R v Hall

[2007] NSWDC 89

CITATION:	R v Hall [2007] NSWDC 89
HEARING DATE(S):	15/03/07
JUDGMENT DATE:	15 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See para 44-50.
CATCHWORDS:	Criminal Law - Sentence - robbery - cooperation.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Thomson & Houlton (2000) 49 NSWLR 383
PARTIES:	Regina Renae Anne Hall
FILE NUMBER(S):	06/71/0025
COUNSEL:	Mr Corr - Crown Mr Blackburn - Offender

SENTENCE

1 HIS HONOUR: Renae Anne Hall appears today for sentence in relation to an offence alleging that she, on 6 November 2004 at Wagga Wagga in the State of New South Wales, did rob James Hutchison of one Wagga Credit Union card, one New South Wales’ driver’s licence, one black Rip Curl wallet and 300 Australian dollars, the property of James Hutchison.

2 This offence is an offence brought pursuant to s 94 Crimes Act and carries a maximum penalty of fourteen years imprisonment. It does not have a standard non-parole period. The plea of guilty was entered at the arraignment of the accused and was accepted by the Crown in discharge of an indictment alleging, as a principal offence, an offence of robbery in company, which carries a maximum penalty of twenty years.

3 There is an agreed statement of facts which I need not dwell upon beyond pointing out that the crime committed against Mr Hutchison involved a vicious attack upon an intoxicated man. The prisoner’s role was to comply with the request of a passenger in her car who she understood was going to rob the victim.

4 The Crown does not allege, however, that she anticipated that the method of the robbery - that is, the method of the assault, the striking of the victim with a shovel - would occur, and the Crown concedes that the prisoner received no financial benefit from the crime.

5 As I said to the prisoner just a moment ago, the offence reflected a gross lapse of judgment on her part.

6 The prisoner, at the time, had a dependency upon amphetamines and I understand some other issues in relation to alcohol usage, and this may have, on this night, affected her judgment, the crime occurring in Bourke Street, Wagga Wagga, at 3.45am on 6 November 2004.

7 It should not be taken, of course, that in determining this matter as I will by granting the prisoner a bond, I am condoning street violence in Wagga or robbery of any individual in the early hours of the morning or at any other time at any other place in the state. But every crime needs to be determined on its facts and the facts of the matter are that whilst the prisoner is liable for the crime of robbery under joint criminal enterprise principles, the prisoner’s role was a minor one. The plan to rob the victim was clearly that of the male offender, and the prisoner’s involvement was one where she received no financial gain.

8 It is important too in assessing the objective criminality of the prisoner to note that the perpetrator of the attack upon the victim was a person that the prisoner says to me, and I accept, she did not know well. She certainly would not have known, I would have thought, acting reasonably, that the man Smith had convictions going back to the early nineties in adult courts and findings of guilt in the Children’s Court before that. He had a conviction for malicious wound with intent to cause grievous bodily harm for which he received a fixed term of five years in 1997, and, in 1998, he was convicted of robbery whilst armed with a dangerous weapon for which he received a total sentence of six years with a minimum term of four years.

9 Thus it could not reasonably have been anticipated, albeit that her conduct was criminal, that Mr Smith would engage in the activity which she neither knew of beforehand, nor, I am satisfied, condoned.

10 Another matter that is relevant to the assessment of her involvement in this matter and is also quite relevant in the subjective sense is the fact that at the time of the commission of the offence she was twenty-five years of age and at that time had no prior criminal convictions. Therefore her lapse of judgment was entirely uncharacteristic. Also, it could be fairly said, the absence of convictions demonstrates that she was otherwise of good character and is entitled to considerable leniency for this offence, at that age, being her first offence.

11 I note in relation to her criminal history that she was convicted in December 2005 for offences committed in August 2005. There are a large number of offences - four counts of goods in custody and nine counts of obtain money by deception. I do not have the facts of those matters but the explanation given by her partner would fit with what I can see is the essence of the offences. She apparently obtained a chequebook, presumably sought to obtain money by deceiving people into accepting herself as the owner of the chequebook and obtained property from her conduct.

12 But be that as it may, even if I do not have a full understanding of the facts of that matter, one thing is obvious, and that is, that those offences themselves were a manifestation of a longstanding dependency or abuse of prohibited drugs, particularly amphetamines.

13 The other significant aspect of those matters is that the crime with which I am concerned was committed before those offences were committed, and most importantly, unlike the understanding I had when the accused was arraigned, the crime that I was concerned with was not committed whilst on bail in relation to those offences or while the accused was subject to conditional liberty which is by way of a bond as is obvious.

14 The prisoner, I note, has complied with the terms of those bonds granted in the Local Court. She has not been charged with any offences since her appearance at the Tamworth Local Court and this is to her credit, despite the fact that those bonds were unsupervised bonds.

15 I have had regard to the references that have been written by her aunt and her mother and an employer from the rural community from which her family comes. I note her family are people of the land who have been involved in poultry farming. Her mother, naturally, speaks well of her and seeks the court’s leniency and I note that request. Her aunt also speaks well of her and attests to her positive qualities which are reflected, in my view, by the fact that she, prior to this offence, for twenty-five years had led a blameless life apart from her dependency on drugs.

16 She now lives with Mr Trow who gave evidence. The prisoner is a mother of a child aged seven, and I note that she has taken on the responsibility of Mr Trow’s child who is aged fourteen, and that, as I understood Mr Trow’s evidence, she is effectively a loving and dependable homemaker for himself and the children, although she may also have other obligations when work opportunities arise.

17 Mr Trow has been a positive influence upon her life. He had known the prisoner and her family for twenty years but did not develop a relationship with her until after she returned from Wagga to the Tamworth area from whence her family comes. He knew of her drug dependency or her drug issues, as I might describe them. She did not immediately desist from drug usage, as one might expect would be the case. Drug dependency is a difficult issue to address.

18 But it is clear, as time has evolved, particularly after the experience of appearing in court in late December 2005, that the offender has reduced her drug usage to the point where, by the time Mr Trow and the offender set up house in Gloucester in July 2006, the indicia of her behaviour were consistent with her having effectively overcome her dependency, which is very much to her credit.

19 The Probation and Parole Service report records a history of stopping amphetamine usage after five years in June-July 2006, consistent with what Mr Trow has told me, and there is evidence from Dr Campbell-Smith that the prisoner has sought medical assistance prior to that time, not only for drug dependence but for obsessive-compulsive behaviour symptoms which were also the subject of evidence from Mr Trow.

20 I am satisfied on the evidence contained in the Probation and Parole Service report and Mr Trow’s evidence that the prisoner now has stable domestic circumstances. She has severed any connection, such as it was, she had with her co-offenders and is making considerable progress to make herself a worthwhile member of the community, which she had been, as I have pointed out, up until the time of the commission of this offence.

21 It is thought that she will benefit from the supervision of the service to address both drug and alcohol issues and also to perhaps assist her in other ways. I also note her willingness to be supervised and her cooperation would be vital.

22 It is important in dealing with this matter in the way I propose to, that I should note that well before she pleaded guilty to the offence a few days ago for which she must now be sentenced, she had offered her cooperation to the New South Wales Police Service in May 2006, many months before she pleaded guilty before me. Police travelled to Tamworth and obtained a statement from her which no doubt will be valuable in the prosecution of Mr Smith.

23 It would appear, on the basis of his record and the facts of this case, that Mr Smith is a dangerous person, and her assistance in bringing him to justice will be vital, not only to assuage the feelings of the victim, but also in protecting the community from Mr Smith’s violent impulses.

24 I have noted that cooperation. The relevant formalities, as I understand it, have not been completed as yet, but I do not believe I need to have complete evidence in relation to this issue because of the way in which I propose to address it. But the Crown’s position is, as I understood it, that the prisoner’s cooperation has been effective and complete and is significant. The prisoner is prepared to give evidence in the future against Mr Smith.

25 I note the evidence of Mr Trow that the prisoner has fears for her safety arising from the fact that she has cooperated with the police. It would seem to me that whilst she should not have her fears aggravated by what I am about to say, that she has good reason to be concerned for her safety given Mr Smith’s violent past, and of course, the violence demonstrated by the commission of this offence.

26 It is the Crown case, I point out, that Smith himself was the person who not only removed the property from the victim but kept the property for himself.

27 I note Natasha Bickley was dealt with as an accessory after the fact to the robbery of this victim. Her Honour Judge Payne, in a careful judgment, gave her the benefit of a bond pursuant to s 9 Crimes(Sentencing Procedure) Act 1999.

28 I note in relation to Miss Bickley, of course, she pleaded guilty to a less serious offence carrying a maximum penalty of two years imprisonment, a much lesser maximum penalty than here.

29 However, that being so, I do not believe that my proposed order in relation to this matter represents any significant “disparity” or significant departure from what is reasonable, notwithstanding the orders that were made in Miss Bickley’s matter.

30 Miss Bickley, of course, entered her plea at the first reasonable opportunity available to her. That could not be said of Miss Hall, in one view of it, although I am not required, in the circumstances of the matter, to assess the utilitarian benefit of the plea of guilty.

31 I would accept that it is a plea that has greater utilitarian value than a plea entered at the commencement of a trial but less than that which would warrant the maximum discount, if I could use that expression, as articulated in the decision of Thomson and Houlton.

32 Of course, assessing these matters where there is to be no term of imprisonment is not a precise science, but I have factored into my assessment of this matter the fact that the plea of guilty is one with some utilitarian value, falling short of the maximum benefit.

33 I note in relation to Miss Bickley that she spent some time in custody and she was younger than the offender, but that does not persuade me that I should approach this matter by imposing upon this offender a term of imprisonment, albeit suspended as I would otherwise if considering a term of imprisonment, provided that term of imprisonment was two years or less.

34 I also note Miss Bickley had no prior criminal convictions.

35 It would seem to me that the prisoner’s culpability is greater than Miss Bickley’s but not so much so as to warrant the imposition of a custodial penalty.

36 In sentencing the offender, I have had regard to s 3A Crimes (Sentencing Procedure) Act. I have also had regard to s 21A Crimes (Sentencing Procedure) Act and the relevant aggravating circumstances particularised in subs (2).

37 In this particular matter, it is to be fairly said that the victim was a vulnerable person, being a person alone in the early hours of the morning, well affected by alcohol. In my view that, and the fact that the prisoner was in company with Mr Smith, can be properly seen as aggravating factors.

38 But, having pointed that out, it should be fairly said that with Mr Smith being the driving force in relation to this matter, the aggravations are not such as to warrant the imposition of a custodial penalty.

39 The mitigating factors are many. Relevant mitigating factors that I identify at this point are the fact that the offence was not a planned offence save for the opportunistic planning that occurred as revealed in the facts. Apparently Mr Hutchison, the victim, suffered some bruising, but fortunately, notwithstanding the severity of the attack upon him, no significant injuries, and ultimately, it must be fairly said, the prisoner is not at least morally culpable for the injuries that he suffered. She did not foresee that he would be injured.

40 I note that the prisoner has no prior convictions, as I have pointed out, was a person of good character, is unlikely to re-offend, and has excellent prospects of rehabilitation with Mr Trow’s assistance.

41 I note the plea of guilty as a mitigating factor to be recognised in sentencing her, and of course, cooperation is a relevant matter, and I have noted the terms of both the assistance as provided for under subs (3) of s 21A as a mitigating factor and of course the terms of s 23 Crimes (Sentencing Procedure) Act.

42 Ultimately, the appropriate disposal of this matter, in my view, is to determine that the offender should be placed on a bond to be of good behaviour pursuant to s 9 Crimes (Sentencing Procedure) Act.

43 Thus, hopefully having taken into account all relevant matters, I make the following orders. You can stand up, thanks very much, ma’am.

44 In relation to this matter, you are convicted. Pursuant to s 9 Crimes (Sentencing Procedure) Act, I order that you enter into a good behaviour bond for a period of three years from today.

45 Conditions applying during the term of the bond are as follows:

46 Firstly, you are to appear before court if called to do so at any time.

47 Secondly, you are to be of good behaviour.

48 Thirdly, you are to advise the registrar of the District Court at Wagga Wagga of any change of residential address.

49 Fourthly, you are to accept the supervision and guidance of the New South Wales Probation and Parole Service particularly at Taree for such period as the service requires and obey all reasonable directions of the officers of that Service, especially any directions regarding alcohol and drug treatment and counselling.

50 Fifthly, you are to report to the Officer in Charge of the Probation and Parole Service at Taree within seven days of today to enable such supervision and guidance to commence, and a further condition of the bond is that you are to cooperate with the Director of Public Prosecutions in respect of matters for which you have given or will give an undertaking.

51 Is that sufficient for your purposes Mr Crown?

52 CORR: Yes your Honour.

53 HIS HONOUR: You can take a seat. Do you understand those conditions Miss Hall?

54 OFFENDER: Yes your Honour.

55 HIS HONOUR: If you breach those conditions you’ll be in breach of the bond. If you breach any one of those conditions you will be in breach of the bond and you’ll be called up for sentence and I have the power to revoke the bond, and if I revoke the bond then I will have to consider other orders including the imposition of a custodial sentence. So take a seat just for the moment.

56 Any technical matters from you Mr Crown?

57 CORR: No your Honour.

58 HIS HONOUR: Any technical matters from you Mr Blackburn?

59 BLACKBURN: No your Honour.

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