R v Lillian Patricia MILES

[2007] NSWDC 169

CITATION:	R v Lillian Patricia MILES [2007] NSWDC 169
HEARING DATE(S):	23 March 2007
EX TEMPORE JUDGMENT DATE:	23 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See para [21] - [22]
CATCHWORDS:	Criminal Law - Sentence - Larceny - Shoplifting - Assaulting a police officer in the execution of his duty - Assault occasioning actual bodily harm - Using an offensive weapon with intent to prevent lawful apprehension whilst in company - Plea of guilty - Standard non parole period
PARTIES:	Crown Lillian Patricia Miles
FILE NUMBER(S):	07/11/0045
SOLICITORS:	NSW DPP Aboriginal Legal Service

SENTENCE

1 HIS HONOUR: Lillian Miles appears for sentence today on three offences. The first is an offence of larceny, in this case an offence more precisely described as shoplifting. The second offence for which the offender is to be sentenced is one of assaulting a police officer while that officer was executing his duty and by that assault occasioning to him actually bodily harm. (That is an offence that carries a standard non-parole period). The third offence, is in terms of its maximum penalty, the most serious. That is an offence of using an offensive weapon with intent to prevent her lawful apprehension whilst she was in company.

2 The offender planned to commit the larceny, but she did not plan to get caught. The first of the offences was therefore something that she intended to commit when she commenced her criminal activities that day. The other two offences were offences that she decided to commit in order to avoid her apprehension for the first of the offences.

3 The offender was in a store selling handbags in the Pitt Street Mall on 7 June 2006. Also in the store was an off duty police officer. He appears also to have been there on some form of shopping expedition. He became aware of the offender and another female with her. He saw her put a handbag over her shoulder, look around towards the shop assistant and then run away with her co-offender. The officer commenced to pursue them. He pulled out his police badge and warrant card, showed them to the two offenders, and ran towards Ms Miles. He grabbed her and said

“I’m Constable Ferris from Sydney Central Police Station. You’re under arrest for stealing, stop there right now.”

4 Of course the offender should have stopped there right now, but she did not. Instead she committed the other two offences that I have referred to. She took a pen from somewhere upon her and lunged at the officer with that instrument. He believed she was holding a syringe. She was able to make contact with his torso and abdominal area with that pen. In fear of the item being a syringe the officer released his grip upon the offender. At the time the offender was attempting to inflict injury on the police officer with the pen. Her co-offender was standing nearby yelling “stab the cunt, stab the cunt”.

5 The officer then attempted to secure the instrument held by the offender by grabbing her arm. He did succeed in causing her to drop the instrument to the ground, but still she did not stop. She began to hit the officer with a closed fist, causing his nose to bleed and caused also swelling and bruising to his left eye. She then ran away again. Again the officer grabbed her and pushed her to the ground. Again the offender should have stopped, but again she did not. This time she began to bite the officer, doing so on many occasions.

6 Whilst this was happening the co-offender approached. She kicked Constable Ferris in the head and spat on him. The offender said “I’ll stop, I’m sitting down”. But she did not stop, she once again tried to run away. The officer again caught up with her. She continued to struggle and she spat at him too. She once again tried to bite him as she had in the past. Another off duty police officer was nearby and he saw what was happening so he came over and assisted the first of the officers to whom I have referred. Finally, the offender was apprehended. Other police officers, this time uniformed, arrived and put her into a caged truck.

7 As a result of the two offences of violence the officer received some injuries to his face, his legs, his arms and I have seen photographs depicting the nature of those injuries. They are significant injuries, they are not minor indeed. But perhaps what is of more impact upon the officer was the fear that he felt. As I have mentioned he was spat upon and bitten. There was clearly a possibility that he was exposed to some disease as a result of these actions by the offender. The impact that that fear had on the officer is obvious and foreseeable. The impact extended beyond him of course, but it is primarily the impact on him with which I am concerned. The injuries and the fear, indeed all of the consequences for the officer were entirely foreseeable. I have borne them firmly in mind when deciding the sentence to impose upon the present offender.

8 She is an Aboriginal woman of twenty-six years of age with a significant criminal history. A psychological report suggests that she has much to contribute to the community. Intelligence testing suggests that she is in the high average range. She is the fourth of six children to her mother, Lorraine Brown, and her father who died only recently. As she was growing up her father was said to have been excessive in his discipline, at times giving her beatings without explanation.

9 Her mother was apparently one of the stolen generation and was herself abused in a children’s home in Cootamundra. This no doubt had a significant impact upon Ms Brown and it in turn would have had a significant impact on the way she brought up and cared for her daughter.

10 The offender was also exposed to violence in her relationships with men once she became an adult. She has, for example, a broken tooth which was occasioned during an incident of domestic violence.

11 The offender gave evidence today and pointed out the difference between her attitude whilst living in the Redfern area and whilst living in a different part of the state, in particular her drug use. The offender began using drugs at a reasonably young age until she became addicted to heroin. Almost universally it is to be found that property offences such as these are committed for the purposes of supporting a drug habit.

12 There is some prospect for the offender’s future, but the prospects of rehabilitation depend on the offender becoming rehabilitated from her drug habit. The link between the offender’s criminal offences and her drug use is clear, although I do note there are on the offender’s criminal history some offences committed at a time when the offender said she was drug free.

13 Another factor suggesting the possibility of the offender remaining drug free related to the period where she was drug free after release from prison on 9 January 2004. At that stage she was in charge of three young cousins. In a presentence report the offender attributes her change of attitude to the fact that she had those responsibilities as well as of course her loss of contact with her prior associates. She relapsed however, early in 2006, once the children left her care and once a man with whom she was in a relationship committed a serious criminal offence. It was in those circumstances that she found herself on 7 June 2006 committing the offence of larceny to gain something to support her drug habit and when she was detected acting in a very violent way to avoid apprehension.

14 The offences committed on the police officer were obviously serious. The fact that one of them carries with it a standard non-parole period is an indication that parliament and I believe the community, is concerned about the level of violence inflicted on police officers who are simply doing their jobs. Those jobs are often thankless and usually difficult. It is incumbent upon the courts to support police officers, who after all are only attempting, as on this occasion, to prevent criminal offences being committed or to apprehend criminal offenders after offences have been committed.

15 Although the offender pleaded guilty, the standard non-parole period remains as a guidepost. Mr Ryan, for the offender, submitted that objectively the offence would be no higher than the mid-range. I agree. I find that objectively the sentence is in the mid-range having regard to the nature of the injuries inflicted on the officer, the way in which those injuries were inflicted and the circumstances in which they were inflicted.

16 Of course that finding is complicated by the fact that a weapon was used for part of the assault, but that circumstance is covered by another offence. I will depart however from the standard non-parole period because of the plea of guilty, because the offences of violence were unplanned and because I accept that the offender is remorseful for what she did to the officer.

17 I cannot say that the offender has good prospects of rehabilitation or that it is unlikely that she will commit further offences. As I have mentioned, there are some prospects, but I cannot say that they are good. They will largely depend on the offender overcoming her drug addiction, something which has been achieved only temporarily in the past.

18 For the larceny offence was planned, but not the other offences. As I have indicated the offender was remorseful for what she did to the police officer.

19 The offences involving violence involved a series of such assaults. That is multiple acts.

20 The offender is not entitled to any leniency on the basis that she has little or no criminal history. I will give effect to the principle of totality by imposing concurrent sentences for the offences of violence, but they will come after a short fixed term for the offence of larceny. I have given effect to the plea of guilty by discounting the sentence that I would otherwise have imposed. The overall sentence in the absence of a plea of guilty would have been one of three years. But taking into account the plea of guilty, these are the orders I make.

21 The offence of larceny I sentence the offender to imprisonment for a fixed term of six months commencing on 13 October 2006. That date, it is agreed, takes account of presentence custody served by the offender.

22 For the two other offences I set a head sentence of two and a half years with a non-parole period of nine months to commence on 13 April 2007. The non-parole period will expire on 12 January 2008 on which day the offender is to be released to parole. The fixed term for the larceny offence results from the sentence imposed on the other matters.

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