New South Wales District Court CITATION: R v Karla Burrows [2007] NSWDC 112 JUDGMENT DATE: 11 May 2007 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: S11 Bail pursuant to Crimes (SP) Act for 9 months:-; Bail conditions imposed. CATCHWORDS: Criminal law - sentencing - s 11 bail (Griffith Remand) - robbery armed with offensive weapon - knife - vulnerable victim - elderly lady - enforced rehabiliation - strong rehabilitation progress at time of hearing - early plea - contrition - long history of drug abuse - dysfunctional marriage - separated from children. LEGISLATION CITED: s. 11 Crimes (Sentencing Procedure) Act 1999 CASES CITED: The Queen v Griffith (1977) 137 CLR 293 R v Henry (1999) 46 NSWLR 340 PARTIES: Regina Karla Burrows FILE NUMBER(S): 06/21/0282 Crown: Ms T Roberts - Office of Solicitor for Public Prosecutions SOLICITORS: Defence: Ms Hall - Legal Aid Commission SENTENCE 1 There is no dispute to the facts Karla Burrows robbed a sixty-five year old woman, Ms Isabella Roberts, of eighty dollars in cash, her credit cards and a number of personal items contained in her black purse. At the time of that robbery Karla Burrows was armed with an offensive weapon, namely a kitchen knife. Ms Roberts was using a walking stick as she made her way along Chester Hill Road heading towards Bass Hill. In committing this criminal conduct, Karla Burrows has exposed herself to a maximum penalty of twenty years imprisonment. 2 Today she is before the Court to be held accountable for her actions. As matters are panning out, that may be a process, rather than an event. The process will be one of what is called "enforced rehabilitation", see The Queen v Griffith (1977) 137 CLR 293 per Barwick CJ. No sentencing exercise is easy, in this case there are clear tensions, the offence had a significant level of violence, appears to have had rudimentary planning, and the victim selected was alone and apparently frail. 3 Objectively the guideline judgment of Henry (R v Henry (1999) 46 NSWLR 340) postulates a starting point of four years imprisonment for armed robbers as a general proposition. Realistically a robbery having the factual matrix of this robbery would normally call for a starting point of at least four years imprisonment. I shall come to the facts shortly. However the offender appears to have made remarkable progress in rehabilitating herself and in particular in addressing causal factors in her conduct. I will return to that topic later in these remarks. 4 I note she has been assessed as suitable for periodic detention. Were I assured of her rehabilitation [if the rehabilitation was as truly extraordinary as the initial evidence suggests] it would become a serious option open. Put shortly, however, that is the difficulty. The Court presently has impressive evidence of rehabilitation only for a period of ten or so weeks against a long, entrenched history of drug abuse. The duration of the drug-free period, her absence of a suitable income stream and employment, however are real worries. It is these tensions that need addressing in these remarks. FACTS 5 At about 10am on 12 April 2006 Miss Isabella Roberts aged sixty-five was walking along Chester Hill Road towards Bass Hill. As she walked, she felt the accused beside her. At the same time she heard the accused say in a very firm voice, "Give me your bag". Miss Roberts started to fumble through her bag to get her purse out. She was scared and started crying. She said to the accused, "Please, I will give you the money, please wait". The accused's unsympathetic response was, "Give me the money or else I'll stab you." 6 Miss Roberts looked down towards the accused person's stomach area and saw she was holding a kitchen knife with both hands. Miss Roberts became very scared, continued to search her bag for money. The accused grabbed the bag's strap and tried to cut that with a knife. While doing this, the accused said, "I'll cut the bag", Miss Roberts' response was, "Don't do that". 7 The accused tried to pull the bag from Miss Roberts and Miss Roberts resisted by pulling back. She said, "I'll give you the money" and removed her purse from her bag. At some time during the struggle, Miss Roberts fell to the ground, hitting her head on the concrete. The accused, on top of Miss Roberts, continued to tug at the bag. The accused managed to grab a black purse from Miss Roberts' hand, she started running away. 8 Miss Roberts was able to get up and see the accused mount a bicycle and take off. Miss Roberts had eighty dollars in cash in her purse, a number of credit cards, and other items. A lady, Jade Abbott on a bus, who knew the accused, saw the elderly Asian lady attacked by the accused. 9 Initially, the accused denied any involvement in the robbery; but eventually admitted to committing it. She told the police that the victim had fallen over, and she took off. The accused told police the lady fell over; she went to open her bag and she tripped. The accused's account to police was that the lady stumbled on her own feet, causing her to fall. The accused said whilst the lady was on the ground, she grabbed her purse from her hand and ran. She denied carrying the knife. 10 The relevance of that material is that it seeks to minimise the criminality of the accused, a not unnatural response, but one that would impede her rehabilitation. One has to acknowledge fully the problems that one is facing, including the quantity of criminality involved if one is to rehabilitate effectively. It is a matter that I must consider when choosing a rehabilitation path for the accused. 11 On 17 January this year, the accused wrote a letter to the victim. It would appear this option was raised by her legal advisors. Even so, it is an option she pursued. What she wrote is this "I am writing to you to express my deepest apologies for what I have done. Not only to you but also to your family. I understand that my apology could not possibly take away the pain and fear I've placed upon you by my actions. I would like to take the opportunity to explain my actions that day. This is not an excuse and will never excuse my actions. I have made some very wrong decisions in my life, the first being my choice to become involved in drugs which led me to my assault on you. I have learnt the hard way that my choice to use the drug ICE has come very close to destroying my life. It also caused my children not to have their mother. There's not one day goes by that I do not think of what I have done to you and what may have happened that day. I want you to know that I have made a right choice in my life and have chosen to attend a drug and alcohol rehabilitation centre. I attend this four days a week, and I believe my life is now on the right path. I once again wish to express my deepest apology, I understand that 'sorry' is such an insufficient word but it is all I have to offer, along with the promise not only to you but to my children, that I will never affect a person in this way again. Please do not think that I have written this letter to ease my conscience, as I will never forget my actions that day and what I did to you. I hope that I can be given the opportunity to return your money, and to apologise to you in person." 12 I had expressed concern at the fact that no attempt had been made by her solicitors to deliver the letter to the crown. It may well be that the victim may not wish to hear from or receive this apology but the circumstances of it being made and should she so desire, the contents of the letter should be made available to the victim, if the victim thinks it will assist her in coming to a closure over this incident. SUBJECTIVE MATTERS, FAMILY BACKGROUND AND SOCIAL DYNAMICS 13 Miss Burrows is a twenty-seven year old single mother of two children, aged 6 and 7. She has separated from their father. The relationship between Burrows and her former partner was marred by violence. Both were drug users. Presently, proceedings are before the Family Court, they appear to have an aroma of vindictiveness, as is not uncommon, over custody issues. Custody and access for her is being made difficult by her former partner and quite possibly by herself. 14 Miss Burrows' prime motivation in pursuing drug rehabilitation is her children and restoring maternal bonds with them. She believes her former partner is poisoning their minds against her. Of course, for her the real difficulty is that there is an element of truth in some of his claims. She has abused drugs in the past. She has a past history of violence. 15 Her mother committed suicide six years ago. In 1989 her mother had been sexually assaulted by three men as some form of payback for her separating from her then partner, who Miss Burrows believes orchestrated the assault. Her mother also had a late onset of alcoholism and during the last few years of her life was continually drinking. 16 Alcohol consumed in large quantities is a significant depressant. Miss Burrows became her mother's carer and confidant. Their relationship was close. Miss Burrows' own childhood was marred with violence. She had no contact with her father. She does, however, have other supports within the community. She stayed some three months with one friend and was staying with another for some seven weeks on the last occasion she was before me. 17 She has now entered at the Wesley Rehabilitation services a place called Turnaround, Grace Manor, in Miller. I will come to that matter later. EDUCATION, SKILLS, EMPLOYMENT HISTORY 18 Miss Burrows left school at the age of fourteen. She undertook a retail warehouse course. She has had experience as a factory hand, a position she held for three weeks. Her work experience is limited. She last worked for wages in 2004. Her longest period of employment is one of six months. In evidence before me, she indicated an interest in returning to work, perhaps in the warehouse. There was, of course, some other job of selling door-to-door, a course I thought a little concerning. 19 She is doing a parenting course. She intends to start a Year 10 certificate. She will need to demonstrate a greater stability in her working or vocational study life before the Court can have confidence her rehabilitation will succeed. That instability is yet again instanced by another change, hopefully this time for the good, but from living in the community to living in full-time rehabilitation at Turnaround, Grace Manor. 20 There was frequent moving during her early schooling. GENERAL HEALTH 21 Miss Burrows suffers from asthma which she controls by an inhaler. She is also a smoker which may lead to other problems later in life. Otherwise as best one can tell she appears to be in good health, an important factor for rehabilitation particularly with drug addicts. DRUG AND ALCOHOL 22 Miss Burrows started her drug abuse aged thirteen, binge drinking most weekends by the time she was seventeen. She claims to have slowed that drinking down last year, ceasing alcohol entirely by November 2006 after an episode of significant binge drinking. She was using cannabis from thirteen to eighteen, smoking up to a quarter of an ounce daily. She was able to reduce her cannabis intake during both pregnancies, completely in the case of the first child and on a couple of occasions for the second. 23 She was smoking cannabis daily to November 2006 as a means of dealing with the loss of her children. She has also abused benzodiazepines, ecstasy, cocaine, amphetamines and heroin. The abuse of some of these drugs is long-standing and was entrenched until November 2006. Her amphetamine use was shared with her partner. At the time of offending, she was consuming ICE. Of course, having a partner using is counter-indicated, as they say, for rehabilitation, because the partner will want to normalise his, in this case, drug use by having his partner use as well. 24 I am satisfied her offending was drug related, in the sense that she committed the offence to obtain money for her drugs. The offence was committed at a time she was "hanging out". On 28 November last year, she was accepted into a drug program at Maryfields Day Recovery Centre. It is one of the rehabilitation programs conducted by St Vincent De Paul. It was a ten week outpatient program beginning, in her case, on 12 December 2006. 25 She completed that program on 30 March this year. Her counsellor with the program noted some maturing, her seeking to come to terms with her mother's death, learning to focus on positive lifestyle choices, and removing negative influences. She has been offered ongoing counselling in that after-care program, although that may be unnecessary now. That after-care program focussed upon relapse prevention, counselling, urine analysis and breathalysers. MENTAL HEALTH ISSUES 26 I do not have the benefit of a psychometric testing. It is likely, however, that there is some depression. She has lost her mother in an apparent suicide just weeks before her own twenty-first birthday. She has lost custody of her children to her estranged partner, who she believes is hostile to her interests. She believes he is turning the children against her. Her personal relationship with her former partner was always dysfunctional. There was violence, reconciliation, further violence, and drugs being the principal component of it. The estranged relationship also appears to have an aura of dysfunction about it. 27 She has issues of violence, no doubt related to her anger. She speaks of the odd punch-up with her mother. There was a dispute with her sister and brother-in-law that may have had a component of violence in it, not disclosed. However, there was something about the "fight" that caused police initially, and then either DOCS or the Family Court to take a view her children would be better off with the father. As I say, she may be contributing, in part, to her own disengagement with the children. 28 Any treatment program will need to address issues seriously engrained, including, I suspect, violence and anger as appropriate responses to unwelcome situations. As a consequence of her participation in the ten week drug program - the pre-care and post aftercare - Miss Burrows' psychological wellbeing has greatly improved. She is not reporting agitation, disturbed mood or ideation frequently accompanying drug withdrawal. 29 She has improved self-image. She says she is quite proud of herself, she has three goals, some level of reconnection with her children; seeking re-entry into the workforce and remaining drug-free. Because of her desire to re-connect with her children, she is strongly motivated to rehabilitate. Life is dynamic, it would be a pity to waste the moment with full-time incarceration where the motivation would most likely be crushed. CHARACTER AND CRIMINAL HISTORY 30 Miss Burrows, age twenty-seven has had a difficult life, made more difficult by her own drug addiction. She does, however, appear to have courage and determination, recently exhibited as she sought to become drug-free. She has insight into her offending behaviour and appears to be achieving goals that will address her criminal conduct. Fortuitously, they are congruent with matters she needs to address to restore some fruitful level of contact with her children. 31 In 1997 there is a shoplifting conviction, another in June 2006. There is another offence of financial dishonesty in 2003, a stealing offence in August 2002, a common assault conviction in which the victim was a partner and there are two breaches of an AVO occurring in late September 2006. This is her first offence of violence outside the domestic setting. It is her first offence dealt with in the District Court. Her record is not one that disentitles her to some consideration of leniency. ATTITUDE TO THE OFFENCE 32 The offender was committed for sentence. That is to say, she pleaded guilty at the outset. I am satisfied that early plea was entered by a contrite offender willing to accept full responsibility for her offending conduct. I have already made reference to the letter written which voices her apology directly to her victim. There is evidence she is having nightmares, focussed on her brutal treatment of her frail victim. 33 During her drug treatment program she was required to keep a journal. One entry of significance was selected by Michelle Ackerman, her counsellor with Maryfield, it is an entry for 28 March 2007. "I'm scared shitless of going to gaol next week. I know with going back to gaol, my attitude will come back and I don't want it to, nor lose the person I have become as this is the old me before I started using drugs, and drinking. They turned me into a nasty person and I did heaps of things I'm not proud of, and will never be proud of them. It's been fourteen years of silence, fourteen years of pain, those fourteen years are gone for and I will never have again but I have changed and become that person I never thought I would be again, and I know it's a good thing, and I thank you guys heaps, I will not forget what you have done for me. There is something about this place that I'll always take with me, and that's how much I've changed but as my real Mum always told me, you do the crime, you be prepared to pay the time and if I go, it's my fault, I did the crime. I had the knife on me that day, yes, I'm guilty as charged but I'm sorry I did and I need to face the consequences, whatever that may be, my freedom still or gaol. All I can do is go in there and tell them how sorry I am and how I've turned my life around. I'm in the wrong and I'm sorry, but that was me on drugs at the time and that's what it did to me and who it made me be. That girl, that nasty girl wasn't me, that was a drug stuffed person on ICE. I hate myself for what I did to that lady and I wish I could turn back time." REHABILITATION PROSPECTS 34 Much depends upon the real level of rehabilitation in respect of drug abuse. Miss Burrows has been abusing drugs and alcohol for nearly fourteen years. She has been drug and alcohol free for less than six months. More time is needed to assess whether the last six months amounts to a first attempt at drug rehabilitation, or, hopefully, a successful campaign to become drug and alcohol free. 35 On either view, they are important steps but total success would be the most desired outcome. For that reason I have determined that she should be given an opportunity to demonstrate her capacity to rehabilitate. I would not give her this chance if there were not a number of factors suggesting a positive outcome is likely, even if at this stage, not assured: * She appears strongly motivated to reform to a level where DOCS and, or the Family Court come to a view she can have an increased level of access to her children. * She appears genuinely contrite in respect of this serious criminal conduct and anxious to ensure there is no likelihood of re-offending. * She has at least two personal friends in the community who have demonstrated significant support for her. * She has generally good physical health and no significant mental health issues that should be a worry for the court. * She appears committed at least at this stage to the Maryfields program and staff and the program has a realistic testing regime. That bullet point can now be supplemented by her acceptance into a full-time rehabilitation program at the Wesley Rehabilitation Centre, Turnaround, Grace Manor. This is a full-time residential program aimed at providing comprehensive educational, vocational, social and psychological rehabilitation services that allow clients to become productive members of society. The observation is made that the accused will greatly benefit by accessing the program and its framework for assisting her to rebuild her once broken life. 36 I am granting the accused bail pursuant of s 11 of the Crimes (Sentencing Procedure) Act for a period of nine months from today. I take the nine months because we have been dealing with this case for some two or three months, I think, and although, strictly speaking I could take the year, it seems to me there has been some rehabilitation progress already made, which would bring us up to early February of 2008. 37 The conditions are that she will reside at Turnaround, Grace Manor, and participate to the best of her ability in the Wesley Rehabilitation Program offered there. She is not to leave that program other than by application to this Court, or expulsion from the program. Assuming the expulsion is properly based, expulsion from the program would be regarded as a breach of the bail, see condition 1. 38 She is to accept supervision of Probation and Parole. She is to accept all drug testing measures at the Wesley Rehabilitation Program. Any failure to fully participate in the testing, or any dirty test, will constitute a breach of the bail. I require the Probation and Parole and request Wesley Rehabilitation Services to notify the Court within forty-eight hours of any breach of the bail. 39 The accused is to report to the Court on 13 July and 9 November for progress reports. I order presentence reports and request Wesley Rehabilitation Service Reports for those days. 40 The matter will be finalised - a date to be fixed near 11 February, Friday closest to 11 February 08. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.