R v Mckerlie & Cooke No. DCCRM-01-1118, DCCRM-01-1400

[2001] SADC 179

R v LISA BRONWYN MCKERLIE and LUCY JOSEPHINE COOKE
[2001] SADC 179

Judge Lunn
Criminal

1. On 29 October 2001 Lisa McKerlie pleaded guilty in this Court to armed robbery contrary to s158(a) of the Criminal Law Consolidation Act. On that day Lucy Cooke pleaded guilty to assisting an offender contrary to s241 of the Criminal Law Consolidation Act in that she had assisted McKerlie after the armed robbery to escape apprehension or prosecution.

2. On 5 October 2000 McKerlie had appeared in the Magistrates Court on a charge of larceny which involved shoplifting goods worth about $10.  She was released on a bond in the sum of $100 to be of good behaviour for one year and to appear for sentence on the larceny charge if she breached the bond.  There is an application of 5 November 2001 before me from the DPP seeking to have McKerlie sentenced for this larceny offence.  On 5 December 2001 she admitted the bond and its breach by her conviction for armed robbery.

3. Both McKerlie and Cooke had worked as prostitutes in a brothel in Morphett Street, Adelaide.  They had needed earnings from prostitution to fund their drug addictions.  They gave up prostitution at about the end of May 2001, but then did not have enough money to buy the drugs they wanted.  They got into debt to their drug supplier.

4. On 22 June 2001 they had each been without drugs for several days and were going through significant withdrawals symptoms and behaving erratically.  Their supplier told them that she was receiving threats from her drug wholesaler because she had not paid money she owed and she needed payment urgently from them.  They attempted to raise some money by selling and pawning personal possessions but were not able to raise enough.  At about mid afternoon on that day they decided to get the money they needed by robbing the brothel where they had previously worked.  They knew where the cash box there was kept.  They foolishly believed that because the occupants of the premises were conducting a brothel they would not report any robbery to the police.  Accordingly, McKerlie made no attempt to disguise herself.  They obtained some red ink which was placed into a syringe with the intention of making it appear that there was blood in the syringe.

5. Cooke drove her vehicle to the brothel and left it parked outside with the engine running.  At about 3.50pm on that day McKerlie got out of Cooke’s vehicle carrying the syringe filled with red ink.  Cooke remained in the vehicle.  McKerlie knocked on the door of the brothel.  The victim, who was the proprietor of the brothel, recognised her and opened the door.  McKerlie ran in holding the syringe in her right hand and with the point towards herself.  She threatened the victim with the needle, but did not brandish it at her.  She said something to the victim to the effect, “This is your fault I’ve got AIDS so stay away.”  The victim was scared and thought she would be stabbed with the syringe if she did not co-operate.  McKerlie went to a desk where she knew the cash box was kept, took it out of the desk and ran out of the brothel carrying it.  She got into Cooke’s vehicle and Cooke drove off.  There was about $300 in the cash box.  They used this money to buy drugs and to pay some other debts.  They were arrested at about 9.15pm that evening.

6. Cooke was only charged in this Court with the lesser offence of assisting an offender.  However, it was common ground in the submissions of counsel for both defendants that the robbery was a joint enterprise between them.  Nevertheless, Cooke is only to be dealt with as an accessory after the fact and not as a principal in the offence of armed robbery.  Even though she was apparently guilty of the more serious offence of armed robbery, she is only to be sentenced for the lesser offence of assisting an offender and not for other conduct which amounted to a more serious offence with which she has not been charged: R vTeremoana (1990) 54 SASR 30. That is her good fortune.

7. No Victim Impact Statement has been provided.  I accept that the victim was scared and upset by the offence, but there is no suggestion that she suffered any greater harm.

8. McKerlie was born on 2 January 1982, and so is now 19 years of age.  Her only record is for the larceny offence mentioned earlier.  She has had some casual employment as a process worker.

9. I have a detailed psychological report dated 21 November 2001 from Ms Tiggeman concerning McKerlie whose contents I have taken into account.  McKerlie had an unfortunate childhood.  She was exposed to episodes of domestic violence and had experienced some sexual abuse.  She is half Filipino and was the victim of some racism.  When 13 years of age she discovered she had lesbian orientation.  When this became known at her country high school she was abused and victimised.  She became depressed and had some psychiatric treatment when aged 17 years but that was not continued.  Her parents reacted negatively to her lesbianism.  After completing year 12 she left her home in the country and came to Adelaide to study at University.  She quickly dropped out of University, but found acceptance in gay and lesbian groups in Adelaide.  This led to her being introduced to drugs, and then to prostitution as a means of obtaining the necessary money for drugs.  She became addicted to amphetamines and an intravenous user.  Earlier this year she formed a lesbian relationship with Cooke and they have continued to live together.

10. Since her arrest in this matter McKerlie has ceased to use drugs and has resolved to abstain from them permanently.  She wishes to make a worthwhile life for herself in a long term relationship with Cooke.  She has obtained counselling from Port Youth Services.  She is remorseful for the offence.

11. Ms Tiggeman has stated that McKerlie is moderately depressed and has a vulnerability currently to suicidal feelings.  She stated “I am concerned that if given too long a sentence, rather than a shorter period of 8-9 months, that she is likely to not cope mentally within the jail system.”

12. McKerlie pleaded guilty on her first arraignment and is to be given credit for that plea, albeit that there was a strong prosecution case against her.

13. McKerlie’s offence of armed robbery is aggravated by the victim being a “soft” target.  Even if the victim was herself engaged in some illegal activity, she, and others in similar situations, are entitled to the full protection of the law from such robberies.  The use of a syringe as a weapon, which the victim reasonably inferred contained AIDS infected blood, is also a matter of aggravation: Miles v R (1997) 17 WAR 518; R v Percy, CCA 19/11/91, Jud No S3140, unreported.  Ms McKerlie was on a bond for another, albeit more minor, offence of dishonesty at the time.  The offence carries a maximum penalty of life imprisonment and is regrettably prevalent.

14. I do not consider that the fact that the commission of the robbery was instigated by a desire to protect the drug retailer from alleged threats to her by her wholesaler is a significant matter of mitigation.  The alleged threats were not made to McKerlie, but to the retailer.  Neither the retailer nor the wholesaler suggested to McKerlie or Cooke that they should commit an armed robbery to obtain the money.  In any event it seems that the retailer had found other means to satisfy her debt before McKerlie and Cooke arrived with the proceeds of the robbery to pay her.  McKerlie and Cooke have declined to identify who their drug retailer was which impedes the police from being able to check out their story and does not assist in the administration of justice.  While they are not to be penalised for not disclosing the identity of their retailer, they cannot expect leniency from having acted under any such duress in committing the crime: R v Trocko (1988) 142 LSJS 412.

15. On the authorities it is clear that a substantial custodial sentence must be imposed for reasons of general deterrence: Hooper v R (1995) 64 SASR 480; R v Bondareff, CCA 16/7/99, Jud No [1999] SASC 316, unreported on this topic. McKerlie’s counsel submitted, but the prosecutor opposed, that any such sentence should be suspended. In R v Lumsden, 1/3/2000, Jud No [2000] SASC 49, unreported, the Court of Criminal Appeal said at para [26]:

    “Suspension of a sentence of imprisonment imposed for armed robbery is justified only in exceptional circumstances.  Ordinarily, factors such as a guilty plea, contrition, youth, addiction to drugs and prospects of rehabilitation, even in combination, would not amount to exceptional circumstances justifying suspension of the sentence.  Those factors are, unfortunately, commonly present in matters of armed robbery that come before the criminal court.”

    Here McKerlie has the factors of a guilty plea, youth, contrition and prospects of rehabilitation in her favour, but even in combination they do not amount to exceptional circumstances or “good reason” to enable the sentence to be suspended under s38(1) of the Sentencing Act. While she had some psychiatric condition when she was seventeen, and was thought by the psychologist to be moderately depressed when she saw her on 12 and 19 November 2001, there is no evidence that she had any significant or relevant psychiatric condition when committing the robbery. While I accept that the robbery was a joint enterprise with Cooke, McKerlie played a major, and not merely a minor, role in it. Accordingly, there are no proper grounds upon which the sentence can be suspended.

16. The factors of McKerlie’s young age, immaturity, lack of significant previous offending, her guilty plea, contrition and good prospects of rehabilitation are matters which can be taken into account in her favour in fixing a lower than usual non parole period.  In her rehabilitation after her release she is likely to benefit from the supervision and assistance of a Community Corrections Officer.  For that reason I am prepared to reduce the non parole period by a greater amount than the head sentence so that there is a significant parole period.  Nevertheless, there must be a sufficient custodial period to reinforce the general deterrence role of the sentence.

17. Having regard to McKerlie’s age of only nineteen the starting point in fixing the sentence for the armed robbery is imprisonment for 5 years: R v C (1998) 72 SASR 391. That will be reduced to 4 years imprisonment with the discount for her early plea of guilty. On the larceny charge she is sentenced to imprisonment for 7 days which is to be cumulative on the sentence for the armed robbery. This produces a head sentence of 4 years and 7 days. A non parole period is fixed of 18 months. Both the sentence and the non parole period are backdated to 5 December 2001 when she was taken into custody. I do not estreat the monetary amount of the bond.

18. As quoted above the psychologist in answer to a request “to address within the report the potential psychological consequences of a lengthy term of imprisonment as opposed to, say, a shorter period of 6-9 months” said:

    “I am concerned that if given too long a sentence, rather than a shorter period of 8-9 months, that she is likely to not cope mentally within the jail system.”

    I do not interpret this to be an opinion expressed by a suitably qualified expert that imprisonment for more than 9 months will have a gravely adverse effect on McKerlie’s mental health: R v Smith (1987) 44 SASR 587 at 589. Far more specific psychiatric evidence would have been needed if this was to be a relevant factor. It will be for the prison authorities to address any issues about McKerlie’s mental health which occur while she is in prison.

19. Cooke is 24 years of age.  Her only record is for two minor offences for which she received fines.

20. I have a detailed psychological report from Mr Balfour dated 4 December 2001 on Cooke whose contents I have taken into account.  She has a history of drug abuse and consequent prostitution, but has now ceased both.  Mr Balfour considered that her prognosis for ceasing to offend is fair but believes she would require two or three years of rehabilitation to overcome her drug problem.  He has made recommendations for a supervised structured rehabilitation programme for her.

21. The prosecutor did not oppose the suspension of the prison sentence which must be imposed on Cooke for her offence of assisting McKerlie after the armed robbery.  In essence the offence for which she is to be sentenced is that she drove the getaway vehicle for McKerlie knowing when she did so that McKerlie had committed the robbery.  She is not being sentenced for being a party to the armed robbery itself.

22. The starting point for Cooke is a sentence of 14 months imprisonment.  This is reduced to 11 months as a discount for her plea of guilty.  That sentence of 11 months imprisonment will be suspended upon her entering into a bond in the sum of $500 to be of good behaviour for 3 years and during the term of the bond:

    1.To be under the supervision of a Community Corrections Officer and to obey the reasonable directions of that officer concerning attendance upon any psychiatrist, psychologist or counsellor and at any education and rehabilitation programme and as to her places of residence and employment.

    2.To undergo any medical or psychological treatment reasonably recommended by any doctor or psychologist.

    I have not made the specific recommendations of Mr Balfour conditions of the bond but have left it to the supervising Community Corrections Officer and any doctors or psychologists to implement such of Mr Balfour’s recommendations as are appropriate in the circumstances as they then exist.