R v Clarke

[2013] NSWDC 335

District Court

New South Wales

Medium Neutral Citation:	R v Clarke [2013] NSWDC 335
Hearing dates:	15/03/2013
Decision date:	15 March 2013
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Accessory after the fact to armed robbery – Term of imprisonment of 1 year 8 months suspended pursuant to s 12 Crimes (Sentencing Procedure ) Act 1999. Receiving stolen property – Term of imprisonment of 1 year suspended pursuant to s 12 Crimes (Sentencing Procedure ) Act 1999.
Catchwords:	CRIMINAL – Sentence, armed robbery, accessory after the fact, receiving stolen property, early plea, co-operation, residential time taken into account.
Legislation Cited:	Crimes (Sentencing Procedure) Act Crimes Act 1900
Cases Cited:	Blackman and Walters [2001] NSWCCA 121 Douar v R [2005] NSWCCA 455 Pearce v R (1998) 194 CLR 610 Thomson and Houlton (2000) 49 NSWLR 383, [2000] NSWCCA 309 Veen (No 2) v The Queen (1998)164 CLR 465, Yardley and Betts (1979) 22 SASR 108 R v Zamagias [2002] NSWCCA 17
Category:	Sentence
Parties:	Director of Public Prosecutions Rachael Clarke - Offender
Representation:	Solicitors: Director of Public Prosecutions Legal Aid NSW - Offender
File Number(s):	2012/83816

SENTENCE

1. HIS HONOUR: Ms Clarke, my practice is to tell people in advance what sentence I propose to impose. In your case in respect of the accessory after the fact to the armed robbery I propose to sentence you to one year, seven months and two weeks imprisonment which will be suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. In respect of the offence of receiving stolen property I propose to sentence you to twelve months imprisonment, that too will be suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. I will explain in the course of my remarks on sentencing but had I imposed full term custodial sentences in relation to those sentences, there would have been partial accumulation of one sentence on the other, but it would not have amounted to a sentence of imprisonment of more than two years.

2. You can take a seat thank you very much and I will release you from custody when you agree to the undertaking that I will be asking of you.

3. In the Court of Criminal Appeal decision of Blackman and Walters [2001] NSWCCA 121, the then learned Chief Judge at Common Law Justice Wood discussed a number of matters relevant to the then Crown appeal at Bar concerning the relevance of rehabilitation in the sentencing of offenders. I raise this matter in the context of the very helpful submissions provided to me by the learned Crown Prosecutor about the purposes of sentencing which appear in s 3A Crimes (Sentencing Procedure) Act and the oft quoted remarks of the majority of the Court in Veen (No 2) v R the decision of the High Court in 1988 where four of the seven purposes of sentencing now in s 3A Crimes (Sentencing Procedure) Act were identified and were said sometimes to be signposts pointing in opposing directions.

4. Justice Wood in Blackman and Walters was considering a very serious case of home invasion where a number of very serious crimes were committed, where the sentencing judge had in respect of at least two of the respondents to the Crown appeal fixed terms of imprisonment which were suspended pursuant to the then recently introduced s 12 Crimes (Sentencing Procedure) Act. I draw no parallels with that sentencing exercise and this as such. The case involved far different criminality than that with which I am now concerned. But what the learned Chief Judge approved in his remarks on sentencing were the observations of the late Chief Justice King in the decision of Yardley and Betts. In that judgment from the full Bench of the South Australian Supreme Court in 1979 he extracted this statement of principle, which he adopted:

“The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes a particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order (sic) to avoid offending in future the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm.”

5. Of course as the Crown and I discussed the purposes of sentencing in s 3A, all of which I have to take into account in this sentencing exercise, will not necessarily be accorded the same weight. In some sentencing exercises some of the purposes of sentencing will be totally irrelevant. It is the case, as was submitted by learned counsel for the accused, that a term of imprisonment, albeit suspended, carries with it in the appropriate case an inherent quality of deterrence both personal and general and such is the case here. I must say in passing that I do not believe the prisoner is a threat to the community and thus protection of the community from the offender is a matter of little moment.

6. This prisoner pleaded guilty to two offences committed in March 2012. One was an offence of accessory after the fact to robbery, the robbery being committed whilst the principal offender was armed with an offensive weapon and the other offence was receiving stolen property. The maximum penalty pursuant to s 349(2) Crimes Act 1900 in relation to the accessory after the fact offence, I am informed and I take it as correct, is a maximum penalty of fourteen years imprisonment. There is no standard non‑parole period. The receiving offence carries a maximum penalty pursuant to s 188 (1) Crimes Act 1900 a ten year imprisonment maximum penalty, there is no standard non‑parole period.

7. The prisoner pleaded guilty to both offences in the Local Court and there is no dispute that the prisoner is entitled to a discount of twenty-five per cent upon the otherwise appropriate sentence for the utilitarian benefit of a plea of guilty pursuant to the guideline judgment of Thomson and Houlton and other cases that have been decided since.

8. The principal crime, if I may call it simply armed robbery, was committed at Sylvania on 5 March. It was the armed robbery of a chemist shop where the principal offender was armed with a tyre iron and the principal offender stole a sum of cash, the facts say $2,000, and a quantity of prescription medication. The statement of facts goes into a great deal of detail about matters pertinent to the identification of the prisoner and the co-accused as the principal offenders and the character of the offence committed by the principal offender who is Khalil Nadji, a gentleman who had known the prisoner since childhood and had been living with her in her public accommodation at Caringbah for a period of two months before the commission of the offence. The relevance of the prisoner’s subjective circumstances to the manner in which, and the reason for which, this crime was committed I will deal with shortly.

9. The statement of facts says at its conclusion that the prisoner, who was present in the car park a short distance from the pharmacy, in fact in her own car, did not intentionally encourage or assist the co-accused prior to or at the time of the commission of the offence and it is clear from two sources that the prisoner was concerned as to the fact that her then partner was contemplating committing some crime within the pharmacy and that she did not know precisely what he was going to do. The sources of information in relation to those matters include a statement she made to the police in her electronic interview of 15 March 2012 and in the observations of some eyewitnesses who referred to the prisoner and the principal arguing in the vicinity of the car before the principal went to commit the crime. The medication that was stolen from the pharmacy, whilst Mr Nadji was armed with the tyre iron or lever, was Xanax. It would appear that the prisoner and Mr Nadji were abusers of that medication as well as other drugs and medication at the relevant time.

10. I do not wish to lessen the seriousness of the conduct of Mr Nadji but there is no need for me to relate that in any great detail. When he is, I would imagine, ultimately convicted, the facts of that aspect of the matter will be more pertinent bearing in mind the prisoner was unaware of the fact that he was going to conduct himself in the way that he is alleged to have done.

11. After the crime was committed the prisoner and Mr Nadji returned to her premises at Caringbah. As I said these were public housing premises that she had resided in for a period of seven years. He had only resided there for a couple of months. She received $500 in cash and a half packet of Xanax. These are the items that constitute the stolen property that she received.

12. The circumstances of her accessorial liability include travelling away from the pharmacy with the principal offender, falsely calling the police to report that her car was stolen and also speaking to a Triple‑0 operator at 5.24am the following morning to report that the car had been found and providing assistance to the principal offender when inquiries were made by police in relation to the reported stealing of the motor vehicle. The reason that the false story had been given of the theft of the motor vehicle was the concern that the prisoner and the principal offender had that the car that was registered in the name of this prisoner would be identified as having an association with the robbery.

13. In part, of course, it might be said that the prisoner’s conduct was to aid Nadji and thus attract assessorial liability, but there also was, it should be fairly said, some proportion of her responsibility in that regard, pointing to her concern that she should not falsely be implicated in the crime that Mr Nadji had committed within the pharmacy.

14. Police eventually, as was made clear from the evidence of the officer‑in‑charge, pieced together the falsity of the versions that the prisoner and Mr Nadji had given. They noticed things like a missing tyre lever or iron from the boot consistent with that having been taken from the boot to be used in the robbery. They pieced together of course the description of Mr Nadji very close to his appearance and also there was evidence of his association with Ms Clarke over a period of time in other matters.

15. The prosecution case against Mr Nadji would appear to be very strong with evidence of identification, evidence of similar description and the evidence of the prisoner in due course, if it is required. It should be fairly said that a person of Mr Khalil Nadji’s ethnicity would not be commonly seen around the Fox Village Shopping Centre in Sylvania. It would be most unlikely for someone of similar appearance to Mr Nadji to have been there to have committed the crime.

16. I have a body of material both in relation to the prisoner’s explanation of her involvement in this crime and her subjective circumstances. I have the evidence of the officer-in-charge which detailed the police investigation and the circumstances in which the prisoner was interviewed. I have read the electronic interview over the luncheon adjournment that she gave. In that electronic interview, she being unable to be interviewed on 14 March because she was under the influence of prescription drugs, the prisoner confessed her guilt to the charges that she now faces, implicated Mr Nadji and expressed her willingness to give evidence or assist authorities in relation to the prosecution of him. The relationship with Mr Nadji obviously has ended. At that time he as I would understand was taken into custody although, whether he is still in custody I do not know.

17. The prisoner signed an undertaking today, 15 March 2013, on the first anniversary of her confession, indicating a willingness to give evidence against her “co-accused” and I have a copy of the statement that she signed on 15 March 2012 adopting what she said in the electronic interview and expressing her willingness to give evidence in court.

18. There was some discussion about the character of the discount to which she would be entitled. The situation was that I gave her an indication in general terms of what I thought a global discount should be for her cooperation in the vicinity of ten per cent. I indicated, given that she at this stage is expected to give evidence, that discount could be broken up into two segments, five per cent for past cooperation and five per cent for future cooperation. The learned Crown Prosecutor, whilst generally accepting the figure that I foreshadowed, bearing in mind of course the Crown is not bound by my estimate, and that in any event it is a discretionary matter and is not something that is strictly bound to a particular figure, indicated that the discount of ten per cent should reflect the future cooperation with no discount for past cooperation. With respect to that submission I cannot agree with that. For a start there has been past cooperation. It would be, with the greatest of respect to the learned Crown’s submission, at the very least improper not to accord some discount for past cooperation.

19. In that regard I have referred to s 23 Crimes (Sentencing Procedure) Act and the matters that are therein set out as being relevant amongst others as indicating matters that are of assistance or indicative of considerations relevant to the assessment of the cooperation with the authorities. From s 23A(1) I note the Court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which an offender has assisted or undertaken to assist law enforcement authorities in the relevant way. The prisoner has both assisted in the past and undertaken to assist in the future, hence the need for recognition of the two separate types of assistance. Relevantly I have taken into account the fact that the prisoner’s assistance has been truthful and generally complete. The nature and extent of the assistance is set out in a detailed confession in the electronic interview, in circumstances I hasten to say, where the police had cobbled together quite a strong case against the co-accused. I have also concluded that assistance provided by the prisoner has been quite timely, the prisoner did prevaricate of course after the event in circumstances, as I pointed out, where she was in part trying to cover her own trail. But when she was first interviewed by the police, not only did she readily confess her own guilt as I have said, but she offered the assistance. This is not a case of a person coming forward weeks or months after the initial interview or charging and arrest to offer to assist with the guidance of legal advice. In that respect, not only was her assistance timely, but it is reflective of the contrition that she expressed in the interview and has expressed in statements made to people that have taken histories from her. I note that she has received no other benefit in relation to her past assistance or any promised future assistance and I note that other matters set out in s 23A(2) do not apply in this matter.

20. The sentencing of the prisoner requires close consideration of her criminal history because in many respects her criminal history and the circumstances of her offending on this occasion are intimately and intricately bound up in her subjective circumstances. The prisoner was born in September 1981 and thus was thirty years of age at the time of the commission of the offence and now thirty-one years of age. She had some appearances in the Children’s Court including appearances for matters of dishonesty. However, as her criminal history makes clear there was then a nine year break in her offending before she came before a court for driving under the influence of alcohol and other drugs for which she was charged on 30 December 2007. Thereinafter followed a series of offences including driving whilst disqualified from holding a motor vehicle driver’s licence, breaking and entering and stealing for which she received a suspended term of imprisonment and for which ultimately she was called up for sentence, receiving stolen property for which she was given a s 9 bond, further offences of breaking and entering, forging or altering prescriptions, two offences of possessing a false document and using a false document to obtain property.

21. The ultimate situation is, as she appears today, that although she was granted bail in relation to the current matters she was charged in respect of a series of offences for which she was convicted in the Sutherland Local Court on 9 August 2012. In June 2012 she was sentenced to a term of imprisonment effectively of eighteen months with a five month non‑parole period. She was in custody from 12 June 2012 until 29 November 2012 but on 27 November 2012 she was granted conditional bail by the Supreme Court of New South Wales and given the fact that she appealed those eighteen month sentences to the District Court and the District Court in Sydney on 13 December 2012 varied the terms of imprisonment imposed by the learned Magistrate to fix a term of imprisonment of five months. Ultimately she spent only seventeen days in prison custody referable to the current matters. The reason that seventeen days is referrable to the current matters is because her bail in relation to the current matters was revoked until such time as the Supreme Court granted her bail on 27 November 2012.

22. On her release to bail and as part of her conditions of bail the prisoner was admitted to a rehabilitation program and the Court has been provided with a number of reports from that program and had the benefit of the evidence of an officer of the program which is located at Guthrie House, an establishment in Enmore. The reports from Guthrie House dated 14 March 2013 set out the character of the program, the nature of what is called the ‘after care’ program which involves regular home visits, structured care plans, weekly supervised urine analysis, court support and other matters and also counselling services and regular contact to prevent relapse. Ms Clarke, on the information provided to the court, has been a residential participant of the program for three and a half months. The Crown has correctly pointed to the fact that that residential time must be taken into account in assessing the appropriate sentence and in the circumstances of the matter I have determined that in conjunction with the seventeen days of prison custody, or remand custody relevant to this matter, ascribing approximately fifty per cent of the time in residential care to pre-sentence custody, that I should factor into the calculation of an appropriate sentence a period of two months.

23. The prisoner’s presence in the Guthrie House program and her reaction to that program has had a significant effect upon the prisoner’s attitude and the reports from the Guthrie House and from a psychologist that has assessed the prisoner whilst in Guthrie House and since speak of the significant progress the prisoner has made. Ms Saxvik who gave oral evidence on behalf of Guthrie House noted the change in the prisoner since her admission to the rehabilitation program and the aspirations of the prisoner in terms of her attempts to regain custody of her children.

24. The prisoner’s dependence upon prescription drugs at the time of the commission of the offences with which I am concerned is of course a contributing factor to her involvement in these matters. An understanding of this however requires some examination of her history. The prisoner grew up in the St George area, she has two full siblings and two half siblings that are somewhat older than her and her full siblings. She had an uneventful family life and there is no suggestion of sexual or physical abuse. However it would appear in her early teens she became a user of prohibited drugs, firstly cannabis and then heroin. She left school at the age of fourteen years and nine months and while she has had some employment, has not had a lengthy history of permanent or full time employment.

5. The psychologist’s report reflects upon lax parental supervision and poor boundary setting for her. She gave a history of living with various boyfriends from the age of twelve to eighteen years. She had a child when she was nineteen years of age and has had four children from the various relationships since that period of time. Three children from her first relationship which was abusive, physically and mentally, and a fourth child from a second relationship. The co-accused, the principal offender, was the third significant relationship of her life. She discovered, in approximately 2007, that one of her children had been abused by one of her partners. The relationship which she was in at that time involved an intimate connection with a person who was amphetamine dependent and this was something that drew her into further drug use. She has told the psychologist that she had what is described as catastrophic coping in the aftermath of her son’s disclosure of sexual abuse and the timing of that catastrophic reaction coincides with the commencement of the course of offending that I have set out from her criminal history.

6. She placed her children in the care of her parents in September 2008 and has been living alone in her accommodation since then apart from living with the particular partners to whom I have referred. In 2009 she attempted to commit suicide by overdosing on benzodiazepine, Xanax and methadone. I point out that she has been methadone dependent it would seem for a period of fifteen years.

7. She suffered kidney failure, she suffered damage to her legs in circumstances that are not made clear but are confirmed by her mother’s reference who noted that she nearly lost her legs at that time. She was hospitalised for six months, however since then she has suffered chronic pain in her legs and has a condition described as dropped foot. She continued unfortunately after her release from hospital to abuse, particularly prescription drugs and particularly the benzodiazepine medication Xanax and it was in this circumstance, dependant upon Xanax, that she became involved in the crimes with which I am concerned. The facts reveal and certainly her confession to the police reveals that her partner was likewise Xanax dependant as well as dependant upon other drugs and the co-accused’s primary purpose in robbing the chemist shop was to obtain, particularly, Xanax.

8. The prisoner in recent years has also been abusing other prescription drugs, particularly a drug called oxycontin, sometimes referred to as ‘hillbilly heroin’. She has attempted a previous residential rehabilitation program with the We Help Ourselves or WHOS program in 2010 but that was unsuccessful. It is clear that the Guthrie House program that she entered as a condition of her Supreme Court bail has had a much better effect upon her and certainly has produced a number of positive results that are reflected in the report.

9. She gives a history of having consumed Xanax before the commission of the offence. There is something of a dispute it is said between the account that she gave the police on 15 March and the report she gave to the Probation and Parole Service officer. She seemed to suggest in the history she gave the Probation and Parole Service officer that she was “asleep” in her car at the time the offence was committed, but it maybe that this is a misunderstanding of the reality of the situation that she was drowsy or affected by the Xanax that she had taken before the offence was committed.

10. Certainly in the history that she gave the police when she was interviewed she spoke of the immediate use of Xanax after it had been obtained from the Probation and Parole Service. The psychologist notes a history of a lifetime since at least childhood of anxiety type symptoms with a number of stresses including the death of close relatives when she was fifteen years of age in a house fire. It notes the psychological reaction to the disclosure by her son of being sexually abused and it notes that her abuse of Xanax was a “maladaptive attempt to cope with feelings of guilt as well as anger towards her ex-partner”.

11. It points out that her attempted suicide, which was a very serious attempt as her lengthy hospitalisation reveals, was a reflection of her isolation and her inability to resolve her feelings of guilt. The psychologist notes that her development of emotion regulation and coping skills has been disturbed since childhood, that she has had a problematic history of intimate relationships leading to physical abuse of herself. She also was involved with a person at the time of the offending who, like her, was heavily self medicating on benzodiazepines and other drugs. The psychologist noted that she was remorseful for her offending and was committed to addressing her main recidivism risks. The main recidivism risk in the psychologist’s report is that she will relapse into benzodiazepine abuse whilst in the community. She has psychological vulnerabilities which need assistance. The report reflects upon Guthrie House’s after care program which will run for up to twelve months and she also needs drug counselling to address her dependence upon Methadone. I note that she receives, as I understand it, something in the order of 190 milligrams a day which is a very heavy dose of Methadone.

12. She will also need psychological therapy to resolve feelings of guilt about the mistreatment of her son. She will need constant screening and is always at risk of drug relapse if the supports that she has at the present time are lost. The psychologist suggested that was she to be incarcerated in relation to this offence the gaoling of her would have jeopardised both her stable accommodation and adversely affect her relationship with her children.

13. In relation to the Probation and Parole Service report it is a report that reflects upon the past history of supervision, bearing in mind the prisoner has had s 9 and s 12 bonds. The Probation and Parole Officer noted that whilst some of her response to supervision had been positive, and overall it could be viewed as that, her supervision in the past had not had any long term impact on her offending behaviour and she had been subject to breach action.

14. Factors related to offending included the mental health issues that arose out of her son’s report of sexual abuse, her suicide attempt and of course her drug dependency. So far as the summary of the prisoner’s situation is concerned the Probation and Parole Service officer noted that the prisoner impressed as “an insightful young woman” who appeared to have had difficulty coping with some traumatic and emotionally difficult events in the past. These negative experiences were related to a substance abuse history and that appeared to be a major factor in her offending behaviour on this occasion. The report states:

“Inquiries indicated that Ms Clarke is currently taking responsibility for her behaviour and making a genuine commitment to address these issues. Following her completion at Guthrie House, Ms Clarke has expressed the intention to continue in their after care program. She will also have the benefit of stable accommodation and family support. Additionally she may benefit from ongoing support and guidance from the service in order to ensure that she maintains this commitment and continues to make positive progress.”

35. She was thought to be suitable for a medium to high level of supervision, particularly to address the completion of the rehabilitation program which includes the after care program particularised in the report, to undertake relapse prevention programs and to continue with appropriate psychological counselling. I note that I have been given a raft of urinalysis results which show that apart from prescribed medication which is known of, particularly methadone, no illegal substances or inappropriate substances have been found in her system.

36. The mother of the prisoner has indicated her support for the prisoner. She confirms the fact that the children of the prisoner are in her care.

37. The submissions from counsel for the accused are largely in writing and the counsel for the accused effectively stressed upon the court the need to be cautious in assessing the objective criminality in the context of the accessorial liability to which the prisoner has admitted. It is to be fairly said that whilst the prisoner was well aware ultimately of the consequences of her partner’s actions, she was not aware of what he proposed to do at the time he committed the offence. She actively assisted him to avoid apprehension for a short period of time but when she was in a state to be interviewed a relatively short period of time after the commission of the offence as I have indicated she made a full and frank confession.

38. The two offences are very intimately bound. The property that she received were the proceeds of the robbery for which she had accessorial liability and I note what has been written in the submissions about that matter. The submissions of counsel for the accused nominate correctly the matters that are to be taken into account as reflecting the accessorial liability of the prisoner.

39. The guideline judgment in Henry is of some assistance albeit it is for the principal offence of armed robbery or probably more relevant to aiders and abetters of the principal offence. Accessories after the fact are to be seen in a somewhat different light because the plea of guilty to that offence and the facts of this case reveal that the prisoner had not encouraged the principal offender to commit the principal offence and had no knowledge of what the principal offender proposed to do.

40. So far as the assistance to the authorities is concerned I have taken that matter into account by reference to s 23 and a range of authorities that deal with this matter. I appreciate more recent authorities than Cartwright cited in the written submissions such as the appeal of Joseph Sukkar and other decisions which reflect upon the appropriate level of discount for cooperation, particularly post the guideline judgment of Thomson and Houlton. I have already dealt with that matter in the context of the submissions that were put to me by the learned Crown.

41. I am required to take into account of course pre-sentence custody. Of course I am also required to reflect in the appropriate orders the totality of the criminality by reference to the observations of the majority of the High Court in Pearce v R (1998) 194 CLR 610 particularly at [45]. I hasten to say in the context of having resolved that the terms of imprisonment be suspended, that had I imposed full time terms of custody, as I earlier intimated, I would have partially accumulated one sentence on the other but that would not have led in any event to a term of imprisonment of greater than two years. As I indicated to the parties in the course of the submissions, I am required in fixing the appropriate sentences to have regard to what was said by Justice Howie in the decision of Zamagias [2002] NSWCCA 17 and also in the judgment of Justice Johnson in the decision of Douar from 2005. I am required by having regard to s 5 of the Act to determine whether anything else other than a term of imprisonment is appropriate in relation to each offence. I am required then to fix an appropriate sentence in relation to each offence and then determine how the appropriate sentence should be served. In that regard I have naturally had regard to s 21A Crimes (Sentencing Procedure) Act. In relation to this matter apart from what is self evident from the objective facts of the case, the principle and most relevant “aggravating” factor was that the prisoner’s involvement in the commission of the offence was for financial gain, although in relation to the offence of receiving it is inherently a characteristic of the offence that one would receive stolen property usually for financial gain. No other particular aggravating factors were drawn to my attention. It could be said that strictly speaking the offences were “committed in company” but the very character of the offending of being an accessory after the fact or receiving stolen property is to be having an association with a principal offender either as the receiver of stolen goods or as an accessory after the fact in the principal offence.

42. With regard to mitigating factors I have concluded that the offences were not part of planned or organised criminal activity. I am satisfied by reference to the progress the prisoner has made by the rehabilitation program at Guthrie House and the assessments made of her by the psychologist and the Probation and Parole Service that she has good prospects of rehabilitation. I accept as a mitigating factor in relation to each offence that the prisoner has shown remorse in that she has accepted responsibility for her actions and acknowledged the loss and damage that has been caused, although she obviously has little or no capacity to make reparation.

43. With regard to accepting responsibility for her actions, I include as relevant to that her confession to the police and the statements of contrition made in the course of that interview. I take into account as a mitigating factor of course her plea of guilty that she receives a discount for that as I have earlier indicated and also her assistance to law enforcement authorities, but that is also taken into account by a discrete discount. Ultimately the total discount she should receive upon the otherwise appropriate sentences will be thirty-five per cent being a combination of the discounts that I have foreshadowed and as I have said with regard to the discount for cooperation calculated at ten per cent I am prepared to ascribe to her five per cent for the future cooperation. I appreciate of course she may never be required to give evidence but the fact that she is willing to give evidence may ultimately be a contributing matter to the decision of the principal to plead guilty, if in fact that is what he does. If he does not plead guilty then she will be required to give evidence.

44. One last matter by reference to the material that was tendered on behalf of the prisoner I referred to the psychologist who had been counselling her whilst at Guthrie House. She has seen the prisoner on seven occasions and has noted particularly marked anxiety symptoms in her presentation and detailed psychological treatment and counselling to address those matters. Further, I note the report from the Department of Health’s clinical psychologist from the drug and alcohol team at Caringbah which details arrangements made for counselling for the prisoner whilst living at Caringbah. Ultimately, the submission of the accused was that I should impose a term of imprisonment that ought be suspended, assuming that the terms of imprisonment permitted suspension. The Crown’s position was that whilst a term of full time custody could be appropriate, the Court could consider a term of imprisonment in relation to each offence that might permit the making of an intensive correction order. The view I have taken of the matter is this, that the rehabilitation of the prisoner will be better served by a suspension of the term of imprisonment permitting supervision by the Probation and Parole Service.

45. Secondly, and equally important in my mind, is that there is a course in place of after rehabilitation care, which to my mind will substitute for the demands that ordinarily would be placed upon the prisoner by the conditions of an Intensive Correction Order. I am mindful of the fact that an Intensive Correction Order will closely monitor the prisoner in a range of ways and the prisoner would be subject to the direction of the Parole Authority. But given the detail of the reports from Guthrie House it seems to me with respect that the aftercare program therein set out will in material ways serve many of the same purposes that can be served by the programs dictated in an intensive correction order. Thus having obviously taken into account all the matters that have been raised by the parties and the evidence from their submissions I make the following orders.

46. Ma’am could you just stand up for a moment. In relation of the offence of accessory after the fact to armed robbery or robbery with an offensive weapon, you are convicted. You are sentenced to a term of imprisonment of one year and eight months. That term of imprisonment is suspended pursuant to s 12 Crimes (Sentencing Procedure) Act and I order that the execution of the sentence be suspended for the term of the sentence. I order that you be released from custody on condition that you enter into a good behaviour bond for the term of the sentence upon the following conditions. Firstly, you are to appear before court if called to do so at any time. Secondly, you are to be of good behaviour. Thirdly, you are to advise the registrar of the Criminal Listing Directorate of the District Court at Sydney of any change of residential address. Fourthly, you are to accept the supervision and guidance of the New South Wales Probation and Parole Service, particularly at Miranda throughout the period of this good behaviour bond and obey the reasonable directions of the officers of the service, particularly directions given to you in relation to drug and medical treatment and counselling and psychological counselling. Fifthly, to enable such supervision and guidance to commence, you are to report to the office of the New South Wales Probation and Parole Service at Miranda within seven days of today.

47. Do you understand those conditions?

48. OFFENDER: Yes your Honour,

49. HIS HONOUR: You have got to report within seven days of today and obey all reasonable directions of the officers of the service which may include regular urine analysis and completing the after care program of Guthrie House.

50. Do you understand that?

51. OFFENDER: Yes your Honour.

52. HIS HONOUR: On that basis you won’t be required to go upstairs to enter into that bond, the bond will be forwarded to you by the office. You can leave the dock.

53. HIS HONOUR: You can come out of the dock now and you can take a seat behind your counsel.

54. In relation to the offence of receiving you are convicted, you are sentenced to a term of imprisonment of twelve months, that term of imprisonment is suspended pursuant to the terms of s 12 Crimes (Sentencing Procedure) Act and I order that the execution of the sentence be suspended for the term of the sentence. The conditions of the execution of the sentence is that you enter into a good behaviour bond for the term of the sentence. The conditions of that good behaviour bond will be as for the conditions that were fixed in relation to the earlier bond that I granted you.

55. You can take a seat thank you.

56. Madam Crown is there anything else?

57. MILLWARD: Nothing else your Honour no.

58. HIS HONOUR: Anything else ma’am?

59. JOHNSON: No your Honour.

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Decision last updated: 13 April 2015