between their records, I do not think it justifies any appreciable differentiation between them for this matter.

20 Mr Walsh was born in April 1964. He was thus 42 at the time of the robbery and vehicle offences. His criminal history extends for some 13 pages. Mr Walsh first appeared before a court in February 1976 when he was convicted of a charge of stealing. Prior to being sentenced by Black DCJ he has been convicted of some eight offences of stealing or the illegal use of a motor vehicle; numerous offences of forgery, obtaining money by deception or making or using a false instrument; two of escaping from lawful custody; and about seven of possession of a prohibited drug. His most serious offence, which seems to have been committed in 1988, was of robbery whilst armed for which he was sentenced to imprisonment for 8 years.

21 The Applicant’s criminal history extends for a little over two pages. She was born in April 1974 and was thus 32 at the time of the subject offences. At the time of those offences her record as disclosed in her Antecedents Report consisted of three traffic offences, one offence of offensive conduct and two of common assault. After August 2006 she was before the courts on three other occasions when she was convicted of three charges of assaulting an officer in the execution of his duty, three of having custody of a knife in a public place and one of larceny and one of failing to appear in accordance with a bail undertaking.

22 In addition, there were tendered on her behalf two facts sheets dealing with charges against her arising out of incidents on 15 February 2008 and 27 August 2008. The first of these concerned an incident where the Applicant seems to have been drunk and aggressive after being evicted from a hotel and possibly under the impression she had been unfairly deprived of a bottle of vodka. The second related to an incident on 27 August 2008 which led to her being charged with wounding Mr Walsh with intent to do grievous bodily harm and reckless wounding. The facts sheet indicated that the Applicant claimed that she acted in self-defence but was unable to explain two stab wounds to Mr Walsh’s back. The document indicates that the violence had followed arguments and drinking.

The Form 1 Offence

23 There was little evidence of this in the appeal papers. It appears that in leaving the scene in AR’s car, Mr Walsh drove over AR’s right foot. A victim impact statement from the latter indicated that this exacerbated serious health problems he already had with the foot. The mere fact of the offence indicates an appreciable degree of gross negligence or perhaps recklessness on the part of Mr Walsh but there is nothing to indicate to the criminal standard that the offence was deliberate.

24 It is also appropriate to record that in his remarks on sentence his Honour observed that he took the view that all of the offences on 11 August 2006 were “part and parcel of the same incident and I am prepared to take that view also about the matter on the Form 1”.

The Parties Subjective Circumstances

25 The Applicant did not give evidence on sentence. Tendered on her behalf was a psychological report on the Applicant compiled by Anita Duffy. This report said that Ms Duffy had interviewed the Applicant in August 2009 who then showed signs of Post Traumatic Stress Disorder and of severe anxiety and depression. The report indicated that the Applicant had separated from her partner of 10 years in 2003 and commenced a relationship with Mr Walsh in 2004. According to the report, the Applicant seemed to attribute virtually all of problems, including drug taking and loss of custody or her children on Mr Walsh. The report concluded that the Applicant was “suffering from the emotional effects of physical and psychological abuse arising from her five year relationship with (her co-offender)” and “It is thought [the Applicant] has a relatively good prognosis given that her problems mainly surfaced during the years of her corrosive relationship with Mark”.

26 A report of Dr Westmore stated as his provisional diagnosis that the Applicant suffered “moderate to severe episodes of an adjustment disorder although the differential diagnosis would include episodes of major depression. She has an anxiety disorder characterised by social withdrawal, social avoidance and panic episodes. Substance abuse (amphetamines).” Again the source of Dr Westmore’s opinion was an interview with the Applicant, including his observations that she was extremely tearful and distressed throughout the interview. At the time of seeing Dr Westmore the Applicant was denying the charge and gave an account substantially different from that accepted by Black DCJ.

27 Mr Walsh did give evidence on sentence. He said that he commenced a methadone program prior to being granted bail in November 2007 and continued on that program thereafter. He was subject to urinalysis and the tests were negative. He said he had no intention of resuming a relationship with the Applicant and said that he maintained contact with his children.

28 A Pre-Sentence Report of September 2009 recorded that he had a comprehensive drug history spanning a 25 year period. Including daily amphetamine use at the time of offending but that his current response to supervision was positive, he appeared motivated to maintain a drug-free lifestyle and had taken steps to maintain a violence free lifestyle also.

29 Reports from Mission Australia and the Sydney West Area Health Service, albeit dealing with only short periods indicated that Mr Walsh was making serious efforts at rehabilitation. According to a report of August 2007, Dr Allnutt diagnosed Mr Walsh as suffering from a “drug induced psychosis, a schizoaffective disorder and schizophrenia. To Dr Allnutt, Mr Walsh’s account of the offence also differed significantly from that which Black DCJ accepted.

Conclusion

30 The principles of parity are directed towards "marked" or "manifest" unjustified differences between offenders whose situations are similar - see Lowe v R (1984) 154 CLR 606 at 611, 613, 615, 617, 618, 624. Sentencing is not an exact science and there is nothing in the doctrine that requires fine adjustments for minor differences between the circumstances of offenders.” – Ma and Pham v R [2007] NSWCCA 240 at [47]

31 Undoubtedly, one would expect that the difference in criminal history between the Applicant and Mr Walsh would normally result in a difference in their sentences upon the ground that Mr Walsh’s record when combined with the instant offences demonstrates him to be a recidivist, someone “who has manifested in his commission of the instant offence a continuing attitude of disobedience of the law” and someone concerning whom “retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.” – Veen v The Queen [No 2] [1987-1988] 164 CLR 465 at 477. However, it is clear in this case that his Honour saw some prospects for Mr Walsh and it may be that he did not see that in Mr Walsh’s case the factors just mentioned called for any appreciable increase in penalty.

32 So far as the Form 1 offence is concerned, I have already pointed out that His Honour directed attention to issues of concurrency and decided that all of the offences committed on 11 August 2006 were part and parcel of the same incident and decided to make the sentences concurrent. There is a deal to be said for the view that this course was unduly generous to both offenders but be that as it may, an argument that the Applicant should be able to retain the advantage of such an approach in her sentence on the carriage in a conveyance charge but complain because a different approach was not taken in the case of Mr Walsh’s Form 1 offence is not attractive.

33 In any event, given the length of the two effective sentences imposed on Mr Walsh, any greater weight given to the need for personal deterrence and retribution – see Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146 at 159 – would be likely to result in but a small increase in Mr Walsh’s sentence.

34 Nor do I see in the respective subjective circumstances of the Applicant and Mr Walsh such a difference as to require that there be some differentiation in penalty.

35 In addition to the matters that are relied on by the Applicant there are some matters that tend in the opposite direction. Although his Honour did not expressly rely on the matter, there is something to be said for the fact that the Applicant’s conduct in the robbery was worse than that of Mr Walsh. Certainly he threatened AR with the knife but the Applicant’s repeated suggestion to “stick him” was inviting far greater injury and a far more serious offence than in fact occurred.

36 The allowance his Honour made for part of the time that the Applicant spent in custody on another charge was also arguably unduly generous to the Applicant. As has been said, sentencing is not an exact science and in the circumstances I am not persuaded that in the exercise of the substantial discretion that exists in the task his Honour erred in not, for the robbery offence, imposing different sentences on the Applicant and Mr Walsh.

37 I would grant leave to appeal but dismiss the appeal.

38 DAVIES J: I agree with RS Hulme J.

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10/12/2010 - psuedonym - Paragraph(s) 2, 6, 11, 12, 13, 14, 23, 35