New South Wales Court of Criminal Appeal CITATION : Regina v Colgan [1999] NSWCCA 292 FILE NUMBER(S) : CCA 60105/99 HEARING DATE(S) : 15 September 1999 JUDGMENT DATE : 15 September 1999 PARTIES : Regina Danielle Colgan JUDGMENT OF : Spigelman CJ at 15; Newman J at 17; Sully J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0482 LOWER COURT JUDICIAL OFFICER : Mitchelmore DCJ COUNSEL : C. K. Maxwell QC - Crown Miss R. Burgess - Applicant SOLICITORS : S. E. O'Connor - Crown T. A. Murphy - Applicant CATCHWORDS : ACTS CITED : - CASES CITED: R v Govinden (1999) NSW CCA118 DECISION : Leave to appeal granted; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60105/99 SPIGELMAN CJ NEWMAN J SULLY J 15 September 1999 REGINA v Danielle COLGAN JUDGMENT 1 SPIGELMAN CJ: I invite Sully J to deliver the first judgment. 2 SULLY J: This is an application by Danielle Colgan for leave to appeal against sentences imposed upon her in the District Court at Newcastle by Mitchelmore DCJ on 1 March of this year. 3 The applicant had pleaded guilty in the District Court to two charges, one of armed robbery and the other of attempted armed robbery in company. She had asked the sentencing Judge to take into account, as well, four other associated matters none of which was comparable in seriousness to the two principal matters to which she pleaded guilty. 4 The learned sentencing Judge imposed upon the armed robbery count a sentence of penal servitude for two years, with a minimum term of one year, commencing on 19 February last and expiring on 18 February 2000, and an additional term of one year commencing 18 February 2000. On the second principal matter, that is to say the attempted armed robbery in company, his Honour imposed a concurrent fixed term of penal servitude for one year. 5 It might be noted that the offence of armed robbery, and the offence of attempted armed robbery in company, are both offences attracting, on conviction, a maximum sentence of penal servitude for 20 years. 6 The relevant objective facts may be taken conveniently, and as follows from the relevant Police Facts Sheet: "Just after midnight on Wednesday 23 September, 1998 the defendant saw a friend of hers named Crystal in a Green Ford Fairlane Sedan registered number OCM939 in Mann Street, Gosford. The defendant asked her friend if the car was stolen after noticing a piece of wire hanging from the ignition, and the friend told her that the car was stolen. The defendant got into the car and the two drove to the Wyong area where they picked up two male friends. The four then went to the Road Pantry Service Station on the Pacific Highway at Lisarow where they put on balaclavas and gloves and the defendant and two others got out of the vehicle. They attempted to gain entry to the service station via the front door which had been locked by the attendant. They were unable to gain entry and so one of the accomplices took something similar to a baseball bat from the car and attempted to smash their way into the service station. This person also yelled at the attendant to open the door. Entry was not gained and so the three got back into the vehicle driven by the fourth person and left the scene at high speed. The vehicle OCM 939 was stolen from the Commonwealth Bank carpark in Gosford between 5.55 pm and 10.00pm on 22 September, 1998. The defendant and her accomplices drive to the Main Road 217, Toronto where they were spotted by Police who followed the vehicle. The driver of the stolen car lost control after accelerating away from the Police vehicle and the occupants were arrested and conveyed to the Toronto Police station where the detectives were called. The defendant informed Police that her name was Danielle Campbell and that she was 15 years old. She was interviewed by way of ERISP in the presence of George Lovett from the Charlestown Uniting Church, during which she made full admissions in relation to involvement in the robbery stating that her intention was to use the knife to frighten the attendant into giving them money. She also stated that she was conveyed in the car knowing it to have been previously stolen. Inquiries revealed that the defendant was in fact Danielle Colgan not Campbell as stated and that she was in fact eighteen years of age and not fifteen as previously stated. She admitted this. The defendant also made admissions that she had been involved in the armed robbery of the Mobil Service Station pacific Highway Berowra about 2.35am on Tuesday 22 September, 1998 during which another stolen car was used. She was interviewed by way of ERISP in relation to these matters during which she told Police that she used a Dark Blue T-Shirt to disguise her face and then entered the Mobil Service Station at Berowra with two male offenders, and at the time she was armed with a long bladed knife. They stole money and cigarettes with a total value of $600 and then ran to a white Ford Station sedan which was previously stolen from the Gosford Hospital and drove back to the Central Coast. The defendant stated that she drove the stolen vehicle around the Kariong area prior to the robbery. She further stated that after the robbery they dropped one accomplice off and then she and the other two offenders took the vehicle to an oval in the Springfield area where they burnt the car. The vehicle was recovered by police in the early hours of 22 September, 1998 at that location however it was burnt to such a degree that the registration number or other identifications details could not be obtained from the vehicle. A co-offender of the defendant's has admitted to stealing the vehicle from the Gosford Hospital. The defendant stated that the co-offender arrived at her home about 11.10pm on 21 September, 1998 and they left shortly after midnight on 22 September, 1998 where the co-offender drove the vehicle to Kariong and she then drove the vehicle around the streets of Kariong prior to doing the robbery. The defendant does not hold any kind of driver's licence to drive and states that she has never held a drivers licence in any State of Australia. The vehicle was later identified as vehicle ABP40E owned by Lucy Haskins. The defendant stated that from the robbery at Berowra she received about ten packets of cigarettes of varying brands which she sold for $5 per packet to persons, about $20 in cash and food and drinks bought with the stolen money." 7 There was a very strong subjective case made on behalf of the applicant at the sentencing proceedings. It is not, I think, necessary for the present to go into the fine details of it for those details are adequately covered in the remarks on sentence of the learned Judge. It is sufficient to understand that it was a very compelling subjective case calling for a great deal of sympathetic consideration; but always within the guidelines otherwise established by authority in this Court in connection with the offence of armed robbery, and cognate offences, which the Court has said time and time again are extremely serious and such as attract, except in the most exceptional circumstances, a sentence of full-time custody. 8 Two points are taken in support of the present application. The first is that, given the compelling features of the applicant's subjective case, the imposition of a sentence of full-time custody at all was appellably severe. The second is that there arises what might be described shortly as a parity point. 9 As to the first of those two points, it can be allowed at once that the case of the applicant was one that called for a final result that had built into it a real element of proper compassion. Her background has been a tragic one. Her attempts to rehabilitate herself have been, so far as the available evidence establishes, real, and in part at least, successful. These questions, of course, always come down in the end to matters of balance and of degree. The learned sentencing Judge seems to me to have given proper weight to the objective gravity of these offences, and - it needs to be said with emphasis, that they were grave offences, - and to have shown a deal of sympathy in regard to the subjective circumstances of the applicant's case. I could not discern, in the way in which his Honour approached the balancing task which he had to perform, anything less than that which was his duty conformably with authority in this Court. I do not think the first point taken by the applicant should succeed. 10 The second point is not quite so easy to dispose of. It arises at all because one of the applicant's co-offenders, and he probably the moving party in the enterprise in question, was at the time of the offences, and at the time he was dealt with in respect of them, a minor aged a little more than 16 years. He was dealt with, therefore, in the Children's Court; and he was dealt with, therefore, with all the benefits of the current legislation which govern and restrict the way in which minors can be dealt with in the Children's Court, even in respect of serious offences of the kind here in question. In that setting, he was sentenced, so far as is now relevant, and in practical terms, to a control order of 18 months which was reduced on appeal to a control order for 14 months. The maximum period of control order to which he might have been sentenced under the relevant legislation was a control order for two years. 11 It is, of course, clear that in one primary sense there is a manifest disparity between the way in which that co-offender was dealt with and the sentence imposed upon the present applicant. It has, however, to be borne steadily in mind that the regimes which applied respectively to the co-offender and to the present applicant are completely different. It might very well be, as has been said in authorities to which the Court was referred, that what happens in such a context in the Children's Court is not wholly irrelevant. But it does not seem to me to follow there can be made, in such a context, a parity argument of the kind that is being made with a straight-out comparison of two adult offenders dealt with under a common sentencing regime. 12 The learned sentencing Judge was aware of what had happened to the co-offender. He seems to me to have applied his mind to the question of the extent to which he could properly take it into account. I do not see in the end result to which his Honour came in the applicant's case, reason to find error in his Honour's point. 13 I say again: it can be allowed that the present applicant's case is sad and troubling to the Court, as is always the case with young offenders coming before the Court. But I do not think that those matters so outweigh the objective gravity of what occurred as to entail the proper intervention of this Court. 14 I would grant leave to appeal and dismiss the appeal. 15 SPIGELMAN CJ: I agree and add only this on the subjective matters to which his Honour has referred in the submissions relating to parity. In R v Govinden (1999) NSWCCA 118, Dunford J who delivered the judgment of the Court referred to the authority in the Court to the effect that parity considerations do not arise, as such, when comparing a person dealt with in the Children's Court and adults. Nevertheless as his Honour indicated at paragraph 376 of that judgment, that does not mean that the sentence imposed on a person in the Children's Court, which would otherwise give rise to issues of parity, is irrelevant. This is so for the reason that an individual sentenced as an adult may very well have a justifiable sense of grievance with respect to that very difference of the regimes, the strictures of which Sully J has referred to in his judgment. This is important in a context where it may very well often be the case that a 16 year old is very much more mature than an 18 year old, as there is some reason to believe was the situation in the present appeal, a factor to which his Honour made reference in his judgment. It is true he had been informed that the sentence of Mr Green was one of 18 months, rather than the 14 months to which it was reduced on appeal. I am not prepared to infer that his Honour treated it as irrelevant. 16 In all the circumstances the sentence in the present case, notwithstanding the strong subjective features to which his Honour and Sully J have referred, is well within the permissible range. I do not believe that it is open for a court with the limited jurisdiction of this Court to intervene with the judgment below. I agree with the orders proposed by Sully J. 17 NEWMAN J: I agree with the reasons given the Chief Justice and Sully J, and orders proposed by Sully J. 18 SPIGELMAN CJ: The orders are as proposed by Sully J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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