R v Rozynski No. Sccrm-03-160

R v ROZYNSKI
[2003] SASC 333
Court of Criminal Appeal: Doyle CJ, Prior and Bleby JJ (Ex Tempore)

DOYLE CJ: This is an appeal by leave against a sentence imposed by a judge of the District Court.
Ms Rozynski was convicted after a trial by jury in the District Court. She was convicted on one count of aggravated serious criminal trespass in a place of residence and on two counts of common assault. The first offence attracts a maximum punishment of life imprisonment. The maximum punishment for the assault offences was two years imprisonment.
These were serious offences. They were committed with Scott Perry, with whom the appellant had been living for about ten years. He pleaded guilty.
Mr Perry had been supplying drugs for sometime to the victims of the offences, a man and woman who lived together. The appellant took part in the supply of drugs. The victims owed Mr Perry $175. Despite a number of threats made by Mr Perry and the appellant, they had not paid.
On the day in question, Mr Perry made further threats to the victims in the course of a telephone call. Mr Perry then drove to the victims’ home, accompanied by the appellant and a third person. All three went to the door of the house. Mr Perry kicked the door down and he and the appellant then entered the house. Mr Perry was armed with a baseball bat, or something like a bat.
Mr Perry attacked the male victim and the appellant attacked the female victim.
The female victim said that the appellant grabbed her by the hair, dragged her to the ground and kicked her more than once to the face. The appellant took hold of the victim’s hair and swung her head against the corner of the kitchen bench. As they were leaving the premises, Mr Perry hit the female victim on the leg.
Clearly enough, these offences were committed to punish and to intimidate the victims.
As I said, they were very serious offences; there was violent entry into the house and then violent attacks on the occupants. This was not done on the spur of the moment.
The appellant was 27 years of age. She had been in a relationship with Mr Perry for about ten years. She had four children, three of them being fathered by Mr Perry.
When the appellant appeared for sentence, the judge was told that the relationship was at an end. Mr Perry was then serving a term of imprisonment imposed on him for his part in the offences.
The appellant had only one significant prior conviction. That was for an assault committed in July 1998, about four years before these offences.
The submissions to the judge, which the judge accepted, were to the effect that the appellant had had a disturbed upbringing and had seriously abused alcohol and other drugs for a number of years. Of particular significance was the material before the judge which demonstrated that Mr Perry had abused the appellant physically and emotionally throughout the relationship. A report from the appellant’s general practitioner indicated that the abuse truly was sustained and significant. From that point of view, the relationship was clearly a hopeless one, and one that could only be damaging to the appellant.
Dr Raeside provided a psychiatric report. He considered that the appellant was suffering from a major depressive disorder. On the basis of the information provided by the appellant, he thought it likely that, on the day in question, she was affected by drugs. Dr Raeside’s view was that the abusive relationship had reduced her to a dependent status. I understand this to mean that the appellant was not able to make truly independent decisions and was likely to follow a course of action dictated by Mr Perry. On the other hand, there is no suggestion that the appellant was not responsible for her conduct as a matter of law. It is rather a case in which her depression, and her dependent status, explained how it was that she came to commit these offences, mainly at the instance of Mr Perry.
That being so, one could conclude that, if the relationship is terminated, and if Ms Rozynski is able to break her dependence on alcohol and drugs, she may well not offend again. However, sadly, one must be guarded about her prospects. There is a risk that she will not be able to break her dependence on drugs and alcohol and there is a risk that she will return to this relationship, or another similar relationship. However, in her favour it can be said that her criminal conduct is attributable to these environmental factors rather than to a set pattern of criminal behaviour.
Dr Raeside also expressed the opinion that separating the appellant from her children was likely to contribute to her depressive condition and might limit the response she would otherwise have to treatment.
The judge took account of all of these matters. It cannot be said that the judge overlooked anything relevant. In particular the judge said:
“While I accept that your conduct in relation to these offences has to be viewed in the context of your prevailing mental state, and the level of control which Perry had upon you throughout the relationship, the fact remains that you played an active and important role in not only the sale of drugs to the victims, but also, more importantly, in the threats to them leading up to the offences and the offences themselves. Ultimately you made the decision to take part in the offences, even though your drug addiction and depression and sense of helplessness may have contributed to your lack of judgment. Indeed, I accept your evidence that on the morning of these offences you were affected, to some extent, by liquor and drugs.”
The judge imposed a single sentence of imprisonment of three years six months. The judge fixed a non-parole period of two years.
It is argued that the head sentence is excessive. In my view it is a moderate sentence for such serious offences. But for the mitigating circumstances it would have been heavier.
I have no doubt the judge made full allowance for the appellant’s sad circumstances in fixing the head sentence. The same applies to the complaint that the non-parole period is excessive. It is significant and is a substantial proportion of the head sentences. For a person as young as the appellant, and with her record, it might have been a lesser proportion of the head sentence. However, as I have said, I cannot accept the submission that there is no risk of the appellant reoffending. Dr Raeside’s view is to the contrary. Under the circumstances it cannot be said that the non-parole period is excessive.
The needs of the appellant’s children are a matter to be taken into account, but this also is referred to by the judge. I consider that adequate allowance was made for this factor.
Finally, it is argued that the judge should have suspended the sentence. For crimes as serious as this, warranting a sentence as heavy as this, a decision to suspend the sentence would have to be based on some factor that would make it appropriate to grant the appellant that further leniency and to give her that further chance to escape imprisonment. I have considered carefully whether her age, the interests of the children and her state of dependency attributable to the abusive relationship are, taken together, matters that call for the sentence to be suspended. In my opinion it cannot be said that these factors were so powerful as to require the judge to follow that course. It is probably going too far to say it would have been wrong to suspend the sentence but in my opinion, making full allowance for the mitigating circumstances, it would be difficult to justify an order for suspension of the sentence. Suffice it to say in my opinion that it cannot be said that the judge was wrong in not deciding that good reason existed to suspend the sentence. For those reasons I would dismiss the appeal.
The order of the court is that the appeal be dismissed.
PRIOR J: I agree.
BLEBY J: I also agree.

[2003] SASC 333

15 September 2003