Smith v Kirkham
[2017] TASSC 3
•30 January 2017
AMENDED ON 31 JANUARY 2017
[2017] TASSC 3
COURT: SUPREME COURT OF TASMANIA
CITATION: Smith v Kirkham [2017] TASSC 3
PARTIES: SMITH, Kia Emily Faye
v
KIRKHAM (Constable), Gerard
FILE NO: 1221/2016
DELIVERED ON: 30 January 2017
DELIVERED AT: Hobart
HEARING DATE: 21 September 2016
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Impact of intellectual deficits of offender on sentence – Application of totality principle.
Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1; Mill v The Queen (1988) 166 CLR 59, referred to.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Applicant: L Pennington
Respondent: S Thompson
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASSC 3
Number of paragraphs: 25
Serial No 3/2017
File No 1221/2016
KIA EMILY FAY SMITH v SERGEANT GERARD KIRKHAM
REASONS FOR JUDGMENT TENNENT J
30 January 2017
On 29 April 2016, the applicant was sentenced on her pleas of guilty in respect of numerous offences on several complaints. Overall, the applicant was sentenced to serve a term of imprisonment partially suspended, was made the subject of a probation order and was also made the subject of a licence disqualification. This notice to review does not seek to challenge all of the sentences imposed that day. In effect, it relates only to the sentence of imprisonment imposed. The sole ground of review is that the sentence was manifestly excessive.
The complaints referred to in the notice to review and the sentences imposed in respect of the offences detailed in them appear in the table below.
91459/15
Robbery x 2
26/10/15
Remitted to lower court. Global sentence of 2 years with 12 months suspended for a period of two years on condition applicant complies with period of supervised probation imposed on complaint number 724/16. (Period of probation imposed
Sentence a global sentence which included counts 1,2 and 3 on 7246/15, 7244/15, counts 2,3 and 4 on 7132/15, 7131/15, 7130/15, 7127/15, counts 1 and 2 on 9224/15, counts 2 and 3 on 7588/15 and counts 2 and 4 on 9200/15
9224/15
Stealing, common assault and breach of bail
27/10/15
Counts 1 and 2 covered by global order of imprisonment on 91459/15
Count 3 covered by global order of probation on 724/16
7127/15
Common assault, destroy property and stealing
31/7/15
Covered by global order on 91459/15
7130/15
Stealing
28/7/15
Covered by global order on 91459/15
7131/15
Common assault and stealing
31/7/15
Covered by global order on 91459/15
7132/15
Contravene condition of notice, stealing x 3 and drive without a licence
11/8/15
Count 1 covered by probation order on 724/16
Counts 2, 3 and 4 covered by global order on 91459/15
Count 5 covered by global order on 10407/15
7244/15
Stealing and common assault
27/8/15
Covered by global order on 91459/15
7246/15
Common assault x 2, stealing, contravene condition of notice and drive without a licence
30/8/15
Counts 1, 2 and 3 covered by global order on 91459/15
Count 4 covered by probation order on 724/16
Count 5 covered by global order on 10407/15
7588/15
Breach of bail
Stealing
Common assault
9/9/15
Count 1 covered by probation order on 724/16
Counts 2 and 3 covered by global order on 91459/15
9209/15
Contravene condition of notice
Stealing
Stealing
Robbery
Drive without licence
Use unregistered vehicle
30/10/15
Robbery remitted. Count 3 subsumed into it.
Count 1 covered by probation order on 724/16
Counts 2 and 4 covered by global order on 91459/15
Counts 5 and 6 covered by global order on 10407/15
7506/15
Common assault
Stealing
30/6/15
Covered by global order on 91459/15
While the sentence imposed on complaint 724/16 referred to in the above table is not the subject of this review, the probation order, compliance with which was a condition of the suspended sentence under review, was made on this complaint. The review, if successful, would not affect the probation order.
At the time the applicant was sentenced she had served 250 days (or a little over eight months) in custody referrable to the complaints in respect of which she was sentenced. Her sentence was backdated to 23 August 2015 to reflect that time in custody. This review was not heard until September 2016 by which time the applicant had served that part of her custodial sentence which required actual time in custody. Counsel for the applicant submitted that, at worst, the applicant should have been sentenced to time served as at 29 April 2016. It was conceded that the impact of any favourable decision on this review could sensibly only be the removal or reduction of the portion of the sentence of imprisonment held in suspense.
Comments on passing sentence
The sentencing comments of the Deputy Chief Magistrate, the magistrate who sentenced the applicant, dealt, not only with the complaints which are the subject of this review, but also, with a number of other complaints. The comments are relevantly as follows:
"HIS HONOUR: Thank you. Kia Smith, you've pleaded guilty to, on my count, 21 complaints which include three counts of robbery, 12 counts of stealing, eight of assault, six of which were committed on security staff at shops that you had stolen from, one charge of destroying property, being the property of one of the guards who you assaulted, 11 breaches of various provisions of the Bail Act. You drove without a licence on six occasions. You evaded police, you dishonestly altered a plate in a way calculated to deceive. You used unregistered, uninsured motor vehicles, and you failed to comply with the direction of a police officer.
These offences were committed between 11 August 2015 and 29 January 2016. I don't propose to repeat in these comments all of the facts relating to this course offending, but some aspects of your offending require me to make some remarks. On 27 July 2015 you stole a pram, that's the stealing from Ciguena Baby. That was blatant. You simply walked into the shop, took the pram, and left. Only two days later, on complaint 7506, 30 July last year you stole from Target.
You simply walked in, filled a bag full of goods, and left. You spat on the security guard who stopped you, you broke his glasses, you called him a paedophile. You were asked to leave. Your response was to say that you would come back whenever the fuck you liked. On complaint 7217, the next day, 31 July 2015, you went to Coles. You left with a trolley full of groceries. You were, in effect, stealing to order.
You spat on the guard who stopped you, you grabbed her glasses and bent them until they broke. You were stealing to fill an order that had been placed with you and […]. The same day you stole from Coles Northgate, and assaulted the guard who stopped you there. On complaint 7244, on 27 August 2015 you stole some property from Target Glenorchy, and as you left refused to give back the backpack you stole.
As you refused, you swung your arum out at the security guard while you abused him. On complaint 7246 you stole from Woolworths Moonah, and assaulted a security guard there, again hitting and spitting. You were with […]. You were arrested a few days later, and the Court granted you bail. Only eight days later though, when you'd been ordered not to associate with […], you were with her again despite having that condition of bail that you stay away from her.
In her company you stole from Big W and assaulted a guard who was trying to deal with you in relation to that. In October you committed two robberies. You stole again and assaulted a guard who tried to deal with you there. You went on to commit further offences of dishonesty and violence, including that third robbery on 30 October.
Back to the two robberies on 26 October 2015, on complaint 91459 of 15 you stole a trolley full of goods from Kmart. In the course of doing that, being apprehended or intercepted. You punched Mr Singh, spat on Mr Fyfe, and even after doing that, as you left you went back to the trolley that they were trying to keep you from removing. You took a stroller from it, and left the store.
In relation to the robbery on complaint 9209 of 2015, on 30 October 2015 you'd stolen a jumping castle and a play set, and when Ms […], simply doing her job, asked for the items back, you said that she was not fucking getting it back. You told her that if she didn't leave you alone you were going to punch her, and immediately after telling her that you did punch her three times. You tried to punch her again as she managed to grab the trolley. Between 31 October and 24 November 2015, you were remanded in custody, but were again granted bail.
You went on to breach the conditions imposed on that bail, and remanded in custody again. The facts in relation to the charges have not been disputed. Indeed, your pleas of guilty, it must be said, in the circumstances were entered in a way that I should treat as being cooperative with the investigative, to some extent, and prosecution process. While some of the trespass, stealing, and driving charges were premeditated, it's not suggested that the assaults or the violent elements of the robberies were premeditated.
But you have shown little respect for the property of others. You have freely used violence when it suited you to do so. You have showed contempt for your victims, assaulting them in public while they were at work by spitting on them which is a particularly disgusting way to assault someone, because it shows your enormous contempt for them at the very least. Indeed, it also causes concerns that there are risks sometimes of blood – sorry, saliva-borne viruses, but there's no specific indication here that any particular victim had such concerns.
But the contempt point I think is an important one here. These are factors which, generally speaking, make considerations of general deterrence very important ones. There are some other relevant factors which include that the property involved was, generally speaking, of fairly low value when it comes to the dishonest offences. There has been little restitution, but some. The extent to which you benefitted from these dishonesty offences was small. Others were involved. Indeed, I think it is accepted that others involved you.
To the extent the submission was either expressly or impliedly made that you may not have become involved but for the influence or manipulation of others, that's certainly a sense I have from the facts, submissions, and reports. The degree or premeditation, that is stealing to order, must be regarded as an aggravating one. I note the proximity in time between the assaults and the stealing matters on the complaints where they occurred essentially together.
While obviously those circumstances surrounding those offences are very, very serious, I must not regard the assaults as so aggravating to the extent that they are to be punished as if they were robberies. The pre-sentence report dated 29 July 2014, clinical psychology registrar Waugh noted that you had an intellectual disability of moderate severity. Your social judgment decision-making abilities were compromised, that you may not perceive or interpret social cues accurately, and your ability to empathise with others may be limited.
In his reports, Mr Minehan noted that you had a mild intellectual disability which includes deficits in intellectual functions such as reasoning, problem solving, planning and abstract thinking, judgment, academic learning, and learning from experience. He said that you had deficits in adaptive functioning resulting in failure to make developmental and socio-cultural standards, that you have poor personal independence, and you have poor social responsibility.
He stated you have deficits in abstract thinking, executive functioning, and short-term memory. He said you have a limited understanding of risk, that you're at risk of manipulation by others, and you have a need for support in daily living tasks. There is, in my view, a realistic connection between your behaviour constituting the offending and your intellectual disability.
That link is to be found in the circumstances which include that you were manipulated or influenced by others, particularly in the stealing to order offences, and in the way to deal with shop security staff if confronted. I refer to the specific submission Ms Monk made in that regard. I think that you were often acting impulsively and violently when confronted, and in my view that's at least consistent with the deficit in intellectual functions articulated by Mr Minehan.
You are not, it seems to me, a person who can easily say no to more forceful personalities who would seek to manipulate you, and benefit from your participation in criminal activity. You had a limited capacity to learn from the experience of being dealt with previously by Courts in relation to previous offending, or being arrested, charged, and bailed in relation to your current offending. At least that's what I infer from the materials.
In reality, my assessment is that your intellectual deficits identified are relevant to your moral culpability because they reduced to a substantial degree your capacity to reason as an ordinary person might, as to the wrongfulness of the conduct. This lessens to some degree your moral culpability for the offences, but not completely. Nobody is saying that you don't know that it's wrong to steal and then to attack somebody who is trying to stop you, but this does have the effect that the retributive effect and denunciatory effect of this sentence is that it would be less than in the case of and offender with ordinary capacity."
Prior convictions of the applicant
At the time the applicant was sentenced, she was 19 years old. Her only prior convictions were for one count of driving unlicensed and one count of disobeying a give way sign. She had however been subject to some other sanctions for offending as a youth.
Circumstances of offending
The conduct the subject of the charges against the applicant under review commenced in July 2015 and continued through to October that year. The applicant was 18 years old during that period. Counsel for the applicant characterised the incidents which gave rise to the charges as essentially 14 separate incidents of shoplifting related offending. She described them as being four incidents involving stealing alone, one involving a common assault only, with the remainder involving shoplifting style stealing with some violence against store and security staff. The violence perpetrated involved spitting (six times), pushing, grabbing glasses and breaking them, hitting a person round the head from behind, punching and kicking. It does not appear from the facts that any of the violence perpetrated resulted in significant, or indeed anything more than relatively transient, injury. It was perpetrated in reaction to attempts by staff to stop the applicant leaving premises with stolen goods.
The applicant was, on most occasions arrested by police shortly after the events and interviewed. On most occasions, she made full admissions. She told police she was stealing for others in expectation she would be paid cash for her trouble, and in part for herself. There was clearly a degree of premeditation in relation to the stealing, although, as I indicated, the violence used was usually in reaction to attempts to stop the applicant.
Sentencing hearing
The Deputy Chief Magistrate was provided with a number of reports at the time of sentencing. These were from clinical psychologist, Damien Minehan, psychiatrist, Dr Michael Evenhuis, clinical psychology registrar, Megan Waugh, and a community corrections pre-sentence report. It was submitted by counsel for the applicant on this review that the following matters were raised by then counsel for the applicant both in oral submissions and by reference to the various reports:
- That the applicant was 19 years old at the time of the offending (she was in fact 18 but turned 19 in November 2015 before some of the offending not the subject of this review).
- That, prior to her remand in custody, the applicant had been residing in semi-supported accommodation provided through the National Disability Insurance Scheme.
- That in July 2015, the applicant had been made the subject of a three-year order by the Guardianship and Administration Board on the basis of a psychological assessment which identified a borderline personality disorder, coupled with a mild to moderate intellectual disability.
- That the applicant's childhood had been marred by violence in the home. The applicant had been both a witness to and the subject of violence, and had disclosed sexual abuse upon her as a child.
- That the applicant's biological father spent times in jail during her childhood and never took any significant role in her care. At the time of the applicant's sentence, her father was in jail for murder in Victoria.
- That the applicant exhibited behavioural and language difficulties throughout her childhood.
- That the applicant had a long history of aggressive behaviours.
- That the applicant had begun using alcohol at age 11 and cannabis at about age 13.
- That the applicant had presented to the Department of Emergency Medicine a number of times following overdose, suicidal ideation, superficial self-harm and threats to self-harm. She engaged with a psychologist who noted she was easily influenced and pressured by her peers.
- That the applicant had maintained a close relationship with her mother and relied heavily on her. The mother died in 2013 and this destabilised the applicant even more than was already the case.
- That the applicant, following her mother's death, had been placed in a number of short term care arrangements which were largely unsuccessful. In 2014 she began spending time with […] and her family.
It was also submitted that the applicant was preyed upon by the […] family and would be given pictures cut from catalogues and asked to steal the items depicted. It was also submitted that the applicant was taught by a boyfriend at the time that, if she was stopped by staff while she was stealing, the best way to get away was to spit at them. The influence of these people on the applicant was noted in two of the reports before the court. It was also submitted that the applicant was under constant scrutiny by the […] family, and on occasions had her prescription medication taken. She was threatened with violence or the withdrawal of support if she did not comply with requests. It was accepted however that she did not act under duress.
Counsel on this review also made a number of submissions about other matters put to the Deputy Chief Magistrate. She submitted as follows in her written submissions:
"43It was further submitted that, whilst in custody, the applicant had contact with one of those family members and indicated her unwillingness to continue the association with them. The applicant's intention, upon release, was not to return to the grips of that family.
44The pre-sentence report prepared by community corrections made note of the applicant's attitude to offending, noting:
'[The applicant] expressed remorse to the victims of her assaults, stating that since she has withdrawn from drugs in prison, she has had time to consider the impact of her offending. She acknowledged that her actions would likely make their jobs stressful and may cause the victims to feel anxious when performing their work duties.'
45Submissions were made in relation to the applicant's intellectual disability, supported by the reports of Mr Minehan. These reports outlined the following:
· The applicant's full scale IQ was assessed by Mr Minehan as 54, placing her in the extremely low range and in the bottom 0.1 per cent of similarly aged peers.
· The applicant was placed in the lowest 2% of similarly aged peers for verbal comprehension, the lowest 0.1% for perceptual reasoning, the lowest 1% for working memory, and the lowest 1% for processing speed.
· The applicant, in Mr Minehan's first engagement with her, presented as 'emotionally labile and difficult to engage in discussion. The impression was of an individual with an intellectual disability and personality problems'.
· The applicant's presentation and result of the cognitive assessment indicated that she has a mild intellectual disability. Mr Minehan's report of 29 February 2016 notes the following as to what flows from a diagnosis of mild intellectual disability:
'The Diagnostic and Statistical Manual of Mental Disorders – V (DSM-V 2013) indicates that a mild intellectual disability includes deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgement, academic learning, and learning from experience. Deficits are also noted in adaptive functioning that result in failure to meet developmental and sociocultural standards as well as personal independence and social responsibility. A mild intellectual disability may include deficits in abstract thinking, executive functioning and short-term memory. The functional use of academic skills, for example reading or money management, are also impaired. There is likely to be a somewhat concrete approach to problems and solutions compared with similarly aged peers. There may be difficulties in regulating emotion and behaviour that may be age inappropriate. There may also be limited undertaking of risk in social situations and the person may be at risk of being manipulated by others. Individuals with mild intellectual disability may need some support with complex daily living tasks in comparison to their peers. This description is consistent with Ms Smith's presentation.' (emphasis added)
· In addition, Mr Minehan noted in his reported dated 15 February 2016:
'Ms Smith has been assessed on multiple occasions as having a mild to moderate intellectual disability, significant learning difficulties and speech development problems. In addition there have been significant social issues, including vulnerability to influence [of] others.' (emphasis added)"
Review of a sentence on the basis it is manifestly excessive
The role of the Court in dealing with an assertion that a sentence is manifestly excessive has been referred to many times. Pearce J outlined the relevant principles in Hall v Tasmania [2015] TASCCA 6 at [51] and [52] where he said:
"51 To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen (1994) 181 CLR 295, per McHugh J at 306. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be 'unreasonable or plainly unjust': House v The King (1936) 55 CLR 499 at 505.
52 The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge 'should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected': Johnson v The Queen(2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [58]."
Counsel for the applicant submitted by reference to Bresnehan v The Queen [1992] TASSC 55 at [13], 1 Tas R 234, that the applicant would need to satisfy this Court that the sentence imposed was unreasonable or plainly unjust.
Discussion
Counsel for the applicant submitted that the sentence imposed on the applicant was indeed unreasonable and plainly unjust by reference to two issues. These were the impact on sentence of the applicant's intellectual deficits and the application of the totality principle.
There can be no dispute that the Deputy Chief Magistrate was dealing with a young offender with a very limited criminal background. He was also dealing with an offender who had intellectual difficulties which his Honour recognised. He summarised the material in the reports, albeit briefly, and then said:
"There is, in my view, a realistic connection between your behaviour constituting the offending and your intellectual disability.
That link is to be found in the circumstances which include that you were manipulated or influenced by others, particularly in the stealing to order offences, and in the way to deal with shop security staff if confronted. I refer to the specific submission Ms Monk made in that regard. I think that you were often acting impulsively and violently when confronted, and in my view that's at least consistent with the deficit in intellectual functions articulated by Mr Minehan.
You are not, it seems to me, a person who can easily say no to more forceful personalities who would seek to manipulate you, and benefit from your participation in criminal activity. You had a limited capacity to learn from the experience of being dealt with previously by Courts in relation to previous offending, or being arrested, charged, and bailed in relation to your current offending. At least that's what I infer from the materials.
In reality, my assessment is that your intellectual deficits identified are relevant to your moral culpability because they reduced to a substantial degree your capacity to reason as an ordinary person might, as to the wrongfulness of the conduct. This lessens to some degree your moral culpability for the offences, but not completely. Nobody is saying that you don't know that it's wrong to steal and then to attack somebody who is trying to stop you, but this does have the effect that the retributive effect and denunciatory effect of this sentence is that it would be less than in the case of and offender with ordinary capacity."
Counsel for the applicant referred to what Porter J said in Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [36] about relevant principles to be had regard to when sentencing an offender who is mentally impaired. His Honour said at [36]–[37]:
"36 It is well established that psychiatric illness or impaired mental function is relevant to the sentencing process in a number of ways. Perhaps most commonly, such conditions may substantially lessen moral culpability because of consequential diminished self-control and impaired judgment, or it may be that factors of general deterrence, retribution and denunciation have little weight: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 139 [54]; Hurd v The Queen [1988] Tas R 126 at 129, 131. In R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400, the court set out five ways in which serious psychiatric illness not amounting to insanity is relevant to the sentencing process. Those principles were reconsidered and restated by Maxwell P, Buchanan and Vincent JJA in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276. That restatement was adopted in Startup v Tasmania [2010] TASCCA 5, and reads as follows:
'[32] Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:
1 The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2 The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3 Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4 Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5 The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6 Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.'
37 Important features of this approach to impaired mental functioning are as follows. The considerations are not confined to a 'serious psychiatric condition'. They may arise in the case of mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness: Verdins at 271 [5]. Further, a court is not concerned with how a particular condition is to be classified or defined in terms of diagnosis or a label to be applied: 'What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time': Verdins at 271 [8]; see also R v Sebalij [2006] VSCA 106 per Maxwell P at [21]. It is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence, and how it might affect the person in the future. Further, the question must always be whether, in the particular case, it has been shown that the offender's moral culpability or the significance of general specific deterrence is reduced because of the condition: Romerov The Queen [2011] VSCA 45; (2011) 32 VR 486, per Redlich JA (Buchanan and Mandie JJA agreeing) at 490 [13]. The onus is on an accused: R v Skura [2004] VSCA 53 at [8]; Verdins at 272 [11]."
Counsel for the applicant submitted that while the applicant's intellectual disability was identified as "mild", the impact on her functioning was significant. It was submitted that the applicant's mental capacity was, and remained, grossly restricted. Counsel also said that his Honour said in his comments that the applicant's ability to reason as to the wrongfulness of her conduct was reduced to a "substantial degree". No issue was taken with that conclusion. However, it was submitted that its impact on the sentence imposed did not appropriately recognise that substantial degree, but instead resulted in a sentence which was manifestly excessive.
After dealing with the issue of the applicant's intellectual difficulties, his Honour noted there was, in his view, a need to protect the community from the applicant and her conduct. He noted that she continued to offend despite being arrested and bailed, and that there was a need to balance these factors against the impact of the applicant's disabilities.
As to the offending itself, counsel for the applicant did not dispute that the acts of stealing were premeditated, and involved stealing to order. However, she submitted that any violence used was not premeditated. That was accepted by the Deputy Chief Magistrate. Although the applicant had, it seems, been coached as to what to do if someone tried to stop her stealing, there seems little doubt she did not go out intending to commit violence. While it was accepted by counsel for the applicant that the applicant's offending was serious, and that she continued to offend even after being arrested and bailed, it was submitted the applicant's continued offending occurred because she was vulnerable, by reason of her intellectual capacity, to manipulation by the family she was involved with and was in fact manipulated by them to continue offending. A degree of manipulation was accepted by the Deputy Chief Magistrate. However, his Honour's comments, extracted at [15] above, indicate that he was alert to the difficulties the applicant faced, but that she still knew what she was doing was wrong and yet continued.
The Deputy Chief Magistrate clearly took the view that the applicant's offending was blatant and her manner of stealing and willingness to use violence to achieve her aims showed a contempt for her victims. He described her habit of spitting at victims as disgusting and referred to the health risks which could accompany that. These findings were all open to him.
As to the issue of totality, counsel for the applicant extracted in her written submissions remarks of their Honours, Wilson, Deane, Dawson, Toohey and Gaudron JJ in Mill v The Queen (1988) 166 CLR 59 at [8]. These were as follows:
"8 The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references):
'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong("); "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself
what is the appropriate sentence for all the offences".'"
It was submitted by reference to the principles enunciated in Mill that a greater reduction in sentence should have been imposed so as not to make the sentence a crushing one having regard to the applicant's age and prospects.
Conclusion
The applicant was sentenced in respect of three counts of robbery, eight counts of common assault, 12 counts of stealing and one count of destroy property. There were, as identified by the applicant's counsel, 14 separate incidents. The incidents were, it is accepted, all shoplifting related incidents and they occurred over a period of a little over three months. Some, however, occurred after the applicant had been arrested and bailed for earlier matters. The applicant was largely stealing to order. She repeatedly used violence towards store staff or security who sought to stop her offending. That violence on a number of occasions included spitting at victims, sometimes at their face, but also included other types of violence. The applicant's behaviour towards her victims was callous and contemptuous in that, when attempts were made to intercept her on occasion, she used violence and then continued on with the act of stealing.
I accept that the sentence imposed by the Deputy Chief Magistrate was at the high end of the range having regard to the applicant's age, limited history and intellectual difficulties. However, as has been frequently said, any judicial officer engaged in a sentencing process has a very wide discretion and a sentence should not be interfered with simply because the judicial officer conducting a review might not have imposed the same sentence. His Honour, in my view, recognised the mitigating factors raised by counsel for the applicant by suspending half of the sentence of imprisonment he imposed, and by imposing a lengthy period of probation to take effect on release.
I am not persuaded, having regard to matters canvassed above, that the applicant has established that the sentence of imprisonment imposed upon her was manifestly excessive in all the circumstances of this case. The notice to review is dismissed.
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