R v Angell, Monique

[2008] NSWDC 277

CITATION:	R v Angell, Monique [2008] NSWDC 277
JUDGMENT DATE:	9 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
CATCHWORDS:	Criminal law - sentencing - robbery in company - robbery, Form 1 - s.11 C(SP)Act bail interrupted by incarceration re earlier matters - unable to assess capacity to rehabilitate.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Regina Monique Angell
FILE NUMBER(S):	2007/21/1137
COUNSEL:	Defence: Ms J Ghabrial
SOLICITORS:	Crown: Mr N. Borosh

JUDGMENT

1. The offender pleaded guilty before the Penrith District Court on 19 September 2007 before his Honour Knight to two counts of robbery in company, with a further count of robbery in company and one robbery to be taken into account on a Form 1. The offender was remanded in custody to 5 November 2007 at the Penrith District Court. On that date the matter came before me. I stood it over part heard to 21 November 2007.

2. On 21 November 2007 Ms Angell was released by me on s 11 Crimes(Sentencing Procedure) Act bail. At the time I gave extensive reasons for taking the course I took and the terms of the s 11 bail were exposed by me at that time. The reasons I gave involved an examination of the facts, the objective seriousness of the offending conduct and an extensive review of the subjective features of the offender. My remarks made at that time are to be regarded as being incorporated in these remarks and as providing factors I have taken into account today in determining the sentencing disposition that I have determined.

3. Five months after her release on s.11 bail the offender was arrested in connection with an unrelated matter that is said to have had its origins in the events that occurred before the custody from which her s 11 bail order had released her. In respect of that matter (the newly arrested matter) she has been denied bail. She has been in custody on that matter from 3 April 2008 until today. Since her arrest on the matter the offender has been before Court, primarily on dates initially set for progress reports pursuant to the s 11 bail order. The purpose of those reports was intended to give the Court some insight into the offender’s rehabilitation progress in the community. The matter has not been finalised sooner, because the offender’s prospects for obtaining bail or perhaps of having the charge or charges dropped was unsettled.

4. If freedom was to be obtained for one reason or another it was anticipated Ms Angell would resume the s 11 bail given to her. The conditions of the s 11 bail were intended, among other things, to be stringent, concrete and focussed upon providing a basis for rehabilitation to occur. During the five and a half months some progress was made. There were, however, some matters I regarded as potential failures, which her counsel sought to explain as having no significance in terms of the overall rehabilitation. I will come to counsel’s explanations in a moment. Because of the offender’s arrest I am unable to say whether these areas I have described as possible failures were portents of worse to come or simply no more than hiccups on the way to rehabilitation.

5. Shortly after the s 11 bail the offender became pregnant, miscarried and became pregnant again. Her anticipated date of delivery is--

I put 15 October, but I see in your submissions you have got 15 November.

GHABRIAL: Yes.

6. The view of her progress during the five months on s 11 bail is most favourably set out in the submissions of Ms Ghabrial, her counsel, in written submissions handed to me today.

“3. Court set condition that she apply for TAFE course. Could not get into TAFE course so exercised ingenuity and went back to school to do Year 10, School certificate at Blacktown Youth College (refer to Probation & Parole Service progress report 27 March 2008).


4. Made application for and was placed on waiting list for personal support program with Centrelink.

5. Made application for and was placed on waiting list for housing with Department of Housing.

6. Missed a couple of appointments with psychologist due to miscarriage in January 2008 and further pregnancy, but did call ahead and reschedule those appointments.

7. ...She did not drink alcohol or take drugs during s 11 bail.

8. In February 2008 Probation & Parole opined that she appeared to suffer relapse in motivation (reference to her pregnancy), shortly before being taken into custody on further [other matters]. Note her evidence that she was in the first trimester of her pregnancy and quite ill during that time. Had only been able to attend to PPS appointment (7 March 2008 and 25 March 2008 for which a home visit on 26 March 2008 was arranged to accommodate her). This would explain her apparent relapse motivation. Note, not relapse in full sense, had done other positive things but for the situation with the miscarriage and pregnancy.

9. Had only called to reschedule two counselling appointments on 29 February 2008 and 26 March 2008 because ill due to pregnancy. Had explained this to the counsellor’s office.

10. Note her evidence that when she was ill with the pregnancy and when she earlier had the miscarriage in January 2008 this was something she had advised her psychologist and PPS about.”

The Plea

7. The Crown’s submission makes the following points:

“7. The plea was formally indicated on 17 September, being the date of trial. Some indication of a possible plea was given in the proceeding week. The plea was thus notified after arraignment but before date of trial.

8. A discount of fifteen per cent would be open for consideration.”

Guideline Judgment

8. The Crown in his submissions, which on any view demonstrates fairness to the offender, makes the following points:

“11. In a number of authorities the CCA has held the Henry guideline to be relevant to sentencing for an offence of robbery in company [authorities cited].

12. The decision in Henry identified the following factors:

( 1 ) Young offender with little or no criminal history.

( 2 ) Weapon like a knife capable of killing or inflicting serious injury.

( 3 ) Limited degree of planning.

( 4 ) Limited, if any actual violence, but a real threat thereof.

( 5 ) Victim in vulnerable position, such as shopkeeper or taxi driver.

( 6 ) Small amount taken.

( 7 ) Plea of guilty. The significance of which is limited by a strong Crown case
as typical to cases seen by the courts.

13. Of these factors ( 2 ) have no application. Factor ( 5 ) does not appear relevant as it focuses on persons in especially vulnerable situations.

14. Factors ( 1 ) ( 3 ) ( 4 ) ( 6 ) are present.

15. Factor ( 6 ) is present, although in the present case the strength of the Crown case was moderated by the presence of another female of similar [appearance] to the offender.

16. Overall this last issue, plus the absence of a weapon would place the offender in a better position than the typical Henry offender.

17. Additionally, the offences here fall below the mid range of seriousness.

9. I accept the submissions made by the Crown as not only fairly made, but apposite to this case. I should also note whilst dealing with submissions of the Crown that when canvassed as to the appropriateness in terms of appellability of a minimum term of nine months and an additional term so that the overall sentence fell within the three-year range was appelable, the Crown indicated that while it was close, it fell within the range. A concession warmly accepted by defence counsel.

10. As to the aggravating features that Crown submitted the prior record was a factor that needs to be considered. His submission was:

“The offender has a prior conviction for a similar offence dealt with the Cobham Children’s Court in 2003. This should be viewed as a disentitlement to leniency rather than a specific aggravation to the offence, as set out in R v Veen.”


The is a submission again that I accept. He noted that s 21A(2)(e)(a) was not in existence at the time of this offence or at the date of conviction. He also conceded that the victims were not picked on because of their age, but rather, as it seemed to me, because they were there when the opportunistic decision by the accused was made to join in the robbery of them.

11. The Crown submitted that limited partial accumulation is required to reflect that these two offences were against different complainants.

12. Pearce v The Queen (1998) 194 CLR 610 is authority for the proposition that each case should reflect the criminality associated with it. This is done (a) by the sentence imposed, and, (b) by demonstrating its contribution to the totality of the sentence. The way in which it can demonstrate its contribution to totality is by accumulation.

13. I intend to pay obeisance to Pearce v The Queen (ante) by accumulating the sentences as I impose them by three months. However, the non parole period for the second offence will be three months shorter than for the first, making a total non parole period after discount of nine months.

Rehabilitation Prospects

14. Because of the interruption to the s 11 bail I am not in the same position I would have been had the s 11 bail been completed to assess the offenders prospects of rehabilitation in the community.

15. I can say from a letter at hand to me and from her earlier efforts, that she appears to be strongly motivated to rehabilitate. She has the support of her mother. She has separated from her partner, who she did not regard as supporting her rehabilitation. I can also note that she made some progress in the period of five months or so that she had on s 11 bail. That progress is amply recorded in the past history of the case.

16. I intend to require supervision of her by Probation and Parole Service. Offenders should regard Probation and Parole as a service, or a resource, provided by the State to assist them in their rehabilitation. Ms Angell in particular should understand that a failure to progress her rehabilitation or the commission of a further offence would see her breached by the Probation and Parole in respect of the parole periods she is about to receive. In such circumstances her continued freedom may be jeopardised.

Is there any matter that I have missed before I go to the formal sentencing?

BORISH: Just that your Honour has taken into account the matter on the Form 1?

Sentencing

HIS HONOUR:

17. Monique Angell, you are convicted that you on 21 February 2007 at Emerton in the State of New South Wales, being then in company with Marama Arama and Selina Arama did rob Kimberley Driessen of her property, namely, a mobile phone and a wallet, containing a number of personal items. For that offence, but for the plea of guilty, I would have set a sentence of three and a half years. I have discounted that by 15 per cent making the overall sentence on my calculations one of two years, eleven months and twenty days. I set a non-parole period of nine months, to date from 10 January 2008. I have selected that date because you had been in custody for 274 days, which we earlier discussed as being nine months. That non-parole period will expire on 9 October, that is today 2008.

18. I find special circumstances, your youth, your first time in custody and your pregnant state are all matters that have influenced me to find special circumstances. When I say pregnant state I should say late term pregnant state. I set a balance of term of two years, two months and twenty days. That will expire on 8 January 2011.

19. I note that I take into account when setting that sentence the matter on the Form 1, which was originally on the indictment, but is a charge that you at Emerton, again in company with the same two co-offenders, did rob Leah Sams of her property, namely, a mobile phone.

20. In respect of the second offence to which you have pleaded guilty, that you on 21 February 2007 in the State of New South Wales, then being in company with Marama Arama and Selina Arama did rob Melody O’Keefe of her property, namely, a mobile phone. You are likewise convicted.

21. Because I am not taking into account those other two matters the overall sentence I would have set, but for the plea of guilty, is one of three years and three months. I have discounted that by five months. On my calculations strictly speaking the discount would be 4.95 months and I have decided that that is as close to five months as one could want. That results in an overall sentence of two years and ten months. I accumulate that sentence in this way; I set a non-parole period of six months, to date from 10 April 2008 and to expire on 9 October, that is today, 2008. I set a balance of term of two years and four months, to expire on 9 February 2011. I order you to be released to parole in respect of the offences I am dealing with on 9 October 2008, that is today.

22. Pursuant to s 52 of the Crimes (Sentencing Procedure) Act I make as a condition of your release that you will be supervised by Probation and Parole. Is there any other order I need to make?

BORISH: No not from the Crown’s part your Honour.

GHABRIAL: No your Honour.

HIS HONOUR: I want to thank you both for you assistance throughout this matter.

23. Ms Angell, I wish you well, but you must understand Probation and Parole is there for two purposes. One, to guarantee to the community there is no more offending. But from your point of view, more importantly, to assist you rehabilitate. They are a resource and you should use them.