New South Wales Court of Criminal Appeal CITATION: R v Jeanie Anne Marie VINCENT [2005] NSWCCA 135 HEARING DATE(S): 7 April 2005 JUDGMENT DATE: 7 April 2005 JUDGMENT OF: Spigelman CJ at 1 & 28; Studdert J at 26; Greg James J at 27 DECISION: 1. Appeal allowed and sentence quashed.; 2. The Respondnet is sentenced to a non-parole period of 3 years commenceing on 15 December 2003 and expiring on 14 December 2006 and a balance of term of 3 years commencing on 15 December 2006. CATCHWORDS: CRIMINAL LAW - SENTENCING - Crown Appeal - Whether sentence manifestly inadequate - Armed robbery - Guilty plea - Prior criminal history - Offence committed in company - Intrusion in victim's home - Offence committed during parole period - Offence partially planned - Where possibility that sentence would not impose futher punishment. Crimes (Sentencing Procedure) Act 1999: s3A, s21A LEGISLATION CITED: Crimes Act 1900: s97(1) Criminal Appeal Act 1912: s5D CASES CITED: R v Henry (1999) 46 NSWLR 346 Regina (Appellant) PARTIES: Jeannie Anne Marie VINCENT (aka HARRIS) (Respondent) FILE NUMBER(S): CCA CCA 2005/58 J Bennett SC (Appellant) COUNSEL: C B Cragie SC (Respondent) S Kavanagh - Solicitor for Public Prosecutions (Appellant) SOLICITORS: Sydney Regional Aboriginal Corporation Legal Service (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0884 LOWER COURT JUDICIAL OFFICER: Armitage DCJ IN THE COURT OF CRIMINAL APPEAL 2005/58 SPIGELMAN CJ STUDDERT J GREG JAMES J THURSDAY 7 APRIL 2005 REGINA v Jeanie Anne Marie VINCENT (aka HARRIS) Judgment 1 SPIGELMAN CJ: This is a Crown appeal under s 5D of the Criminal Appeal Act 1912 against the sentence imposed by his Honour Judge Armitage QC in the District Court of New South Wales on 9 December 2004. The respondent pleaded guilty to a charge of armed robbery contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is twenty years. His Honour imposed a term of four years with a non-parole period of two years. The Crown asserts that this sentence is manifestly inadequate. 2 In the course of the robbery a significant amount of property was taken, primarily in the form of electronic equipment, jewellery, and a small amount of cash, including three televisions sets, two video players, four video game consoles, one digital video camera, two disc players, one compact disc Walkman, five gold rings, three gold chains and one gold bangle. 3 The circumstances of the offence were set out by his Honour Judge Armitage in a matter not challenged as follows: "At about 10.45pm on Monday 15 December 2003, the victim, then aged forty-three was in her unit at Dalmeny Avenue, Rosebury, when she heard a knock at the door. At the time her seven and nine-year-old sons were asleep in their bedroom. She opened the door and saw the offender standing directly in front of her with a young person standing behind her. The offender was disguised by a hooded sloppy joe and sunglasses and was armed with a baseball bat and a large silver bladed break knife, the blade about 12 inches long. The young person was disguised by a balaclava and was armed with a knife. As the victim screamed and attempted to close the door the offender pushed the door open and pushed the victim in the chest causing her to fall backwards on to the floor. As the victim stood up the offender pushed her to the floor a second time, and it was about the time, apparently, that the victim noticed a small cut at the top of her left shoulder. The offender continually swore at and threatened the victim with the knife. She said to her "You dog, slut, cunt, I want to have a piece of you." The victim heard the offender say to the young person, 'Go and clean the place out', upon which he proceeded to take a number of items of property from the living area and the main bedroom and placed it into bags. Whilst he was doing that the offender continued to threaten the victim with the knife and to make threats against the victim's two children. At some stage the young person, who was holding a knife, approached the victim and stood near her, whilst the offender collected property from within the unit. The young person then assisted the offender to disconnect the television set and the video. After that the offender approached the victim and demanded that she remove her jewellery, which she did. The young person left the unit with a bag containing the victim's property, and returned to remove a second bag of property. At that stage the offender made the victim assist her in carrying the television set from the unit to Dalmeny Avenue. The victim showed the offender where her car was parked. The victim's car was a 1988 model Toyota Corolla, registered number QVT-672. The offender and the young person loaded the car with the victim's property. The offender got into the driver's seat and the young person got into the front passenger seat. The offender started the car with the victim's keys, which she had taken from the unit. The offender drove the car about 200 metres north along Dalmeny Avenue where she collided with the rear of a Toyota Corolla which was being driven north along Dalmeny Avenue." 4 The young person was subsequently identified as the respondent's son, aged fourteen. She and he were subsequently arrested. The taking of the victim's motor car was a separate offence and it was taken into account on a Form 1 in the sentence for the armed robbery offence. 5 His Honour made reference to the respondent's prior criminal history, which encompassed offences committed over a period of a decade, from 1992 to 2002, including offences for offensive language, malicious damage and assaulting police, all of which led to the imposition of fines. 6 However, on 18 July 2002 she was sentenced in the District Court with respect to three armed robbery offences. Each of these offences were committed whilst the respondent was armed with a knife, on two occasions she obtained cash and on the third occasion she was charged with the offence of assault with intent to rob whilst armed with an offensive weapon. The three offences had been committed, respectively, on 11 September, 30 September 2001 and 24 January 2002. On the second and third occasions she was at liberty on bail for the prior offence or offences. For two of the offences she was sentenced to a term of imprisonment of five years with a non-parole period of two years which concluded on 1 December 2003. In the third matter she was sentenced to a fixed term of two years commencing on the same date. Accordingly, the offence the subject of the present appeal on 15 December 2003 was committed during the parole period for the prior offences. Indeed, she had only been at liberty for two weeks. 7 The respondent gave evidence which was summarised by his Honour in his Remarks on Sentence. It is unnecessary to set out his Honour's summary in full. Of some significance was the respondent's evidence that she had come to believe that during her period in prison her de facto husband had had a sexual liaison with the victim. She also said that her son had told her that the victim had on one occasion inappropriately touched his penis. His Honour did not determine whether or not any such incident occurred but he did say that he accepted the respondent's evidence that she believed that her son had been sexually interfered with. 8 The respondent also gave evidence that her original intention when going to the premises was not to commit a robbery but, in fact, to terrorise the victim and give her a belting. She said that she had become enraged when her son told her about the acts that he said had been committed upon him and that reminded her of acts of sexual abuse committed on her. Nevertheless, it did take three days between her being informed of these matters and the offence. 9 The respondent's evidence was that it was not her original intention to rob the victim but that she could not bring herself to assault her and, accordingly, decided to steal from her to make her feel small. In cross-examination she said that the main purpose for which she and her son were disguised at the time of the confrontation was in order to scare the victim but she did agree in cross-examination that a secondary purpose was to conceal her identify. His Honour, nevertheless, accepted her account that she went to the premises without an intention to steal but decided to do so when she found herself unable to inflict further physical injury upon the victim. 10 In this regard his Honour said: "The offence committed by Ms Vincent is obviously of a very serious nature. Her attendance at the premises of the victim was for the purpose of terrorising her, and that is exactly what she did. Even if there is some truth in Ms Vincent's allegations of impropriety on the part of the victim, it would not assist in any substantial degree to reduce the extent of her criminality." 11 His Honour had before him the report of a clinical psychologist outlining the respondent's personal history which contains elements which are, unfortunately, all to frequently encountered with Australians of indigenous origin, including alcohol and drug use commencing at an early age and also sexual abuse at an early age. The psychologist also reported a history of mental illness, including a possible diagnosis of bipolar disorder. The report noted that her drug use, particularly cannabis, appeared to have had some impact on her mental state in the form of an element of paranoia and excessive agitation. There was further negative impact from the development of a heroin and cocaine addiction. 12 His Honour referred to a victim impact statement by the victim which outlined the considerable emotional disturbance she had suffered by reason of the offence which included sleep loss, irrational conduct, considerable difficulty with performance of routine tasks and chores and an attempt to escape by the use of alcohol. Her conduct eventually led to her ex husband reporting her to DOCS and the children were removed from her care. His Honour said that he would give "full weight" to the "severe emotional harm" that the victim suffered as a result of the offence. 13 His Honour referred to provisions of s3A and s21A of the Crimes (Sentencing Procedure) Act 1999 and noted that it was a requirement that adequate punishment be imposed and weight given to general and specific deterrence. His Honour identified the list of aggravating factors set out in s21A that were pertinent to the current proceedings as encompassing the following: · The defendant had a record of previous convictions. · The offence was committed in company. · Substantial emotional harm was caused by the offence. · The offence was committed while the offender was on conditional liberty. · The offence was, to some extent, planned. His Honour then identified the mitigating factors to be: · The offender has reasonably good prospects of rehabilitation. · She has shown remorse for the offence. 14 She pleaded guilty to the offence and did so at the first reasonable opportunity for which his Honour said, "I give her full credit." 15 His Honour made a finding of special circumstances by reason of the need for a considerable period of supervision arising from the offender's history of alcoholism and drug use. 16 The Crown asserts that the sentence imposed is manifestly inadequate. It notes in particular that his Honour failed to make any reference to the guideline judgment of this Court with respect to this offence set out in R v Henry (1999) 46 NSWLR 346. The Crown notes that the typical case referred to in Henry was of a less severe character than the actual offence committed by the respondent. In particular, this was not a young offender with little or no criminal history and the degree of violence actually used could not be described as "limited". Furthermore, there was a degree of planning, albeit, on the facts accepted by his Honour, planning of an assault rather than of a robbery. Nevertheless, there was an element of impulse involved. However, what the impulse here did was to quite possibly avert the more serious offence of the actual infliction of grievous bodily harm, by reason that the offender came prepared with a baseball bat and a knife. 17 In the present case there are additional elements of aggravation particularly the fact that the crime was committed in company and that it involved an intrusion into the victim's home when she was alone with her two sons. Furthermore, this was an offence committed whilst the offender was on conditional liberty for other such offences. 18 His Honour found on the issue of special circumstances that the respondent had good prospects of rehabilitation. It is not clear to me on what evidence his Honour based this conclusion, it may have been on the basis of observing the Respondent in the witness box. However, the clinical psychologist's report concluded: "... one feels somewhat pessimistic about her ability to benefit from counselling-type interventions, at least in her current state of mind." 19 The fact that the offence was committed within a few weeks of being released on parole with respect to three similar offences, in each of which she used a knife, and the second and third of which had also occurred whilst on conditional liberty for the earlier offence or offences, are circumstances which indicate that personal deterrence was entitled to considerable weight in the sentencing exercise. 20 In my opinion, it is quite clear that the end result was a sentence which was manifestly inadequate, primarily because it did not serve the function of personal deterrence but also because it failed to adequately take into account the objective gravity of the offence, especially in terms of the degree of violence proffered and in fact inflicted by the offender herself who was in company with another, together with the fact that the offence occurred in the victim's own home at a time when she was alone with her two young sons. 21 The personal history of the respondent indicates a subjective case of some strength by reason of the adversity of many aspects of her life over a lengthy period of time. 22 Even taking these matters into account, a sentence of four years with a non-parole period of two years is, in my opinion, manifestly inadequate. Inadequacy is also manifest in the fact that the non-parole period for the offence presently under consideration would expire prior to the head sentence imposed for the earlier robberies. As noted above, this offence occurred within two weeks of Ms Vincent being released on parole for those earlier robberies. 23 Although it may be that her prospects of release on parole are lessened by reason of the subsequent offending, there remains the possibility that, having lost the benefit of parole for the previous offences by reason of the offence presently under consideration, the structure of the sentence leaves open the possibility that the respondent will not have any additional actual punishment by reason of the offence. That is not a possibility that should have been allowed in the sentence. 24 The appeal should be allowed and the sentence quashed. Taking into account the matter on the Form 1, I would impose a non-parole period of three years and an additional term of three years, giving a head sentence of six years. But for the plea of guilty, I would have approached the matter on the basis of imposing a head sentence of eight years. 25 Accordingly, the orders I propose are: 1. Appeal allowed and sentence quashed. 2. The respondent is sentenced to a non-parole period of three years commencing on 15 December 2003 and expiring on 14 December 2006 and a balance of term of three years commencing on 15 December 2006. 26 STUDDERT J: I agree. 27 GREG JAMES J: I also agree. 28 SPIGELMAN CJ: The orders of the Court are as I have indicated. ********** 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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