R v Rasmussen

[2021] NSWDC 620

District Court

New South Wales

Medium Neutral Citation:	R v Rasmussen [2021] NSWDC 620
Hearing dates:	12 November 2021
Date of orders:	12 November 2021
Decision date:	12 November 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 43
Catchwords:	SENTENCING – severity appeal from Local Court – multiple driving and larceny offences – aggregate sentence of imprisonment – consideration of Bugmy principles – recidivism
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571
Texts Cited:	Nil
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Rochelle Rasmussen (appellant)
Representation:	Counsel: Ms S Parsons (solicitor advocate) for the Director of Public Prosecutions (NSW) Mr M Stone (solicitor advocate) for the appellant Solicitors: Solicitor for Public Prosecutions (NSW) LegalAid (NSW/ACT) for the appellant
File Number(s):	2021/00037506 2021/00055506 2021/00078366 2021/00163193 2021/00169618
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 29 July 2021 Before: LCM Mijovich File Number(s): 2021/00037506 2021/00055506 2021/00078366 2021/00163193 2021/00169618

EX TEMPORE REASONS FOR JUDGMENT

1. On 29 July 2021, the Penrith Local Court convicted the appellant of multiple offences following multiple pleas of guilt. She was sentenced to an aggregate term of imprisonment of 2 years and 6 months commencing 12 June 2021, with a non-parole period of 18 months expiring on 11 December 2022. She now appeals against the severity of the sentence.

2. A table indicating the offence, the maximum penalty for the offence and the indicative sentence for each individual offence is as follows.

Seq	Offence	Date of offence	Max penalty	Indicative sentence
H1080828790	Driving motor vehicle during disqualification period – 2nd offence	10/2/21	12 mths/ $5,500	12 months (disqualification for 12 months)
H80311580	Driving motor vehicle during disqualification period – 2nd offence	12/2/21	12 mths/ $5,500	12 months (disqualification for 12 months)
H78993032	Goods in personal custody suspected of being stolen	5/3/21	6 mths/$550	2 months
H80499544	Goods in personal custody suspected of being stolen	29/5/21	6 mths/$550	2 months
H81203472/1	Take & drive conveyance without consent of the owner	4/6/21 & 12/6/21	District Court: 5 yrs Local Court: 2 yrs	12 months
H81203472/2	Goods suspected stolen in or on premises	12/6/21	12 mths/$1,100	2 months
H81203472/3	Driving motor vehicle during disqualification period – 2nd offence	12/6/21	12 mths/$5,500	12 months (disqualification for 12 months)
H81203472/4	Driving vehicle with illicit drug present in blood	12/6/21	$3,300	Fine $1,200 (disqualification for 12 months)

THE FACTS

3. In the Crown Severity Bundle are a range of court attendance notices. No objection was taken to the content of those notices and the appellant did not adduce any evidence indicating any contrary version of relevant facts inconsistent to those contained in the attendance notices. She did however elaborate on some facts when she gave evidence in this appeal.

4. When evaluating the appellant’s evidence in Court, I must confess to finding difficulty in accepting evidence of the explanations for her offending, as distinct from her background, to be credible. One of the offences for which she has pleaded guilty connoted dishonesty. In the other driving offences, the facts in the attendance notices indicated some falsehoods, or, if her evidence before the Court is to be believed, omissions being told to the police afterwards. This would ordinarily lead the Court to treat her evidence with scepticism. Some of her prior offences also denoted dishonest conduct (such as stating a false name or home address). She is experienced and familiar with sentencing proceedings and has had many prior opportunities to supply explanations, in mitigation, of her offending. She did not attend before a Community Corrections officer in preparation for sentencing at the Local Court. Although it is true that the Crown had the opportunity to cross-examine her and the legal representative for the Crown did not appear to challenge her accounts with great vigour, having regard to the nature of this, and previous offending, I am cautious about accepting anything she said which was not corroborated or consistent with the underlying objective probable facts.

5. Be that as it may, the following account is therefore taken from the attendance notices.

10 February 2021

6. At 1:20am the appellant was driving a motor vehicle along the Hume Highway in Liverpool, when she stopped her vehicle to tighten the wheel nuts. She was approached by police and asked to show her licence. When she explained that she did not have one, police undertook a check, they discovered that she was endorsed as being disqualified and, further, that the registration on her vehicle had been cancelled.

7. In respect to this offence, and the other offences of driving whilst she was disqualified, the appellant justified her conduct by reference to her perceived need to escape from her ‘exes’, being her former partners; her having no other place to go. I confess to finding that evidence difficult to believe. In relation to this instant offence, she had explained to police that she was just “going to McDonalds”. In relation to the taking conveyance offence of 12 June 2021, she told police that she seized that car simply because she was living on the streets and “needed somewhere to sleep”. There is no evidence of any action taken by her, on any of the occasions in which she was in a car, to seek the protection of the law should she have had any genuine apprehension of harm from anyone else and I do not accept that this omission is explicable by the difficult circumstances in her life that she identified when she gave evidence. It is pertinent to note that she told police at the time that she did not have a licence.

8. As with all the driving offences, speaking generally it is plainly serious to drive whilst having an awareness of being disqualified; even worse when as this offender did, she was aware of that status. Disqualification may result from all manner of reasons and is designed to protect the community whilst serving a partially deterrent effect. This appellant deliberately flouted this restriction for implausible reasons in circumstances where she had routinely flouted the same restriction in the past. Indeed, as her criminal record indicates, in 2016 and 2019, at least, she was subjected to terms of imprisonment whose length was greater than the length the Local Court imposed.

12 February 2021

9. At 3:20pm the appellant was driving a motor vehicle on High Street, Penrith, when a rear seated passenger had his arm out the window. She was stopped by police and was asked to produce her driver’s licence. She was reported as saying “I’m in a bit of a pandemic with my licence”. Police checks revealed that she was disqualified from driving.

4 March 2021

10. Between 8:45am and 5:45pm on this day, the victim left her home in a street in South Penrith locked. When she arrived home later that afternoon, she discovered that the back glass door to her premises was shattered. She walked through multiple rooms in her home to discover that multiple chattels belonging to her had been stolen, comprising jewellery, electronic devices and even passports. But the next day, the victim rang the police and indicated that her iPad mini had indicated an address in a different street in South Penrith.

11. Police visited that address in the other street and looked through a window to see items of property matching the victim’s description of what had been stolen. Police lay in wait until a male and the appellant approached the front door. They questioned the appellant, who explained that it was a place where she stayed from time to time. It became apparent to police that not only did the appellant have a key to the property, but it was also a place from which she collected her mail.

12. Police also observed the appellant wearing jewellery and, having checked with the victim, suspected that some of it belonged to the victim. After arresting her, the appellant claimed entitlement to the jewellery.

29 May 2021

13. At about 4:45pm on this day, police vehicles were patrolling a street in Cabramatta. They noticed a Commodore vehicle which was driving slowly and ‘cutting laps’. They made some checks and on the basis of the information retrieved, activated warning signals and sirens. They followed the Commodore and signalled it to stop, which it eventually did. When police got out and they checked inside the Commodore, they noticed a degree of movement in the vehicle. Out of the vehicle emerged the appellant. The appellant explained to police that she did not know who owned the vehicle. She also indicated that she carried a box-cutter for her protection.

14. Police conducted a search of the Commodore and located a bag belonging to the appellant. In it, police located a red pocket-knife and Stanley knife. The appellant stated that these were for her protection. As police were about to check the contents of a wallet, the appellant also said that they might find cards in there which did not belong to her. True enough, Police located a ‘Fitness passport’ and Medicare card in the names of other persons. The appellant admitted that the cards were not hers. The knifes and cards were seized.

12 June 2021

15. At 2:01pm on this day, the appellant was driving a motor vehicle along Kings Highway, Braidwood. She passed patrolling police.

16. Police detected that the front and rear plates to the vehicle had been stolen from a vehicle that had been parked in a street in Campbelltown. Through the COPS and RMS, the Police also identified that the vehicle itself had been listed as stolen, being seized from a carpark in Campbelltown Mall on 4 June 2021. Keys had been stolen from the victim whilst she was in Kmart within the mall.

17. The appellant was pulled aside. When asked for her driver’s licence, she told police she did not have one and admitted that she was suspended. She tested positive to the drug of Methylamphetamine, but returned a negative reading for the alcohol test. Later, when in Batemans Bay Police Station, she admitted stealing the vehicle; explaining that she had been living on the street and needed a place to sleep.

18. Later in a letter of apology, whose content I will return to, the appellant admitted that she lied to police when she had said that she had only recently purchased the vehicle and explained that she stole the vehicle so as to enable her to visit the site of her recently deceased mother’s friend’s death.

Bugmy considerations

19. The appellant is an indigenous person. In a letter of apology that was before the Local Court, she spoke of being homeless, being taken away from her family when aged only 4 and was exposed to episodes of child sexual abuse against siblings. She reported being victimised herself by a foster brother. At the age of 10, she said, she saw her foster mother kill her husband. After the foster mother went to gaol, the appellant said she went from ‘refuge to refuge’. Blacktown Hospital discharge notes from December 2007 records the appellant, when aged only 14, describing herself as being sexually active and having been raped.

20. In her letter of apology, the appellant explained that her mother had recently died and her step-mother had been murdered some months before. A press clipping relating to the latter event was admitted as fresh evidence.

21. A sentencing assessment report identified that she has long-standing serious drug problems: she started taking cannabis at the age of 10 and commenced taking ice, before she had become an adult. She had several diagnosed mental health disorders, such as Borderline Personality Disorder, ADHD. It appears that her mental condition worsened following the death of her mother during this year: she reported suicidal ideation and self-harming behaviours. This occurred between the offending in H81203472 sequences 1 – 4 (incl). In May 2021, she was subject of a referral to the Magistrates’ Early Referral Treatment (‘MERIT’) Program. Regrettably, she did not comply and in late June 2021, it was requested that she be removed from that Program.

22. I accept that the offender’s profound history of childhood disadvantage, punctuated by child sexual abuse, family dislocation, violence (even perpetrated against her mother) exposure to drugs and teenage pregnancy is mitigating and has contributed to the enduring and implacable sense of anger and frustration which she commented upon in her letter of apology. In this way, her moral culpability is reduced to some degree. Further, and as was noted by the High Court in Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”), the effect of profound deprivation of the kind endured by the appellant does not abate over time. Sadly, however, it must also be recognised that the offender has been before the courts on many occasions, receiving serial sentences of imprisonment in the last five years and has manifestly not benefitted from the many allowances and efforts, in different forms, to facilitate her rehabilitation. In such circumstances, as the High Court itself recognised in Bugmy, at [44], the offender’s endemic criminal history may elevate the importance of protecting the community. Moreover, the circumstance that many of these offences have been previously committed indicates that the offender is a recidivist, acting defiantly towards the law. As she frankly acknowledged when she gave evidence today, she has a problem with “people in authority”. This has an offsetting impact against the usual reduction in weight given to specific deterrence that arises from Bugmy considerations. As the legal representative of the appellant submitted, there was only one event – the death of her mother’s friend – which might have circumstantially triggered the offending (on 12 June 2021) that is before the Court today.

Mental disorders & drug impairment

23. There were hospital records admitted in the Court, as fresh evidence on the appeal, which suggests that the appellant had been diagnosed with Attention Deficit Hyperactivity Disorder, resulting in her being prescribed with Ritalin. Moreover, a note from Blacktown Hospital from December 2007 contained a reference to schizophrenia. In June 2017, an Emu Plains Nurse with the Department of Health, when setting forth her impressions of the appellant, referred to depression, PTSD and Borderline Personality Disorder.

24. In her evidence in this severity appeal, she referred to deprivation of access to her children, suicidal ideation and even attempts on her life; to abusive relationships with men and her ‘chasing’ drugs.

25. These threads suggest serious issues for the appellant’s mental health, however, they do not go so far as to establish a causal connection between mental abnormality and the subject offending.

SUBJECTIVE CASE

26. The appellant was born in May 1993, making her 27 or 28 at the time of the offending. She is an indigenous woman – a matter whose significance I earlier alluded to when addressing Bugmy considerations – and has two children, one aged about 11 and the other aged about 6.

27. The documentary evidence of the appellant’s background, other than what I have indicated when considering Bugmy, is limited. The appellant elaborated upon her background, at considerable length, when giving evidence in Court. It was not evident why much of that background had not previously been conveyed to the Community Corrections Officer to enable that Officer to prepare the sentencing assessment report. Be that as it may, she gave evidence of her exposure to sexual and child domestic abuse from the time she was a very young girl, perpetrated upon siblings and even herself and by foster carers.

28. The appellant is entitled to discounts of 25% on account of her guilty pleas.

29. In her letter of apology and in her evidence in Court in the hearing of her severity appeal, the appellant apologised for her offending and accepted that she had no excuses for her behaviour. I accept that she is regretful, but am not persuaded that she has any real appreciation or insight into her offending.

30. The appellant has a lamentable driving record, including convictions for negligent act causing grievous bodily harm, and the offence of driving whilst disqualified for which she is a serial offender. There are other convictions for a range of serious personal violence offences. Since about 2016, she has spent many periods in gaol. This is not a record which attracts leniency.

31. It has to be acknowledged that the appellant’s record shows a pattern of not attending Court and a general disrespect, if not contempt, for the law and certain indulgences granted to her. She accepted, herself, when giving evidence that she had a problem with people in authority. I have noted suggested diagnoses, such as ADHD and depression, but one of the problems for the appellant is that they do not augur well when evaluating the likelihood of her reoffending.

32. Several sentencing assessment reports were placed before the Court. They attest to an offender whose performance under supervised parole was described as unsatisfactory. I have referred to her being taken out of the MERIT Program. Her performance in a Traffic Offenders Program was marked as unsatisfactory in late June 2021, following her refusal to even start an 8 week programme.

33. The appellant relied upon some recent letters of support as fresh evidence, being from the Community Restorative Centre’s Miranda Project and from Ms Jones, an Aboriginal Justice Health Worker at Waminda. In her evidence, the appellant referred to some assistance she received from Waminda at about the time she gave birth to her daughter. The former letter indicated that because of the offender’s intention to reside in Wyanbene, the offender’s past practice of seeking support would indicate that she was likely to seek similar support closer to Wyanbene. Ms Jones’ letter indicated that if the appellant returned to Shoalhaven, Waminda could support her.

34. In her evidence in this severity appeal, the appellant attempted to convey the impression that she had learnt much from her current period of incarceration. She said, for example, that she had abstained from drugs whilst in custody and spoke of her relatively recent involvement with the Miranda Project. Evidence of that kind may have had considerable force if it was from a first time offender, but as indicated, with this appellant’s past criminal history, it provokes real scepticism. I am particularly sceptical of her confidence in her capacity to abstain from drugs once released, given how ingrained her illicit substance abuse appears, in the absence of sustained rehabilitation programs. The appellant mentioned some assistance received from ‘The Bay’ programme, that was evidence of her perception only and the Court has no objective or independent evidence about her progress.

35. The Court recognises that the offender has made some efforts to receive the help and support that she needs, but her prospects are at best guarded.

INSTINCTIVE SYNTHESIS

36. I have had regard to the maximum penalties for the subject offences. At least one of them (H81203472/1) is particularly serious when reference is made to that particular measure, being punishable by 5 years in this Court had the charge proceeded on indictment. The offences are disparate in nature, occurring on different dates spanning much of the calendar year.

37. I also have regard to the considerations in s 3A of the Crimes (Sentencing Procedure Act) 1999 (NSW). The offender needs to be made accountable for repeated driving offences and be subject to a measure of denunciation. For all offences, general deterrence is generally very important. I have addressed, I intend, as sympathetically as one can, the salience of Bugmy considerations; and the vague indications of mental abnormality. To reiterate, to a degree, they moderate general deterrence on account of a reduced moral culpability. However, such allowance as might be made when considering specific deterrence is offset by the recidivist nature of much of the offending, and an awareness in the offender that what she was doing was wrong. As I have said, the vague indications of mental abnormality have not been demonstrated to have had a causal connection to the offending.

36. There is greater scope for the consideration of protecting the community. The sentencing exercise does not give much scope for the offender’s prospects of rehabilitation, which are (at best) guarded.

37. Contrary to the appellant’s submissions, I find that the s 5 threshold has been crossed for each indicative sentence and the aggregate sentence. I accept the Crown’s submission that her prior record indicates many instances of her receiving allowances and the benefit of the doubt with good behaviour bonds and community supervision orders. As did the Magistrate, I find that there are special circumstances. I take into account her disadvantaged background and the desirability of an extended period of parole to facilitate what rehabilitation can be effective for the appellant. I note the recent letter from Ms Jones which positively indicated that the Waminda ‘hub’ which is particularly supportive of Aboriginal women offenders after their release in Nowra, would be accessible to the appellant if she returned to Shoalhaven after her release. I apply the same variation to the non-parole period for the aggregate sentence as the Magistrate did.

38. This is an appeal against the imposition of an aggregate sentence; not the indicative sentences. Given the appellant’s record of being a repeat offender in that respect, it is difficult to find fault with the awarding of the maximum penalty that the Local Court had the jurisdiction to order in respect to those offences. Nevertheless, I would have found that for the driving whilst disqualified the offence, for each of the (three) offences of that kind, I would have given an indicative sentence of 9 months in each instance, rather than the maximum permitted.

39. I further note that the seriousness of the taking and driving conveyance without the owner’s consent may have been such that, had the charge been brought in the District Court, it may have attracted a sterner sentence. Even at the summary level, it seemed to me that when reference was made to the Local Court’s jurisdictional limit, the sentence was lenient. I otherwise agree with the indicative sentences imposed by the Magistrate for all of the remaining indicative offences.

40. I take into account the totality principle and I note that, certainly in connection with the offending that occurred on 12 June 2021, where there were three sequences occurring as part of the same episode that concurrency has to be recognised. However, all of the other offending occurred on different dates and different times and the aggregate sentence imposed needed to reflect the overall criminality; whilst not being crushing in its effect. I would not have imposed any different aggregate sentence to the learned Magistrate.

41. In all the circumstances, the severity appeal is dismissed.

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Decision last updated: 17 November 2021