R v Middlemiss

[2010] NSWDC 292

CITATION:	R v MIDDLEMISS [2010] NSWDC 292
HEARING DATE(S):	26 November 2010
EX TEMPORE JUDGMENT DATE:	26 November 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The overall effective sentence is a non-parole period of three and a half years with a head sentence of six and a half years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Armed robbery - Armed robbery with wounding - Knowingly take part in the supply of heroin - Supply heroin - Committing offence whilst on bail - Committing offence whilst on s 9 bond - Sustained attack with multiple injuries - Committing offence to ensure imprisonment - Genuine remorse - Special circumstances
PARTIES:	The Crown Suzanne Margaret Middlemiss
FILE NUMBER(S):	DC 2009/042215; DC 2009/236550; DC 2010/104819
SOLICITORS:	Director of Public Prosecutions Gregory J Goold Solicitor

SENTENCE

1 HIS HONOUR: Most cases that come before the criminal courts are sad cases but this case is sadder than most. For reasons that I will speak about later, after a lengthy period of a law abiding lifestyle the offender sunk to a level where she began using drugs once again, committed serious offences, and then ultimately reached the stage where the only way she could see that she could get help was to deliberately commit an offence so that she could go to gaol. That really does indicate the depths to which Ms Middlemiss had sunk.

2 She began using drugs again in 2008. She had been friends for many years with a Maree Collier. Ms Collier was a high level drug dealer. An indication of the scale of her drug dealing can be gleaned from the fact that when she was sentenced by Judge Black for her various drug dealing activities she received a non-parole period of fifteen years.

3 On 9 July 2008 Ms Middlemiss agreed to assist Ms Collier in one particular transaction. Ms Collier had agreed with an undercover police officer, although no-one knew of course that that is who he was, to supply him with one ounce of heroin for $9,400. Ms Middlemiss at the request of her friend therefore went to a prearranged location, handed over the ounce of drugs and received $9,400. For that Ms Middlemiss received no money. She was paid for her part in drugs.

4 I should mention at this stage that Ms Middlemiss required the assistance of a Ms Powell. I earlier sentenced Ms Powell for her involvement in this offence. Ms Powell’s involvement was minor indeed and an indication of that can be seen in the sentence that I imposed upon her of 300 hours community service. Neither the circumstances of Ms Collier nor the circumstances of Ms Powell will provide much of a guide as to the sentence I should impose upon Ms Middlemiss because of their vastly different circumstances to hers.

5 About a month later on 8 August Ms Middlemiss became involved in another drug transaction involving Ms Collier. On this occasion the deal was for three ounces of heroin for $27,000. Ms Middlemiss’s role was again to drive to the location, this time with Ms Collier herself and the drugs and to mind the drugs while Ms Collier and the undercover officer concluded their business.

6 Ms Middlemiss was arrested for these matters and placed on unconditional bail. The next two offences that I will describe were therefore committed whilst she was on bail.

7 On 4 October 2009 Ms Middlemiss was under the influence of both illegal drugs and Xanax. She has no memory of what she did but of course accepts that what I’m about to describe is accurate. The offence I am about to describe is terrifying. A young lady was working within a store known as The Big Swim. As its name might indicate it sells swimming costumes. It was not a bank, it was not a building society, it was not a chemist. It was not any sort of retail premises where there was likely to be a huge amount for the taking. It was a soft target. The young lady who worked in the store worked there alone.

8 The offender came in and discussed swimming costumes with her. She then left and came back. At this time there was another customer in the store. Ms Middlemiss waited till that customer left and then began attacking the shopkeeper with a hammer. This attack came without warning. The shopkeeper had her back to the offender as the attack commenced.

9 Ms Middlemiss hit the shopkeeper about ten times to the head and continued to hit her even after the victim had fallen to the ground. Still images taken from CCTV footage were tendered by the Crown. In those the shopkeeper is seen on her hands and knees while Ms Middlemiss bends over her with the hammer.

10 Fortunately the victim managed to get hold of the hammer as a struggle ensued. Eventually they came to some sort of agreement that the offender would take the cash and leave. She was able to get $425 from the cash register and go away.

11 It is somewhat remarkable that the injuries suffered by the victim were as limited as they were. Despite being attacked by a person wielding a full size hammer and despite being struck by that hammer ten times she very fortunately did not suffer any fractures to her skull. Apart from some bruising, the wounding, being an element of the offence, consisted of one or two lacerations, quite small indeed. I say one or two because of the inconsistencies in the medical evidence as to how many there were.

12 We now come to the offence of 23 October. As well as being on bail, this offence was committed whilst the offender was on a s 9 bond for a PCA matter. On this day Ms Middlemiss went to Maroubra Police Station. She told them she wished to confess to a malicious damage offence so that she could go to gaol. The police made inquiries but could not identify any offence of malicious damage that the offender could have committed. It is part of the sadness of this case that the offender could not remember having committed that most serious offence of armed robbery with wounding which I have just described. She was unable to convince the police that she had committed a malicious damage offence and so she left saying “Okay you’ll see”.

13 What was in Ms Middlemiss’s mind was that she had to commit a further offence so that she could go back to gaol. It was part of the depth to which she had sunk but that was the only way she knew that she could achieve a measure of rehabilitation, the only way she knew that she could get support which was likely to work to assist her with her drug addiction.

14 She therefore went home, got a syringe and filled it with red cordial. She then entered a shop, relatively close to the swimwear shop, and approached the employee. She produced the syringe and said, “I have a needle, I am a drug addict, I have AIDS and I will stab you if you don’t open the till”. Despite saying those threatening words Ms Middlemiss continued to apologise to the victim saying that she was only committing the offence so that she could return to gaol. Not surprisingly the victim feared that he would be assaulted. He opened the cash register and money was taken.

15 Police attended a short time later. It did not take them long before they realised what had happened. They went to the offender’s home. She answered the door and said “I’ve been waiting for you guys” and made admissions to the offence she had recently committed. She had been preparing for this eventuality, selling her furniture, arranging for someone to care for her dogs and even going to the extent of emptying water out of her water bed. She knew that she would not be coming home for some time.

16 Ms Middlemiss is now forty-five years old. She was brought up in Sydney. She went to school in Glebe and did well there for a while but she was expelled at the age of fifteen. She could not remember when she spoke to a doctor from Justice Health why that was. She then got into a relationship with a man who sold heroin when she was about eighteen and she began experimenting with drugs. She started taking heroin, needed to commit offences to buy the drugs, got caught and went to gaol.

17 However things improved in 1991. It was then that her son was born. She stopped using heroin when she was pregnant and did well, using no further street drugs and only drinking socially for many years. Even when that relationship with her son’s father ceased she did not relapse into drug use. She had a relationship with Ms Collier which ended and then she began a relationship with a man by the name of Wayne. It was the break-up of the relationship with Wayne which heralded the change in Ms Middlemiss’s life.

18 The circumstances of the break-up were particularly painful. Wayne wanted a child. Ms Middlemiss did not fall pregnant, and so he therefore left her. At around the same time she suffered other losses. Her nephew committed suicide and a close friend died. That led to Ms Middlemiss’s use and abuse of drugs and alcohol and even a serious suicide attempt. She attempted rehabilitation from time to time but did not stay.

19 So having been offence free since 1991, after the downward spiral I have mentioned she has now committed four very serious offences. She has been in custody since 25 October 2009.

20 In gaol she is doing well. She has studied and received appropriate certificates and is a trusted prisoner. She has, it would seem, achieved the rehabilitation that she desired and she was right to think that the best thing that could have happened to her was to go to gaol. It is unfortunate in the extreme of course that she could only do that by committing offences.

21 She hopes to continue with her rehabilitation after sentence today, it being part of Corrective Services’ policy that many courses and rehabilitative programs are not available to unsentenced prisoners.

22 She is genuinely remorseful, particularly for the offence she committed upon the young woman in the swimwear store. Having no memory of it she was horrified when she learnt what she had done. She said that it was no part of her makeup to commit offences of violence. I accept that at the time of that offence she was under the influence of drugs which caused her to act out of character.

23 Ms Middlemiss is also sorry for the other offences she has committed as well, recognising that the effects upon the victims of those offences are serious. Consistent with those expressions of remorse she pleaded guilty at an early opportunity to these four offences and so the sentence I impose upon her will be twenty-five less than it would otherwise have been.

24 Let me say something now about the offence of armed robbery and wounding. That is an offence which as well as carrying a maximum penalty of twenty-five years has a standard non parole period of seven years. Of course that standard non parole period is not of direct application because of the plea of guilty but it remains an important guidepost to the sentence that I should impose. It is also important, and indeed it is required, that I assess the objective gravity of that offence in a way that I would not be required to do if the offence did not carry a standard non-parole period.

25 I consider that it is slightly below the middle of the range of objective seriousness of offences of that type. It was a sustained attack with multiple injuries. On the other hand those injuries were less serious than is commonly the case in offences involving wounding, being one or two small lacerations. For those reasons I make the finding that whilst obviously serious objectively it is as I have said slightly below the middle of the range of objective seriousness.

26 The are reasons therefore that I will not apply the standard non-parole period. The plea of guilty, the fact that the offence is slightly below the mid range, the other mitigating circumstances that I referred to and finally a more technical matter involving the need to give effect to my finding of special circumstances by enlarging the eligibility for parole at the expense of the non-parole period.

27 Having recently had one of my sentences described in the Court of Criminal Appeal as unusual I will explain for the benefit of those who will read these remarks, the approach that I have taken to the sentence of count 3, that is the armed robbery whilst wounding. The non-parole period is longer than the period of eligibility for parole because the Court of Criminal Appeal authority has for many years emphasised that where sentences are accumulated, mathematically, if the sentences have a non-parole period of three-quarters of the head sentence then the overall non parole period is much more than three-quarters of the overall head sentence. For that reason it is necessary, particularly for the last sentence imposed in a series to have a relatively short non-parole period. That is why the sentence for the armed robbery with wounding matter which comes at the end of my sentences has a ratio of non-parole period to head sentence which, looking at it alone, might be thought by the Court of Criminal Appeal at least, to be unusual.

28 I mentioned special circumstances. There are special circumstances in this case as Ms Middlemiss has shown she is capable of leading a law abiding lifestyle and with the assistance of the Probation and Parole Service upon her release from custody I am confident that she will do that once again. It is in her interests and it is in the community’s interest that she be given assistance upon her release from custody to maximise the chance that she will do what I think she is capable of doing, that is living a life that does not involve criminality.

29 Nevertheless it has to be recognised that these were serious offences. Ms Middlemiss was, as Mr Goold conceded, trafficking to a substantial degree when she was involved in the drug matters and committed a most serious offence on 4 October 2009. She must therefore go to gaol for a significant period of time.

30 The sentences I impose are as follows. For both drug offences, that is the offence of knowingly taking part in the supply of heroin on 8 August 2008 and the offence of supplying heroin on 9 July 2008 the offender is sentenced to imprisonment. I set a fixed term of two years to date from 25 October 2009. Those sentences of course to be served concurrently.

31 For the offence of armed robbery, that is the offence committed on 25 October 2009 the offender is sentenced to imprisonment. I set a fixed term of two years to date from 25 October 2010. Those three sentences are fixed terms because of the sentence I will now impose on the remaining matter.

32 For the offence of robbery whilst armed with an offensive weapon causing wounding committed on 4 October 2009 the offender is sentenced to imprisonment. I set a non-parole period of eighteen months to date from 25 October 2011 and a head sentence of four and a half years. Thus the overall effective sentence is a non-parole period of three and a half years with a head sentence of six and a half years and Ms Middlemiss is entitled to be released to parole on 24 April 2013.

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