Regina v Fosse

[2003] NSWCCA 347

CITATION:	Regina v Fosse [2003] NSWCCA 347
HEARING DATE(S):	Monday 17 November 2003
JUDGMENT DATE:	17 November 2003
JUDGMENT OF:	Handley JA at 43; Grove J at 2; Adams J at 44
DECISION:	APPEAL DISMISSED
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - ELDERLY AND VULNERABLE VICTIM - OFFENDER SUFFERING FROM BI-POLAR DISORDER AND DEPRESSION - RELEVANCE AND ASSESSMENT DISCUSSED - CONTENTION THAT CIRCUMSTANCE OF AGGRAVATION PROVABLE ONLY BY CONFESSION BY OFFENDER REJECTED - NO LESSER SENTENCE THAN THAT IMPOSED WARRANTED
CASES CITED:	R v Ellis 1986 6 NSWLR 603 R v Hayes [2001] NSWCCA 410
PARTIES :	Regina v Colleen Fosse
FILE NUMBER(S):	CCA 60253/03
COUNSEL:	G.I.O. Rowling (Crown) H. Cox (Applicant)
SOLICITORS:	C.K. Smith (Crown) S. O'Connor (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0321
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

60253/03

HANDLEY JA
GROVE J
ADAMS J


Monday 17 November 2003

REGINA v COLLEEN FOSSE

Judgment

1 HANDLEY JA: I will ask Grove J to give the first judgment.

2 GROVE J: The applicant adhered to pleas of guilty, previously tendered before a Magistrate, at the District Court Port Macquarie. There were five charges: First, robbery in circumstances of aggravation, which circumstance was that at the time of the robbery she maliciously inflicted actually bodily harm on the victim; second, attempting to dishonestly obtain money by deception, the amount involved being $2,000; third, making a false instrument, namely, a bank withdrawal slip; fourth, presenting the withdrawal slip just mentioned to a bank with the intention of inducing a bank officer to accept it as genuine, and fifth, stealing 30 litres of petrol of the approximate value of $30.00.

3 The first and second offences were committed on 12 June 2002, the third and fourth on 13 June 2002, and the fifth on 19 June 2002.

4 At the time of the commission of all these offences the applicant was the subject of recognizances to be of good behaviour for periods of two years and 18 months respectively in connection with suspended sentences of imprisonment for those periods consequent upon convictions at the Local Court on 18 June 2001.

5 On the day that the applicant appeared for sentence before Freeman DCJ at Port Macquarie District Court (19 December 2002) she had already on that day been taken before the Local Court Magistrate to be dealt with for breaches of the recognizances which I have mentioned and was sentenced to six months and four months imprisonment, to be served concurrently, for the offences upon which she had earlier received suspended sentences.

6 It can be observed, therefore, that for matters unrelated to those being dealt with in the District Court the applicant would be in prison for six months from that day.

7 As the first charge was obviously the most serious, Freeman DCJ sentenced the applicant in the reverse order of the charges which I have above specified. On the fifth charge the applicant was sentenced to imprisonment for a fixed term of six months dating from 19 December 2002. That sentence is now expired.

8 On the third and fourth charges, the applicant was sentenced to imprisonment for fixed terms of 12 months commencing on 19 December 2002 and expiring on 18 December 2003.

9 On the second charge, the applicant was sentenced to imprisonment for a fixed term of 18 months commencing on 19 December 2002 and expiring on 18 June 2004.

10 On the first charge, the applicant was sentenced to imprisonment for four years commencing on 19 April 2003 with a non-parole period of 18 months commencing on that date and expiring on 18 October 2004.

11 The first date of eligibility for parole of the applicant will be the date last mentioned.

12 The facts were that about ten years prior to the offences the applicant came to know the victim to whom the first four charges relate. That victim was, at the time of the offence, aged 82 years and suffered from a form of dementia. The applicant is 53 years of age. She met the victim in connection with a massage business which she once conducted which she described to Police as "relief massage". At relevant times she resided at Port Macquarie. The victim resided in his home at Mortdale. She telephoned him and arranged to visit him there, her purpose being to borrow money from him. When asked for the loan he declined and the applicant described to police “wrestling” between them which followed that refusal. She also conceded that she spat at him and kicked him in the leg. He had been found to have injuries to the back of his head and she conceded that this probably occurred when they both fell over.

13 After this physical struggle, the applicant took the victim's bank book and "harassed" him into signing a withdrawal slip. She left the victim in the house and went to a bank branch at Mortdale where she attempted to withdraw $2,000 from his account. It appears that the victim had not signed in the usual way and there were some bloodstains on the withdrawal slip and the bank declined to honour it.

14 The applicant left and went to Kempsey. On the next day she forged his signature on another withdrawal slip and went to a bank branch in Kempsey attempting to make a withdrawal from his account. Again she was unsuccessful. The foregoing facts relate to the first four charges.

15 The fifth charge relates to an occasion when the applicant drove into a petrol station at Kempsey, pumped about 30 litres of petrol into her car and drove off, fulfilling her intention not to pay for that petrol.

16 The applicant's prior record starts with two entries in the Children's Court for "offences" which scarcely involve any moral culpability which could attach to her. There was a minor matter at Parramatta Petty Sessions in 1970 which should also be ignored. In 1971 she received a deferral of sentence for five years on condition that she be of good behaviour in respect of an offence of robbery. She kept the recognizance. Indeed, from 1971 until 1986 she never appeared before any Court until in that year she was fined for driving with the mid range prescribed concentration of alcohol. Again, there was a significant period until she appeared before Kempsey Local Court on a charge of assault in 2000 and again in that Court in June 2001 where she was fined on two charges and given the suspended sentences to which I have already made reference, upon convictions for larceny and cultivating a prohibited plant.

17 The learned sentencing judge noted the significance of the aggravating element in relation to the applicant's conduct that when committing the subject offences that she had been placed upon conditional liberty, but also be noted the prolonged period of unblemished behaviour. He noted that in partial explanation of what he described as a recent outburst of criminality, that the applicant had been diagnosed as suffering from bi-polar disorder and that she had, super-added to that, undergone a series of traumatic experiences. He also noted her physical condition of spondylosis of the lumbar spine.

18 The applicant advances two grounds in support of her challenge to sentence, which challenge is, understandably, focussed upon the longest sentence which was imposed in respect of the aggravated robbery charge.

19 The first ground asserts that the sentencing judge made mistakes of fact which contributed significantly to the view he formed as to the applicant's culpability for the offence. Identification of an alleged mistake is said to be available from a statement extracted from His Honour's remarks on sentence. The submission is made that he attached a significant degree of culpability to the applicant because she was aware that she was becoming manic, aggressive or "out of control" prior to the incident. She gave evidence that she felt depressed. It is contended that the absence of reference to the circumstance that the applicant admitted herself to Port Macquarie Base Hospital Psychiatric Unit on the day after the offences was overlooked because His Honour did not refer to it.

20 The first part of the submission is based, as I have said, upon the Remarks on Sentence. What is referred to by counsel should be seen in its full and proper context. What His Honour said was:

“Ms Fosse recognized that at times, without her medication, she became aggressive, indeed dangerous to those around her and she has from time to time opted to sign herself into hospital for treatment during these florid episodes. She had not however elected to do any such thing in June and she was aware it appears, of the fact that she was getting out of control at the time she made the arrangement to go and see Mr Doyle. The Crown accepts, I think correctly, that as at the time of these offences Ms Fosse was impaired in her thinking and reaction".

21 It is true, as counsel submitted, that the applicant stated in evidence at the sentencing proceedings that she felt depressed but it is also true that at the time she had ceased taking her medication, and it is discernible in her evidence and in the evidence of her former partner Ms Allen that she was aware that she needed to medicate in order to stop, or at least modify, behaviour.

22 Reference during argument has been made to another observation made by His Honour when he said:

“It is perfectly accurate, as Ms Pierpoint for the prisoner admits, that her suffering from this disorder is not something over which she has any control, but the ameliorating medication is certainly something which she does have control over.”

23 To my mind, His Honour was saying no more than it was within the scope of the applicant's intelligence and appreciation that she needed to continue to take her medication. It was a matter of choice for her whether she took it or not.

24 Nevertheless, as I have said, he has taken into account that at the time of the offences she was impaired in her thinking and reaction.

25 There was also before His Honour material from the Hastings Health Centre. It is noted that a history is recorded of alcohol abuse and that when "high" the applicant tended to engage in anti-social behaviour such as stealing and may become aggressive at times.

26 In evidence before the sentencing judge the applicant said that she had desisted from partaking of alcohol but she was using cannabis. The medical discharge summary in relation to this admission on 13 June, which was the date of the offences committed at Kempsey, records that she herself presented to the Emergency Department concerned about recent aggressive behaviour, reckless driving, excessive marijuana use and saying that she felt she had become "manic".

27 It can also be observed that the admitting officer there apparently observed that she remained relaxed and good humoured and felt more comfortable on a higher dose of Sodium Valproate. It is noted that she had increased the dose herself some three weeks previously.

28 Accumulating all that evidence, I am unpersuaded that there is some error to be detected either in His Honour's finding or in the absence of specific reference to the applicant admitting herself to hospital immediately following the offences.

29 He did not make reference to the matter of insight, but it is clear from the extract that I have already cited that impairment was within his contemplation.

30 I do not regard the matters adverted to by counsel as matters which would support any further mitigation of the sentence beyond that which His Honour has allowed.

31 I do not regard the first ground as made out.

32 The second ground asserts that the sentence imposed was manifestly excessive. Reference is made to the statistics collated by the Judicial Commission. Counsel refers to a statistic relating to 19 cases only and points to a six year head sentence being the largest imposed in a particular category. This is then sought to be contrasted with a notional head sentence in this case before discount for plea of guilty. I have previously pointed out that the upper mark of range of sentence is that prescribed by statute. The maximum prescribed for the offence in the first charge is 20 years imprisonment and not the statistical upper mark of range derived from actual impositions. See R v Hayes [2001] NSWCCA 410.

33 In my view, the sentence imposed, given that it envelops by concurrency some five offences, is far from manifestly excessive.

34 In further support of ground two, reference is made to the apparent inability of the elderly victim to provide probative evidence. In a police statement he said he did not remember anything about what happened but he did say that he knew a girl called Colleen who lives at Port Macquarie and he thought that it was she who gave him a punch in the eye. He said that he had only known her for a couple of days.

35 Reference is also made to other clearly mistaken statements which he made to bank officers. It might be mentioned that the applicant left the victim in his home but bank officers, having failed to make telephone contact, visited in order to check on him. When they found him in his damaged state, police and ambulance were called.

36 It is submitted that the Crown case, insofar as the first charge is elevated into aggravated form, is dependent upon the voluntary admission made by the applicant.

37 Reference is made to the well-known principle that mitigation is available where an offence would, but for confession, in all likelihood go undiscovered and unpunished: R v Ellis (1986) 6 NSWLR 603.

38 I do not accept this submission. Were it necessary, it is obvious that bank officers both in Sydney and Kempsey could give evidence identifying the applicant as the offender. That the robbery was accompanied by violence would be provable by evidence of the state that the victim was in when found, and the fact that the applicant confessed that she was responsible for putting him in that state does not lead me to a conclusion that the offence in aggravated form would, in all likelihood, have gone unpunished.

39 The learned sentencing judge scheduled the matters which he took into account in mitigating the sentence which he ultimately assessed, but he did not quantify a percentage discount which he was applying for the plea of guilty, which was not only “early” but of course followed a complete and frank confession to Police.

40 However, I do not detect any error in his approach nor in his final conclusion.

41 The Crown Prosecutor correctly calls to mind that the power of this Court to intervene is prescribed by statute to be exercised when it is concluded that a lesser sentence is warranted in law and should have been imposed. That is not, in my view, the present case.

42 I propose that leave to appeal against sentence be granted but the appeal dismissed.

43 HANDLEY JA: I agree.

44 ADAMS J: I agree but I would like to add some comments of my own.

45 In dealing with the psychiatric condition of the applicant his Honour made a general observation as follows –

“It is perfectly accurate, as Ms Pierpoint for the prisoner admits, that her suffering from this disorder is not something over which she has any control, but the ameliorating medication is certainly something which she does have control over.
It is often reported that sufferers from this malady find the effects of the medication irksome , because it not only protects them from their lows, but deprives them of their highs , but this reluctance must be overcome for the benefit, not only of those who suffer from this malady, but for the safety and benefit of those around them. Ms Fosse recognized that at times, without her medication, she became aggressive, indeed dangerous to those around her and she has from time to time opted to sign herself into hospital for treatment during these florid episodes. She had not however elected to do any such thing in June and she was aware it appears, of the fact she was getting out of control at the time she made the arrangement to go and see Mr Doyle.”

46 It seems to me that the strong implication of His Honour's language is that this applicant made a free choice not to take her medication for “lifestyle” reasons, namely, that she enjoyed her "highs". If that was the implication his Honour intended to convey, I feel bound to say it was completely without justification.

47 There is, throughout the community, significant misunderstanding of the nature of mental illness and cognate psychiatric conditions and bi-polar disorder is no exception. It is not a matter as to which common sense assessments can be made. Each patient is different and generalizations are unwise. The condition from which this applicant suffers is one which is fraught for her and it is a very serious illness indeed. I cannot see any basis on the evidence in this case for suggesting that she had a significant degree of control over whether she took her medication or not, although it is clear that she recognized at some point that she needed to increase her medication to overcome depression, which is itself a serious disabling mental illness. Nor, in my view, could it have been legitimately suggested, if his Honour intended to do so, that she freely elected to make choices about whether or not she would take her medication. Such a conclusion could only be drawn, in my view, upon a careful examination of her medical records and, indeed, upon evidence from her medical carers, which were not before the court. Moreover, the observation from the report of Dr Glenn Hayward dated 5 December 2002:

“Her condition is such that despite medical review and treatment she has lapses where I believe her usual behaviour lapses and she comes off the rails.”

clearly suggests, to my mind, that the applicant’s “lapses” result from her condition and not from decisions that she made about her lifestyle or about feeling "high".

48 That being said, however, I am satisfied that his Honour did take into account, to a significant extent, the fact that the applicant’s mental state was impaired at the time of this offence. Having regard to the seriousness of the crime inflicted on a helpless man who was vulnerable and living alone in his own home, although I am not certain I would have imposed the same sentence as his Honour did, I certainly agree, if I may say so respectfully, with the judgment of Grove J that it could not be said that there was any error in the sentence.

49 HANDLEY J: The orders of the Court will be leave to appeal granted, appeal dismissed.

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Last Modified: 12/01/2003