R v Jones
[1999] VSCA 191
•16 November 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL
Not Restricted
No. 30 of 1999
| THE QUEEN |
| v |
| TRACEY LEE JONES |
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JUDGES: | PHILLIPS, C.J., ORMISTON and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 November 1999 | |
DATE OF JUDGMENT: | 16 November 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSCA 191 | |
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Criminal law – Sentencing – Armed robbery and other offences – Disparity in age between victims and assailant – Prospects of rehabilitation – Sentence not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Miss R.E. Carlin | P.C. Wood, Solicitor for Public Prosecutions |
For the Applicant | Mr. G.J. Thomas | Victoria Legal Aid |
PHILLIPS, C.J.:
I shall ask my brother Callaway to give the first judgment in this matter.
CALLAWAY, J.A.:
The applicant, who is now aged 32, pleaded guilty in the County Court to one count of armed robbery, two counts of robbery and one count of intentionally causing injury, contrary to ss.75A(1), 75(1) and 18 of the Crimes Act 1958. The maximum custodial penalties having regard to the dates of the offences were 20 years, 12½ years and 7½ years' imprisonment respectively.
The applicant admitted 43 previous convictions from seven court appearances between 11th December 1986 and 8th December 1994, including many offences of dishonesty and drug-related offences but none of violence. After hearing a plea for leniency on her behalf, the learned sentencing judge sentenced her on count 1 to two years' imprisonment, on count 2 to six months' imprisonment, on count 3 to 12 months' imprisonment and on count 4 to 18 months' imprisonment. His Honour directed that the sentence imposed on count 2 be served cumulatively upon that imposed on count 1 and that the sentence imposed on count 4 be served cumulatively upon the sentences imposed on counts 1 and 2, making a total effective sentence of four years' imprisonment. A non-parole period of two years was fixed and a declaration made regarding pre-sentence detention. By consent, his Honour ordered that an intimate sample be taken pursuant to s.464ZF of the Crimes Act. The applicant seeks leave to appeal against the sentences on the sole ground that they are manifestly excessive.
Before turning to counsel's submissions I shall say something of the circumstances in which the offences were committed. At about 9 o'clock on the evening of 9th January 1997 the applicant knocked on the front door of a flat in Collingwood. Her knock was answered by the occupant, Mrs Priscilla Werner, aged 64. The applicant asked for her mother. Mrs Werner told her that she had the wrong flat but that there was an Aboriginal family living in the building. The applicant thanked her and left, but returned about an hour later. This time she asked to use the lavatory. Mrs Werner agreed and also offered the applicant coffee and toast, which she accepted. The applicant then asked Mrs Werner whether she had change for a $50 note and, on a pretext, went to the lavatory again. Mrs Werner took $50 from her purse and waited for the applicant to come back. Upon returning, the applicant produced a knife wrapped in coloured paper. She held the knife against Mrs Werner and demanded money. The victim pleaded with the applicant not to hurt her; she had a heart condition and feared a heart attack. She told the applicant that she already had all her money. The applicant called her a liar and proceeded to search the room. The search revealed small change and a wooden box, which the applicant removed. She then made her way to the front door, still holding the knife towards the victim, whom she warned not to follow her or to call the police. Mrs Werner was so frightened that she waited until noon the next day before reporting the robbery.
At about 10.20 a.m. on 10th March 1997 the applicant approached Mrs Evelyn Nicol in Vere Street, Collingwood. Mrs Nicol, who was aged 82, knew the applicant, who offered to walk with her. They walked a short distance together and then the applicant dragged her into a driveway by pulling her handbag and trying to take it from her. Mrs Nicol would not let go, so the applicant reached in and took her purse. To this offence she later made full admissions, unlike the others, in respect of which she either claimed loss of memory or largely refused to comment.
The victim of the last two counts was one Beverley McInnes, aged 51, living with her three children in a flat in Fitzroy. About three years prior to the offences her 12-year-old daughter had befriended the applicant's older daughter, who became a regular visitor. In the early evening of 9th May 1997 the applicant called to deliver some clothing to her daughter. The two girls were going on a camp that weekend. The applicant sat in a chair next to Mrs McInnes. Without warning she leaned across and grabbed her handbag from behind her. She then shouted to her daughter, "Come on quick, Vicky, I've got the bag". Mrs McInnes caught her at the front door and took hold of the handbag. The applicant set upon her, pushing her hard in the left shoulder. Mrs McInnes fell heavily to the floor and landed on her right arm. The applicant picked up a telephone receiver and repeatedly struck her over the head with it. She also grabbed Mrs McInnes by the hair and punched her in the face several times. The attack, during which the applicant demanded money and the victim's bank card, continued for some minutes. The applicant then snatched about $50 from Mrs McInnes's hand and made her escape. The victim remained in hospital overnight for observation due to her losing consciousness.
Whilst his Honour accepted that the applicant did show remorse for her behaviour when she was interviewed by the police and that that remorse was further reflected in her early plea of guilty, he pointed out that its degree was open to question because she had absconded on bail. It should also be mentioned that she was on bail in relation to the first two offences when she committed the third and fourth: compare ss.16(3C) and 118(2) of the Sentencing Act 1991.
Mr Thomas, in his responsible and helpful submissions for the applicant, rightly conceded the importance of general deterrence. He concentrated on the applicant's prospects of rehabilitation, in respect of which the learned judge made no express finding but of which counsel said his Honour should have been persuaded. That process of rehabilitation was said to have begun with the birth of the applicant's younger daughter in 1992 but to have assumed particular significance more recently when the applicant was taken under the wing of Mrs Gina Wilkinson, the co-ordinator of the Bungyarnda Child Care Centre at Lake Tyers. Counsel at the plea had also emphasised the rehabilitative aspect of the sentencing task before his Honour, including her moving to Lake Tyers, where she had family members who were able to provide her with accommodation and employment and where, it was said, she was able to remain drug free. Mrs Wilkinson, who gave evidence and whom the judge found to be an impressive witness, said that she was in a position to give the applicant further support, including accommodation in her own home. Mr Thomas submitted that the confused way in which the chronological evidence emerged below had led his Honour to think that the applicant had moved to Lake Tyers at a later date than she in fact had. The proper conclusion, counsel said, was that the applicant first moved to Lake Tyers and to Mrs Wilkinson's benign influence in 1995. Because a stable environment away from Melbourne was of the essence, that had led his Honour, so the submission proceeded, to undervalue the rehabilitation that the applicant had achieved and that was in prospect.
It is worth noticing, however, that in the very context in which his Honour spoke of Mrs Wilkinson as an impressive witness, he also said that it was clear from her evidence that the applicant "has been at Lake Tyers for the period March 1998 onwards and indeed prior to that time for some time" (emphasis added). Moreover, it cannot be overlooked that the applicant committed four further offences for which she was convicted and fined at Robinvale in December 1994. There are also the present offences before the Court extending over a period of four months in 1997 and a history of absconding on bail.
Mr Thomas also referred to sympathetic questioning by the police in the course of the applicant's record of interview on 12th March 1997, in which the interviewer suggested, and the applicant acknowledged, that a change in her life depended on getting away from the environment she then inhabited and in particular the use of drugs. As counsel inevitably conceded below, that insight was not acted on until after the commission of the further offences.
Counsel also mentioned that the prosecutor below had conceded that, although a custodial sentence was called for, it need not be an immediate custodial sentence: compare Director of Public Prosecutions v. Voegeler (1988) 36 A.Crim.R.174 at 176. Counsel below did not, however, seek a suspended sentence. She, like counsel before us, argued for an exceptionally low non-parole period.
Mr Thomas referred to three other cases, but the present is not an instance of lengthy delay in sentencing during which there has been substantial rehabilitation, as in Duncan v. R. (1983) 47 A.L.R. 746, nor was this a single impulsive attack by a person of the antecedents to which Wood, J.'s remarks were directed in R. v. Fernando (1992) 76 A.Crim.R.58. R. v. P.J.K. (unreported, Court of Appeal, 8th September 1997) concerned a young offender in very different circumstances from the present who had volunteered her participation in one of the offences and there was an error by the sentencing judge.
Miss Carlin for the respondent submitted that the individual sentences were, if anything, lenient having regard to the number of aggravating features that attended them. She referred also, among other things, to the disparity between the head sentence and the non-parole period and to the limited evidence of rehabilitation that was before his Honour. It was for the applicant to persuade the learned judge of rehabilitation achieved and in prospect.
There was, as Miss Carlin submitted, only limited material to that effect, and in any event I think that his Honour accepted it to some degree and with caution. He noted, for example, that, so far as Mrs Wilkinson had been able to observe, the applicant had been accepted into the community at Lake Tyers and had kept away from drugs. The proportion that the non-parole period bears to the head sentence is explicable only by his Honour's acceptance that there were prospects of rehabilitation and his hope that, when the applicant is released, she will take full advantage of the friendship, support and wise advice of Mrs Wilkinson. So much is implicit in the sentencing remarks. For myself, I echo the same hope.
One comes back to the ground of appeal and asks whether the sentence is manifestly excessive. The victim of the first offence was a woman of 64 who had befriended the applicant and offered her hospitality; she was robbed at knifepoint in her own home. The victim of the second offence was an old lady of 82 who knew the applicant and trustingly agreed to walk with her. The victim of the third and fourth offences was belaboured in her own home into which she had invited the applicant and her children were present throughout the ordeal. The learned judge was quite right in saying that there was a real need both to deter the applicant from offending again and to deter others from following her example.
For these reasons I would dismiss the application.
PHILLIPS, C.J.:
I agree with the conclusions of Callaway, J.A. and I would subscribe to his Honour's reasons for reaching them.
ORMISTON, J.A.:
I am of the same opinion.
PHILLIPS, C.J.:
The order of the Court is that the application for leave to appeal against sentence stands dismissed.
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