New South Wales Court of Criminal Appeal CITATION: TA v R [2008] NSWCCA 179 HEARING DATE(S): 28 July 2008 JUDGMENT DATE: 21 August 2008 JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 8; Hislop J at 54 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - attempted robbery armed with a dangerous weapon - unauthorised possession of a shortened firearm - pleas of not guilty changed after defence of duress withheld from the jury - grounds of appeal - whether trial judge erred in failing to find that the applicant acted under duress - principle of parity - whether manifestly excessive - appeal dismissed Criminal Appeal Act 1912 LEGISLATION CITED: Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 CASES CITED : Lowe v R [1984] HCA 46; (1984) 154 CLR 606 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 PARTIES: TA (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/4341 COUNSEL: C Nash (Applicant) J Girdham (Respondent) SOLICITORS: Ford Criminal Lawyers (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/61/0137 LOWER COURT JUDICIAL OFFICER: Marien DCJ IN THE COURT OF CRIMINAL APPEAL 2007/4341 McCLELLAN CJ at CL SIMPSON J HISLOP J Thursday 21 August 2008 TA v R JUDGMENT application for leave to appeal against sentence 1 McCLELLAN CJ at CL: I have had the benefit of reading the reasons for judgment of Simpson J in this matter. Regrettably I do not share her Honour's opinion as to the appropriate resolution of the appeal. In my opinion, although leave to appeal should be granted, the appeal should be dismissed. 2 Simpson J has outlined the findings of fact made by the sentencing judge. Critical to those findings is that the offence involved a degree of discussion and planning, in particular the selection of the target store and the obtaining of weapons. Five offenders were involved. The applicant took a primary role by entering the store to identify whether it was safe to enter and whether the premises were protected by closed circuit television. She was followed by two other co-offenders, one who was armed with a knife, the other with a shortened firearm. The gun was pointed at the store owner's stomach as money was demanded. The planning of the offence extended to the organisation of false number plates for the getaway vehicle. 3 There is no doubt that the applicant has a strong subjective case. She was aged 17 at the time of the offences and was in a relationship with Pilon, one of the co-offenders. That relationship was, as Simpson J points out, marked by violence. It may be readily concluded that he was the dominant partner. 4 The applicant advanced three prospective grounds of appeal. Simpson J rejects the first ground, a conclusion with which I agree for the reasons her Honour gives. 5 The second ground relates to questions of parity. Each of the co-offenders was sentenced after pleading guilty to offences of demanding property in company with menaces. The sentences imposed were significantly less than the sentence received by the applicant. The disparity is explained by the fact that the co-offenders pleaded guilty to an offence which carried a maximum penalty of 14 years. The charge to which the applicant pleaded guilty and was sentenced carries a maximum penalty of 25 years. It is of significance that by reason of her plea of not guilty the applicant was not dealt with in the Children's Court, as were two of her juvenile co-offenders. Furthermore, she was not entitled to the benefit Pilon received by reason of his assistance to authorities. In my opinion the sentencing judge was correct in concluding that the principles of parity were not relevant in the present case: see Lowe v R [1984] HCA 46; (1984) 154 CLR 606; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295. 6 With respect to ground 3 in my opinion this was a serious offence. It is true that the evidence disclosed that the applicant has good prospects of rehabilitation, has established a new relationship and has given birth to a second child. However, as Simpson J relates, the sentencing judge was aware of the applicant's strong subjective case. In my opinion his Honour had appropriate regard to subjective matters but was correct in concluding that a strong subjective case cannot displace the need to impose a sentence which both appropriately punishes the offender and adequately provides for personal but, more particularly, general deterrence. In my judgment these considerations lead inevitably to the conclusion that the sentence imposed was not excessive. 7 In my opinion although leave to appeal should be granted the appeal should be dismissed. 8 SIMPSON J: On 7 March 2007 the applicant was arraigned in the District Court in Dubbo on an indictment containing two counts: one of attempted robbery whilst armed with a dangerous weapon, and one of unauthorised possession of a shortened firearm. She entered a plea of not guilty to each charge, a jury was empanelled, and a trial commenced. On 15 March 2007, after the close of the Crown case, and after the trial judge (Marien DCJ) declined to permit a defence of duress to be left to the jury, the applicant changed her plea to one of guilty to each charge. This was done on what was called a conditional basis in the light of the decision concerning the defence of duress. The applicant was duly and formally convicted. The judge issued a certificate pursuant to s 5(1) of the Criminal Appeal Act 1912 certifying that the case was a fit one for appeal, but, in the circumstances, this is of no further relevance. 9 On 17 August 2007 Marien DCJ sentenced the applicant, on the attempted robbery charge, to a term of imprisonment for 3 years, made up of a non-parole period of 18 months commencing on 17 August 2007, and expiring on 16 February 2009, with a balance of term of 18 months, expiring on 16 August 2010. On the firearms charge he sentenced the applicant to a fully concurrent fixed term of imprisonment for 6 months. Because the applicant was under the age of 18 at the time of the offences he directed, pursuant to s 19 of the Children (Criminal Proceedings) Act 1987, that the non-parole period be served in a Juvenile Detention Centre. By s 50(1) of the Crimes (Sentencing Procedure) Act ("the Sentencing Procedure Act ") the applicant was entitled to release at the expiration of the non-parole period, and his Honour directed accordingly. 10 The applicant filed a notice of intention to appeal against the convictions, and an application for leave to appeal against the sentences imposed. Each was listed for hearing in this Court on 28 July 2008. 11 After some argument, the appellant abandoned the appeal against the convictions. She maintains her application for leave to appeal against the sentences. This judgment, therefore, is concerned only with the sentences – in truth, only with the sentence imposed in respect of the major count. The facts 12 On the applicant's plea of guilty an agreed statement of facts was produced. However, for the purposes of these reasons, it has been necessary also to have regard to evidence given in the trial. In relation to some of this evidence, certain findings of fact were made by the sentencing judge; in respect of some factual issues, he considered the evidence to be too uncertain to permit satisfactory findings of fact to be made. What follows as an outline of the relevant facts is largely drawn from the findings made by his Honour. 13 The offences were committed in the late afternoon of 29 November 2005 at a general store in Coonabarabran, a small town in the central west of NSW. They followed a degree of discussion and planning, for example, in the selection of the target store, and in the obtaining of the weapons. The store is operated by Mr and Mrs Lee, who were present behind the counter, with their 11 year old daughter. Also present was their 14 year old son. 14 Five offenders were involved. A co-offender to whom I will refer as BT drove a motor vehicle which belonged to another co-offender, Deek Pilon, from Dubbo to Coonabarabran. Also present were co-offenders to whom it is best to refer as SS, JT, and Deek Pilon, as well as the applicant. The offences were prosecuted on the basis that the applicant was part of a joint criminal enterprise. 15 The applicant entered the store. She had with her a mobile telephone, which she intended to use to let the co-offenders know if it was safe to enter, and also whether the premises were protected by closed circuit television. Pilon and SS then entered the store. SS was armed with a knife. Pilon was armed with the shortened firearm, the subject of the second count. He pointed it at Mr Lee's stomach, and demanded that Mr Lee give him money. Mr Lee asked him to repeat what he had said. Both men then left the store and departed from the area in the motor vehicle. It seems that BT and JT had remained with the vehicle. The motor vehicle had previously been fitted with false number plates, previously stolen by Pilon. All four male co-offenders were in the vehicle at this time; the applicant was not. BT stopped the vehicle in bushland where the offenders discarded the false number plates and replaced them with the vehicle's correct, ACT registered, plates. They changed their clothing, some of which they also discarded. They returned to Coonabarabran and picked up the applicant and travelled to Gilgandra, a short distance away, where they refuelled but failed to pay for the fuel. During part of this journey the applicant was the driver of the vehicle. 16 The vehicle was subsequently stopped by police, but the occupants were not then arrested or charged. That occurred late in the afternoon of the following day. The trial 17 Initially the applicant's trial was fixed as a joint trial with similar charges against Pilon. (BT and SS were juveniles, and pleaded guilty and were dealt with in the Children's Court.) His Honour recorded that JT was not charged. On the morning the trial was due to commence, Pilon negotiated a plea to a lesser charge (demand money with menaces whilst in company) to which he entered a plea of guilty. He also agreed to give evidence in the trial of the applicant. He did so, as did BT and JT. The cross-examination of these witnesses reveals that the applicant did not in any significant way dispute the above synopsis of the events; the only defence she sought to put forward was one of duress. Cross-examination of Pilon in particular suggested that he had a history of violent, overbearing, and intimidating behaviour towards the applicant, with whom he was in a sexual relationship current at the time of the offences. He denied all such suggestions. It was when the trial judge declined to allow the defence of duress to go to the jury that the applicant changed her plea. Although duress has finally been abandoned as a defence to the charges, the applicant nevertheless persists in relying on the facts and circumstances she then put forward in support of that defence in mitigation of her criminality. 18 The applicant gave evidence in the sentencing proceedings. She was just 17 years of age at the time of the offences. She had been in a relationship with Pilon for some time, a relationship that, on her evidence, was marked by violence directed by him against her. She said that she had been under some pressure from Pilon. She said that they had both illegally used a prescription drug, OxyContin. Perhaps the most serious instance of this was an occasion when, she said, she was pregnant, and Pilon jumped over her stomach causing her to miscarry. She gave some specific instances of the violence she attributed to Pilon. 19 She gave an account of the offences which varied in some respects from that given by one or more of the co-offenders. Subjective circumstances 20 The applicant was born on 1 September 1988. She was just 17 years and 2 months at the time of the offences, almost 19 at sentencing. She had no prior criminal history. Although she gave evidence in the sentencing proceedings, it was limited to an account of her relationship with Pilon, and directed to explaining the circumstances in which she came to be involved in the offences. This account, as will become apparent, was largely rejected by Marien DCJ. 21 Also before the Court was an extremely favourable report from officers of the Department of Juvenile Justice. This repeated her explanation for her involvement, but also recounted expressions of "extreme guilt, embarrassment and remorse" on the part of the applicant, something which appears to have been endorsed by the applicant's mother. 22 The report was prepared in July 2007. By that time the applicant had ceased her relationship with Pilon and had established a relationship with another man with whom she lived, with her parents, in Dubbo. She also had a daughter, then 8 months of age, and was pregnant. 23 She appears to have had a relatively successful educational history and had been offered a nursing scholarship upon completion of her school certificate. She wished to take up this opportunity after the birth of the child with whom she was then pregnant. 24 She has some health problems which do not appear to be major, although not insignificant. The (joint) authors of the report accepted that it was the applicant's involvement with "a negative peer group" that drew her into her single episode of criminality. They considered it unlikely that she would commit further offences. They wrote: "… [she] has removed herself from this particular peer group and concentrated on raising her daughter in a stable environment. It is her goal to be a positive role model for her children. Indeed, she presents as a confident young mother and has shown responsibility in addressing her drug problems and has had the encouragement and support of her family throughout this time. She looks forward to one day completing the necessary training which will enable her to fulfil her aspirations of becoming a nurse … it is to be noted that the offence occurred some 19 months ago and since this time [the applicant] has removed herself from negative peers, addressed her drug issues and has not come to the attention of police as a result of further offending behaviour. [The applicant] has made significant positive changes to her life since these offences were committed … it is this Officer's assessment that [the applicant] has demonstrated and possesses the necessary skills and maturity to remain offence free and contribute as a worthwhile member of the community." The Remarks on Sentence 25 The Remarks on Sentence were comprehensive and careful. Marien DCJ recorded the facts that had been put before him. He took a deeply unfavourable view of the applicant. He made quite extensive reference to the evidence given by the applicant, finding it to have been: "… unsatisfactory to say the least. It was at times contradictory, inconsistent and patently implausible." He gave detailed reasons for this conclusion, on a number of occasions contrasting evidence given by the applicant with evidence given by the co-offenders in the trial. Although he did not say so explicitly, it may be inferred that, where there was conflict in the evidence, he preferred that of the co-offenders to that of the applicant. 26 His Honour then noted the applicant's age, and extracted a portion of the Juvenile Justice Report which included her version of the events, and some of the matters I have mentioned above. He accepted that what was there recorded demonstrated "real insight" into the gravity of the offence. His Honour then noted the principles relating to the sentencing of juvenile offenders, but a little while later said: "In my view this was an adult crime committed by the offender at a time when she was proximate to the age of her majority of 18. Whilst the principles applicable to sentencing a young offender are relevant here and I do take them into account and will apply them, they will not be given as much weight as would be given in a case where the relevant offence was committed as a result of immaturity, or as a result of a spontaneous act with little planning." 27 He noted the applicant's prior good character and that the offence was "entirely uncharacteristic behaviour" on her part; he accepted that "to a certain extent" she was led into the criminal enterprise by Pilon. Nevertheless, he repeated that she fully and freely participated in the enterprise. 28 Correctly, in the circumstances, he gave limited value to the pleas of guilty, saying that the allowance made in that respect would be "at the lower end of the range" identified in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. 29 He accepted that she was remorseful and contrite and has gained considerable insight into her behaviour. 30 His Honour then turned to the sentences imposed upon the co-offenders but concluded that considerations of parity were not applicable by reason of their pleas of guilty, and, were pleas to lesser charges. He rejected a submission that the sentence ought to be suspended. He proceeded to impose the sentences I have outlined above. The grounds of the application for leave to appeal against sentence 31 It is convenient at this point to set out the grounds of appeal the applicant advances. They are three in number, and formulated as follows: Ground 1 His Honour erred in failing to find that the applicant was acting under duress. Ground 2 His Honour erred in failing to give sufficient weight to the principle of parity. Ground 3 The sentence was manifestly excessive. Ground 1: duress 32 There is one short sharp answer to this ground. Marien DCJ said: "I am clearly satisfied beyond a reasonable doubt on all the evidence before me that the offender freely and voluntarily participated in the serious attempted armed robbery on 29 November 2005. Although given the opportunity to do so she did not state in her evidence that Pilon ever threatened her to participate in the robbery. In effect, she said that because of a prior history of violence, which she described, between herself and Pilon, she believed that if she did not participate in the robbery some harm would come to her from Pilon." 33 This finding is death to the first ground of the application, and extremely so in view of the judge's assessment of the evidence given by the applicant. It is amply supported by the sentencing judge's careful account of the reasons for coming to that view. He described her evidence as: "… unsatisfactory to say the least … contradictory, inconsistent and patently implausible." 34 This was followed by specific and detailed examples of evidence given by the applicant that his Honour did not accept, which, in some instances, he contrasted with evidence given by the other witnesses. 35 There is, though, in this, one matter of some concern. It is apparent, both from the Remarks on Sentence and his questioning of the applicant during her evidence, that the judge disbelieved her, and that this was, in part, because of what he perceived as contradictory conduct in the applicant's continuing relationship with Pilon in the face of what she asserted to be his abusive treatment of her. 36 The complexities of abusive relationships are well known, if not so well understood. It is not at all uncommon for the weaker, more vulnerable party (usually, but not always, the female) to suffer violence and abuse, but feel unable or unwilling to terminate the relationship, usually through a warped belief that she (or he) loves the perpetrator, notwithstanding the unloving treatment. 37 The sentencing judge set considerable store on evidence given by the applicant that, on the day of the offences, Pilon had been "all right" – ie not violent – and therefore concluded that she was not under duress. 38 It seems to me that this represents rather too literal an approach. While that evidence certainly would undermine a defence of duress to the charges, it is nevertheless of some relevance in relation to the proper assessment of the applicant's criminality. A person's resolve may be weakened by persistent violence or ill treatment, such as to impact upon the assessment of culpability. His Honour may not have appreciated this subtlety. It is to be remembered that the final ground asserts error in failing to find that the applicant was, in the commission of the offence, acting under duress – not that her culpability was mitigated by her being overborne or rendered vulnerable by a historical course of conduct. 39 In this respect, the judge made express, clear and definite findings of fact, based upon a measured assessment of the evidence of all witnesses. 40 There is no basis for this Court to disturb these findings of fact, nor the assessment of the applicant's credibility made by his Honour. That means, inevitably, that the first ground of the application must fail. Ground 2: parity 41 Some information concerning the manner in which the co-offenders were treated was before this Court. SS pleaded guilty in the Children's Court in Dubbo to a charge of demanding property with menaces whilst in company. By s 99 of the Crimes Act such an offence carries a maximum penalty of imprisonment for 14 years. He also pleaded guilty to a charge of unauthorised possession of a shortened firearm, which carries a maximum penalty of imprisonment for 10 years. 42 In the Children's Court a total sentence of 14 months with a non-parole period of 3 months was imposed. Operation of the sentence was suspended. 43 SS appealed against the severity of the sentence to the District Court then was re-sentenced by Woods ADCJ to a total term of 10 months with a non-parole period of 3 months, again suspended. 44 SS was 17 years of age at the time of the offences and had no criminal record. Woods ADCJ accepted that he had become involved in the offences "through peer pressure". 45 BT was also dealt with in the Children's Court, on 25 September 2006. He also pleaded guilty to demanding property in company with menaces and was sentenced to 12 months with a non-parole period of 3 months, which was also suspended. BT had provided significant assistance at an early stage, having assisted police in locating clothing and the firearm that had been discarded by the offenders. However, he had a substantial criminal record, with offences both before and after the commission of the present offence. He was 16 years of age at the time of the offences. 46 As mentioned above, Pilon pleaded guilty to one count of demanding property with menaces in company and also one count of unauthorised possession of a shortened firearm. He also was sentenced by Woods ADCJ, to a head sentence of imprisonment for 16 months with a non-parole period of 8 months. His plea of guilty was entered on the day fixed for trial. It was, accordingly, afforded limited weight. However, he had given significant assistance to authorities, not least of which was the evidence he gave against the applicant. Pilon was 19 years of age at the time of the offences, the only adult of the group. He had some, although apparently, limited, criminal history. He had spent a total of 254 days in custody referable to the present offences. That equates to approximately 8 ½ months. It is plain from the judgment that Woods ADCJ began with a head sentence of 2 years, which he then reduced, by reason, predominantly, of assistance to authorities, to the 16 months that he ultimately imposed. He found, pursuant to s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying the division of the sentence into roughly equal terms. 47 Parity arguments largely depend upon equivalence or substantial equivalence in the relevant objective and subjective circumstances. The difficulty confronting the applicant here is that, by reason of her plea of not guilty she was not dealt with in the Children's Court, as she might have been had she taken the course adopted by her two juvenile co-offenders. She was not entitled to the benefit Pilon received by reason of his assistance to authorities. And each of the co-offenders had negotiated pleas to a lesser charge – in each case a charge that carried a maximum penalty of 14 years. The charge to which the applicant pleaded guilty carries a maximum penalty of imprisonment for 25 years. For these reasons, Marien DCJ held that the principles of parity, as explained in Lowe v R [1984] HCA 46; 154 CLR 606 and Postiglione v R [1997] HCA 26; 189 CLR 295 did not apply. 48 There is, nevertheless, a marked disparity between the sentence imposed upon her – a non-parole period of 18 months – and the approximately 8 ½ months that Pilon served, and this, in my opinion, may be taken into account in the consideration of the last ground of appeal. Ground 3: manifestly excessive? 49 I have above mentioned the report prepared by the Department of Juvenile Justice which was very positive. The applicant was reported to have ceased her use of drugs and alcohol. She was considered unlikely to commit further offences, having removed herself from the peer group with which she had been involved and with whom she became involved in the offences. She had, at the time of the report, given birth to one child and was pregnant with a second. She had established a relationship with another man, the father of the second child. She had been offered a nursing scholarship, which she proposed to take up. 50 The sentencing judge was well aware of all this material, and referred to it extensively. His Honour stated all sentencing principles accurately and comprehensively. 51 Nevertheless, I have come to the conclusion that, in all of the circumstances, and in particular in the light of the highly positive report, the sentence imposed was manifestly excessive, and this Court ought to intervene. In particular I view with concern the observation that the applicant's offences were committed at a time when she was "proximate to the age of majority at 18". As I have noted above, the applicant was 17 years and 2 months at the time; and she had never previously committed any offence. This was an entirely uncharacteristic course of conduct, committed in the midst of a relationship that drew the applicant into what the Juvenile Justice officers called "a negative peer group". The evidence of rehabilitation was powerful. It is not going too far to say that, on the evidence, rehabilitation was complete. I cannot escape the conclusion that the sentencing judge overlooked, or gave inadequate weight to, these circumstances. 52 Against the possibility of re-sentencing the Court received an affidavit sworn by the applicant on 22 July 2008. By the time she swore the affidavit her second child, a boy, had been born and was aged 6 months. Her first child, a daughter, was aged 20 months. The daughter remained in her custody until her incarceration and thereafter was cared for by the applicant's mother, who lived in Dubbo. The applicant is an inmate in a facility at Emu Plains, some distance away. She has had little contact with her daughter, to the extent that, when she did visit, the daughter no longer recognised her. Her son has remained in her care whilst in custody but has, accordingly, been unable to form any bonds with his sister. 53 I have come to the view that the very favourable evidence of rehabilitation requires that this Court make an order that will see the applicant's immediate release. I propose the following orders: (i) leave to appeal granted, appeal allowed; (ii) in respect of the charge of attempted robbery, the sentence imposed at first instance be set aside, and the applicant be sentenced to imprisonment for 2 years and 3 months, made up of a non-parole period of 11 months, commencing on 17 August 2007 and expiring on 16 July 2008, with a balance of term of 16 months, expiring on 16 November 2009; (iii) the applicant be released forthwith. 54 HISLOP J: I agree with McClellan CJ at CL. ********** 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.