R v Malinda Lee Rice; R v Paul Salmond

[2011] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:	R v Malinda Lee RICE; R v Paul SALMOND [2011] NSWDC 50
Decision date:	27 January 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	In relation to Ms Rice - non-parole period of two years and six months, balance of the term of two years. In relation to Mr Salmond - non-parole period of four years, balance of the term of two years.
Catchwords:	CRIMINAL LAW - sentence - robbery in company - form 1 offences taken into account - plea of guilty at earliest opportunity - offence committed in victim's home - Mr Salmond on parole at time of offence - a limited degree of planning in the offence - above Henry guideline judgment - each offender has prior criminal history -pre-sentence report in relation to Mr Salmond - drug and alcohol issues for Mr Salmond - special circumstances for adjusting ratio
Legislation Cited:	Crimes Act 1900 s 97(1); Crimes (Sentencing Procedure) Act 1999 s 23, s 32,
Cases Cited:	R v Henry (1999) 46 NSWLR 246
Category:	Sentence
Parties:	Regina Malinda Lee Rice Paul Salmond
Representation:	Ms Rigg for Ms Rice Mr Quinn for Mr Salmond Ms Engel for the NSW Director of Public Prosecutions
File Number(s):	2010/82017; 2010/82506

Judgment

1. I am sentencing a man and a woman who together robbed another man in his Housing Commission home. The victim was bashed in the process. Both of the offenders have criminal records and one of the offenders had recently been released to parole. The man's name is Paul Salmond and the woman's name is Malinda Lee Rice.

2. Both have been charged with robbery in company. That is a crime against s 97(1) of the Crimes Act 1900. It carries a maximum of 20 years imprisonment.

3. Paul Salmond has asked me to take into account when I am sentencing him - under the procedure in s 32 of the Crimes (Sentencing Procedure) Act 1999 - an offence of hindering a police officer in the execution of duty. I will take that offence into account when I am sentencing him and I sign the document to that affect.

4. Malinda Rice has asked me by the same process to take into account an offence of goods in custody and I will take that offence into account when I sentence her in due course and I sign the document to that affect.

5. I convict both Paul Andrew Salmond and Malinda Lee Rice of the offence of robbery in company.

6. It is important for a Judge in sentencing offenders to set out briefly what happened to bring about the charges so that the basis for the sentence can be understood. The crime itself occurred on 2 April 2010. About a year beforehand Malinda Rice met the victim Robert Weir when she was working as a prostitute in Darlinghurst. Both Malinda Rice and Robert Weir met for paid sex but also for social occasions as well. At one stage Mr Weir allowed Ms Rice move into his home. She paid rent and was provided with a key. She left at the beginning of March 2010. About a month later she came back with Paul Salmond and knocked on the door. She introduced him as her boyfriend.

7. As it happened Mr Weir's unit was robbed on 1 April 2010. Neither Ms Rice or Mr Salmond is involved in that but it meant that Mr Weir found that his front door was not secured, so he put a chair and a mattress inside the front door and slept on the mattress, so that he would feel more secure.

8. The next morning at about 20 to 2 Malinda Rice knocked on his door. He let her in and there were some discussions about having sex. Malinda Rice told Mr Weir that she wanted to get rid of her boyfriend who was standing outside and that she wanted to come and live back with Mr Weir. Ms Rice left but came back half an hour later. She knocked on the door saying " It's Mel ". Mr Weir let her back in. There was further discussion about having sexual relations on that occasion. They agreed on fifty dollars but Mr Weir later agreed to pay one hundred dollars. When he opened his wallet it was apparent that there was up to two hundred dollars or more there.

9. He took his shirt off and Ms Rice went to put the money in her purse. As she was bending over doing that, Paul Salmond forced his way into the unit. Mr Salmond's immediate remark was " no pants on " referring to Ms Rice who said " Where did you come from? ". Mr Weir stood up but Mr Salmond walked into his bedroom and began to punch Mr Weir to the face. He used both his hands. The two men began to wrestle and they fell to the floor. The men began to struggle over Mr Weir's trousers but Mr Salmond continued to punch Mr Weir to the head. Mr Weir then heard Malinda Rice call out " I've got it ". She was standing at the foot of his bed. Mr Salmond then let go of the trousers, stood up and both Mr Salmond and Ms Rice left the unit.

10. Mr Weir got dressed, saw that his phone was missing and some tobacco was missing, as well as two hundred dollars from his wallet. He phoned the police and the ambulance came. He suffered facial injuries, bruising, swelling, redness and minor abrasions. These caused him pain and ongoing discomfort. Included amongst the exhibits are photographs of his face, showing the bruising and the redness.

11. On the evening of the same day Ms Rice and Mr Salmond were arrested by the police in Crown Street, Darlinghurst. Mr Salmond was found with tobacco which was the same as the sort that had been stolen from Mr Weir. Ms Rice had a plastic bag containing mail items addressed to various people at units in Cleveland Street, Surry Hills. Possession of those items resulted in the charge of goods in custody which I am taking into account when I sentence her. When the police attempted to arrest Ms Rice, Mr Salmond became aggressive and demanded to know why she was being arrested and he tried to pull her away from the police. That resulted to Mr Salmond being charged with hindering the police. I will take that into account when I sentence Mr Salmond.

12. Both were charged. Both Mr Salmond and Ms Rice have pleaded guilty to the offence and they pleaded guilty at a very early time. That means that they will receive a discount from their sentence. Ms Engel, who appears for the Prosecutor, acknowledges that it is appropriate to allow the maximum of 25 per cent which I will apply in due course when I come to sentence them.

13. Since her arrest on 2 April 2010 Ms Rice has been in custody, only on this charge. Her sentence will date from then. However when Mr Salmond was arrested he was on parole. That parole was revoked. He served the balance of his parole until 16 July 2010 and his sentence in due course will date from 16 July 2010.

14. It is also important for a judge to record matters which may aggravate the offence. In this case the fact that the crime was committed in the victim's home is an aggravating factor. Ms Rice knew the victim and he allowed her into his home on trust. The fact that he was bashed and robbed in his own home is an aggravating feature of the crime. In Mr Salmond's case he was on parole. He had been released to parole on 16 March 2010, only a few weeks before committing this office. That is a significantly aggravating feature in his case.

15. All of the legal representatives appropriately approached the case by reference to the Court of Criminal Appeal guideline judgment in R v Henry (1999) 46 NSWLR 246. That is a case where the Court of Criminal Appeal indicated that in cases of armed robbery the total sentence would normally be in a narrow sentencing range of four to five years. The typical type of case which the Court of Criminal Appeal had in mind was described as one involving a young offender with no or little criminal history, with a weapon like a knife, committed with a limited degree of planning and limited if any actual violence on a victim who was vulnerable and involving a plea of guilty and a small amount taken from the victim. Ms Engel and Mr Quinn, who appeared for Mr Salmond, and Ms Rigg, who appeared for Ms Rice, all helpfully addressed those matters.

16. The guideline judgment also applies to the offence of robbery in company which I am sentencing both offenders for. Some aspects of the guideline judgment apply to this case. There was a relatively small amount of money taken and there was a plea of guilty. I bear in mind that the guideline judgment contemplates a plea in the order of 10 per cent, whereas the discount I am going to apply ultimately will be 25 per cent. There was a degree of violence in this case which was not insignificant. There was no knife but the offence was committed in company. Neither Mr Salmond nor Ms Rice can be described as a young offender with no or little criminal history.

17. Whether or not there was any planning was controversial. Ms Rigg argued that I cannot be satisfied beyond reasonable doubt that there was any planning in the offence. I do not accept that submission. I am satisfied beyond reasonable doubt that there was a degree of planning in the offence.I am satisfied because of the specific struggle between the two men over the trousers and because Ms Rice called out "I've got it" when she found the wallet. However I find that I am not satisfied beyond reasonable doubt that the planning was more than limited which accordingly brings it within that aspect of the typical case envisaged by the Court of Criminal Appeal. But Ms Engel acknowledged that the victim in this case was not in the position of a kind envisaged by the Court of Criminal Appeal such as a taxi driver or shop keeper.

18. I have mentioned a couple of times already that each of the offenders has a criminal record. Mr Salmond's criminal record is much worse than Ms Rice's criminal record. He was convicted of break, enter and steal as early as 1990 and in 1994 received his first custodial sentence for an assault and stealing from the person. He spent more time in custody in the mid 90's for break, enter and steal and committed another assault occasioning actual bodily harm in 1999 for which he was also sent to gaol. For another assault occasioning actual bodily harm he received in 2005 the benefit of a suspended sentence but he breached the bond associated with that sentence and went back into custody.

19. He received yet another suspended sentence in 2007. Significantly in 2009 he received a 16 months sentence for reckless wounding in company. He had been released on parole for that offence when he committed this offence. The reckless wounding in company occurred in January 2009 when a neighbour came into Mr Salmond's home and was bashed and kicked. As a result, the victim of the assault received bruises and a cut top lip which required six stitches as well as cuts and abrasions to his face, marks and soreness to his upper body. The victim's tooth was knocked out. It was whilst a few weeks into his parole from the sentence of that offence that Mr Salmond engaged in the robbery offence that I am sentencing him for.

20. Turning to Ms Rice, her criminal record is not as extensive but extends over a number of States. In Queensland she has convictions for a number of street offences and drug offences. In Victoria she has drug convictions as well as extensive break and enter convictions. There are a lot of convictions in this State for what I will call street crime and she committed an assault occasioning actual bodily harm in company, together with a stealing for which she received a custodial sentence.

21. Ms Rice is now 35 and Mr Salmond is now 40. Another thing which it is important for a judge to do in sentencing people is to take into account the personal features of the offender which are relevant. In both cases I have a good deal of information about the two offenders in this case.

22. There was a pre-sentence report prepared for Mr Salmond. Understandably he has been under supervision by the Probation and Parole Service on many occasions before. They regarded his overall response to supervision as less than satisfactory. He was regarded as hypoactive as a child and reacted in an antisocial manner to discipline he received at home.

23. He did an apprenticeship in the motor industry but graduated to using alcohol and drugs from an early age; in fact from the age of fourteen. He has abused alcohol, cannabis, heroin, amphetamines and benzodiazepines. He has made several attempts, the report records, to manage his abuse but without success. At one stage he spent 12 months in Odyssey House but was not able to adjust to the greater degree of personal responsibility when he re-entered the general community. He has been on the methadone program for some time.

24. He told the Probation and Parole officer that he had had some sexual abuse when he was fourteen years of age. He has two children, aged eight and three from a relationship he had some years ago.

25. He told the Probation and Parole officer that he had taken heroin and cocaine before committing this crime and had been quite affected. To the Probation and Parole officer he " expressed regret for his offences, and for the harm he caused to his victim ."

26. The Probation and Parole officer summarised the case as Mr Salmond being " a 40 year old man whose life has been dominated by his drug addiction since adolescence. Repeated attempts by way of supervised bonds and parole orders to assist the offender address his criminal behaviour have failed ."

27. It noted his stated intention to change and his regret for the crime I am sentencing him for. The Probation and Parole officer sensibly observed that it " appears that little confidence can be placed in the offender's statements until he brings a greater level of commitment to his rehabilitation ." He thought that the offender should have a high level of supervision if he was to be supervised.

28. Mr Quinn tendered a report from a forensic psychiatrist, Dr Jonathan Adams. It noted a similar history for Mr Salmond including, however, an admission to Waratah House, a psychiatric hospital in Campbelltown, on a voluntary basis, in recent years. The doctor noted regular and ongoing contact with his family members and Mr Quinn pointed out that the offender's parents were in Court, as they are today. Mr Salmond told the doctor that his employment history deteriorated significantly following his increased use of drugs.

29. Dr Adams expressed the opinion that the mood changes were not in keeping with a classical depressive or manic illness but he thought they were " exaggerated mood state changes in the context of significant illicit substance and alcohol abuse." The doctor noted no evidence of psychosis. His poly-substance dependence " has had a significantly deleterious impact upon both his mental state and more broadly, his psychological functioning." Not surprisingly, the doctor thought that the " paramount issue in Mr Salmond's case is the addressing of his illicit substance and alcohol use." He agreed with Mr Salmond's own view that " intensive, formal drug and alcohol rehabilitation is necessitated." The doctor thought a residential program and secure employment and accommodation would be appropriate to assist the offender. Mr Salmond has undertaken some courses whilst in custody.

30. Turning to the sentence of Ms Rice, there is a helpful report from a forensic psychologist, Kathryn Wakely, about Ms Rice. Ms Rice was raised in Shepparton, Victoria. However she was made a State ward when she was about twelve, after repeatedly absconding from home. There were issues at home about alcohol and violence. She has maintained a good relationship with her mother. She had two children when she was much younger, one of whom is now nineteen and the other is seventeen. She has a daughter who is now three years of age. Ms Rice was educated up to Year 8 and she has worked in a supermarket and other unskilled employment including as a prostitute around the Kings Cross area. [Material not for publication deleted.] The psychologist also noted Ms Rice's criminal history.

31. The psychologist noted that Ms Rice had undertaken a number of programs whilst in custody and I note the same; that she has undertaken programs that will assist in employment such as Responsible Gambling Services and Responsible Service Of Alcohol as well as personal drug and alcohol addiction programs.

32. She is considering attending a residential rehabilitation centre once she is released from custody. The psychologist noted a diagnosis in 2006 of posttraumatic stress disorder and that she began to see a psychologist regularly in 2006. She did not pursue the treatment and went backwards quickly. She commenced using drugs and alcohol at an early age, from about twelve. Her drugs were mixed and at one stage she was using heroin on a daily basis. She, too, commenced the methadone program but has not, to date, attended a residential rehabilitation program.

33. [Material not for publication deleted.] The psychologist noted that she suffers from instability and unpredictability of mood and behaviour as well as underlying depressive thoughts. The psychologist thought it would be important to properly address the difficult issues underlying her substance abuse and that an intensive rehabilitation service would be very helpful to her.

34. Ms Rigg tendered some [material not for publication deleted.] It was an extraordinarily traumatic experience. Ms Rice's mother has written a letter describing her support for her daughter.

35. The assault occasioning actual bodily harm which appears on Ms Rice's New South Wales criminal record was the result of an incident in 2005 when she and another person were involved in bashing and kicking another woman in the street.

36. Ms Rigg argued in her submissions in Ms Rice's case the sentence should be ameliorated or softened somewhat because her prospects of rehabilitation were fair and because of the [material not for publication deleted.]. She noted the diagnosis of post traumatic stress syndrome and argued that there are special circumstances for adjusting the normal ratio between the non parole period and the parole period. She argued that the psychological background of Ms Rice suggested that general deterrence may not count as much as it might for other offenders.

37. Mr Quinn for Mr Salmond acknowledged, realistically and appropriately, that his client may be facing a bleak future but asked for another opportunity for his client to attempt rehabilitation. He pointed out that his client, when he was released on parole on the occasion when he committed this offence, found himself in circumstances where it was very difficult to resist falling into crime again.

38. Ms Engel noted the violence which was perpetrated on the victim acknowledging that, although Ms Rice was not the person who inflicted that violence, she was nevertheless with the co-offender in a joint criminal enterprise which involved that violence.

39. I have taken into account the various matters which have been put to me. Because the offence was committed in the victim's home and because both offenders had criminal records and in Mr Salmond's case because his criminal record was more extensive and he was on parole, I regard these crimes as falling above the range which is indicated by the guideline judgment in Henry .

40. Before applying the discount for Mr Salmond, taking into account the offence on the Form 1 and in particular the fact that he committed this crime on parole and has significant prior convictions, I would regard a commencing sentence as eight years as appropriate.

41. In Ms Rice's case, taking into account that the crime was committed in the victim's home and that she has a criminal record but not so extensive and also taking into account her stronger subjective case, I would regard an appropriate commencing sentence as six years imprisonment.

42. Both Mr Salmond and Ms Rice pleaded guilty. They are entitled to a discount on their sentence and it is acknowledged that the maximum of 25 per cent is available. Accordingly I would reduce Mr Salmond's sentence to six years imprisonment and I would reduce Ms Rice's sentence to four and a half years imprisonment.

43. The normal ratio between a nonparole period and the parole period is 75 per cent, that is an offender spends 75 per cent of the period of their sentence in custody before they are released on parole.

44. In Mr Salmond's case that would mean that his nonparole period should be four years and six months. In Ms Rice's case that means that her nonparole period should be three years and four months.

45. However, I accept the submission of Ms Rigg that there are special circumstances for adjusting that ratio in her client's case. She needs extended supervision. Her prospects of rehabilitation, although they cannot be described as good, must, I accept, be fair. There needs to be an opportunity for her psychological issues to be dealt with and for her to develop, as Ms Rigg said, some guidance in her employment. I propose to adjust the nonparole period in her case from three years and four months down to two years and six months.

46. In Mr Salmond's case there is little room for finding special circumstances to adjust that ratio. However, as Mr Quinn urges, this is his last opportunity and there is a psychiatric report which makes some suggestions which would obviously require some time for his rehabilitation. I propose to adjust his nonparole period from four years and six months down to four years.

HIS HONOUR: Mr Salmond if you would stand up please.

47. For the offence of robbery in company I set a non parole period of four years to commence on 16 July 2010 and to expire on 15 July 2014. The balance of the term will be two years to commence on 16 July 2014 and to expire on 15 July 2016. The earliest date upon which you will be eligible for release is 15 July 2014. Sit down Mr Salmond.

HIS HONOUR: Ms Rice.

48. For the offence of robbery in company I set a nonparole period of two years and six months to commence on 2 April 2010 and to expire on 1 October 2012. The balance of the term will be two years to commence on 2 October 2010 and to expire on 1 October 2014. The first date on which you will be eligible for release is 1 October 2012. If you would have a seat please.

HIS HONOUR: Now Ms Engel the balance of the term for Ms Rice is 2 October 2012 to 1 October 2014 is that right? Ms Engel, Ms Marshall, Mr Quinn any factual matters that need attending to or correction or adjustment and are the sentence - do they work out?

ENGEL: Your Honour the only thing that I have noted to correct with your Honour is whether or not your Honour took into account as a mitigating factor that there was any remorse shown by other offenders?

HIS HONOUR: Yes I will come back to that. Yes I have.

ENGEL: The other issue is that Ms Rigg in her submission asked for a discount on sentence under s 23. I understand from the way that that proceeded--

HIS HONOUR: I have rejected that but I will mention that specifically, thank you.

ENGEL: Thank you your Honour.

HIS HONOUR: Mr Quinn?

QUINN: No your Honour.

HIS HONOUR: Ms Marshall?

MARSHALL: No your Honour.

HIS HONOUR: Ms Marshall l don't know whether your client is eligible for a reference to the Drug Court or not, you and Ms Engel might have a think about that just whilst I deal with those two points that Ms Engel has referred to.

49. I return to my remarks on sentence. Miss Engel has referred to the question of remorse. But neither offender went into the witness box. There was a reference in Mr Salmond's presentence report to an expression of remorse and understanding of what had happened to the victim. There was little, if any material so far as Ms Rice was concerned. I regard remorse as a factor upon which I give a little weight in Mr Salmond's case and hardly any weight so far as Ms Rice is concerned.

50. Ms Rigg had argued that I could allow a discount to her client under s 23 of the Crimes (Sentencing Procedure) Act for the fact that she cooperated with the authorities in Victoria so far as the offence that was committed against her was concerned. I do not propose to make any such allowance. The material available to me makes it clear that she did not want to report that. Nor do I regard it as appropriate in sentencing for this offence some eight years later to give any weight to that factor as distinct from the weight which I do give it as a subjective factor relevant to Ms Rice's background. Does that cover those two mattes Ms Engel?

ENGEL: It does thank you your Honour.

HIS HONOUR: Now all of you, are the dates right? Yes Ms Marshall and Ms Engel?

MARSHALL: On a quick look they appear to be.

HIS HONOUR: All right, if you would just check the dates in respect to your clients.

ENGEL: Your Honour in relation to the program which was referred to during the proceedings, that was the Compulsory Drug Treatment Correctional Centre.

HIS HONOUR: Yes Mr Salmond is not eligible I know that.

ENGEL: For that particular program the offender must be a male. It only applies to males for that particular program so Ms Rice wouldn't be eligible.

HIS HONOUR: All right, subject to anything Ms Marshall you find out and it might be something that you turn your mind to, my guess is that, my understanding is Ms Engel is quite right, but it should be checked I'm quite prepare to hear you again.

MARSHALL: I'm just reading from a document here provided Mr Quinn where is specifically says that it accommodates 70 male participants.

HIS HONOUR: Yes, so nobody is asking for any reference there. You're not Ms Marshall?

MARSHALL: No your Honour.

51. Mr Salmond you have got a six year prison sentence. I have started it from 16 July 2010 when your parole expired, therefore the sentence finally ends on 15 July 2016. You are under sentence until then. I have given you a nonparole period of four years which is a bit below the 75 per cent. You are eligible for release on 15 July 2014. As you know that is up to the Parole Authority, not me. That's when you become eligible for parole, your first eligible release date.

52. Ms Rice you have received an overall sentence of four and a half years. That started when you were arrested on the 2 April last year and it therefore expires on 1 October 2014, so you are under sentence till 1 October 2014. Your nonparole period is two and a half years. I have adjusted that more significantly. You are eligible for parole on 1 October 2012. That is the first date that the Parole Authority can consider your eligibility for parole.

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Decision last updated: 25 August 2011