R v BENNETT [1999] NSWCCA 102

New South Wales Court of Criminal Appeal CITATION : R v BENNETT [1999] NSWCCA 102 FILE NUMBER(S) : CCA 60574/97 HEARING DATE(S) : 24 May 1999 JUDGMENT DATE : 24 May 1999

REGINA (Crown)

PARTIES : v

Toni Leanne BENNETT (Applicant) JUDGMENT OF : Barr J at 1; McInerney AJ at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0326; 97/11/0327 LOWER COURT JUDICIAL OFFICER : Kirkham DCJ

DN Howard (Crown) COUNSEL : In Person (Applicant) CK Smith (Crown) SOLICITORS : In Person (Applicant) CATCHWORDS : ACTS CITED : S 21 Criminal Procedure Act DECISION : Leave to appeal refused

4 IN THE COURT OF CRIMINAL APPEAL 60574/97

BARR J McINERNEY AJ

Monday, 24 May 1999 REGINA v Toni Leanne BENNETT JUDGMENT

1 BARR J: The applicant, Toni Leanne Bennett, seeks leave to appeal against sentences imposed upon her in the District Court. On 22 October 1997 Judge Kirkham sentenced the applicant to six years' penal servitude, the sentence comprising a minimum term of three years commencing on 19 March 1997 and an additional term of three years. On a charge of assault, his Honour sentenced the applicant to a fixed term of six months' imprisonment commencing on 19 March 1997. In imposing sentence his Honour took into account two other offences admitted by her under the provisions of s 21 of the Criminal Procedure Act. 2 The facts are as follows. On 19 March 1997 the applicant and a man she was with went up to a member of the public who was withdrawing money from a teller machine in the street in Darlinghurst. She told that person not to move, that she had a syringe filled with HIV blood, and that she would stab her if she tried anything. She said that they were just going to take her money. The man, who was holding a blood filled syringe, walked off with the money. That was the armed robbery offence for which the applicant was sentenced. 3 About five minutes later the applicant and the same man approached a woman in the street and the man, holding the blood filled syringe, told her to hand over her bag or he would stab her. The woman ran away. That attempt at a second armed robbery was one of the matters taken into account by his Honour. 4 Whilst that woman was running away, another man was getting out of his car which he had parked in the street. The applicant went up to him in the street and asked him if he wanted to be a hero. She said other offensive things to him. He ran away and was fortunately uninjured. That was the assault, the second count of the indictment. 5 Shortly afterwards a security officer from St Vincent's Hospital detained the applicant and she was taken into custody by the police. As that happened, the applicant noticed the two women she had held up and tried to hold up and called out that she knew them, where they lived and that she had friends that would get them, that revenge was sweet. His Honour accepted that circumstance as a matter of aggravation. 6 The second matter taken into account by his Honour was the possession of the offensive implement, the blood filled syringe. 7 At the time of the sentence the applicant was nearly twenty-two years old and had several convictions going back to the time when she was aged seventeen, including for soliciting, carrying a cutting instrument, malicious damage, goods in custody, street offences and self-administration of a prohibited drug. His Honour took into account the applicant's plea of guilty but noted that the case against her was very strong. 8 His Honour accepted that her male companion, not she, instigated the offences and that since her arrest she had had problems with fellow inmates at the prison where she was being kept as a result of which she was being kept in close protection, occasioning her hardship. 9 The applicant submits that the sentence was too long in view of the fact that it was her first prison sentence. She submits that there are other cases similar to hers in which substantially shorter sentences have been imposed. 10 His Honour took into account the fact that this was the first time the applicant would be sent to gaol and that she was still young. However, these offences, and the ones taken into account, were of a very serious kind and a substantial sentence was called for. 11 The maximum penalty on the first count was twenty years penal servitude. Bearing those matters in mind, I do not think that the sentence imposed by his Honour fell outside a proper range of sentencing discretion. 12 The applicant submitted that she had had a difficult childhood and upbringing and has put a letter before the Court setting out the details of it. She also submits that she has now rehabilitated herself and is doing well in courses at the gaol where she has been kept. Material has been put before the Court to demonstrate this. That is an encouraging matter which shows that the sentences imposed by his Honour are having a beneficial effect. Unfortunately, however, the Court is not permitted to take such matters into account. In deciding whether his Honour fell into error, it is necessary to consider only the matters which were put before his Honour. 13 In my opinion leave to appeal against the sentences should be refused. 14 McINERNEY AJ: I agree. 15 BARR J: The order is as I have proposed. **********