Donna Georgina Russell v The Queen

[2008] ACTCA 4

DONNA GEORGINA RUSSELL v THE QUEEN
[2008] ACTCA 4 (19 February 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 28 - 2007
No. SCC 132 of 2007

Judges:        Higgins CJ, Penfold and Graham JJ
Court of Appeal of the Australian Capital Territory
Date:           19 February 2008

IN THE SUPREME COURT OF THE     )          No. ACTCA 28 - 2007
  )          No. SCC 132 of 2007
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DONNA GEORGINA RUSSELL

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:               Higgins CJ, Penfold and Graham JJ
Date:                   19 February 2008
Place:                  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed to the extent that the sentence of three years should date from 2 April 2007 with a non-parole period of 12 months.

1. Otherwise the appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 28 - 2007
  )          No. SC 132 of 2007
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DONNA GEORGINA RUSSELL

Appellant

AND:THE QUEEN

Respondent

Judges:               Higgins CJ, Penfold and Graham JJ
Date:                   19 February 2008
Place:                  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ

1. I agree with Graham J.  I would simply make this point that in expressing sentences it is better practice where a time in custody is to be taken into account to follow the provisions of the Crimes (Sentencing) Act 2005 and backdate the sentence and non-parole period so there is then no doubt about what the sentencing judge intended. 

1. In my view a sentence of three years’ imprisonment was a sufficient and appropriate response to the criminality displayed by the appellant.  It is clear from what his Honour said that his Honour intended that from the date of sentence there should be a period of 8 months non-parole served. 

1. It is not clear to me that his Honour intended that the head sentence should be regarded as three years and four months, and if he did, not to say so deprives that sentence of its intended deterrent effect.  In agreeing with his Honour Graham J, I would, in allowing the appeal, express the sentence to be imposed as a sentence of three years’ imprisonment from 2 April 2007 with a non-parole period of 12 months dating from that date.  That, it will be observed, retains the essential feature of his Honour’s sentence so far as it relates to being held in custody but reduces what would otherwise have been the period on parole to a period of 2 years.  I would agree with allowing the appeal to that extent.

1. The order of the court is the appeal be allowed to the extent that the sentence imposed be varied to a period of three years from 2 April 2007 with a non-parole period of 12 months dating from that same date.  The appeal is otherwise dismissed.

   I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Higgins.

   Associate:

   Date:    19 February 2008

IN THE SUPREME COURT OF THE     )          No. ACTCA 28 - 2007
  )          No. SC 132 of 2007
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DONNA GEORGINA RUSSELL

Appellant

AND:THE QUEEN

Respondent

Judges:               Higgins CJ, Penfold and Graham JJ
Date:                   19 February 2008
Place:                  Canberra

REASONS FOR JUDGMENT

PENFOLD J

1. I agree with the Chief Justice.

   I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Penfold.

   Associate:

   Date:    19 February 2008

IN THE SUPREME COURT OF THE     )          No. ACTCA 28 - 2007
  )          No. SC 132 of 2007
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DONNA GEORGINA RUSSELL

Appellant

AND:THE QUEEN

Respondent

Judges:               Higgins CJ, Penfold and Graham JJ
Date:                   19 February 2008
Place:                  Canberra

REASONS FOR JUDGMENT

GRAHAM J:

1. It is difficult to feel anything but sympathy for a 42 year old woman who became a ward of the State at the age of four, following neglect by her alcoholic parents, was placed in a foster family for a period of four years, at the age of eight, and was apparently sexually abused by her foster father during that period.

1. Superimposed on that tragic start to her life, one cannot help but feel sadness for the fact that she bore two children out of a de facto heterosexual relationship, when she was in her teens, and has now established a lesbian relationship with a woman. 

1. Furthermore one cannot help but feel sadness for the fact that she has developed an alcohol dependence.

1. Nothing to which I have referred excuses her life of crime and her commission of more than 20 offences of violence in her adult life, including choking a person and rendering that person insensible, possession of offensive weapons and participation in an attempt to use a knife likely to cause grievous bodily harm and possession of an offensive weapon with intent. 

1. The appellant was charged with an offence under s 27(3)(c) of the Crimes Act 1900 (ACT) to which she pleaded guilty. The offence in question occurred mid afternoon on 19 February 2007. The offence charged was that she ‘intentionally and unlawfully, did use against another person an offensive weapon, to wit, a 28cm silver bladed, black handled, kitchen knife, that was likely to cause a person grievous bodily harm.

1. The maximum penalty for the offence was ten years’ imprisonment.  By 2 August 2007 she had been in custody for approximately four months.  On that day the primary judge sentenced her to imprisonment for a period of three years, to date from 2 August 2007, and fixed a non-parole period of eight months.

1. It may be observed that the sentence was for an effective period of three years and four months with an effective non-parole period of approximately 12 months.

We would have thought that his Honour intended a head sentence of three years which would warrant a backdating of the starting date for the sentence by four months.

1. In his sentencing remarks the primary judge, observed that he was not ‘simply engaged upon an exercise of trying to find the course that would be most beneficial to’ the prisoner.  His Honour said, amongst other things:

I am also engaged upon sentencing her for what she has done and in doing so I am obliged to consider the need to protect the public.

…

In balancing the need to facilitate the rehabilitation of [the prisoner] against the need for the protection of the community and the need for general and specific deterrence I have not found the formulation of an appropriate sentence easy.  I am obliged to take into account that there has been no expression of remorse and that the present offence was committed in breach of the recognizance that had been imposed less than three months earlier.

1. His Honour took into account the fact that the prisoner had been in custody for about four months and that she had pleaded guilty.  He later said:

Ms Saunders [counsel for the prisoner] … has urged me to take a course that would involve [the prisoner] having immediate resumption of liberty, albeit subject to strict conditions and that arrangements be set in place for her to receive appropriate counselling and rehabilitation.

I would like to accede to that submission, but it seems to me that the offence is too serious for such a result to constitute an adequate response, especially having regard to the quite lengthy record for violence and the other factors to which I have referred.

1. The facts, as recited by the primary judge, indicate that:

(a)       the prisoner purchased the knife, which she used on the afternoon of 19 February 2007, for the purpose of responding to threats directed at her

(b)       she encountered the young 17 year old man whom she later assaulted on the afternoon of 19 February 2007 near Erindale College at which the young man was a student

(c)       she did so before departing the scene to obtain the knife with which she later returned and which she used in the commission of the offence.

1. The primary judge observed that the prisoner and her female partner had walked up a ramp near Erindale College and stopped next to the young man. 

1. She then asked her victim ‘What are you looking at cunt?’ to which the victim replied ‘Nothing’.  The prisoner then said ‘Give me five minutes and I’ll go and get my knife’.  To which the victim replied ‘Yeah, whatever.’

1. Shortly after this interchange the prisoner returned with the knife which she had acquired for the purpose of responding to threats.  She in fact moved the knife in a downward sliding motion in the middle of her victim’s back cutting his singlet and leading him to believe that the blade was in fact running down his back.  Prior to this the prisoner had said to her victim whilst waving her knife towards him ‘Do you want to get stabbed?’ whereupon her victim began to retreat.  The prisoner advanced toward her victim who, obviously fearing for his safety, grabbed her left wrist with his right hand and pushed it away.  The prisoner once again moved towards her victim grabbing him by the singlet, moved the knife downwards cutting his singlet as previously mentioned.  When the police were summoned the prisoner still held the knife in her hand which she raised and lowered from a position above her head to waist level.  It became necessary for the police to disable the prisoner with a short burst of capsicum spray whereupon the knife was taken from her, she was handcuffed and arrested.

1. At the time of the incident the prisoner was intoxicated.

1. The primary judge accepted that ‘there was no actual attempt apparently to harm anybody’ but the facts demonstrate that a very serious criminal offence had been committed, nevertheless.

1. It is clear that the prisoner had a deliberate intent to create fear in the minds of those whom she confronted. 

1. In her appeal against sentence dated 20 August 2007 the appellant sought orders that she be released from custody and that a community based sentence be imposed.  The grounds of the appeal were expressed as follows:

a.        The learned sentencing judge gave too much weight to the effect of the offence upon the victims when there was no evidence of any such effect before him.

b.        The learned sentencing judge gave insufficient weight to the subjective features of the appellant’s life and in particular those matters set out in the report of Dr Sally Hughson.

c.        In all of the circumstances of the case the sentence was manifestly excessive.

1. Nothing has been put to the Court on the hearing of the appeal which would warrant a lesser sentence than that imposed by the primary judge as I have understood it. 

1. The sentence was not manifestly excessive.  It was an entirely appropriate response to the prisoner’s criminal behaviour, especially given her past criminal record and the damage inflicted to her victim’s singlet by cutting same in the manner indicated.  One could hardly doubt the foundation of a belief that the prisoner was running the blade down the victim’s back as the Statement of Facts recorded.  The primary judge plainly had regard to the prisoner’s unfortunate early life and her own addiction to alcohol.  He also had regard to the psychologist, Dr Hughson’s report on the problems confronting traumatised persons such as the prisoner.  But experiencing intense fear, anxiety, anger and panic in response to even minor events does not excuse the conduct detailed earlier.  Nothing in the psychiatrist, Dr George’s report, which has become Exhibit 1 on the hearing of the appeal, would warrant a different conclusion.

1. In my opinion the appeal should be allowed in part to accord with the understanding, which I have, as to what his Honour intended.

   I certify that the preceding paragraphs numbered six (6) to twenty-five (25) are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

   Associate:

   Date:    19 February 2008

Counsel for the Appellant:  Ms Saunders
Solicitor for the Appellant:  Darryl Perkins Solicitors
Counsel for the Respondent:  M Chilcott
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  19 February 2008
Date of judgment:  19 February 2008