Greensitt, Sarah Leigh v The Queen

[2010] NSWDC 314

CITATION:	GREENSITT, Sarah Leigh v R [2010] NSWDC 314
JUDGMENT DATE:	23 June 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I grant Ms Greensit bail pursuant to s 11 Bail Act 1978.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - assault police officer - offensive conduct in public place - damage/destroy property - offence committed while on bail - pre-sentence report - poor prior criminal history - past addiction to drugs - plea of guilty
LEGISLATION CITED:	Bail Act, 1978 s 11 Crimes Act 1900 s 28, 61, 195(1)(a) Crimes (Sentencing Procedure) Act 1999 s 9, s 11 Summary Offences Act 1988 4(1)
PARTIES:	Regina Sarah Leigh Greensitt
FILE NUMBER(S):	2009/330925; 2009/327481; 2009/258569
SOLICITORS:	Mr Modder for the ODPP Ms Pettet for Ms Greensitt

JUDGMENT

1. Sarah Greensitt appeals from sentences imposed on her by a Magistrate sitting at the Lithgow Local Court on 25 March 2010.

2. The Magistrate sentenced Ms Greensitt to a series of gaol terms. The longest was for twelve months and the non-parole periods, where there were ones, were four months.

3. The Magistrate was sentencing Ms Greensitt for a series of assaults which she committed over several days. Ms Greensitt has appealed from the prison sentences which were imposed by the Magistrate.

4. When someone appeals from the Magistrates Court against sentences they appeal to the District Court as Ms Greensitt has done. The District Court judge then makes up his or her own mind as to what the appropriate sentences are. The judge may take into account fresh evidence and in this case Ms Pettett, who appears for Ms Greensitt, has called her client to give evidence as well as another witness. In addition there is an up-to-date pre-sentence report.

5. It is first important for a judge sentencing someone to state clearly what the crime was that the judge is sentencing them for so that the seriousness of the crime can be understood and be kept to the forefront in sentencing an offender.

6. The first series of offences occurred on 11 November 2009 at about half-past-six in the evening. Police came to a location in Lithgow where Sarah Greensitt was causing trouble. People were trying to calm her down. She appeared to be intoxicated and aggressive.

7. Police asked her to sit near the police car so that they could get hold and control the situation. She did this but then pulled her pants down and defecated against the wheel of the car. After doing that she used her hand to scoop up the faeces and threw the faeces at one of the police officers, Probationary Constable Jessica Lucas. The faeces struck her on the right leg. The accompanying police officer, Senior Constable Peter Robertson, saw that and ran towards Ms Greensitt. What Ms Greensitt then did was to put her hand under her anus to collect more faeces. She threw the faeces at Senior Constable Robertson hitting him across both of his legs at shin level.

8. She was arrested after resisting arrest and put into the caged police vehicle. Once she was inside she used her hand to smear more faeces over the internal walls, viewing window and ventilation ports of the vehicle.

9. She was taken to the police station via the Lithgow Hospital for psychiatric assessment. At the hospital she was not diagnosed with any psychiatric or mental illness but was clearly under the influence of alcohol.

10. Both of the police officers I have referred to will have to undertake blood tests for a further six months according to the police infectious disease policy. The police vehicle had to be decontaminated and both uniforms were deemed unserviceable.

11. Ms Greensitt was released on bail. As a result of what happened on that occasion Ms Greensitt was charged with assaulting each of the police officers and intentionally damaging or destroying property, namely the police car.

HIS HONOUR: Sorry I’m just going to suspend my remarks here. Also did I draw your attention to this - I can’t remember - an offensive manner charge.

MODDER: Yes you did your Honour.

HIS HONOUR: I did and is that what she got two months for?

PETTET: Yes your Honour.

MODDER: Yes your Honour.

HIS HONOUR: I return to my remarks.

12. As a result of the same incident she was also charged with conducting herself in an offensive manner in a public place. That is an offence under s 4(1) of the Summary Offences Act 1988. The two assault police officer offences were contrary to s 58 of the Crimes Act 1900. The offence of damaging or destroying property is also an offence under the Crimes Act s 195(1)(a).

13. After she received bail on those charges police had reason to deal with Ms Greensitt twice. The first occasion was on 23 December 2009 when she turned up at the victim’s house very drunk. The victim let her in, an argument developed between them and then Ms Greensitt assaulted the victim by slapping him on numerous occasions to the head and face and up the torso. She threw a rock through the door.

14. She was charged with common assault against s 61 of the Crimes Act.
She committed that offence while she was on bail. The next day, Christmas Eve, police received a report in the middle of the afternoon about someone abusing people in the street. They went along Main Street, Lithgow and saw Ms Greensitt in a shop stumbling around. She was carrying a two-litre coke bottle.

15. Once again Senior Constable Peter Robertson was involved and
Ms Greensitt turned towards him and spat saliva over the right side of his face. Whilst being taken to the police car she continuously yelled out “You fuckin’ little dog cunts.” There were people around listening at the time.

16. She was charged with another offence of assaulting a police officer under s 58 of the Crimes Act.

17. Ms Greensitt does not have a good criminal record at all. She has for a twenty-three year old a very poor record. She has been sentenced before for assaulting a police officer in the execution of their duty and for resisting arrest. She received the benefit of suspended sentences for those crimes. She also got a suspended sentence for an offence of damaging property. That all occurred in 2004.

18. The next year she received a suspended sentence for larceny. In the same year she got another suspended sentence for damaging property and for shoplifting.

19. At some stage she must have breached the conditions attached to the suspended sentence bond because she received orders for periodic detention. She must have failed to undertake periodic detention as ordered because she told me in the witness box that she had spent some eight months in full-time custody at Emu Plains.

20. There is a pre-sentence report which was prepared for the Local Court Magistrate by Deborah Buckley, a Probation and Parole officer. The author noted that records showed that her response to supervision in the past was satisfactory. She reported regularly and attended a TAFE education course but she breached her orders and got a periodic detention which she failed to complete and had to undertake full-time custody.

21. She is a twenty-three year old Aboriginal woman who resides with her mother and brothers and sisters at Lithgow. Beforehand she used to live a transient lifestyle in Sydney. She was reared in a loving and stable family environment and has a seven-year old and a three-year-old and is now pregnant with her third child, due in August. She left school in year nine but has improved her education at TAFE courses since then. She has had long-standing contact with a mental health service which assessed her at some stage as having a schizo-affective disorder for which she was medicated. She no longer needs that assistance she says. She has what is described as a comprehensive alcohol and drug history. Ms Buckley noted that Ms Greensitt has ceased her alcohol use although that had yet to be confirmed.

22. As Mr Modder who appeared for the respondent Director of Public Prosecutions pointed out, the report indicated that she was a poor historian who had demonstrated little insight into her offending behaviour. She recognised that her alcohol use had been problematic along with other anger issues. The author thought that she would be suitable for a medium level of intervention and suggested certain conditions. It regarded her as unsuitable both for a community service order and periodic detention.

23. In an updated report dated 21 June 2010 the same Probation and Parole officer said that she has been reporting regularly pursuant to a bond she apparently received under s 9 of the Crimes (Sentencing Procedure) Act and is currently attending the anger management program. Ms Buckley indicated that Ms Greensitt’s family confirmed that her lifestyle has stabilised considerably owing to her decrease in alcohol and drug use. It noted that she was adamant that she would maintain her drug free and alcohol free lifestyle.

24. Ms Pettet called her client to give evidence. Ms Greensitt could not remember much at all about the incidents because she was so much affected. She spent just over a month in prison over Christmas till the end of January, bail refused on these charges. She acknowledged an earlier problem with the drug “ice” and said that she is not drinking any more nor mixing with people that led her into trouble before and wants to settle down with her new baby when it is born. She referred to a Mr Max Saxby who is a member of her local community who offers her support and whom she is able to speak to. She also gets support from the Parole Office and her family. Her baby is due on 23 August next. She has not been drinking for some five months now and acknowledges that it would hurt the baby.

25. Cross-examined by Mr Modder she remembered some details about the incident involving the smearing of faeces on the police. She acknowledged a record going back to 2004 involving suspended sentences given to her by the courts. She did not realise that her actions might have exposed some of the police to disease.

26. Ms Pettet called Max Saxby who has known Ms Greensitt for some fourteen or fifteen years. He is an advisor and support person. He is available for her to talk to. He is aware of her use of drugs and alcohol in the past. His thoughts are that since this arrest her behaviour has moderated. She seems to be living a more responsible lifestyle and has pulled herself together a lot. He has supported her in court and will continue to support her. He was aware of her past history. He confirmed in cross-examination that over talks in the last few months she looked at people in a different way.

27. Mr Modder acknowledged that the pre-sentence report which was provided more recently acknowledged some improvement but he also emphasised the record which Ms Greensitt had including for similar offences and how that was an aggravating feature. She has in the past received a lot of leniency and was on bail a the time of the offences in December.

28. Ms Pettet asked me to convert all of her sentences and to suspend them. She acknowledged the behaviour which her client had undertaken should not be tolerated. As an alternative she asked that I consider testing her client’s resolve at rehabilitation by adjourning the proceedings under s 11 of the Crimes (Sentencing Procedure) Act. That would see whether she is in fact controlling her drinking and then I could impose a suspended sentence if she demonstrated that her resolve to rehabilitate herself was genuine.

29. As I said in the course of the argument the offences against the two police officers of smearing them with faeces was a particularly disgusting. It was offensive and bordering on abusive. No wonder she was charged as she was. Police are doing the job of keeping order in the community so that the rest of the citizens can be safe. They take the front line where the rest of us can stand back. They should not be exposed to the sort of behaviour that was inflicted upon them by Ms Greensitt. That also goes for her spitting on the face of one of the two officers, the same officer on a later occasion.

30. On the other hand as Ms Pettet points out, and as is confirmed by the evidence of Mr Saxby, she appears to have settled down a lot since her last arrest and since becoming pregnant.

31. Ms Pettet emphasised that her past erratic behaviour should be seen in the context of an addiction to “ice” which she no longer has. Her failure to meet the requirements of previous bonds should be seen in that context as well.

32. I am impressed by Mr Saxby’s evidence and the role which he is playing in this young woman’s life. However, I am not prepared to alter the fact that these crimes deserve a sentence of imprisonment. I am prepared to delay my decision on whether I allow the appeal and substitute the sentences with suspended sentences or whether I dismiss the appeal and send Ms Greensitt to gaol in accordance with the sentences.

33. In order to assess how genuine her efforts at rehabilitation are I make this decision with some difficulty. I am very much inclined to send her straight to gaol for what she did to these police officers. On the other hand one of the other purposes of sentencing is rehabilitation. There is evidence both from her probation officer and sworn evidence from Mr Saxby to the effect that she seems to have taken a turn in her life.

34. I think that if I was to send her back into full-time custody she may not follow through; indeed she maybe exposed to worse influences. It is my job to make a decision in these circumstances and I have decided that I will give her another chance by bringing her back before me after a period of time in order to assess her progress in rehabilitation. Depending upon that assessment I will either dismiss her appeal and send her to gaol full-time or I will allow her appeal and substitute suspended sentences.

HIS HONOUR: Now having said that, I need your assistance Ms Pettet and Mr Modder about how long and when and where. Ms Pettet how long do you suggest? The baby’s arriving in August, late August. I am sitting in crime in Parramatta up to the end of November. I’m sitting in civil in Sydney up until early December but then I’m due to go to Nowra which is probably not all that convenient in crime. I don’t know what my commitments are next year. So I’m inclined to bring her back in late November or early December. What do you say about that?

PETTET: Yes that would be a good idea your Honour.

HIS HONOUR: It would be in Sydney or Parramatta do you understand that?

PETTET: Yes she understands.

HIS HONOUR: Mr Modder?

MODDER: Yes, six months or early December yes your Honour.

HIS HONOUR: I’m going to make it actually five months so that I can keep it whilst I’m sitting in crime. I have in mind Thursday 18 November, now what do you say about that either of you?

MODDER: I have no problems with that, where’s your Honour sitting then?

HIS HONOUR: Parramatta.

PETTET: That’s all right yes.

HIS HONOUR: All right. Yes Ms Pettet?

PETTET: Your Honour could I just raise one matter, that at the moment my client is reporting daily and has been since she was released on bail in January and I’d be asking--

HIS HONOUR: We’ll come to bail in a moment.

PETTET: All right.

35. Instead of determining this appeal - and I note that Ms Greensitt has pleaded guilty to all of the offences - I make an order adjourning these proceedings to Thursday 18 November 2010 before me at Parramatta at 10am. I adjourn the proceedings for the purpose of assessing Ms Greensitt’s capacity and prospects for rehabilitation.

36. Between now and then I grant bail to her in accordance with the Bail Act 1978 and the conditions of bail will be:

HIS HONOUR: What do you suggest?
PETTET: Your Honour I’d suggest that she be under a bail condition to continue under the supervision of the Probation and Parole Service, obey their directions as to any conditions, drug and alcohol and residence. At the moment she’s currently as you know--

HIS HONOUR: With her mother.

PETTET: --at her address in Lithgow but there is currently reporting daily and I would suggest to the court that that’s no longer necessary and Mr Saxby has indicated that he would ensure that she attends court but the actual person who went bail for her as a surety bail is not present at court today, so I just indicate that that person had deposited $200 cash. And whilst he’s willing to, if you wish someone to go bail for Ms Greensitt he can do that but he hasn’t got access to cash today and I don’t think the cash aspect is really an issue.

HIS HONOUR: No no, it’s more what she does with the time.

PETTET: Yes your Honour.

HIS HONOUR: All right I have in mind, subject to hearing from Mr Modder, bail supervision. What about reporting Mr Modder?
MODDER: I think that she should at least report twice a week.
HIS HONOUR: What do you say to twice a week it’s better than once a day?
PETTET: She’s going to have her baby by that stage and where she lives your Honour it’s quite some distance away from the police station so--

HIS HONOUR: Yeah look I will delete reporting conditions. It is really up to her if she breaches bails she is back before and that’s it.

PETTET: Certainly your Honour and if there are any complications in relation to the baby and the birth I think again the Probation and Parole if they can be supervising her then they can direct her if there are any issues.

HIS HONOUR: Yes I agree.

37. All right I grant Ms Greensitt bail until 18 November 2010 as I have said on the following conditions:
1 That she notify any change of any residential address to the Registrar of this court and to the Probation and Parole office.
2 That she accept supervision during the bail from the Probation and Parole Service, and
3 Accept all reasonable recommendations and directions from that service regarding her residence as well as on the following issues;
· Referral to women’s health services to assist with addressing medical issues;
· Referral to alcohol counselling and treatment;
· Referral to anger management;
· Monitoring of pro-social associates;
· Accommodation issues and random urinalysis screenings.
They are the only conditions. Any other conditions Mr Modder?

MODDER: Not regarding bail your Honour.
PETTET: I missed the one after anger management before accommodation your Honour.

HIS HONOUR: It’s in, have you got a copy of the earlier pre-sentence report the first one?

PETTET: Yes I do.

HIS HONOUR: I’m just reciting from there. I’ve given her the six dot points from page 3.

PETTET: Thankyou.

MODDER: Your Honour should request a further pre-sentence report just prior to 18 November.

38. I direct that a pre-sentence report be prepared and made

available to the court on or before Thursday 11 November 2010.

39. I direct that a transcript of these proceedings including my judgment to date be taken out and made available to me and the parties on or before Thursday 11 November 2010.

HIS HONOUR: I will explain this in a moment to your client, nothing else?
MODDER: No your Honour.
HIS HONOUR: Ms Pettet?
PETTET: No.
HIS HONOUR: Right Ms Greensitt can you hear me? All right. I haven’t decided whether to allow your appeal or not do you understand, I haven’t decided. You could win your appeal or you could lose your appeal. Do you understand? You do or you don’t?

APPELLANT: No.

HIS HONOUR: All right. What I’m doing is adjourning the appeal I’m not finishing it today. I’m going to finish it in November on the 18th I’m going to finish your appeal, do you understand that? On that day I will either send you to gaol as the Magistrate did - the same gaol terms - or I will suspend those gaol terms as Ms Pettet asked me to do so that you won’t go to gaol; you’ll be on a bond again, you will be either one or the other. All right? What that depends on is what happens between now and then. You said you want to reform. Deborah the probation officer thinks that you’re on the right track. Mr Saxby thinks you’re on the right track. You’ve got a lot of people backing you and now it’s up to you as to what you do. Because what I have to do is to assess, to work out whether you’re fair dinkum about this rehabilitation or not. If you’re not and you breach your bail you’re back before me and you’ll probably go to gaol.

If you are fair dinkum and you come back before me and you’re on the right track then I’ll give you a suspended sentence, do you understand that? Does that make sense?

APPELLANT: Yes.

HIS HONOUR: So it’s really up to you as to what you do. It sounds as though, as I said, Mr Saxby, the probation officer and your family are behind you and if you stick to it then it’ll be a suspended sentence. There are conditions to your bail. You’ve got to write a letter to the Registrar of this court if you change your address and you’ve got to tell Probation and Parole if you change your address. You’ve got to accept their supervision particularly in the areas that they’re going to help you in, as you know they can help you and they’re going to help you with women’s health issues. Obviously you need to make sure you’re okay with your baby, alcohol counselling and treatment, anger management - they’re issues that they’ll help you with, pro-social associates who you mix with, accommodation and they’ll ask for your random urinalysis.

You have got to comply with that, those conditions. If you breach them you’re back before me. Does it all make sense to you?

APPELLANT: Yes.

HIS HONOUR: All right now you stick to it, Ms Pettet will explain it to you and good luck. For the pre-sentence report, she will need to report to Probation and Parole at Lithgow and she should report - if I’ve asked for it by
11 November which is a week before when should she report?

PETTET: Oh well she can report within 24 hours today and then directly when to keep coming to see them. That’s what I’d suggest your Honour.

HIS HONOUR: All right.

40. I add that Ms Greensitt is to report to the Probation and Parole officer at Lithgow on or before 5pm this Friday 25 June 2010.

HIS HONOUR: That’s one more think you’ve got to go back to see Deborah or whoever’s there by this Friday.

APPELLANT: Yes.

HIS HONOUR: Tomorrow or Friday, do you understand?

APPELLANT: Yes.

HIS HONOUR: There will be a new bail, you’re on bail again but you don’t have to report to the police and you’ve got to go to the registry to enter that bail. Ms Pettet I think will explain that to you do you understand?

APPELLANT: Yes.

HIS HONOUR: That’ll be this afternoon she’ll take you, is that right Ms Pettet?

PETTET: Yes your Honour.

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