R v Stanley

[2003] NSWCCA 233

CITATION:	Regina v Anissa Maude Stanley [2003] NSWCCA 233
HEARING DATE(S):	19 August 2003
JUDGMENT DATE:	19 August 2003
JUDGMENT OF:	Spigelman CJ at 59; Sully J at 1; Hidden J at 60
DECISION:	Leave to appeal against sentence granted; Appeal against sentence dismissed
LEGISLATION CITED:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED:	R v Henry (1999) 46 NSWLR 346 Reg v Cross [2002] NSWCCA 172 Reg v Pitt [2001] NSWCCA 125 Reg v Pham and Ly (1991) 55 A Crim R 128
PARTIES :	Regina Anissa Maude Stanley
FILE NUMBER(S):	CCA 60142/03
COUNSEL:	D. Arnott - Crown C. Craigie SC - Appellant
SOLICITORS:	S. E. O'Connor - Crown D. J. Humphreys - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	1/61/0063
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

60142/03

SPIGELMAN CJ
SULLY J
HIDDEN J

19 August 2003

REGINA v ANISSA MAUDE STANLEY

Judgment

1 SULLY J: This is an application by Anissa Maude Stanley for leave to appeal against a sentence of imprisonment that was passed upon her in the District Court at Dubbo on 24 October 2002.

2 On 22 October 2002 the applicant was arraigned upon an indictment charging that on 9 February 2002, and at a time when she was in company with one Bianca Hammond and one S.P, she assaulted one Brian Kerrigan with intent to rob him. (This co-accused was a juvenile. She will be referred to herein only by her initials.) Such an offence contravenes section 97(1) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. The sentence ultimately passed upon the applicant was one of imprisonment for 3 years with a non-parole period of 2 years.

3 The material facts can be taken as follows from the remarks on sentence:

“The facts are that the prisoner accosted the victim in Macquarie Street, Dubbo at about 1.30 p.m. on 9 February. The victim knew the prisoner through them both residing at Wellington. The prisoner persuaded the victim that she could get him some beer at cheap rates, and the victim withdrew some cash from an ATM. Meanwhile the prisoner had made some communication with the two other offenders who had remained concealed. All of this was observed by police who were suspicious about the behaviour. The prisoner then persuaded the victim to walk away from the shopping area and the two other offenders were following not far behind. The other offenders then joined up with the prisoner and the victim, and then as they walked along the three girls grabbed the victim and threw him to the ground and tried to get his wallet from him. The police came upon the scene and apprehended the girls. The victim suffered some abrasions.”

4 The following grounds were advanced in support of the application, and in support also of the substantive appeal, should leave to appeal be granted:

“1. The learned sentencing judge erred in law in applying the guideline judgment constituted by R v Henry (1999) 46 NSWLR 346, there being no authority for the application of the guideline to the offence of assault with intent to rob whilst in company.
2. The factors of disadvantage arising in the context of the applicant’s Aboriginal background were inadequately reflected in the sentencing outcome.
3. The factor of the applicant’s youth was inadequately reflected in the sentencing outcome.
4. The sentence imposed was so disproportionate to the sentence imposed upon a juvenile co-offender, as to give rise to a reasonable sense of grievance in the applicant.
5. The characterisation of the applicant as a ‘ring-leader’ was a finding of fact not reasonably open upon the evidence.
6. The finding of special circumstances was not adequately reflected in the sentencing outcome.
7. The sentence was manifestly excessive in the circumstances.”

5 It is convenient to deal seriatim with those grounds.

Ground 1

6 It is submitted, correctly, that the decision in Henry dealt in particular with cases of completed offences contravening either sub-section (1) or sub-section (2) of section 97 of the Crimes Act. It is conceded, correctly, that the sentencing guidelines which are provided by the decision have relevance in connection with sentencing for “other completed robbery offences, including robbery in company”.

7 It is contended, however, that the Henry guidelines are not applicable to the offence of assault with intent to rob, whether in company or otherwise. It is submitted that this latter contention is supported by the decision of this Court in Reg v Cross [2002] NSWCCA 172.

8 Cross was decided by a two-Judge bench of this Court. The Court was so constituted pursuant to section 6AA of the Criminal Appeal Act 1912 (NSW); that is to say, upon the direction of the Chief Justice, his Honour being “of the opinion that the appeal is not likely to require the resolution of a disputed issue of general principle”: section 6AA(2).

9 A reading of the decision reveals, in my opinion, that the decision did not require any resolution of the issue of general principle about which it is now said to be authoritative.

10 Mr. Cross pleaded guilty to, relevantly a charge of attempted robbery whilst armed with an offensive weapon. The Court of Criminal Appeal was persuaded that the sentencing Judge had erroneously dealt with Mr. Cross as though his plea had been entered to a charge of an actually completed robbery while armed with an offensive weapon. Speaking in the context of that demonstrated error, the Court said of the Henry guideline judgment that it “was concerned with a completed offence rather than an attempt. It was thus a case which established a datum in respect of an offence for which the Judge was in fact sentencing the applicant, but it was an offence which he had neither committed nor pleaded guilty to”. (see at paragraph 11).

11 In the present case it cannot be said, in my opinion, that the learned sentencing Judge fell into the conceptual error that was made by the sentencing Judge in Cross. It follows, in my opinion, that Cross is, and ought to be understood and applied as, a decision confined to its own particular facts. It is certainly no authority, and does not seem to me to purport to be authority, for the proposition, fundamental to Ground 1, that to apply the Henry guidelines in any substantial way to the offence of assault with intent to rob is, to borrow from the applicant’s written submissions: “a further and unjustified extension of Henry to an offence which is as easily characterised as an assault-type offence as a robbery-type offence and, as to the latter classification, is essentially incomplete”.

12 This proposition of the applicant should be, in my opinion, rejected.

13 First, it is beside the point to say, even if the statement by semantically correct, that the offence of assault with intent to rob is as logically classifiable as “an assault-type offence” as it is logically classifiable as a “robbery-type offence”. The true point is that Parliament has legislated in a way that makes, plainly and precisely, the offence of assault with intent to rob a “robbery-type offence”; and an offence liable to the same maximum penalty as is made applicable to each of the other “robbery-type” offences with which it is specifically linked by section 97.

14 Secondly, there is, in my opinion, no reason either of principle or of logic why the considerations which are enumerated by the Chief Justice in paragraph 162 of his Honour’s judgment in Henry should not apply mutatis mutandis to the section 97 offence of assault in company with another and with intent to rob. In such a case the consideration (ii) would not normally be relevant; but the remaining six nominated characteristics would be very much in point. It is, of course, both relevant and important to keep always in mind the Chief Justice’s warnings that the nominated characteristics are not definitive in any individual case; and that in every individual case the proper weight must be given to the particular circumstances of that case.

15 In my opinion the learned sentencing Judge did not err in turning to the decision in Henry for some general guidance; and his Honour has not been shown to have erred in the way in which he understood and applied that general guidance.

16 In my opinion Ground 1 has not been made good.

Ground 2

17 The sentencing Judge was clearly aware of the applicant’s Aboriginality and of matters of personal and social disadvantage deriving from that Aboriginality.

18 The evidence which was placed before his Honour in relation to this aspect of the applicant’s case was very sparse. It came, essentially, from one Susan Anderson, a project officer with the Correctional Centre Release Treatment Scheme based in Wellington. Miss Anderson gave brief oral evidence consistent with a written report prepared by her and dated 22 October 2002. Miss Anderson had not met the applicant prior to the date of the attack upon Mr. Kerrigan; but she “knew of her and I had been involved with her brothers”.

19 Miss Anderson’s written report and her oral evidence both depended, essentially, upon things said to her by the applicant herself. Miss Anderson had not discussed with the applicant the details of the offence, because of a policy of not doing so prior to actual conviction.

20 It is not clear when Miss Anderson first interviewed the applicant. Miss Anderson said in evidence that she had interviewed the applicant on 22 October, which was the day preceding the day upon which she gave her evidence, and was also the day upon which she prepared her written report. The report itself speaks of there having been “interviews with Anissa in and out of custody”, but gives no particulars of them.

21 The applicant herself gave no evidence; and she led no evidence, whether oral or in writing, from any other member of her family or community.

22 The applicant did put into evidence a letter from the Lyndon Withdrawal Unit, which is described in the letter as “a short-term Detoxification and Living Skills Program, which aims to provide quality services to address the needs of people affected by the use of drugs”.

23 The letter advises that the applicant had been assessed on 2 October 2002, and had been deemed suitable for admission into the Living Skills Program. An actual admission date could not be nominated, as of 15 October 2002, the date of the letter.

24 The applicant submits that the learned sentencing Judge did not give her proper credit for having taken the initiative of approaching the Lyndon Withdrawal Unit in an attempt to get proper professional help for her drug abuse and other personal problems.

25 In that connection it was important to give the learned sentencing Judge some proper assistance in assessing fairly what had actually prompted the applicant to make that approach. The applicant had been in custody, bail refused, between 9 February 2002 and 11 February 2002; and between 21 May 2002 and 24 June 2002. She had been at liberty on bail between 24 June 2002 and 24 September 2002. There was no evidence placing into that time frame the precise timing of the applicant’s approach to the Lyndon Unit. This left open the inference that the applicant had made no such approach until her mind had been suitably concentrated by an imminent Court appearance for sentence upon a plea of guilty to an offence of violence.

26 Further, there was no evidence of what the Lyndon assessment had actually entailed. There was, therefore, no evidence to support an inference that the assessment had proceeded upon the basis of full and frank disclosure by the applicant such as would support an inference that she was genuinely motivated to rehabilitate herself.

27 Miss Anderson’s report is clear and eloquent in its treatment of the applicant’s addictions and personal problems; but its usefulness is, in my opinion, very much limited by the absence of any reasoned analysis of any perceived link between those matters and, on the one hand, the applicant’s antecedent criminal record; and, on the other hand, the incidents of and the motivation for the planned and unprovoked attack upon Mr. Kerrigan.

28 The Crown submission that Aboriginality does not require, per se, leniency in any and every case involving an Aboriginal offender is, in my opinion, plainly correct; see in particular per Wood CJ at CL in Reg v Pitt [2001] NSWCCA 125 at para. 21.

29 The present applicant had, undoubtedly, a history of social disadvantage; although she did appear to have a reasonable level of secondary education, and at least a measure of family support. These were, of course, relevant considerations. But in order to give them any marked weight in mitigation of penalty, it was necessary to know just what had brought about the planned and unprovoked attack upon Mr. Kerrigan. Of this there was, simply, no evidence before the learned sentencing Judge.

30 Criticism is made of an observation made by the learned sentencing Judge in the rhetorical form: “(H)ow long can we allow a background like the prisoner’s to be an excuse for anti-social behaviour?”, It is submitted that this observation treated the applicant’s Aboriginality-related social disadvantages as “a factor of diminishing application because of her repetition of anti-social behaviour”.

31 I do not read the observation in that way. His Honour seems to me to have been doing no more than to make a point of simple common sense, namely, that repeated criminal offending cannot be brushed aside repeatedly by an appeal to a disadvantaged background. It is a dangerous fallacy to propound that social disadvantage is in any way a licence to break the law repeatedly and with effective impunity.

32 In my opinion Ground 2 has not been made good.

Ground 3

33 The applicant was born on 23 July 1983. She was aged, therefore, 18 years and not quite 7 months at the date of the relevant offence. She was aged a little over 19 years when she stood for sentence. She is at present aged a little over 20 years.

34 I take the essential principles concerning an offender’s youth as a factor in sentencing to be those stated as follows by this Court in Reg v Pham and Ly (1991) 55 A Crim R 128 at 135 per Lee CJ at CL:

“It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their homes. It is appropriate to refer to the decision of Williscroft [1975] VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, i.e., coercive action is fundamental to correctional treatment in our society.”

35 The present applicant’s case is not at all as serious as the particular cases of Pham and Ly, but the broad thrust of the stated principle is, nonetheless, applicable.

36 The case presented to the learned sentencing Judge was one of a concerted and unprovoked attack in broad daylight upon a citizen who was lawfully upon a public street. No motivation, as distinct from the obvious motive or objective of robbery, was explored or explained. No evidence was adduced to show that youthful immaturity was the motivation of the offence. The offence was not a first offence.

37 The learned sentencing Judge was clearly aware of the need to take into properly principled account the applicant’s comparative youth. I have read his Honour’s remarks dealing with that factor, and I can see no error in anything said by him.

38 In my opinion Ground 3 has not been made good.

Grounds 4 and 5

39 It is convenient to deal together with these grounds.

40 As to Ground 5, it is submitted that the learned sentencing Judge fell into error in characterising the applicant as a “ringleader” in the assault and attempted robbery of Mr. Kerrigan.

41 In my opinion that description was justified by the available evidence. It was the applicant who was best known to the victim. It was the applicant who first, and separately, accosted the victim; who pestered him until he was persuaded to accept her offer to sell him some cut-price beer; who inveigled the victim into showing how much cash he had on his person; and who took the lead in steering him to the point at which the assault and attempted robbery took place.

42 There was no attempt to lead any credible evidence tending to build up the parts played respectively by the two co-offenders, and to reduce correspondingly the applicant’s own part.

43 As to disparity in penalties, S P was dealt with in the Children’s Court. She was sentenced to a control order of 12 months’ duration with a non-parole period of 3 months. Upon appeal to the District Court that penalty was replaced by a bond of 12 months’ duration with supervision pursuant to section 33(1) of the Children (Criminal Proceedings) Act 1987 (NSW).

44 The other co-offender, Bianca Hammond, went to trial and was convicted. She was slightly older than the applicant. She was given a 3 year good behaviour bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

45 Each of the co-offenders was of Aboriginal descent.

46 Two things, in particular, differentiated the applicant from her co-offenders.

47 The first was the finding that the applicant had been the predominant moving party in the preconcerted enterprise to assault and rob Mr. Kerrigan; and in the actual assault and attempt to rob.

48 The second was the fact that neither co-offender had criminal antecedents, whereas the applicant had a poor antecedent record.

49 In August 2000 the applicant was ordered to perform 40 hours of community service as punishment for a common assault.

50 On 15 February 2001 the applicant was ordered to perform 20 hours of community service as punishment for a further common assault. In addition, she was made subject to a 12 month probation order for the offences of throwing a missile; or maliciously destroying property; and of using offensive language in or near a public place or school.

51 In February 2002 she was involved in the attack on Mr. Kerrigan. She was given Local Court bail to appear on 27 March 2002. She did not so appear and was at large until 21 May 2002. On 29 May 2002 she was committed for trial; bail was refused; and she was fined for the offences of common assault; and of escaping from lawful arrest, custody or detention.

52 On 9 February 2002, when the attack on Mr. Kerrigan took place, the applicant was still subject to the probation order that had been made on 15 February 2001.

53 In my opinion the foregoing matters so distinguished the applicant’s case as comparatively more culpable than the cases of her co-offenders, that the applicant can have no justifiable sense of grievance that her penalty is markedly more severe than theirs.

Ground 6

54 His Honour took as a starting point a head sentence of 4 years, that is to say, a sentence at the bottom of the Henry guideline range of sentences. His Honour then reduced that sentence by a year, or 25 per cent, in consideration of the plea of guilty. In my own opinion that was a very generous discount in a case where the offender had been caught red-handed in the very act of committing the offence charged.

55 His Honour then acknowledged, correctly, the need to consider the matter of special circumstances. Having done that, his Honour did in fact adjust downwards by 3 months the non-parole period otherwise appropriate to a sentence of 3 years. The only special circumstances in this case were, in truth, youth and limited prospects of rehabilitation. There was the countervailing consideration that 12 months of supervision on probation had not been effective to prevent further offending.

56 The question for this Court is not whether correct principle correctly applied would have permitted a greater adjustment on account of special circumstances. The question is, rather, whether the adjustment in fact ordered was within discretion. Given the entirety of the evidence available to the learned sentencing Judge, I am not persuaded that his Honour’s order was outside the range of the sound exercise of his Honour’s sentencing discretion.

Ground 7

57 I would reject this ground. My reasoning is:

[1] The offence in point was, in purely objective terms, a serious one. The point is not that Mr. Kerrigan might have been attacked more viciously and with more serious consequences. The point is that he was attacked at all. It is never a trifling matter for anyone to set upon, in company with some other or others, a citizen who is walking along a public street and minding his own business. When there results an unprovoked assault with consequent affront, fear and injury, then that assault must be taken seriously, and dealt with seriously, by the Courts. A fortiori when the ultimate intended objective of the assault is the robbery of the victim.

[2] The applicant’s subjective features were comparatively limited, and not least because of the very sparse evidence adduced about them. My views about those matters are sufficiently explained in what I have said in connection with the other grounds.

Making my own assessment of what would be a fair balancing of those objective and subjective considerations, I am wholly unpersuaded that the learned sentencing Judge passed a sentence that is manifestly excessive. In my opinion no patent error has been demonstrated; and the end result is not so manifestly unreasonable as to demonstrate latent error.

Orders

58 I propose accordingly:

(1) that leave to appeal against sentence be granted;

(2) that the appeal against sentence be dismissed.

59 SPIGELMAN CJ: I agree.

60 HIDDEN J: I agree.

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Last Modified: 09/02/2003