R v Ridden

[2016] NSWDC 2

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ridden [2016] NSWDC 2
Hearing dates:	17 December 2015
Date of orders:	29 January 2016
Decision date:	29 January 2016
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence
Catchwords:	sentencing; purposes of sentencing; armed robbery; assault police; firearm possession; multiple offences, totality principle; parity; special circumstances; deterrence for young offenders; applicability of Evidence Act 1995 (NSW); aggregate sentence
Legislation Cited:	s 60(1), s 60(2), s 97(2), s 192J, s 195(1A)(b) Crimes Act 1900 (NSW) s 166 Criminal Procedure Act 1985 (NSW) s 3, s 10A, s 137 Crimes (Administration of Sentences) Act 1999 (NSW) s 29(3) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) s 7(1), s 65(3) Firearms Act 1996 (NSW)
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22] Attorney General’s Application No. 1 (2002) 56 NSWLR 146 Barbaro v The Queen (2014) 253 CLR 58 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 CM v R [2013] NSWCCA 341 Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 Do v R [2010] NSWCCA 182 Gill v The Queen [2010] NSWCCA 236 Grube v R [2005] NSWCCA 140 Hili v The Queen (2010) 242 CLR 520 Johnson v R [2010] NSWCCA 124 Knight v R [2005] NSWCCA 253 Legge v R [2007] NSWCCA 244 Lowe v The Queen (1984) 154 CLR 606 M A K & M S K v R [2006] NSWCCA 381 Markarian v The Queen (2005) 228 CLR 357 Munda v Western Australia (2013) 249 CLR 600 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Anderson NSWCCA (unreported, 25 March 1993) R v Henry (1999) 46 NSWLR 346 R v Krstic [2005] NSWCCA 391 R v Qutami [2001] NSWCCA 353 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Storey [1998] 1 VR 359 R v Thomson (2000) 49 NSWLR 383 R v Thurgar (1990) 51 A Crim R 109 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J R v Windle [2012] NSWCCA 222 at [42] The Queen v Olbrich (1999) 199 CLR 270 The Queen v Pham [2015] HCA 39 The Queen v Ryan (2001) 206 CLR 267 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629
Texts Cited:	Victorian Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence, (April 2011) J Trevena and D Weatherburn, “Does the first prison sentence reduce the risk of further offending?” (October 2015) 187 Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research D Weatherburn, J Hua and S Moffat, “How much crime does prison stop? The incapacitation effect of prison on burglary” (January 2006) 93 Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research W Wan, S Moffatt, C Jones and D Weatherburn, “The effect of arrest and imprisonment on crime”, Crime and Justice Bulletin, (February 2012) 158 Crimes and Justice Bulletin NSW Bureau of Crime Statistics and Research
Category:	Sentence
Parties:	Director of Public Prosecutions Amanda Ridden (Offender)
Representation:	Ms V Engel, trial advocate, for the Director; Mr R Pontello, of counsel, for the Offender
File Number(s):	2013/290260; 2011/17403

Judgment

Introduction

1. On 12 June 2013 Amanda Ridden was released from gaol having served the mandatory year which results from breaching parole: s 3 “parole eligibility date” and s 137 Crimes (Administration of Sentences) Act 1999 (NSW). That term in gaol had no significant impact on her. She had not addressed the many problems which had led to her earlier offending.

2. On release she went back to her old ways. She met up with and formed a relationship with Daniel Roach. He too had many problems that had not been addressed, and may have been exacerbated by, his own gaol terms. Both were taking illegal drugs. Both were in need of somewhere to live and money to live on. Both determined to commit further crimes. Both well knew that they would soon be returning to gaol.

23 September 2013

3. In late September 2013 Roach obtained a shotgun; a dangerous weapon. The two planned to use it. They were joined by Anthony Woodman and Blake Weismantel. On 23 September their plans were executed. They had the shotgun and other weapons. They needed a car. To get it they approached Mr Brighton as he was parked in his driveway in Lane Cove and was about to drive his car into his garage. Mr Brighton was 87 years old. Someone said, “Give me the car keys, we’re not going to hurt you.” Out of fear for his safety he handed over his keys. His vehicle, a 2003 Nissan Pulsar was taken. Ms Ridden did not engage with Mr Brighton but she was present and able to assist if needed: Form 1.

4. Count 1: Within less than half an hour Roach, Woodman, Weismantel and Ms Ridden entered the Roseville Cinema. Roach carried a small axe. Another man had a sawn-off shotgun. Roach threatened an employee Mr Sheppard saying “Give us your money”. Mr Sheppard told Mr Roach to “Get the fuck out of here”. He then ran to trigger the silent alarm. Roach jumped over the candy bar. At the same time a co‑offender pointed a shotgun at Mr Sheppard and shouted, “Do you want to die?” The stills of the cinema’s security CCTV are set out in the brief before me: Exhibit A, tab 13.

5. Roach was able to take about $500 from the till. While this was happening Woodman was threatening patrons, demanding their wallets. A number of them simply ignored his demands, but one older man, Mr Price, handed over his wallet with about $90 and other personal items: Form 1.

6. Ms Ridden acted as a look out during the robbery. She also demanded of patrons that they hand over their wallets.

7. Count 2: Later that evening the same group went to the Revesby Pacific Hotel. All were armed in some way. One had the shotgun, Mr Roach still had the axe and Ms Ridden carried a walking stick. The robbery was captured on CCTV and there are stills in the brief before me: Exhibit A, tab 13. They show the distress on the face of one of the employees. The tills were ransacked and $3,800 was taken, as well as a number of other items. Ms Ridden helped in taking things from behind the bar.

8. Count 3: Mr Brighton’s motor vehicle was used in both robberies. It was set alight and destroyed.

24 September 2013

9. The following evening Ms Ridden and Roach were at the Kirrawee McDonald’s. They were behaving badly. Staff called police. Constables Lawler and Nicholls responded. It was apparent to them that both offenders were well affected by an intoxicating substance. They sought to defuse the situation and get the two to leave, but Roach hit Constable Nicholls in the face with his fist. Lawler and Nicholls tried to force him to the ground, but he continued to resist. Ms Ridden involved herself in the struggle.

10. She, in turn, was forced to the ground and handcuffed. She continued to resist, kick and swear. She kicked Constable Lawler in the face: Count 7. Roach made an escape but was soon caught. Other police arrived. Ms Ridden continued to struggle, spitting at and abusing the officers. Constable Rial injured his elbow trying to restrain her: Count 2. Constable Murray-Swan was kicked in the thigh: Count 3. Constable Warner received a fist in her face: Count 6. Constable Markovich was kicked in the forearm and face: Count 5.

11. These were not trivial assaults. Actual harm was inflicted. Constable Markovich’s lip was swollen and it was sore for days. Constable Lawler’s cheek was bruised and he had a swollen lip. Constable Warner’s face and knee were swollen; the swelling and the pain remained for some time.

12. Police searched the backpack that Ridden and Roach had with them at the McDonalds. In it they found the sawn‑off shotgun used in the previous day’s robberies: Count 1. The shot gun was not loaded.

13. However, in the bag were three shotgun shells. She asks that I sentence her for this related matter. I will do so noting that the s 166 procedure applies because these matters are generally dealt with in the Local Court.

14. At Sutherland Police Station Ms Ridden, still drug affected, continued to yell, scream at, abuse and threaten police. She kicked and scratched the custody officer, Senior Constable Ott: Count 4. A tendon in his finger was injured requiring hospital treatment. He had to wear a brace for some weeks to aid recovery.

Form 1

15. As required by the Crimes (Sentencing Procedure) Act I take these matters into account when determining the appropriate penalty for the offence to which they relate: Attorney General’s Application No. 1 (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. The court does not “in any sense” impose sentences for that offence: Attorney General’s Application No. 1 at [68]. The matters on the Form 1 here do operate to increase the sentence that would otherwise be appropriate. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarianv The Queen (2005) 228 CLR 357 at [51]-[54]. That increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 at [39] – [42]. Sometimes, as here, that increase can be substantial: Attorney General’s Application No. 1 at [18]; see also R vGrube [2005] NSWCCA 140.

Breach of bond

16. In December 2010 Ms Ridden had a falling out with her then boyfriend. On 5 December 2010 she and others entered his home in Beacon Hill and stole a TV and other property. Police spoke to her that night. She later admitted to her now ex-boyfriend she was responsible. She was arrested. On 20 April 2012 a Magistrate put her on a bond to be of good behaviour for 2 years. These offences breach that bond.

17. I have been asked to deal with that matter and the papers are now before me. I will do so. The breach has been admitted. It is agreed that as I have had regard to the breach as matter in in aggravation of penalty for all the matters for sentence today, it is appropriate that the penalty for the breach be made concurrent with those other sentences to avoid any suggestion this matter has been subject to double counting.

Victim impact statements

18. I have received and considered a victim impact statement from Constable Lawler. The incident and its potential consequences if police had not successfully restrained Ms Ridden and Roach disturbed him, quite understandably. He along with all the other victims of the offences has the Court’s sympathy.

19. No victim impact statements were received from other victims. The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim: s 29(3) Crimes (Sentencing Procedure) Act.

Objective Seriousness: September 23, Counts 1—3

20. As part of its sentencing exercise a Court must assess, and make an evaluative judgment about, the objective seriousness of every offence before it.

21. The objective seriousness of the two armed robberies would be obvious from my brief recitation of facts. The offenders acted together intending to overawe their victims. Weapons including an axe and a sawn‑off shotgun were used. The use of potentially deadly weapons in such circumstances was clearly intended to terrify. Ms Ridden carried a walking stick during the second robbery. A number of staff and patrons were threatened. Co‑offenders made threats, to kill. Their victims may have feared these threats might be carried out. When confronted in such a situation no‑one knows what the ultimate result might be. Victims are understandably apprehensive that they may be seriously injured or killed.

22. While the planning and execution appeared to be haphazard, ill thought out, and inept, it was planning nevertheless. Ms Ridden and her co-offenders appeared to give little thought to the consequences of their crime on the individual victims, those nearby and to the community in general. There appears to be little thought given to the consequences for themselves, as arrest would have been, had anyone thought about the matter, almost inevitable.

23. The destruction of Mr Brighton’s    Nissan was serious. The victim of the offence was 87 years old. We must respect elderly citizens of our community. The offence was also pointless and nasty. It was committed in a forlorn hope that it would disguise evidence implicating the offenders in the other matters before me. While the sentence is increased because of the matter on the Form 1, the facts in that matter do not form part of this assessment.

Objective seriousness: September 24, Count 1

24. The possession of an unauthorised prohibited firearm — particularly where it is connected with criminal activities — is a key factor in assessing the seriousness of the offence: R v Thurgar (1990) 51 A Crim R 109. The Firearms Act 1996 (NSW) aims to deter and punish possession of firearms per se: R v Krstic [2005] NSWCCA 391. Thus where, as here, the offender possesses a firearm to assist in other crimes the criminality of the offence is even more serious.

25. Firearms if possessed, are liable to be used, and if used, are liable to be a source of great danger or serious injury. Their possession, even if not then loaded, creates a high risk to the safety of the public and arresting officers: Do v R [2010] NSWCCA 182. This is a matter highlighted by Constable Lawler in his Victim Impact Statement: exhibit A, tab 8.

26. I have already had regard to the possession of this weapon when I came to assessing its use during the armed robberies committed the day before. Again, I must take care not to double count matters in aggravation but the possession of the prohibited firearm in Kirrawee merits additional punishment.

Objective seriousness: September 24, Counts 2—7

27. Significant risks are run by police officers in the normal execution of their duties. The authority of police in the performance of their duties must, and will, be supported by the Courts. In any case involving assaults on police there is a need to give full weight to those matters in the purposes of sentencing, which require significant and deterrent sentences.

28. These matters were not dealt with in the Local Court, following election by the Director of Public Prosecutions. They are however, with great respect to the Director, and unfortunately, matters which are regularly dealt with by magistrates with a much lesser maximum penalty and no standard non‑parole periods. I do not by that comment intend to diminish the seriousness of the assaults on police officers. A court must always bear in mind the need to reinforce and support the difficult job done by police and recognise the risks they face. I must sentence by reference to the maximum penalties available in this court.

29. Constable Murray-Swan was kicked to her thigh causing her pain. Each of the other assaults resulted in actual bodily harm to the officer. The officers carried the effects of their injuries for some time. With the exception of Constable Rial who injured his elbow attempting to subdue Ms Ridden each of the other officers was struck or kicked deliberately. Each offence while serious falls below the middle of the range for each offence. However each sentence indicated must carry within it a significant element designed to deter both this offender and others from committing such offences in the future.

Maximum penalties and standard non-parole periods

30. Important guides to the exercise of my sentencing discretion are the maximum penalties and, where applicable, the standard non-parole periods fixed by Parliament. Here:

1. Robbery armed with a dangerous weapon – 25 years imprisonment – s 97(2) Crimes Act1900 (NSW).

2. Destruction of a motor vehicle by fire – 11 years imprisonment – s 195(1A)(b) Crimes Act.

3. Possess unauthorised prohibited firearm – 14 years imprisonment with a standard non-parole period of three years – s 7(1) Firearms Act.

4. Assault police in execution of duty causing actual bodily harm – 7 years imprisonment with a standard non-parole period of three years – s 60(2) Crimes Act.

5. Assault police – five years imprisonment – s 60(1) Crimes Act.

6. Possess ammunition without authority – $5,500 Fine – s 65(3) Firearms Act.

7. Break, enter and steal – 14 years imprisonment (2 years if dealt with in the Local Court) – s 112(1) Crimes Act.

31. Careful attention to maximum penalties and any standard non-parole period is required. Not just because the Parliament has fixed them but also both provide measures to be balanced with all other relevant factors. One reason for the high maximum penalties and high standard non-parole periods is to ensure Courts have proper regard to the deterrent and retributive impact of sentences. They also invite a comparison between the instant case and other cases. That said it is not appropriate to look first to a maximum penalty or the standard non-parole period and then proceed by way of making a proportional deduction from it: Markarian v The Queen at [30] and [31].

32. Another important guide is the judgment of the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. The 23 September robbery matters clearly fall above that guideline. However, I note, as Spigelman CJ said in Legge v R [2007] NSWCCA 244 at [59]: “a guideline is not a tramline.” The consistent application of principle requires careful consideration of this and other decisions of appellate courts, but as Justices Bell and Gageler noted recently in The Queen v Pham [2015] HCA 39 at [46], “…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’

33. There are here reasons to depart from the standard non-parole period. They include giving proper recognition to the pleas of guilty, the subjective matters to which I am about to refer and my finding of special circumstances requiring a long period of supervision in the community when and if Ms Ridden earns release to parole.

Guilty pleas

34. The September 23 matters were committed for trial. Ms Ridden entered guilty pleas on the 15 June 2015, the day the trial was listed to commence. That plea had some utilitarian value but its lateness means that only a reduction of 10% in the otherwise appropriate sentence can be allowed: R v Thomson (2000) 49 NSWLR 383.

35. The other matters were subject to early guilty pleas in the Local Court and should be accorded the full reduction of 25% generally allowed.

36. The guilty pleas also have some additional value as they indicate an acceptance of responsibility and some growing maturity in Ms Ridden; matters that go to her prospects after she has served her minimum time in custody.

Multiple sentences

37. The Court has a number of sentences to impose. The offending occurred over only 2 days and was part of a course of conduct but each offence was separate and discrete. Individual and proportionate sentences must be fixed or indicated for each matter. While the offences were part of two connected episodes of criminality with many common factors, given that each offence had individual victims, there must be some independent punishment for each matter.

38. When a Court imposes multiple sentences it is necessary to ensure that the aggregation of all the sentences is a “just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J; Cahyadi v R [2007] NSWCCA; 1 (2007) 168 A Crim R 41.

39. That said, public confidence in the administration of justice requires the Court to avoid any suggestion that there is some sort of discount for multiple offending: Knight v R [2005] NSWCCA 253. On the other hand, a Judge does not simply add up the sentences one on top of the other. That is because of the compounding effect on the severity of the total sentence. The severity of sentences increase at a greater rate than the increase in the length of the actual sentence, thus a sentence of five years is more than five times as severe as a sentence of one year. Long sentences, particularly on a young woman such as Ms Ridden, can also crush any possibility for their future, induce a feeling of hopelessness and destroy any expectation of useful life after release: MAK & MSK v R [2006] NSWCCA 381.

37. The sentences here should be partly cumulative, to avoid the risk that the combined sentences will exceed that which is warranted to reflect their total criminality.

Other cases 

41. I have had regard to statistics and the other cases to which I have been referred. An extensive list was provided by Crown: see MFI 2. The guidance offered by appellate courts and other decisions is always welcome as guides to the exercise of my sentencing discretion. I bear in mind the need for consistency in the application of sentencing principles, but every offender and every offence is different: See Hili v The Queen (2010) 242 CLR 52; Barbaro v The Queen (2014) 253 CLR 58 at [74]; and most recently, The Queen v Pham [2015] HCA 39, per Bell and Gageler JJ at [47].

Criminal record

42. Ms Ridden first came before the Children’s Court in 2010. She served short gaol sentences in 2011-2012. Her parole was breached and as a consequence she spent a year in custody from June 2012 until June 2013.

43. Her time in custody did not deter her. Independent research shows that, particularly for young offenders, longer sentences and harsher prison conditions do not necessarily discourage future offending. Paradoxically, the experience of imprisonment may exert a crime-producing effect – by providing a criminal learning environment, by labelling and stigmatising offenders as criminals or by simply constituting an ineffective way of addressing the underlying causes of crime: See J Trevena and D Weatherburn, “Does the first prison sentence reduce the risk of further offending?” (October 2015) 187 Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research; and D Weatherburn, J Hua and S Moffat, “How much crime does prison stop? The incapacitation effect of prison on burglary” (January 2006) 93 Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research.

44. Obviously Ms Ridden should not be given the leniency often extended to first offenders. Her prior criminal history however cannot result in a sentence which is disproportionate to the gravity of the offences for sentence but her continuing disobedience to the law requires a more severe penalty as I must give greater weight to, and place additional focus on, retribution, deterrence and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.

On a bond

45. On 20 April 2012 a Magistrate put Ms Ridden on a bond to be of good behaviour for 2 years. She continued to abuse drugs. She did not accept the guidance of the parole service and she committed these offences. The commission of offences while under an obligation given to a court not to offend means the sentences I must impose should be increased.

Drug use

46. The need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any offence, and of itself is not a matter of mitigation. It can however explain the impulsivity of the offence and the extent of any planning for it. It is relevant here as a subjective circumstance as the origin or extent of the addiction, and any attempts to overcome it, impact upon the offender’s prospects of recidivism and rehabilitation. This is of particular importance where, as here the addiction occurred when very young and before she had the ability to exercise adult judgment. Further, where, as here, steps have been taken to address those underlying problems it justifies special consideration for an offender: See Henry v R (1999) 46 NSWLR 346; and (1999) 106 A Crim R 149 at [273].

Objection to defence evidence

47. Exhibit 4 is a report from Ms Vander Reest a victims’ services counsellor at Dillwynia Correctional Centre. Ms Engel, solicitor, for the Director of Public Prosecutions, asked that the Evidence Act1995 (NSW) apply and that I reject the opinions offered. I declined her application.

48. Most sentencing proceedings do not involve some general joinder of issue between prosecution and offender. Calling and testing evidence is required if an asserted fact is controverted or if the judge was not prepared to act on the assertion. Most often this comes up when a matter not on oath and repeated second hand is put forward as evidence going to an assessment of the objective circumstances of the offences: See R v Qutami [2001] NSWCCA 353.

49. Where there is a real dispute that will have a significant impact on sentence the party seeking to have the matter taken into account must bring that matter to the attention of the judge and, if necessary, call evidence about it: The Queen v Olbrich (1999) 199 CLR 270 at [25]. In such matters a sentencing judge “may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. If judge proposes to take matters into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities”: R v Storey [1998] 1 VR 359 at 369.

50. However, sentencing, particularly in busy lists such as those at Campbelltown, is rarely capable of subtlety and refinement. Nor is it necessary in most cases. This is one of them.

51. Even where the Evidence Act does not apply a judge does not ignore the rules the policy and rationale underlying those rules: R v War Pensions Entitlement Appeal Tribunal; ex parteBott (1933) 50 CLR 228 at 256, per Evatt J. There is no reason to doubt the bona fides of Ms Vander Reest, however, a Judge is entitled to be sceptical of conclusions unsupported by any factual detail: Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [39].

52. I do caution myself that the history given to Ms Vander Reest and Mr Borenstein was not supported by evidence on oath from Ms Ridden. The focus of the exhibits was on subjective matters. This includes her suffering some early trauma and sexual abuse as a young teenager and that she is still traumatised by what occurred. The disputed material did not go to the objective seriousness of her many crimes. It was also in accord with other material before me. Primarily it was relevant to her prospects and future risk. The material also allows for some understanding of how she came to commit these crimes.

Subjective case for the offender

53. Ms Ridden was born on 10 December 1992. She grew up with her parents and brother in Sydney’s northern beaches. The family were part of a strict religious community. As a young teenager Ms Ridden rejected that lifestyle and rebelled against its strictures. She left home and school early. She spent a short time in a hairdressing apprenticeship. She took up the use and abuse of drugs. She also came to notice of police and the courts. This continued until her arrest on 24 September 2013.

54. Since starting counselling with Ms Vander Reest last year she has been very proactive in addressing issues that have arisen during her childhood and adolescence. She has made considerable progress and is committed to continuing counselling.

55. In two reports Mr Borenstein, clinical psychologist, provides a history given to him by Ms Ridden. He details her early rebellion, binge drinking and drug abuse. He notes she was a victim of violence, including sexual assault. She developed a substance dependency and as Exhibit 2 makes clear had to be hospitalised and briefly scheduled under the Mental Health Act 2007 (NSW) in 2009 aged 16. The reports note depression, drug dependency and years of self-harm. She spent time at the Triple Care Farm rehabilitation facility.

56. By the time of the commission of these offences she had lost touch with pro-social friends and family. She had suffered a number of significant traumas. She had little concern for herself or others. She was alienated, anxious, lacking in trust and marginalised. Her brief association with her co-offender Roach exacerbated these feelings. She simply did not care about others or that she would be going to gaol.

57. Since coming into custody there has been a gradual but considerable change in attitude and behaviour. Her affect is now “normal”. She is no longer drug dependant. She is reported as showing some insight and understanding. She told Mr Borenstein “her conscience had returned” and that she deserves punishment.

58. She has re-established contact with her family and family friends. She has their support; many came to court to support her. Her history and psychological testing leads Mr Borenstein to conclude she suffers from complex Post Traumatic Stress Disorder. In his professional opinion she needs ongoing and intensive psychological treatment and drug and alcohol counselling directed at relapse prevention.

Parity

59. On 19 February 2015 I sentenced Roach for his role in the taking Mr Brighton’s car, the Roseville Cinema offences, the Revesby Hotel robbery and a number of other offences, some committed in association with Ms Ridden, some not. In all he will serve over 11 years with a minimum time that must be spent in gaol of 7 years. Roach entered early guilty pleas.

60. On 1 October 2015 Judge Nielson sentenced Weismantel for his role in the taking of Mr Brighton’s car, the Roseville Cinema offences and the Revesby Hotel robbery, to an aggregate sentence of 8 years 6 months with a minimum term that must be served of 4 years 6 months. Weismantel was found guilty of one matter and entered late guilty pleas to the others.

61. On 9 October 2015 I sentenced Mr Woodman for his role in the stealing and destruction of Mr Brighton’s car, the Roseville Cinema offences and the Revesby Hotel robbery to 8 years 6 months with a minimum term that must be served of 5 year 6 months. Woodman entered early guilty pleas.

62. Ms Engel, who appears for the Director, urged I find that Judge Neilson’s sentences were manifestly inadequate and therefore should not be taken into account by me. In Gill v The Queen [2010] NSWCCA 236 Justice McColl noted the unattractiveness of responding to one wrong decision by making another wrong decision. As a Judge of this Court, I do not have to assess whether Judge Nielson’s sentences were manifestly inadequate.

63. In Postiglione, Justice Kirby said the parity and totality principles are in the nature of checks required because the task of sentencing is not mechanical. Justices Dawson and Gaudron pointed out that disparity is not simply the imposition of different sentences for the same offence but a question of disproportion between them. Parity is a matter to be determined having regard to the circumstances of the co-offenders and their respective degrees of culpability. Those and other subjective matters may “justify a real difference in the time each will serve in prison” and “like must be compared with like”: at 878. In Gill it was reiterated that like attracts like. I must have regard to what fell from the High Court in Postiglione and Lowe v The Queen (1984) 154 CLR 606. If the result of that is that I err on the side of leniency, so be it. Individual offenders should not have a justifiable sense of grievance when it comes to comparing like with like: R v Anderson, NSWCCA (unreported, 25 March 1993, Hunt CJ at CL).

64. Parity issues apply throughout the sentencing process including to any assessment of the ratio between head sentence and non-parole period. Each co-offender because of their background and mental health and drug issues has different prospects for the future. Different criminal histories and custodial patterns may “justify a real difference in the time each will serve in prison”: Postiglione at 878.

65. Each offender must be held responsible for the crimes committed by co-offenders but there can be reasons why one offender is more or less objectively culpable than others. A lookout can be distinguished from those who use weapons and directly threaten victims: Johnson v R [2010] NSWCCA 124. So far as the 23 September matters are concerned Ms Ridden is not sentenced for taking Mr Brighton’s car, only its subsequent destruction. Ms Ridden did not take an aggressive role in the robberies. That however does not significantly diminish her criminality because she was prepared, with the others, to carry out each offence and was a party to the planning of each of them.

Purposes of Sentencing

Victim vindication — violence

66. Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence for sentencing.

67. Judges recognise that sentences have to recognise the legitimate interest of the general community in the denunciation and punishment of crimes which cause physical harm and or threaten others with violence. The sentence must attempt to vindicate the dignity of each victim, express the community's disapproval of the type of offending and, where possible, afford such protection as can be afforded by the state to the vulnerable against repetition of violence: Munda v Western Australia (2013) 249 CLR 600.

68. The community expect that crimes such as these will be punished severely. However a proper purpose of the criminal law is not to give effect to the irrational prejudices of ill-informed public opinion: R v Windle [2012] NSWCCA 222 at [42]; R v Ryan (2001) 206 CLR 267 at [46].

Deterrence

69. Courts are required to take into account the deterrent effect of their sentences on the individual offender and the community in general. Sentences by their severity must attempt to deter others from committing similar offences. I take those principles into account here.

70. It is clear however that Mr Ridden was not deterred by her time in gaol in 2012 and 2013. Nor was she deterred by the almost inevitability she would be caught and returned to gaol. Her focus was very much on her drug use, her relationship with Roach and the short term.

71. Impressive research indicates that the general deterrent effect of increasing gaol sentence lengths has, in most cases, been shown to be at the most marginal, if not entirely negligible, particularly when considered in the context of the costs of maintaining an increased prison population, compared with what similar funding on alternatives to incarceration and community-level prevention schemes could achieve. The evidence also shows that while fear of apprehension can be a powerful deterrent, and fear of incarceration of any length is a moderate deterrent, fear of a longer gaol sentence generally has little or no deterrent effect at all. A February 2012 study conducted by the NSW Bureau of Crime Statistics and Research (BOCSAR) concluded that although Australian Governments “… have generally acted as if the best way to control crime is to appoint more police and put more offenders in prison for longer … policies directed toward this end have rarely if ever been defended on the basis of evidence”: W Wan, S Moffatt, C Jones and D Weatherburn, “The effect of arrest and imprisonment on crime”, Crime and Justice Bulletin, (February 2012) 158 Crimes and Justice Bulletin, NSW Bureau of Crime Statistics and Research, 15; see also Weatherburn, Hua and Moffat, above.

Special circumstances

72. I am prepared to accept that by abstaining from drugs, engaging in counselling and with growing maturity, Ms Ridden has turned her life around and has learned some harsh lessons. She will be tested in the community. The sooner that can be done, the better. That said a substantial term must be served before she is given that opportunity.

73. The more support she has, the better. Reintegration into normal community life will require assistance. She has failed once before, however I am confident she has better personal resources and more help available to her now than then. Every effort should be made to maintain the bonds she has re-established with pro-social friends and family. Every effort should be made to build on the results of counselling in custody. I have confidence that with that assistance she can turn her life around.

74. All this, together with the need to take into account the impact of accumulation of sentences provides a strong basis for a finding of special circumstances. However, the minimum period for which she should be imprisoned must also properly reflect the gravity of her offences and the manifold purposes of sentencing: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at 717 [59].

Synthesis

75. The purposes for which a Court may impose a sentence on an offender do not all point in the one direction. Matters such as this are too complex to be fitted into strict categories. Human behaviour and characteristics are far too varied. Sentencing involves “a synthesis of competing features which attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment”: Weininger v The Queen (2003) 212 CLR 629.

76. While I have sought to structure the sentences to assist in Ms Ridden’s rehabilitation she must also be adequately punished for her offences and held accountable for her actions. What she did must be denounced. The Court’s ultimate duty is to do what it can to ensure community protection. Community protection here will be achieved by her removal from the community, the deterrent effect of the sentence, and also by her successful return to normal community life.

77. I am indebted to Ms Engel, Solicitor, for the Director and Mr Pontillo, defence counsel, for their clear and pertinent submissions. I trust I have done justice to them in these remarks.

78. I must assess the individual sentences, including any applicable discount and then consider totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. I will reduce the indicated sentences to take account of the utilitarian value of the guilty pleas. When I come to fix the aggregate sentence I will ensure that any discount allowed is not eroded by the process of accumulation: CM v R [2013] NSWCCA 341 at [44].

Sentence

s 166 matters

79. 005 Deal with identity information to commit indictable offence: withdrawn & dismissed.

80. 006 Possess ammunition without holding licence/permit/authority convicted – no further punishment required – s 10A Crimes (Sentencing Procedure) Act.

Local Court Bond 2011/17403

81. Knowingly concerned in Break & Enter house & steal - fixed term 6 months imprisonment to date from 23 September 2013.

Substantive offences

82. The remaining matters are subject to an indicative sentence.

83. The indicative sentences reflect a finding of special circumstances. Having regard to the objective seriousness of each offence, the guideposts applicable in the form of the maximum penalty and standard non-parole period (where applicable), Form 1’s (where applicable) and the subjective circumstances of the offender, the indicative sentences to be applied are as follows:

September 23 matters

84. With respect to Count 1 – Robbery while armed with dangerous weapon at Roseville (and Form 1), imprisonment for 7 years 2 months.

85. With respect to Count 2 – Robbery while armed with dangerous weapon at Revesby, imprisonment for 6 years 3 months.

86. With respect to Count 3 – Destroy property in company use fire (and form 1), imprisonment 2 years 8 months.

September 24 matters

87. With respect to charge 1 – Possess unauthorised prohibited firearm, imprisonment for 3 years 4 months comprising a non-parole period of 2 years 2 months with a balance of term of 1 year 2 months.

88. With respect to charge 2 – Assault police officer (Rial) in execution of duty cause actual bodily harm, imprisonment for 9 months, comprising a non-parole period of 5 months with a balance of term of 4 months.

89. With respect to charge 3 – Assault police officer (Murray-Swan) in execution of duty, imprisonment for 4 months.

90. With respect to charge 4 – Assault police officer (Ott) in execution of duty cause actual bodily harm, imprisonment for 1 year, comprising a non-parole period of 7 months with a balance of term of 5 months.

91. With respect to charge 5 – Assault police officer (Markovich) in execution of duty cause actual bodily harm, imprisonment for 1 year, comprising of a non-parole period of 7 months with a balance of term of 5 months.

87. With respect to charge 6 – Assault police officer (Warner) in execution of duty cause actual bodily harm, imprisonment for 1 year, comprising of a non-parole period of 7 months with a balance of term of 5 months.

88. With respect to charge 7 – Assault police officer (Lawler) in execution of duty cause actual bodily harm, imprisonment for 1 year, comprising a non-parole period of 7 months with a balance of term of 5 months.

89. Having considered issues of accumulation, concurrency and totality, I am satisfied that an aggregate head sentence of 9 years 6 months imprisonment should be fixed.

90. There will be a non-parole period of 5 years and 8 months.

91. There will be a parole period of 3 years and 10 months.

92. The sentences will date from 24 September 2013, to take into account the period the offender was in custody, bail refused, following her arrest.

93. The effect of my sentence is that Ms Ridden will become eligible for consideration for release to parole on 23 May 2019. The sentence will expire on 23 March 2023.               

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Amendments

29 January 2016 - changed "23 May 2018" to "23 May 2019" in paragraph [98]

Decision last updated: 29 January 2016