R v Barton

[2010] NSWDC 298

CITATION:	R v BARTON [2010] NSWDC 298
HEARING DATE(S):	13 December 2010
EX TEMPORE JUDGMENT DATE:	13 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The overall term of imprisonment is one of three and a half years with a non-parole period of two years.
CATCHWORDS:	Criminal Law - Sentence - Form 1 - Carried in conveyance without consent of owner - Bag Stealing - Robbery - On a bond at time of offending - Principle of totality
CASES CITED:	R v Ranse NSWCCA (unreported) 8 August 1994
PARTIES:	The Crown Bianca Barton
FILE NUMBER(S):	DC 2009/270947
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission

SENTENCE

1 HIS HONOUR: Many years ago now the Court of Criminal Appeal had occasion to comment about the seriousness of bag snatching offences. In the decision of R v Ranse NSWCCA (unreported) 8 August 1994, then Chief Justice Gleeson reminded us all of the grave criminality involved in offences such as those for which Bianca Barton appears for sentence today. Bag snatching offences not only have direct effect on the victims of those offences, sometimes serious as in the first of the offences committed by Ms Barton, but also have other effects on the rest of the community. These offences represent a breach of the peace. They cause fear and apprehension in members of the community, especially elderly members of the community who should be entitled to go and do their shopping without people like Ms Barton preying upon them. It is important to remember these statements of the Court of Criminal Appeal when I consider the sentence to impose upon Ms Barton, a woman who has a seventeen page criminal history, such that her life has been measured out in court dates and periods of imprisonment.

2 On 1 August 2009 a man by the name of Ron Thomas stole a station wagon from Liverpool Hospital. Ms Barton allowed herself to be carried in that car knowing that it was taken without the consent of the owner. It was probably not known at all to Ms Barton that the owner of the car had driven it to hospital for tests on chest pains that she was suffering. The offence of being carried in that conveyance appears on the Form 1 attached an offence I will now describe.

3 Ms Barton was in the car along with the man who had taken it, Ronald Thomas, and another man by the name of Matthew Heath. The three of them saw a sixty-seven year old woman, Janette Asciak, walking along Vine Street in Fairfield. The three of them decided that Ms Barton would steal Ms Asciak’s black leather handbag. Ms Asciak felt a push from behind and stumbled. She turned around to see Ms Barton. Ms Barton grabbed the handbag. Ms Asciak..(fault in recording equipment)..Ms Barton was not so easily deterred. She said, “Let go, let go, I don’t want to hurt you but I will, I’ll hit you, I’ll hit you.” With one hand she pulled the handbag and the other she raised in a clenched fist as if to hit Ms Asciak. She managed to get Ms Asciak’s handbag away from her and ran away. She got back in the station wagon and it drove away.

4 Ms Asciak has not felt safe to leave her house since the robbery. Some might think that an extreme reaction but those of us who have dealt with the criminal law on a daily basis for many years know that this is relatively common in the elderly who are victims of offences of this kind. And for that, Ms Barton and the co-offenders got a purse, a mobile phone, personal cards and papers, and the grand total of a $165 in cash. Ms Asciak would be entitled to wonder about the sort of person that would do that to her for such a small return.

5 Did Ms Barton regret what she had done? Well, apparently not, because very shortly afterwards on the very same day Ms Barton did it again. This time she approached a younger woman, twenty-seven years of age, who was returning to her car at the shopping centre. Once more Ms Barton robbed the victim of her handbag. But that was not enough for Ms Barton. She could see that the victim was wearing a gold coloured chain around her neck, so Ms Barton simply grabbed it and ripped it away from her neck. She then got back into the station wagon and once again drove away.

6 Those two offences that I have described are offences of robbery, carrying a maximum penalty of fourteen years imprisonment. I should also mention that on the very same day Ms Barton committed a further offence, this time of stealing from the person, when she took a handbag from the vicinity of its owner, this time a fifteen-year-old girl who was travelling on a train. Ms Barton has actually been sentenced for that, but the Crown appropriately told me about it because of the principle of totality which I must apply.

7 It is clear that Ms Barton paid little regard to the feelings and welfare of the sixty-seven-year-old woman, the twenty-seven-year-old woman and the fifteen-year-old girl against whom she committed offences that day. However, things are not as bleak as they first appear because Ms Barton has now both admitted her offending and undertaken to assist the authorities by giving evidence against the two men in the station wagon with her. I will return to this matter in a little while.

8 I mentioned before that Ms Barton has a lengthy criminal history. She began committing crimes at about the same time she began using drugs. She was the eldest of her mother’s three children. When she was about ten or eleven she learnt that the man she regarded as her father was not in fact her father and that her two siblings were in fact half siblings. This led to some distress in the family and when her mother died shortly thereafter she found that she had no one to turn to. She formed a de facto relationship with a man called Steve when she was about sixteen or seventeen, he being considerably older than her. Steve was a substance abuser and so she began using drugs at the age of twenty. She has committed many offences along the way but these offences for which I am now sentencing her represent something of an escalation in her offending behaviour. She is now in a relationship with another man called Steve. She has three children, one of whom is being fostered by a good family and there are thoughts being given to allowing that child to be adopted by that family so that she can remain where she is. Her other two children are being cared for by her current partner, Steven Engelcott. Ms Barton has plans upon her release from custody to resume living with Mr Engelcott. He is not a substance abuser. Ms Barton expects that she will benefit from the stability that such a relationship will provide her. She is currently on methadone and hopes one day to get off the methadone maintenance program.

9 She has no real explanation for the offences that she committed with the two men on 1 August 2009. She was not using heroin at the time. She was supplied medication and had no pressing need for money. Instead she claimed that she was simply helping out the other two men. I mentioned before that she has now decided to give evidence against the men. At the time that she spoke to police and assisted them, there was no information linking the offences, particularly that involving Ms Asciak, to the two men. However, since the provision of information from Ms Barton police have been able to obtain evidence against them, and more importantly for the task that I have to perform today, Ms Barton will give evidence. She has given an undertaking to give evidence at the trial of Mr Beattie and Mr Thomas, which is due to commence early next year. Ms Barton gave evidence that she understood that if she did not give evidence her sentence would be increased and that the undertaking included giving evidence at retrials, that is if they apply.

10 I should also say at this stage that Ms Barton pleaded guilty at the earliest opportunity to these two matters. I will not separately quantify the discount for pleading guilty from the discount for assistance. I will say that together those two matters have led to me imposing sentences which are forty per cent less than they would otherwise have been.

11 Given Ms Barton’s criminal history and given the matters referred to in the psychologist’s report tendered today, it really cannot be said that there are good prospects of rehabilitation. One day, hopefully soon, Ms Barton will tire of life that she has been leading and recognise that spending significant parts of it in custody is simply wasting her life, to say nothing of denying her children the care to which they are entitled. I note that Ms Barton was on a bond at the time of these offences. She has expressed remorse to the author of the psychological report, saying that now she is able to think more clearly she realises what she has done. I actually have my doubts that she really does appreciate the impact that her offending has had on the life of Ms Asciak.

12 There are special circumstances in this case, not only the matters referred to in the psychological report but also the mathematical consequence of accumulation. The sentences that I will impose will not be wholly concurrent. Ms Reynolds at first asked that I impose sentences upon her client which were concurrent. But when pressed as to whether that would be an appropriate outcome, Ms Reynolds moved to a fall back position of partial accumulation. That is what I propose to do.

13 I also note that Ms Barton has served a sentence for the steal from a person matter that I described earlier, that being the offence committed on the fifteen-year-old girl. The principle of totality of course arises. What I propose to do to give effect to that is to start the sentence that I impose sometime after the commencement date of the sentence for steal from the person matter so that the sentences for the two robbery offences that I am dealing with and the steal from person matter, all committed on the same day, will all be partially accumulated on each other.

14 Ultimately the sentences that I impose upon Ms Barton must not be unreasonably disproportionate to the objective gravity of what she has done. As I began these remarks on sentence, the objective gravity of the bag snatching offences can be quite high, so it has proved to be in at least one of these cases. The sentences I impose will be as follows. Taking into account the Form 1 matter in relation to the robbery of Jeanette Asciak, the offender is sentenced to imprisonment. I set a fixed term of eighteen months to commence on 28 April 2010. For the robbery involving Anne Jones, the offender is sentenced to imprisonment. I set a non-parole period of twelve months to commence from 28 April 2011. On that matter I set a total term of two and a half years. The overall term of imprisonment is thus one of three and a half years with a non-parole period of two years, when Ms Barton will be eligible to be released to parole on 27 April 2012.

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