Hancock v The Queen

[2013] VSCA 199

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0056

LEANNE HANCOCK

Applicant

v

THE QUEEN

Respondent

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JUDGES	NETTLE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 July 2013
DATE OF JUDGMENT	30 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 199
JUDGMENT APPEALED FROM	DPP v Gouge & Hancock (Unreported, County Court of Victoria, Judge Campton, 18 December 2012)

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CRIMINAL LAW — Leave to appeal against sentence — Attempted burglary — Two charges of armed robbery — Plea of guilty — Total effective sentence of 2 years 10 months’ imprisonment — Non-parole period of 1 year 8 months — Fresh evidence of a mitigating factor — Applicant did not know of pregnancy at time of sentence — Principles 5 and 6 of R v Verdins (2007) 16 VR 269 considered — Appeal allowed — Re-sentenced to a total effective sentence of 249 days imprisonment (time served) and upon release subject to a Community Corrections Order with treatment/rehabilitation conditions for a period of two years.

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Appearances:	Counsel	Solicitors
For the applicant	Mr M. Stanton	Doogue O’Brien George
For the respondent	Mr P Kidd SC	Craig Hyland, Solicitor for the Office of Public Prosecutions

NETTLE JA:

1. I invite Coghlan JA to deliver the first judgment.

COGHLAN JA:

1. On 13 December 2013 the applicant pleaded guilty to the offences set out in the table below and sentenced for this offending on 18 December.

charge on indictment	offence	maximum	sentence	Cumulation
1	Attempted Burglary [ss 321M and 76(1) of the Crimes Act 1958]	5 years imprisonment [ss 321P and 76(3) Crimes Act 1958]	6 months	1 month
2	Armed Robbery [s 75A(1) Crimes Act 1958]	25 years imprisonment [s 75A(2) Crimes Act 1958]	30 months	Base
3	Armed Robbery [s 75A(1) Crimes Act 1958]	25 years imprisonment [s 75A(2) Crimes Act 1958]	30 months	3 months
Total Effective Sentence:		2 years 10 months imprisonment
Non-Parole Period:		1 year 8 months
Pre-sentence Detention Declared:		25 days
6AAA Statement:		4 years and 2 months’ imprisonment with a non‑parole period of 2 years 10 months.
Other orders: Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958 Disposal Order pursuant to s 77(1) of the Confiscation Act 1997

1. By notice dated 18 April 2013 the applicant seeks leave to appeal.  The circumstances of the offending were set out in the learned sentencing judge’s remarks:[1]

   [1]DPP v Gouge & Hancock (Unreported, County Court of Victoria, Judge Campton, 18 December 2012), [3]-[21].

Charge 1

The circumstances of your offending with respect to Charge 1 of attempted

burglary are that at approximately 7 am on 28 July 2012, Lu Wei, the manager of Rose Avenue Supermarket in Norlane arrived to open his shop.  As he walked through the shop he heard banging noises from the back of the shop.  As he got near the back door he observed it shaking and saw something metal being pushed through the gap in the door.

Mr Wei went to the rear laneway and he observed you, Ms Hancock, sitting in the driver's seat of a green van parked there with the engine running. 

Mr Gouge, Mr Wei observed you trying to force the back door of the shop open.

Mr Wei yelled at your to stop and took a photo with his mobile phone.  He called the police and you drove off. 

Damage was caused to the rear security door, a grille and the back door. 

Charge 2

The circumstances surrounding Charge 2 of armed robbery are that at around 7.20 am you, Mr Gouge, entered a milk bar in Goldsworthy Street in Corio wearing a mask and carrying a hammer in your left hand and a large knife in your right hand.  You demanded money and cigarettes from Mr El-Sikmani, the owner of the milk bar, and directed him to put the money in a bag that you had with you.  You enquired as to whether he had insurance and told him that he would not see you again.

In the meanwhile, Ms Hancock, you were waiting outside in the vehicle and you left together once Mr Gouge had returned with some $240 in cash and 50 packets of cigarettes valued at $1,080. 

Charge 3

The circumstances surrounding Charge 3 of armed robbery are that at about 7.40 am you drove to a bottle shop in Alkira Avenue, Norlane where the proprietors were Zeng Xiang Ge and his wife, Yimin Zhu.

You, Mr Gouge, entered the milk bar wearing a mask and holding a knife in one hand and another tool in your other hand.  You demanded money from Mr Ge, who refused, and picked up a baseball bat which was beside the counter.  Mr Ge swung the baseball bat towards you whilst calling Triple 0. 

You used a tool to smash the glass of the front counter and picked up a large piece of glass and held it above your head in a threatening manner.  You tried to get behind the counter but you were prevented from doing so by a plastic chain.  You kept asking for money.

When Ms Zhu, who had heard the commotion, came into the shop you had managed to gain access behind the counter and used the tool to get into the register and take some $465.50.  You then left in the vehicle driven by Ms Hancock.

However, Mr Ge was a determined character as he got into his own car and followed you.  He phoned the police and gave them your registration number. 

At one stage, Ms Hancock, at Mr Gouge's direction, you stopped the vehicle and he got out and walked over to Mr Ge's vehicle which had also stopped.  Mr Gouge was still wearing the mask and holding the knife up to Mr Ge.  You told him to stop following you.  He did.

At approximately 8.01 am the police apprehended both of you in the vehicle.  They found various items in the vehicle used from your crimes including a:

·30 centimetre knife

·rubber mask

·pair of pliers

·jemmy bar

·bolt cutters

·a claw hammer

·and also the bag containing 54 packets of cigarettes and $591.70.

Both armed robberies were captured on CCTV footage and Ms Hancock, your fingerprints were found on the cigarettes..

In your interview, Ms Hancock, you admitted your involvement in the offences.  You said you had used ice earlier in the night and that you had had a fight with your partner.  You said you had left the house with Mr Gouge and had discussed robbing a milk bar of money and cigarettes when you were in the car. 

The mask and knife came from your house.  Your role was, essentially, to drive the car and keep the engine running while Mr Gouge committed the robberies. 

You stated that you were an ‘idiot’ and said you had never done anything like this before. 

Mr Gouge, in your record of interview, you admitted to the robberies and claimed that you had used ice prior to committing them.  You said that you committed the robberies to get money to buy some ice.

1. The proposed ground of appeal is:

Fresh evidence should be received as to the pregnancy of the applicant and a different and lesser sentence imposed.

1. In an affidavit sworn on 18 April 2013 the applicant attested to the following relevant facts:

·that the applicant discovered she was pregnant some time after undertaking a pregnancy test on 31 December 2012;

·prior to receiving the results she had not known that she was pregnant;

·at some date in January the applicant was informed that she had been pregnant with twins but one foetus had not survived; and

·the baby is due on 6 September 2013.

1. The earliest release date for the applicant is approximately 23 July 2014 and it is possible that she might have to serve until about August 2015.

1. Pursuant to the present sentence the applicant’s child would spend between one and two years with her in prison.

1. It is conceded on behalf of the crown that the affidavit of the applicant does constitute fresh evidence.[2]

   [2]See R v Nguyen [2006] VSCA 184 at [36] and the cases referred to therein.

1. In R v Nguyen, Redlich JA (with whom Maxwell P and Neave JA agreed) said:[3]

The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts.  The Court must determine what is the appropriate sentence on the basis of all of the material then before it.

[3]Ibid, [37].

1. The question which became the subject of debate on this application was whether the fact of the applicant’s pregnancy ‘throws significant new light on pre‑existing facts’.

1. The applicant was born on 8 October 1981 and is now 31 years old and was 30 years old at the time of the offending in July 2012.  She has no prior convictions and she pleaded guilty at the committal proceeding.

1. At the plea, counsel for the applicant urged upon her Honour that she should impose a sentence other than one which would involve immediate custody.

1. On the plea reliance was placed upon the assertion made by the co-accused, Gouge, that the applicant was naïve and the type of person who others took advantage of.[4]  Whether that material was admissible or not is moot but no objection was taken to it.

   [4]T16-17.

1. It was urged upon her Honour that the role played by the applicant was a subservient one.  Although Gouge did his best to minimise the role played by the applicant it was clear enough, from her own record of interview that she knew the nature of the enterprise and that Gouge had a mask, a crow bar and a knife which had come from her premises.

1. She said that she had had an argument with her partner, Gouge’s brother, that she had taken ‘ice’ on the night before the offending and that she had taken her anti-depressant medication.  She did express regret for what she had done and was unable to explain why she did it.  Although she had acted as the ‘get away’ driver, she had no particular expectation of gain.  She did accept that the experience for the victim would have been terrifying.

1. The applicant is a mother of five children, the oldest is 14 years old.  Her mother has care of the eldest child, a daughter, and the father has custody of the other four children.  The position had apparently been that the applicant had custody of the children between November 2011 and March 2012 and then she said she and the father had shared custody of the children from March 2012 until 18 July 2012.  After the intervention of the Department of Human Services on 18 July 2012 the four younger children were taken to their father.  These offences were committed in the early hours of 28 July 2012.

1. The applicant had a relationship with the father of the children from about the age of 14 and the couple lived together from the time when she turned 16, shortly after the birth of her eldest child.

1. According to the applicant’s mother who gave evidence at the plea, the relationship was a difficult one.  The applicant had been deprived of financial support as the father of the children appeared to have been a heavy drinker.  They stayed together for about 15 years.

1. The applicant has had no direct contact with her children since July 2012 because she has been unable to organise supervised visits and according to her mother has had great difficulty even with telephone contact.  Her mother also said that she was drug free at the time of the plea.

1. The applicant was remanded in custody between 28 July 2012 until she was released on bail on 22 August 2012.  She was released on the CREDIT/Bail Support Program.  On the plea a number of reports from that programme were tendered. 

1. It turned out that through the CREDIT/Bail Support Program the applicant had been referred to the Forensic Assessment Intervention Service and to the Salvation Army Bridgelink Program as a result of her unsatisfactory accommodation.  She was found to be suffering from depression which was probably a reaction to her separation from her children.  The CREDIT/Bail case manager Maree Lavecchia reported,

During this extensive period, the writer has observed that Ms Hancock has appeared genuine in her motivation to access all the supports offered to her by the C.R.E.D.I.T. Bail Support Program, as she attempts to commence addressing the underlying issues associated with her substance use, mental health and the criminal offending behaviour concerns.  Ms Hancock also acknowledges to the writer she is benefiting greatly from her participation in treatment, in particular her engagement with Ms Powell, as she is assisting Ms Hancock to develop strategies to manage her mental health and ongoing family court issues.

1. A report from psychologist Ian Joblin dated 14 December 2012 was tendered on the plea.  He found the applicant to be suffering from ‘considerable depression’ and reported that she needed ongoing professional attention.  The applicant reported to Mr Joblin that she tendered to acquiesce with others, particularly males, to avoid violence.

1. Although the applicant was assessed as suitable for a Community Corrections Order, her Honour took the view that the offending was too serious to warrant that disposition.

1. In her affidavit sworn on 18 April 2013, the applicant stated the following:[5]

   [5]Affidavit of Leanne Hancock sworn 18 April 2013, [7], [9]-[13].

Later in January 2013 I again saw medical staff.  I was informed that I was pregnant with twins but one of the twins had died.

… 

My blood type is O Negative and I have concerns that this may cause complications with my pregnancy.  My previous experience is that I receive blood tests every few weeks but since I have been in custody I have only had two appointments with medical staff in four months. 

This is my first time in prison and I have found the experience very difficult.

I do not have the support of my partner, David Ryan, or my mother, Robyn Hancock, as I would if I was in the community.

I feel very alone and often find myself crying for no reason.  I was admitted to prison hospital overnight in March of this year because I was not coping.  They have changed  my psychiatric medication for depression but I am still stressed and feel depressed. 

I have found prison hard enough but the pregnancy has made the experience more difficult as I feel vulnerable because of it, I feel emotionally stressed and I am worried what will happen to my child when he or she is born.

1. In a further affidavit sworn by the applicant on 26 July 2013, she stated:[6]

I was supposed to have my first ‘Anti-D’ injection at my 29^th week of pregnancy.  Because I have an O Negative blood group, I have been told by one of the medical staff at the prison that there may be complications with my baby because of my blood type unless I have this injection.

I was not given my first Anti-D injection.

On Monday 22 July 2013, I was told by one of the medical staff at the prison that the staff forgot to give me the first injection as required and it was too late to provide it now.

I was also supposed to have a second Anti-D injection at my 34^th week of pregnancy.  I received this injection on Monday 22 July 2013, a week late.  I had to be sent to Sunshine Hospital for the injection.

I was told by one of the medical staff at prison, who is a locum and I am unsure of her name, that without having the injections as required there may be problems with my pregnancy because it is highly probable that my baby and I will have different blood types.  All my other five children have had positive blood types.

This has made very(sic) frightened.  I have already lost one baby at 9 weeks during this pregnancy and I am very scared that I will lose my other baby.  I do not now(sic) what will happen when I give birth.  I am unable to find people to answer my questions in prison.

[6]Affidavit of Leanne Hancock sworn 26 July 2013, [4]-[9].

1. In addition the applicant has been taking anti-depressant medication and in about the middle of June of this year she was involved in an incident when she attempted to harm herself.  As a result she spent about a week in the psychiatric ward at the Dame Phyllis Frost Centre.

1. The applicant has completed courses in horticulture, communication with children, budgeting, first aid, and the ‘out of the dark’ program for victims of family violence.

1. The prison authorities do not appear to regard it as necessary for the applicant to engage in ‘offending behaviour programs’. 

1. The court was also provided with a detailed report from Dr Dion Gee from Australasian Psychological Services dated 11 May 2013.  He was of the following opinion:

In my opinion, Ms Hancock currently demonstrates psychopathology suggestive of an acute mental illness (namely, Reactive Depression and Acute Stress Disorder), pathology that has seemingly arisen within the context of the current term of imprisonment, and further exacerbated by he pregnancy and loss of one of the twins in vitro.  Importantly, whilst Ms Handcock’s(sic) current presentation might, somewhat inappropriately in the authors view, be construed solely as a reaction to situational stressors, it is perhaps better conceived in terms of a relapse of her more insidious and enduring history of unstable mood; indicative of a longstanding diagnosis of Major Depression, on a background of Dysthymia.

1. He was also of the opinion that principles 5 and 6 set out by this court in R v Verdins[7] applied to the applicant.  Those principles being:

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.

6.Where there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this factor would tend to mitigate punishment.

[7](2007) 16 VR 269.

1. Ultimately Dr Gee concluded that the applicant was a person who would require great ongoing support in relation to both her mental health and her life in general.  He also regarded the applicant as having an increased risk of suffering from post natal depression.  Although it is also likely that she has had a problem with the use of drugs and that appears to have been certain at the time of the offending.

1. To return to the question of whether we should ‘conclude that the fresh evidence throws significant new light on the pre-existing facts?’[8]

   [8]R v Nguyen [2006] VSCA 184 at [37].

1. There will be many cases where the discovery of pregnancy will not lead to that conclusion and the respondent submitted that this is such a case although it recognised that this case was not dependant solely on the question of pregnancy.  In the present case there are at least three significant factors:

·           the applicant’s underlying depression;

·           the loss of a foetus in the early stages of the pregnancy; and

·           the increased psychological pressure arising from her O negative blood group, in particular, her perception of the lack of timely medication.

1. I am satisfied that these factors do throw significant new light the pre-existing facts and that it is therefore appropriate to re-sentence the applicant.

1. The offending itself cannot be regarded as anything other than serious or that it would, in ordinary circumstances, lead to an immediate custodial sentence.  The

victims, as is shown by the victim impact material, found the armed robberies terrifying.

1. Even though the offending was serious, the following matters were relevant to sentence:

·     the offending was of a relatively short period of time in one morning with the offences occurring between 7.00am and 7.40am and the applicant and her co-accused were arrested at about 8.00am;

·     the applicant was aged 30 years old (now 31 years old) and had no prior convictions;

·     the applicant pleaded guilty at the committal; and

·     although the applicant played the important role of the getaway driver, she had not been involved in the direct confrontation with the victims.  I doubt that she would have anticipated that her co-accused would behave as violently as he did at the scene of the armed robbery.

1. In addition to those factual matters, the applicant was remorseful.  She was suffering from depression and it is now accepted that in relation to the combined effect of that depression and her pregnancy the sentence will be more onerous on her and may well have detrimental effect on her mental health.

1. The personal matters are unusual and the applicant falls to be sentenced in a way not usually open.  It was in those circumstances that we arranged for the applicant to be assessed for her suitability to be released on a Community Corrections Order. 

1. It should be noted that the sentence is appropriate for the applicant  in light of her individual special circumstances.  It should not be taken as having any effect on the sentence of her co-accused.

1. A report was provided by Corrections Victoria dated 30 July 2013 in which the assessing officer, Shannon Timmons, assessed the applicant as suitable for a Community Corrections Order.

1. In those circumstances, I would grant leave to appeal, allow the appeal and set aside the sentences below.  I would re-sentence the applicant to be, in summary, released on a Community Corrections Order on charges 1 and 2 and on Charge 3, be sentenced to be imprisoned for 249 days, and upon release, be released under a Community Corrections Order which will be of a duration of two years.

1. I would declare 249 days as having already been served pursuant to s 18 of the Sentencing Act 1991 and the conditions that I would impose are the conditions that will be set out in the final orders of the Court.

NETTLE JA:

1. I agree.

1. (Discussion re allowance of the appeal and the applicant’s consent to the Community Corrections Order.)

1. The orders of the Court are as follows:

1.        The applicant be given leave to appeal;

2.        The appeal is treated as instituted instanter and is allowed;

3.        The sentences of imprisonment imposed below are quashed;

4.        In lieu thereof, the applicant be sentenced as follows:

(a)       Charge 1 – to be released from custody upon the applicant consenting to the Court making a community-corrections order for a period of 2 years.

(b)      Charge 2 – to be released from custody upon the applicant consenting to the Court making a community-corrections order for a period of 2 years.

(c)       Charge 3 – 249 days imprisonment and upon release from custody the applicant consenting to the Court making a community corrections order for a period of 2 years

5.        The conditions of the community corrections order include the core conditions and the applicant:

(a)       being under the supervision of a community corrections officer;

(b)      report to the Geelong Community Correctional Service within 2 clear days after the commencement of the Community‑Corrections Order;

(c)       undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Secretary;

(d)      undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Secretary; and

(e)       undergo any program that addresses factors related to the applicant’s offending behaviour

6.        All orders made below are otherwise affirmed.

Other Matters:

7.        It is declared that the period of 249 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that

there be noted in the records of the Court the fact that that declaration was made and its details; and

8. The Court states, pursuant to s 6AAA of the Sentencing Act 1991, that but for the applicant’s pleas of guilty, it would have imposed a total effective sentence of five years imprisonment with a non-parole period of three years. 

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