R v Glynn No. Sccrm-98-205 Judgment No. S6923

R v GLYNN
[1998] SASC 6923

Court of Criminal Appeal: Millhouse, Olsson and Debelle JJ (ex tempore)

MILLHOUSE J. I agree with the reasons of Olsson J.
OLSSON J. The appellant appeals against a custodial sentence imposed upon her by a District Court judge, on the ground that it is manifestly excessive in the circumstances. She particularly complains that the learned sentencing judge did not have sufficient regard to the psychological report which was tendered on her behalf, and that given her age, background and personal circumstances, he ought to have suspended the custodial sentence imposed upon her.
That a custodial sentence ought to have been imposed is, in my view, beyond question.
The appellant pleaded guilty to what was a quite appalling offence of robbery with violence.
The relevant circumstances attendant upon that offence can simply be stated.
The victim was a young woman, some 17 years of age. At about 10.00 p.m. on Sunday, 2 November last, she was asleep in her rental home in Commercial Street East, Mt Gambier. She was awakened by a knock on the door. On opening it, she was confronted by a group of people whom, as I understand it, were the appellant, another young woman known as Natalie Frost and two juveniles, one male and one female. They all entered the victim's premises uninvited.
According to a co-offender, the visitation arose from a desire of one of the juvenile offenders to speak with the victim’s boyfriend, who was thought to be at the premises - apparently to have some words with him about a rumour that he was alleged to have been spreading.
The appellant then decided that she would go as well, as she did not like the victim. This was because, shortly after her son's birth, she had allegedly found the victim in bed with the appellant’s ex-boyfriend. On the documents, the appellant clearly bore the victim a grudge.
As it transpired, the victim's boyfriend was not at the premises occupied by her at the relevant time.
The victim asked the intruders to leave, but they laughed. The appellant shut the door and secured it with a chain.
Initially, the appellant merely verbally abused the victim. However, she then grabbed her by the hair and banged her head against the wall. The victim fell to the ground, whereupon the appellant kicked her in the jaw. She tried to get up but was ordered to remain sitting down.
The appellant and those accompanying her proceeded, thereafter, to ransack the premises. They packed much of the victim's clothing and personal effects into plastic bags, which they eventually took with them when they left. They also took eggs and other foodstuffs and literally threw them around the kitchen, the lounge room and the bathroom walls. They poured the contents of bottles from her kitchen not only over the victim, but over the furniture and the carpet as well.
Finally, after continually abusing the victim and desecrating the premises for upwards of an hour, the appellant again kicked the victim in the face. She and her associates thereafter left.
As the intruders had destroyed the telephone connection, the victim waited a short time and then left the premises to seek help. It appears that police officers arrested most of the offenders in the early hours of the following morning.
All in all, the victim was subjected to quite a horrific ordeal. She suffered some considerable, though not permanent, physical injury, was said to have lost a week's wages and incurred expense in cleaning up her premises and replacing various food and other items. On the victim impact statement, she certainly has been left with some ongoing psychological or emotional problems.
Although the bulk of the items that were originally taken amounted to about $2500, the bulk of these were later recovered. The police photographs of the condition to which the premises was reduced speak for themselves in quite graphic terms. They were put before the learned sentencing judge and are on file.
On the face of the situation, this was an unprovoked, deliberate and quite horrific crime which clearly merited a harsh sentence.
When the appellant appeared before the sentencing judge various matters of mitigation were, however, put before him.
The appellant is a single supporting mother, aged about 23 years. At the time of her sentencing, her son was just under three years old.
The learned sentencing judge was supplied with a detailed psychological report, which revealed that the appellant had serious and deep-seated personal problems.
Although she had quite a high level of intellectual functioning, she presented as a person who was suffering from both an attention deficit disorder and a post-traumatic stress disorder.
According to the report, through which we were taken by Mr Rice this morning, the appellant was plainly experiencing a post-traumatic stress disorder and an associated rape trauma syndrome as a consequence of sexual abuse of her by male step-parents from a very early age, and particularly since about the age of nine.
The report went so far as to say that this young woman’s early childhood experiences would have probably broken the majority of average people; and that the major fact or she had going for her at the moment is her young son.
She has never received proper counselling in relation to, or treatment of, those conditions which in turn, according to the report, overlay a significant condition of attention deficit disorder which has been present since at least seven years of age. That has involved a persistent pattern of inattention and/or hyperactivity and impulsivity. It is accompanied by a low tolerance for frustration and significant mood swings.
It appears that, from an early age, the appellant has maintained an historical scrapbook which clearly illustrates the problems which she has had and the maternal deprivation which she has suffered. She emanates from what is described as an extremely dysfunctional family; the mother having had four children to four different fathers. It is clear that she currently experiences significant unresolved emotional problems and she finds it difficult to form other than superficial relationships. It is assessed by the psychologist that the appellant requires long term psychotherapeutic intervention and assistance from the Drug and Alcohol Counselling Service. As I understand the material before us, she had been drinking on the day in question.
The psychological report is notable for its strong plea for a suspended sentence, because of the serious adverse effect of separation of the appellant from her child.
The appellant has a relatively modest list of prior offences, but they include illegal use of a motor vehicle, property damage, breaking, entering and larceny, unlawful possession, carrying an offensive weapon, possessing equipment and common assault.
The learned sentencing judge indicated that he proposed to allow the appellant a 25% reduction in sentencing in recognition of her timely plea, and in the end he fixed a head sentence of two and a half years with a non-parole period of nine months. That is to say, his commencement point must have been of the order of a custodial sentence of about three years and four months.
In view of the inherent seriousness of the offences and the appellant's antecedent background, he felt unable, obviously, to suspend the sentence imposed.
In my opinion, there can be no reasonable quarrel with the quantum of the head sentence and the non-parole period arrived at by the learned sentencing judge, and that aspect is not now pursued by the appellant.
It must be stressed that the appellant and her associates invaded the victim's premises for no good reason, seriously assaulted and terrorised her without even the slightest provocation and, to use an expression employed in the declarations, literally trashed her premises. She sustained personal and emotional injury, as I have said, and many of her personal possessions were initially stolen.
Given the appellant’s antecedent history, there was certainly little basis for extending leniency to her, even having regard to her personal mitigating circumstances. This was an extremely serious offence of its type which, necessarily, had to be marked by a stern custodial penalty.
The only real issue is as to whether the learned trial judge can be said to have erred in not suspending the sentence, having regard to the appellant's personal circumstances, as I have attempted to outline them.
There can be no doubt that the appellant has endured a terrible and deprived upbringing, and that her past conduct is readily explicable by reference to the serious disorders from which she plainly suffers. It is also clear that her attachment to her son has been a key factor in her mental health survival. It is not difficult to accept that the enforced separation from that child, which will be the inevitable consequence of the requirement to serve a custodial sentence, may have a very serious impact upon her. But, as against those considerations, are to be balanced the important factors of personal and general deterrence and the need for recognition of the inherent seriousness of the offending.
The appellant complains that, in his sentencing remarks, the learned trial judge did not properly turn his mind to the aspect of suspension, because he made no specific mention of it in his sentencing remarks.
I do not consider that that is a valid criticism. The issue was canvassed before him in detail and it cannot be inferred that he did not give attention to it. The only reasonable inference is that he felt that he could not reasonably entertain such a suggestion. I am reinforced in that conclusion by the fact that, at the time, he was sentencing not only this appellant, but also the co-offender Frost. In the case of the latter, he did, in fact, suspend the sentence, for reasons which he expressed.
Whilst, in the circumstances, there was something to be said in favour of a suspension, at the end of the day this was a question for the exercise of a discretion by the learned sentencing judge.
In my view, given the circumstances to which I have referred, it simply cannot be said that he erred in the exercise of his discretion. It seems to me that there were powerful reasons why suspension was really not a practical option in the situation with which the learned sentencing judge was confronted.
One recognizes that there are serious problems which arise from a non-suspension of this sentence, so far as the appellant is concerned, but the fact of the matter is that she has brought that situation upon herself, by virtue of the very serious behaviour in which she engaged.
I am not persuaded that this is a case in which this court can or ought to interfere. Therefore, I would dismiss the appeal.
MILLHOUSE J: I agree. I cannot accept the argument which Mr Rice has put that his Honour did not pay any or at least sufficient attention to the question of suspending the sentence. Given the background of the matter, the way in which it proceeded, as has been explained to us, it's implicit in the learned sentencing judge's remarks that he did consider that matter and was considering that matter as he spoke.
It was his discretion to suspend or not and he exercised that discretion against suspension and I must say, with respect, that I entirely agree with him; I would have done the same thing. For those reasons, I agree that the appeal should be dismissed.
DEBELLE J. The facts which have just been recited by Olsson J plainly show that this was a shocking crime. The appellant with others woke the victim at night and forced their way into her house, robbed the victim, assaulted her and caused extensive damage to her rented accommodation.
In my view, the period of imprisonment constituting the head sentence and the non-parole period were plainly within the proper exercise of the sentencing discretion. The non-parole period was I think lenient. Plainly the sentencing judge has decided to be merciful as this would be the first period of imprisonment to be served by this young woman and she would be separated from her infant son. It took into account all of the mitigating factors which might apply to this woman.
It is implicit in the judge's remarks that he has considered whether he should suspend the sentence. He decided not to do so because of the shocking nature of the crime and the appellant's prior convictions. In that respect, it should be noted that the appellant had earlier been sentenced to a period of imprisonment for breaking and entering premises and larceny, a period of imprisonment which had been suspended.
The sentencing remarks disclose that the judge had regard to all relevant factors. While one can feel a good deal of sympathy for this young woman given the difficulties she has experienced in her life and, while understanding her sentence of loss and deprivation while being separated from her son during the course of the non-parole period, the offending was so serious that there is no ground for allowing the appeal. The appellant has not demonstrated any ground which justifies this court in interfering with the exercise by the trial judge of his discretion not to suspend the sentence. I too would dismiss the appeal.
MILLHOUSE J. The order of the court accordingly is appeal dismissed.

[1998] SASC 6923

19 October 1998