R v Gallacher

[2024] NSWDC 207

District Court

New South Wales

Medium Neutral Citation:

R v Gallacher [2024] NSWDC 207

Hearing dates:

24 April 2024

Date of orders:

24 April 2024

Decision date:

24 April 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Imprisonment for 1 year 9 months to be served in the community subject to Intensive Correction Order

Catchwords:

CRIME — Violent offences — Robbery

SENTENCING — Aggravating factors — Conditional liberty — In company

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty — Surrender — Mercy

SENTENCING — Penalties — Intensive Correction Orders

SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Form 1 offences — Moral culpability — Objective seriousness — ­ Traumatic impact of domestic violence — Hardship to family — Imprisonment of mothers — Whether an ICO is appropriate

SENTENCING — Subjective considerations on sentence — Drug addictions — Mental health — Victim of domestic violence

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Administration of Sentences) Regulation 2014 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

CMB v The Attorney General for the State of NSW [2015] HCA 9; 256 CLR 346

Legge v Regina [2007] NSWCCA 244

Nasrallah v R [2021] NSWCCA 207

Panetta v R [2016] NSWCAA 85

R v Edwards (1996) 90 A Crim R 510

R v Ellis (1986) 6 NSWLR 603

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

R v Zerafa [2012] NSWSC 978

Ryan v The Queen (2001) 206 CLR 267

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Texts Cited:

Grace Crivellaro, “Woman feared she would be murdered”, Illawarra Mercury (Illawarra), 27 October 2023

Category:

Sentence

Parties:

Anne Marie Gallacher (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
M Kwan solicitor for Legal Aid (NSW) (for the offender)
C Buckthought solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2022/393251

JUDGMENT – EX tempore revised

Agreed Facts

1. In the early hours of 28 December 2022 there was an armed robbery of the BP Service Station in Warrawong. Two women entered the station. They were wearing black clothing. Their faces were covered, only their eyes were visible. One produced a boxcutter and put it on the counter.

2. She said to the attendant, “Give me all your money in the till yeah”. The attendant refused. She said, “Open the till. Give me the money … or my friend with the gun's going to come in.”

3. The attendant closed the till and walked to the office area. He and his colleague closed the office door and locked themselves in. The attendant later told police he “felt scared and worried and afraid”. His colleague was “really scared”.

4. The first woman instructed the other to go to the automatic door to prevent it shutting. She then gave the other woman her handbag and the boxcutter. Demands were made of staff to open the till, but they stayed in the locked office. The women ran away but before they left the first woman took six to eight packets of Winfield cigarettes.

5. The woman with the boxcutter was Anne Marie Gallacher, who is before the Court for sentence today. Her colleague, Telisha Monaghan, will be sentenced later in the year. Her matter was adjourned from today to early June. Gallacher was before me early this year. I adjourned the mater to today so that she could provide evidence supporting a submission she was making progress toward rehabilitation: Crimes (Sentencing Procedure) Act 1999 (NSW), s 11.

Maximum penalties

6. Every offence of armed robbery is treated seriously by the community and the Courts. There is a maximum penalty for an offence pursuant to s 97 Crimes Act 1900 (NSW) of 20 years. There is also a guideline judgment of the Court of Criminal Appeal which must be given serious consideration: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; Crimes (Sentencing Procedure) Act, s 42A. The maximum and the guideline are important guides to the exercise of my sentencing discretion.

7. In an ordinary case of armed robbery generally full-time custodial sentences of some length are imposed. Sadly, this is an ordinary case, although there are, the additional aggravating circumstance, that it was in company, and some subjective considerations from the guideline are different.

8. Heavy sentences are imposed because of the serious consequences arising from approaching people providing a valuable community service with a weapon, here a bladed weapon, and demanding and taking property from them.

9. People providing such services are vulnerable, particularly in the early hours of the morning or late at night. To provide the service extra security measures have to be put in place. No one, let alone someone providing a valuable community service, should be put in fear and at risk that they may be seriously harmed. For those reasons, taking into account only objective factors, a custodial sentence is well and truly justified.

Form 1

10. There is a matter on Crimes (Sentencing Procedure) Act 1999 Form 1 relating to the proceeds of the robbery, the taking of the cigarettes. Given that this fact was integral to my formulation of the objective seriousness of the offence, to punish additionally for it would not be appropriate. If it had been charged separately it would have been dealt with concurrently.

Early guilty plea and surrender

11. Shortly after the robbery there was a Facebook post which had a still of the robbery. Although that the person was disguised, Gallacher recognised herself. She sought legal advice. Despite that legal advice she immediately surrendered to police, made full admissions, and accepted responsibility for the offence.

12. That in itself is a very unusual circumstance. I am not in a position to assess whether she would have been caught either by way of fingerprints or DNA or someone else coming forward having seen the Facebook post. On balance it this seems unlikely, so her surrender to police is an important factor in this sentencing exercise.

13. She pleaded guilty when the matter came before the Local Court. Although an indictment was presented today, it was solely to cure a defect in the committal documents. Gallacher must have the benefit of the utilitarian value of that plea of guilty by reduction of the otherwise appropriate sentence by 25%.

14. Her surrender to police when, at the time, her guilt was unknown is a matter of considerable importance. It merits a significant added element of leniency: R v Ellis (1986) 6 NSWLR 603; Ryan v The Queen (2001) 206 CLR 267. In Ryan McHugh J said the rule is not to be “quantitatively, rigidly or mechanically applied”. The subsequent decision of the High Court in CMB v The Attorney General for the State of NSW [2015] HCA 9; 256 CLR 346, seemed to indicate that s 23 Crimes (Sentencing Procedure) Act was engaged. That provision requires me to indicate the percentage reduction for this element of the sentencing exercise: Panetta v R [2016] NSWCAA 85 at [34]. Also, I must give consideration to s 23(3) that the penalty imposed must not be disproportionate because of the reduction.

15. I will, in addition to the utilitarian discount, reduce the sentence by a further 15% because of that assistance – a total of 40%.

Subjective case

16. Gallacher gave evidence today. She confirmed a history given to Mr Bembrick, whose report is before the Court, and to Community Corrections officers whose Sentence Assessment Report is also before me. She has support in the community, as is evidenced by the references I have read. During the recent adjournment she has engaged with Community Corrections and has commenced treatment pursuant to a Mental Health Care Plan.

17. Gallacher has an 11-year-old daughter who lives with her. She has the support of her mother and stepfather who live nearby. Her family would rally around if she were imprisoned, but I do not underestimate the impact on a child of separation from their mother.

18. The imprisonment of mothers poses complex issues that do not always have simple solutions. Women are overwhelmingly the sole and primary carers of children. The removal of the child can have significant impact and trauma for the child and impact on their future emotional and cognitive processes.

19. When considering hardship to family members NSW Courts are bound by the principles set out in R v Edwards (1996) 90 A Crim R 510. I do note however that in R v Zerafa [2012] NSWSC 978 at [141], the stringency of that principle was questioned because of recent research into the impact of imprisonment on others, particularly children.

20. The history given, which I will not set out, notes early instability, exposure to domestic violence and alcohol abuse. Gallacher left school early. She left home early and fell in with people, one partner in particular, who subjected her to violence and what would now be called ‘coercive control’. I have only reference to the Illawarra Mercury (which is not a journal of record), but it indicates that her ex-partner is serving a sentence for what the magistrate described as “persistent horrific domestic violence that did not even end when he was gaoled”: Grace Crivellaro, “Woman feared she would be murdered”, Illawarra Mercury (Illawarra), 27 October 2023.

21. Other material before me indicates that he has, during her period of remand on this matter, exercised an influence upon her. She has been convicted and received Community Corrections Orders for her involvement with him in other crimes.

22. Courts do recognise the impact of violence and the traumatic impact of violence on victims of crime. It is well recognised that domestic violence contributes to the subordination of women and that violence involves the exercise of power and control and dominance over them. It is not unusual for a judge to take into account that matter when sentencing perpetrators. When sentencing women who have been subject to such crimes the Court must consider the trauma that they have suffered when making an assessment of their moral culpability.

23. It needs also to be noted that at the end of last year the offender was herself the victim of another serious crime. She is a prosecution witness in those proceedings. They are still before the the Court. This is another matter that requires sensitive consideration.

Substance abuse, addition, and mental health

24. The offender suffers from endometriosis. She became addicted to opioid pain medication. She also has a history of self-harm. It would appear that with the assistance of the Illawarra Drug and Alcohol Service and her own persistence she has come to grips with that opioid addiction. While she says she has dealt with that problem, her many vulnerabilities will make her vulnerable to relapse and she certainly requires assistance in that regard.

25. She told police that she committed this offence while intoxicated by methylamphetamine, a drug she said she had only used for the first time. That does not excuse what she did. At best it helps me explain what she did. In some respects, her intoxication made her more dangerous and unpredictable.

Moral culpability

26. There are many pathways to reduction of a person's moral culpability. Many of them exist here and they are interrelated. Clearly anyone with a thorough understanding of her background would conclude that she should not be regarded as having the same moral culpability as a person without those multiple traumas in her life.

27. The Sentence Assessment Report confirms those matters. It notes that she has not always been regular with her attendance, but she is willing to comply with supervision. A supervision plan can be put in place for her if she is not gaoled.

28. She has never previously been to gaol before. The Crown in both oral and written submissions submit that a sentence of full-time imprisonment is the only appropriate sentence given the seriousness of the offence, the nature of the weapon, the nature of the premises robbed, and the proper application of the guideline: Henry at [118]. That submission is soundly based. As Justice Hamill J said in Nasrallah v R [2021] NSWCCA 207 at [77]:

“The guideline judgment established, or re-iterated, the general proposition that sentences other than full-time imprisonment should be ‘few and far between’ and that such sentences would only be appropriate ‘in the most exceptional circumstances’”.

29. But as Chief Justice Spigelman has noted they are “guidelines, not tramlines:” Legge v R [2007] NSWCCA244. A sentencing judge has a considerable discretion to determine the disposition of matters. Given that broad discretion, trying to fit a complex individual case within the “exceptional” parameter may be unduly constraining, but terms such as “exceptional” require the Court to carefully consider how critical sentencing principles should be applied, and applied consistently: Henry at [7].

30. In this regard the Crown point to; the need for denunciation, the need to recognise the harm to the victim, the need to deter the offender from future offending. They call for general deterrence. That is, for matters such as this, others in the community have to understand that retribution will be forthcoming if they offend as this offender did. In general, that retribution is in the form of a full-time custodial sentence.

31. I note however, that most of those decisions were formulated before the decision of the High Court in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3.

32. Mr Kwan, on behalf of the offender, submits in this individual case even with a consideration of all of these matters when synthesised, with the reduction for the plea and the assistance, a sentence of less than 2 years could be imposed, enlivening the possibility of the sentence being served subject to intensive correction.

Is an Intensive Correction Order (‘ICO’) appropriate?

33. Mr Kwan submits that I dealt with the matter by way of intensive correction in the community.

34. The Crown’s position is that I would not get to less than 2 years and when considering Stanley v The Queen I should be very concerned about community safety. Here, they submit community safety can be met by imprisoning the offender, given I must be guarded about her prospects if released into the community.

35. The Crown note the offence was committed while on bail. But great respect, the matters she was on bail for would not ordinarily have resulted in custodial sentences and did not result in custodial sentences. Gallacher was subject to conditional liberty, she breached her obligation to be of good behaviour, an aggravating circumstance. Here, there is a considerable need for a degree of sensitivity. Those earlier offences were committed with the ex-partner who exerted coercive control over her.

36. This is not a matter where I could simply go to the guideline and impose that sentence. A custodial sentence is warranted but there are a significant number of matters which mean that it should be reduced significantly.

37. Had it not been for her assistance and the plea of guilty a sentence of 3 years would have been imposed. With the reduction of 40% for assistance and the plea, that leaves a sentence of 1 year and 9 months.

38. I am thus required to consider whether the sentence should be best served in the community or in custody with my paramount consideration being community safety: Crimes (Sentencing Procedure) Act, s 66(1).

39. I note Gallacher’s history and her progress while on remand, particularly during the s 11 remand. The material before me in the Sentence Assessment Report, and her engagement with a Mental Health Care Plan shows she has made progress dealing with her prescription drug problems. She needs to be free to care for her child. Work is available to her. She has secure accommodation which she would lose if she to be imprisoned for any significant length of time. There are many incentives for her to keep to the promises she has made to the Court.

40. Community safety is a broad term. Community safety would, in my view, be best met by her serving her sentence in the community. That is a more lenient option than gaol, but it is not lenient. A person on an ICO must be of good behaviour. They must submit to supervision. There are many supervision conditions that could be placed upon her by Community Corrections, including non-association, engagement in drug and alcohol testing, the need to give consent to third parties, to monitor compliance. The standard conditions will be explained to her: Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 187.

41. She is not suitable for community service.

42. There will be two additional conditions:

1. To engage in a Mental Health Care Plan as directed; and

2. To engage as directed in a drug rehabilitation relapse prevention program.

Orders

43. The offender is convicted. I take into account the matter on the Form 1. She is sentenced to a term of imprisonment of 1 year and 9 months. That sentence will commence today. It is to be served subject to intensive correction in the community. If she breaches the terms of the order she could be imprisoned or have additional conditions placed upon her. She will not come back before the Court for sentence.

**********

Decision last updated: 05 June 2024