R v Haines

[2001] NSWCCA 256

CITATION:	R v Haines [2001] NSWCCA 256
FILE NUMBER(S):	CCA 60847/00
HEARING DATE(S):	4 July 2001
JUDGMENT DATE:	4 July 2001
PARTIES :	Regina v Angela Rose Haines
JUDGMENT OF:	Studdert J at 1; McClellan J at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/31/0087
LOWER COURT JUDICIAL OFFICER :	Black DCJ

COUNSEL :	D.M. Woodburne (Crown) J.S. Andrews (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) S. Calomeris (Applicant)
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure Act)
CASES CITED:	R v Henry (1999) 46 NSWLR 347 R v Fernando (1992) 76 ACrimR 58 R v GDR (1994) 35 NSWLR 376 R v Hampton (unreported, NSWCCA, 25 June 1998)
DECISION:	Leave to appeal granted; appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60847/00

STUDDERT J

McCLELLAN J

Wednesday 4 July 2001


REGINA v ANGELA ROSE HAINES

JUDGMENT

1   STUDDERT J: Angela Rose Haines seeks leave to appeal against a sentence imposed upon her by his Honour Judge Black QC in the District Court at Sydney on 6 December 2000. On that date, the applicant, who had been committed for sentence from the Local Court, pleaded guilty to an offence of aggravated armed robbery and was sentenced to a term of imprisonment for four years with a non parole period of three years. The sentence was expressed to date from 27 January 2000 when the applicant was first taken into custody.

2 The offence committed was one in a category for which s 96 of the Crimes Act provides for a maximum penalty of twenty-five years imprisonment.

3   Objectively, the circumstances of this offence were serious. The applicant and her friend called a taxi in the early hours of 18 January 2000 in the city of Tamworth. The objective was to rob the taxi driver and this objective was achieved after the driver had been directed to take the applicant and her friend to a number of destinations. The last of these was in Green Street, Tamworth, and after the taxi driver had stopped the vehicle he was subjected to an attack in which both passengers were equipped with knives and used them. When, ultimately, she was interviewed by police, the applicant admitted that in the course of holding up the taxi driver she put a knife to his throat, and the taxi driver sustained a wound in the form of a laceration across the throat approximately seven centimetres in length. Plainly, the applicant was responsible for that. The taxi driver also sustained a puncture wound to his back, which, it would seem, was caused by the applicant’s co-offender.

4   A coin dispenser in the taxi which contained, apparently, just under $50 was stolen.

5   I remarked earlier that this was a serious offence viewed objectively. It involved not only the use of a knife as a weapon but the infliction of bodily injury, and the victim was a taxi driver and that calling is a vulnerable one, as the courts have recognised: see, in particular, R v Henry (1999) 46 NSWLR 347 at 380.

6   Mr Andrews, who has appeared for the applicant and who has put all that could possibly be put before this Court in her favour, has not attempted to argue that the overall sentence was excessive but rather that the sentencing judge fell into error in not finding special circumstances warranting a lesser non parole period and a longer period of parole.

7   To address this challenge to the sentence as structured, it is important to consider the subjective features of this case. Before doing so, I observe that each offender was given exactly the same sentence. There is no complaint about that and it is not necessary to embark upon any comparison of the subjective features of the co-offender.

8   The applicant was born on 6 March 1973. She had a criminal record, including convictions for larceny, malicious damage, unlawfully taking goods, destruction of property and assault police, but this was the first offence of armed robbery and, indeed, it would seem that this was her first custodial sentence, other than a sentence of imprisonment for one month, commencing on 9 January 2000, for assaulting and hindering police.

9   The applicant gave no evidence on sentence but the sentencing judge had the opportunity of considering the recorded interview conducted by police at the time of the applicant’s arrest and his Honour also had the advantage of a pre-sentence report and of a psychological assessment of the applicant by a Dr Lennings of Burwood.

10   It emerges from the pre-sentence report dated 13 July 2000 that the applicant is of Aboriginal background who was fostered from the age of two. The applicant acknowledged by way of history given a very good upbringing with her foster family who were supportive and caring. The history taken by the Probation and Parole Officer and recorded in the report was that the applicant began to abuse alcohol and drugs from the age of eighteen. Her endeavours to live independently were not sustained for long and her foster family assisted her when they could. Indeed, the applicant told the Probation and Parole Officer that the foster family helped her “to pick up the pieces” on many occasions but, in the long term, there was no improvement in her unstable and anti-social lifestyle, characterised by drug and alcohol abuse and criminal behaviour. During her teenage years the applicant met her natural family and discovered both her natural parents had serious alcohol problems. Her siblings had alcohol and drug problems and the applicant told the Probation and Parole Officer that meeting her family members had a negative impact on her. The applicant had a son aged two who was living with the applicant’s foster parents.

11   Consistently with what the applicant had told police when interviewed, she told the Probation and Parole Officer that she was not affected by drugs or alcohol when she committed the offence although the objective of the offence was to obtain money to purchase heroin to feed her habit.

12   The report of the Probation and Parole Officer contained the following passage:
“Ms Haines had the benefit of a stable and caring upbringing with good values. She seems to have turned away from those good values and instead lived her life as she thought fit, involving anti-social and criminal behaviour, some of which is drug and alcohol related. This way of life is now well entrenched and seems to have culminated in the current offending behaviour, which, given her prior offences, seems to be somewhat out of character in view of the seriousness of this matter.
Unless Ms Haines is motivated to change her way of life and makes a considerable effort over time to do so, the outlook for the future seems dim, with little likelihood of her lifestyle altering. There is no evidence at this time that she is seeking to change her life.”
13   Dr Lennings, the psychologist, provided a report of 4 December 2000 following what I infer was a then recent assessment. In the course of the report Dr Lennings said:
“ Formulation . Ms Haines is a young woman of low average cognitive ability who reports a reasonably good adjustment until she was reunited with her family when aged 16 years. At that time stresses and strains in her character were exposed and augmented by her unfortunate reunion with her biological family. By the time Ms Haines was 18 her character was submerged under an intense poly-drug abuse problem. Ms Haines underlying personality does not appear to be particularly pathological. She is able to maintain interpersonal contact, she is capable of some limited insight, she has socially appropriate future plans and ambitions, and she appears able to resolve some of the dilemmas her life and behaviour have caused for her.
Ms Haines remains vulnerable to re-offending due to her ongoing problem of orientation towards substance abuse, and her fears that she may not be able to control her use of alcohol or drugs when released. When not alcohol affected Ms Haines gives the impression that she could be taught to restrain her impulsivity. Her prior good adjustment and positive orientation to work also suggests reasonable rehabilitative strengths. She remains highly committed to her son, and says that she wants to live a positive life. To the extent that she is positively seeking to reunite with her son, there is a hope that this will motivate pro-social behaviour.
Recommendations . Ms Haines does show some insight into her difficulties, some resolution of these difficulties, and some awareness of major risk factors for recidivism. It appears to me that Ms Haines would benefit from a concerted effort to further explore and treat her underlying substance abuse problems. Ms Haines has attended various drug rehabilitation programs in the past, and on least 2 occasions lasted for 4 months. It is hoped that if Ms Haines would be referred to an appropriate treatment facility her risk factors would decrease even further. This is especially true if she continues to enjoy the support of her foster parents. A period of supervision that would provide for over-seeing drug rehabilitation, and helping her establish accommodation and some further education, would be beneficial to her after her release from prison.”

14   In his comprehensive written submissions Mr Andrews has submitted that the sentencing judge erred in failing to find special circumstances. He pointed out that there was no reference in the remarks on sentence to the applicant’s background, her alcohol and substance abuse problems or the need for supervision upon her release, nor was there any reference to the fact that the applicant would be entering the gaol system for the first time. Mr Andrews submitted these were all relevant considerations and that properly weighed they ought to have influenced his Honour to find special circumstances. Absent such a finding, this Court should infer that his Honour did not have proper regard to the question of special circumstances and that his sentencing discretion miscarried in this area. Further, Mr Andrews submitted that reasons for the finding that there were no special circumstances ought to have been expressed.

15   I do not consider that any error has been shown. I do not conclude from the absence of specific reference to the subjective features that Mr Andrews has identified that his Honour failed to consider those matters. What the transcript of proceedings on 6 December 2000 reveals is that after the Crown had tendered documents dealing with the objective features of the crime and the pre-sentence report, the psychological report of Dr Lennings was tendered and the learned judge left the bench to read that material. Having returned to court, his Honour then heard addresses of counsel and then proceeded to perform his sentencing task. His Honour made it clear in the course of his remarks on sentence that but for the plea of guilty and the applicant’s background, which he specifically mentioned attracted consideration of the principles in Fernando (1992) 76 ACrimR 58, this case would have attracted a sentence of six years. His Honour discounted the sentence therefore by two years. Having done so, his Honour went on to say:
“It is then necessary for me to consider whether anything in the material put before me justifies my concluding that there are special circumstances in this case which would justify my altering the normal ratio between the non-parole period and the overall sentence. Various reports have been put before me and every available argument has been urged upon me by…Mr Vertigan on behalf of the prisoner Haines. I do not find any of those arguments convincing with no disrespect to those that put them forward and accordingly I do not find special circumstances in this case.”

16 It is clear from the above that his Honour did give consideration to the question as to whether or not there were special circumstances. The finding that there were not circumstances such as warranted a shorter non-parole period and a longer period during which the applicant would be eligible for release on parole cannot, in my opinion, be regarded as appealable error. Whether or not there were, in the sentencing judge’s view, circumstances amounting to special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 such as warranted a departure from the norm set in that sub-section, involved the exercise of a discretion by the sentencing judge: see GDR (1994) 35 NSWLR 376, and Hampton (unreported, NSWCCA, 25 June 1998) and in particular the judgment of Spigelman CJ at p 5. It was open to his Honour to find that there were no special circumstances calling for an extended period of parole.

17   It is not insignificant in this regard to bear in mind that the applicant gave no evidence on sentence and that the contents of the Probation and Parole Report on the one hand and of the psychologist’s report on the other hand pointed in significant areas in opposite directions.

18   The sentence as structured afforded the opportunity for a period of twelve months of supervision and it was open to his Honour, in the absence of direct evidence to the contrary, to regard that as being sufficient.

19   It seems to me then that it was open to the judge, in the exercise of his discretion, to structure the sentence in the way that he did.

20   I would only add that the objective gravity of this case was such that his Honour was entitled to take the view that no less a non parole period of three year was appropriate, making due allowance for the subjective features.

21   For these reasons I do not consider this Court should disturb the sentence which was imposed by this experienced sentencing judge. I would grant leave to appeal but, in my opinion, the appeal should be dismissed.

22   McCLELLAN J: I agree.

23   STUDDERT J: The orders will be as I have proposed.
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