R v Hammond No. Sccrm-03-168

[2003] SASC 326

R v HAMMOND
[2003] SASC 326

Court of Criminal Appeal:       Doyle CJ, Prior and Vanstone JJ

1. DOYLE CJ:          I agree with the order proposed, for the reasons given by Vanstone J.  Ms O’Connor said all that could be said in support of the appeal.  The case of Ms Hammond is a sad one, but I am satisfied that the judge made proper allowance for all relevant matters including Ms Hammond’s commendable efforts to rehabilitate herself.  I am unable to say that the judge erred or that the circumstances required him to impose a lesser sentence.  For those reasons I would dismiss the appeal.

2. The order of the court is that the appeal be dismissed.

3. PRIOR J:              I agree with the reasons given by Vanstone J and the further remarks made by the Chief Justice.

4. VANSTONE J:     This is an appeal against sentence, by leave.  The appellant pleaded guilty in the District Court to a total of 33 offences committed between March 1999 and March 2003.  They were 16 counts of larceny, two counts of being unlawfully on premises, five counts of false pretences, six counts of serious criminal trespass in a place of residence with circumstances of aggravation, two counts of serious criminal trespass in a place of residence, one count of attempted serious criminal trespass in a place of residence and one count of breaching bail.  The value of money and property obtained by the appellant was about $12,000.

5. The serious criminal trespass offences generally occurred in the late afternoon.  Often the appellant committed them in company with a male companion, employing a system whereby she would distract the, usually elderly, female occupant of the home while the accomplice entered the house and stole money or valuables.  The appellant told police she needed about $400 per day to finance her drug habit.

6. The maximum penalty for the most serious of this group of offences, being aggravated serious criminal trespass in a place of residence, is life imprisonment. The learned sentencing judge imposed a single penalty pursuant to s.18A of the Criminal Law (Sentencing) Act 1988, being six and a half years imprisonment.  He fixed a non-parole period of three years.

7. On appeal the appellant asserts that the sentence is manifestly excessive and that the learned sentencing judge failed to take into account or give adequate weight to the mental state of the appellant and her personal circumstances, including that she is a single parent.  Additionally, the appellant complains of a lack of parity between the sentence received by the appellant, as against that given to a man who was her co-offender in respect of some of the offences and who was separately sentenced.

8. The appellant is 25 years old and the mother of four children.  It is apparent that she was not, prior to her imprisonment, the primary caregiver to those children.  On one occasion of offending she used a child to trick a prospective victim.  The appellant has been afflicted by addiction to both amphetamine and heroin.  The sentencing judge accepted that the appellant had an “appalling upbringing” marked by deprivation and abuse by drug addicted parents.  Indeed, it appears that the influence of drugs has pervaded her entire life, with her partners, the fathers of her children, also being drug addicts.  The appellant asserts that those partners have been physically and psychologically abusive to her.

9. A psychological report before the sentencing judge described the appellant’s presentation as being “consistent with her having a borderline personality disorder”, making her vulnerable to manipulation and exploitation.

10. The appellant’s attempts to rehabilitate herself were outlined at some length before the sentencing judge.  He acknowledged the steps she had taken, which were not always successful, and indeed he acknowledged all the positive material before him.  His Honour gave substantial credit for the pleas of guilty.

11. There is no complaint of any factual error by the judge.  Rather it is put that too little weight was given to the appellant’s personal circumstances.

12. The appellant’s antecedent report shows convictions for several serious offences committed either just before or in some instances during the period spanned by the offences before the court.

13. The male co-offender in some of these offences was sentenced by another judge of the District Court and received a suspended sentence of three years with a non-parole period of two years.  That occurred after the appellant was sentenced.  While some offences were committed together, the total number of offences for which that man was sentenced was far fewer and his personal circumstances were different.  To my mind it has not been demonstrated there is any useful comparison to be made. 

14. The striking feature of this offending was the long period over which it occurred and the number of offences involved.  In those circumstances the learned sentencing judge had a wide discretion as to the appropriate sentence.

15. It is plain from his remarks that the judge took into account the appellant’s age, the fact of her drug addiction - the relevance of which matter was recently discussed in this court in R v Proom (2003) 226 LSJS 363 - the steps she had taken towards rehabilitation, the deprived circumstances of her upbringing and the suggestion that she had a borderline personality disorder. In this last regard the judge referred to the appellant as being “a follower rather than a leader”.  Nevertheless, as mentioned, the appellant acknowledged that the offences were committed to finance her drug habit and many were carried out alone.

16. In all the circumstances it seems to me only limited emphasis could be given to the appellant’s unfortunate upbringing, her dependency on drugs and the suggestion of manipulation by her co-offender associated with her vulnerable mental state.  In some cases any of these factors could play an important role in the framing of the sentence, but here they had to be balanced against the seriousness of the repeated offending occurring over a protracted period.  It is true that one could readily imagine more serious examples of aggravated serious criminal trespass but here, as I say, it is particularly the number of offences spanning a long period which had to carry weight.

17. Again, while the appellant’s separation from her children during her time in prison will no doubt be a heavy burden, her level of functioning in the community in the years during which this offending occurred has not been such that she was able to provide for her children a stable, emotional or physical environment.

18. In my view only by giving full weight to all the relevant ameliorating factors in this case could the learned sentence judge have arrived at the head sentence and particularly the non-parole period which he in fact imposed.  I would dismiss the appeal.