R v Walsh
[2001] VSCA 121
•24 July 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 43 of 2001
| THE QUEEN |
| v. |
| LYNETTE WALSH |
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JUDGES: | BROOKING, ORMISTON and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 July 2001 | |
DATE OF JUDGMENT: | 24 July 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 121 | |
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Criminal law - Sentencing - Robbery - Recklessly causing injury - Parity - Other offender's case held to be "very unusual case", with special claims to rehabilitation - Applicant played more serious role in offences - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A.Coghlan,Q.C. | Solicitor for Public Prosecutions |
| For the Applicant | Mr M.J.Croucher | Victorian Aboriginal Legal Service |
BROOKING, J.A.:
Ormiston, J.A. will deliver the first judgment.
ORMISTON, J.A.:
This is a sad case in many respects, but the question is whether it was not open to the judge to impose the sentences that he did. The applicant has elected to have her application for leave to appeal against sentence determined by this Court notwithstanding that her application was refused by a single judge of appeal under s.582 of the Crimes Act 1958. The applicant pleaded guilty to one count of robbing Huong Pham of a leather handbag, money, glasses and personal items and also to one count of recklessly causing injury on the same day to the same woman. She admitted 22 convictions and eight further findings of guilt recorded on 11 court appearances from 1974 to 1999. On the first count the applicant was sentenced to a term of 18 months' imprisonment, 9 months of which was suspended for a period of 3 years; and in respect of count 2 she was sentenced to 6 months' imprisonment. There was thus a total effective term of 18 months' imprisonment, 9 months of which was suspended for the 3-year period. Some nine grounds were relied upon and pressed in argument, ranging from manifest excess to failure to comply with what is called the principle of disparity.
The facts and circumstances, including the very unhappy background of the applicant, are set out in the sentencing remarks of the learned sentencing judge and also in the judgment of Chernov, J.A., who refused leave to appeal. The nine grounds relied upon are sufficiently described also in the judgment of Chernov, J.A. But for some matters of detail which were emphasised more on the application before this Court, each of the contentions is carefully and sufficiently dealt with in the judgment of Chernov, J.A. Those reasons are broadly sufficient to deal with them and in substance I would adopt his reasoning for the purpose of dismissing this application.
Nevertheless I should add the following matters, and in the first place some brief details of the attack which resulted in the two charges brought against the applicant. Both the applicant and her co-offender, one Williams, were addicted to drugs and had resolved to rob some inhabitant of a high-rise block of Housing Commission flats in Fitzroy. To this end they waited around the foyer of the building for some minutes before they picked on a potential victim, a woman in her early fifties who had been born in Vietnam. They followed her into a lift, pressed no button for themselves, then followed the woman out onto the 11th floor where the applicant placed herself in front of the victim while the co-offender remained behind. The applicant pulled on the victim's handbag strap which was over her shoulder and around her neck. As the victim started to call for help, the applicant pulled her viciously down to the ground by her hair while the co-offender then joined in to remove forcibly the handbag from the victim by breaking its strap. They both ran off to a stairwell where they took $80 cash from the bag and then threw it down the stairwell. Her son brought the victim to the police who took her by car around the streets of Fitzroy where fortunately she was able to identify the two offenders some two hours later. In consequence of the attack the victim suffered cuts and bruises especially to her right elbow, as well as scratches to her stomach and forehead. She was so frightened by the incident that she had to move to another place to live and is now afraid to get into lifts.
I would also add some further comments as to the grounds relating to parity, namely grounds 2 and 9, as at first sight they might otherwise have appeared to have had some substance and as it seems highly likely that Chernov, J.A. did not have the benefit of a transcript of the plea and sentence relating to the co-offender, Ms Williams. She had been earlier dealt with by a different judge on the same two counts for which she had received 12 months' imprisonment for the robbery and 3 months for the recklessly causing of injury, making a total effective sentence of 12 months which had been wholly suspended for 2 years. At the same time Ms Williams had pleaded guilty to breaching a community-based order relating to non-compliance with orders made about a year earlier for some 51 offences, but which were imposed at what was then her first and only court appearance. Before dealing with matters of detail I place emphasis on the opening observation of that judge, whose reasons, in the circumstances, were very brief. He had stated, "This is a very unusual case", and noted that that offender had not started using drugs until her mid-twenties, but that she was at the relevant time heavily affected by drugs. As was pointed out to that judge in the course of Ms Williams's plea, she was about five months pregnant and had three young children, whom she wished to take back into her own care again after some time in gaol, so that the judge stated that the emphasis of his sentencing exercise was to achieve the rehabilitation of "this young woman".
The contrast with the present case should immediately put paid to any relevant application of the principle of disparity. Of course, it can also be said of the applicant that certain unusual circumstances existed, many of them favourable to her in her case, but in my opinion they were of a quite different order. The relevant test laid down in Lowe v. The Queen[1] is whether "the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done". Perhaps those words were written at a time before sentencing legislation had become so complex and before it had been laid down that so many factors must be taken into account before imposing sentence. So far as personal circumstances are concerned, these days they are many and various, and experience of this type of application can only emphasise the variety of offenders who are brought before the courts. Almost every sentenced offender has a sense of grievance unless he or she has received a considerably more lenient sentence than was anticipated, but the issue in each case is whether on an objective basis the co-offender has a justified sense of grievance.
[1](1984) 154 C.L.R.606 at 610.
Turning now to the specific matters raised in greater detail on this application, I mention first the complaint that the learned judge found that the applicant had "a more extensive criminal history than that of [the] co-offender". It is clear what the learned judge meant, as was explained by Chernov, J.A. Undoubtedly, the co-offender had had more convictions (or the like), 51 as against 30. The judge, however, was talking about "an extensive ... history" and there he was entirely accurate, for it extended from 1974 to 1999, violence and dishonesty being a regrettable factor on many occasions. The co-offender's long list of offences were essentially for offences of dishonesty and were the subject of but one court appearance in July 1999, though obviously the period of offending must have extended for some little time before that. But an analysis of the plea and the sentencing remarks in Ms Williams's case makes clear what was significant about that difference. It was seen rightly or wrongly by that judge that her outbreak of dishonesty depended upon a sudden addiction to drugs which had been preceded by no prior convictions whatsoever. An attempt was being made to get the co-offender on the rails again after this one outbreak and for various reasons these particular two offences were not seen as so significant in the overall history of that co-offender. From the discussion it is more than apparent that the learned judge on that occasion was giving the co-offender one more opportunity to get back to a normal existence. A particular aspect of this attempt arose out of the fact that the co-offender was now some five months pregnant and more importantly was trying to regain custody of her three quite young children, including one who was little more than two years old, in circumstances where the judge placed no real blame on her for the fact that the children had been looked after by others, including at the time her mother and her partner's parents. There was a real prospect that all could be reunited and everything was directed to giving the co-offender an opportunity to stay off drugs while she looked after her young family.
By contrast, though the applicant's offences were fewer in number they had occurred consistently over the years; indeed on the most recent occasion in September 1999 some 14 offences had to be dealt with by the Magistrates' Court. Now the first six or seven court appearances, none of which had led to any serious penalties, were said to precede the applicant's very serious and commendable attempts at taking herself off drugs, going to Deakin University and obtaining further teaching qualifications, or at least she had gone a good way to obtaining those qualifications. The trouble was that, for all the attention lavished upon the applicant and notwithstanding her endeavours from 1995 or thereabouts, she nevertheless committed another group of offences of rather greater significance, including a number relating to the use of drugs. Thus the unfortunate history showed that, notwithstanding the consideration and care given to her by courts and others and periods in which she kept away from the use of drugs, she had reverted, regrettably, to old habits, so that in 1997 she was found guilty of intentionally damaging property and, in 1999, of seven charges of handling and four of obtaining property by deception, as well as failing to comply with a community-based order and some drug offences. Community-based orders had been imposed on each occasion, but, notwithstanding that, she committed, shortly after the expiration of the second of those orders, this quite vicious robbery and attack which is the subject of the present application. Her history is quite different. The sentencing judge was entitled to look at the matter as one where the co-offender had succumbed to a relatively short bout of offending, but this applicant had not learnt any lesson from the lenience so far extended to her. I can see no error in the judge deciding that this time she had to spend some time in gaol.
Next, counsel pointed to the respective roles of the applicant and Ms Williams (ground 3), though, having regard to the other judge's approach in dealing with the co-offender, the comparison might not be of such great significance. Certainly that judge barely mentioned the circumstances of the offences in his remarks, saying only that Ms Williams was heavily affected by drugs. Little more had been said during the plea, save that the robbery was "spontaneous", "fairly desperate" and the injury was not deliberate. That exhibited a different approach and one not truly consistent with the facts as here made out. In any event the judge here was entitled to view the applicant as primarily responsible for the injury, certainly for the viciousness of the attack on the older Vietnamese woman, as it was the applicant who took her by the hair and flung her to the ground. I see no reason to believe that the judge here wrongly assessed the offenders' respective responsibilities. It was a question of fact for him to resolve and I can detect no error.
Finally, on behalf of the applicant complaint is made that the learned judge, and Chernov, J.A., wrongly asserted that the co-offender had three dependent children, whereas it was said that in fact those children were "not in her care". But that assertion is a gross oversimplification, wrongly connoting that the children had been taken out of Ms Williams's care. A full reading of the earlier transcript (and doubtless the exhibits would also have dealt with this further) would have shown that it was in fact Ms Williams who arranged for others, including her own mother and her mother-in-law, to look after the children temporarily when she and her partner lost their home, and thereafter she was taken into custody. Nothing suggested that she was otherwise a bad mother. Far from it; her full endeavours, and those of her advisers during the plea, were directed to ways in which she could be reunited with her children, in anticipation of the birth of her next child, and that judge was fully supportive of their endeavours. That collocation of circumstances was fundamental to the disposition of Ms Williams's plea and placed the case in a quite different category from that of the applicant. I would add, how could the applicant, without a full knowledge of those matters, properly be said to have a justifiable sense of grievance in making a comparison between the two sentences?
The other comparisons made by the applicant's counsel, though no doubt accurate in themselves, cannot detract from the fact that Ms Williams's plea revealed a "very unusual case", quite different from that of the applicant.
The other matters raised before this Court, though likewise advanced with care and vigour, are not substantially different from those urged before Chernov, J.A. They are adequately disposed of in his reasons, which I would gratefully adopt. In the end, the sentencing judge was entitled to view this as a vicious case of robbery, not greatly removed from an armed robbery in its consequences. Having regard to the numerous occasions on which the applicant had been given a further chance by the courts, especially after her well-meant attempts at further education and drug rehabilitation, the judge was entitled to conclude that these offences
justified, even demanded, a sentence involving a period of actual confinement. It may be a sad case in some respects, but this application must be dismissed.
BROOKING, J.A.:
I agree.
PHILLIPS, J.A.:
I also agree.
BROOKING, J.A.:
The application is dismissed.
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