Regina v Fosse [2003] NSWCCA 347

New South Wales Court of Criminal Appeal

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

IN THE COURT OF CRIMINAL APPEAL 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".