Sandra Elsie WIGGINS v R [2008] NSWCCA 19

New South Wales Court of Criminal Appeal

CITATION: Sandra Elsie WIGGINS v R [2008] NSWCCA 19

HEARING DATE(S): 31 January 2008

JUDGMENT DATE: 15 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; James J at 2; Barr J at 3

DECISION: Leave granted to appeal. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – application for leave to appeal against sentence – whether sentence manifestly excessive – whether objective and/or subjective circumstances justified a sentence less than range in guideline judgment – whether sentence outside range of sentencing discretion – whether disparity in sentences

R v Henry and Others [1999] NSWCCA 111 CASES CITED : R v Thomson; R v Houlton [2000] NSWCCA 309 R v Blackman and Walters [2001] NSWCCA 121 R v Legge [2007] NSWCCA 244

PARTIES: Sandra Elsie Wiggins Regina

FILE NUMBER(S): CCA 2007/2939

COUNSEL: B Rigg (Appellant) J A Girdham (Crown)

SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0259

LOWER COURT JUDICIAL OFFICER: Bennett SC, DCJ

LOWER COURT DATE OF DECISION: 02/04/07

IN THE COURT OF CRIMINAL APPEAL 2007 / 2939

McCLELLAN CJ at CL JAMES J BARR J

15 FEBRUARY 2008 Sandra Elsie WIGGINS v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Barr J. 2 JAMES J: I agree with Barr J. 3 BARR J: Sandra Elsie Wiggins seeks leave to appeal against sentences imposed in the District Court. On 9 October 2004 she and her fellow offender Gary Carlino carried out a plan to rob a man. The applicant stood by the roadside in Canterbury Road Revesby, pretending to offer sexual services. The complainant, who was driving a van, stopped and spoke to her. She entered the van and directed him to a house where she knew Carlino was waiting. They entered the house and Carlino, brandishing a blood-filled syringe, told the man that they wanted his money. The man began crying and handed over $50. Both offenders told him that they did not wish to hurt him, just take his money. They demanded his bankcard but he persuaded them not to take it. They made him consent to drive them to an ATM to withdraw cash. They got into the complainant's van. He drove, the applicant sat beside him and Carlino sat behind him. On the way, the complainant said that something had fallen off the van. He stopped and got out, saying that he was going to recover whatever it was. He ran away and got help. When she realised that the complainant had escaped, the applicant drove the van with Carlino in it, to a place where they abandoned it, after removing tools and other items. Some of those things they sold, others they simply threw away. Carlino left a fingerprint on the van. 4 At all material times the applicant and Carlino were living together. They were arrested about 18 months later, on 20 March 2006, presumably because Carlino's fingerprint had been identified. Both were interviewed. Both admitted the robbery. Carlino then and there stated his intention to plead guilty. The sentencing judge was satisfied that he meant what he said. On sentence, however, the Crown informed the sentencing judge that Carlino acknowledged that he had used a syringe only after being told that the applicant had made an "offer of assistance" in the prosecution of Carlino. This seems to have been understood as an offer to give evidence against Carlino. 5 The applicant pleaded guilty in the Local Court and maintained her pleas in the District Court. There were two charges, one of taking the complainant without his consent with the intention of obtaining an advantage, namely robbery, and one of robbery while armed with an offensive instrument namely the blood-filled syringe. On the first count Bennett SC DCJ sentenced the applicant to a non-parole period of three years and a balance of term of three years and on the second count to a non-parole period of three years and a balance of term of two years. The two sentences were ordered to begin on 20 March 2006, the day of the applicant's arrest, so the effective sentence was one of six years with a non-parole period of three years. In imposing a sentence on the first count his Honour took into account the further offences of taking the van without the consent of the complainant and stealing the goods from the van. 6 For the same two offences, and taking into account the other two offences, his Honour sentenced Carlino on the charge of taking the complainant without consent with the intention of obtaining an advantange to a non- parole period of four years and a balance of term of two years and on the robbery count to a non-parole period of four years and a balance of sentence of three years. Both sentences were ordered to run concurrently, so the effective sentence was one of seven years' imprisonment with a non-parole period of four years. 7 There was a wealth of evidence before the sentencing judge, including two pre-sentence reports and one report each from a psychiatrist and a psychologist. Neither of those professionals had treated the applicant though they gave a comprehensive description of the events of her life. The applicant was 48 years old at the time of the offences and 50 years old when sentenced. She had had a difficult and sad life as a child. Her parents separated and her father committed suicide. She and her brothers and sisters had been made State wards. She left school at 14 and had done a number of jobs over the years. She was for a time dependent on heroin during her twenties. She had had three domestic relationships and borne five children. She was not close to them, but kept in touch. Her latest relationship, with Carlino, had ended. She was suffering from chronic back pain following a fairground accident in 1997. She was a long-standing abuser of alcohol and other drugs. She had been diagnosed with depression and treated and counselled many times over the years. She had been admitted to psychiatric units after making attempts on her own life. She was cognitively impaired, possibly as a result of her substance abuse. She had a moderate record of offences of dishonesty, mostly in the nineteen eighties. She had not before the present matter been ordered to serve any period of imprisonment. 8 The author of the pre-sentence reports drew attention to her dysfunctional upbringing, her co-dependency on domestic partners, her abuse of alcohol and other drugs and her emotional and health problems as contributing to her behaviour. She was said to be easily led. 9 The applicant claimed, and his Honour accepted, that she had been using amphetamines with Carlino before the commission of the subject offences and was under the influence of that drug at the time. The simple reason for offending was that she and Carlino, who were both recipients of the disability pension, had been to a club and had spent all their money on the poker machines. The applicant needed money to buy medicine to relieve her chronic back pain, so they hatched a plot to rob whomever they could. 10 The sentencing judge expressly allowed a discount of 35% to take account of the utilitarian value of the early plea of guilty, the applicant's remorse and her preparedness to assist the authorities in the prosecution of Carlino. His Honour expressed the view that there were good prospects of rehabilitation. 11 The first ground of appeal asserts that the sentences individually and in combination were manifestly excessive. Counsel drew attention to the guideline judgment in R v Henry and Others [1999] NSWCCA 111, in which this Court spoke of a head sentence of four-five years for a robbery by a young offender with no or little criminal history, using a weapon like a knife, capable of killing or inflicting serious injury, with a limited degree of planning, if any, no actual violence but a real threat thereof, with a small amount taken from a victim such as shop keeper or a taxi driver in a vulnerable position and a plea of guilty the significance of which was limited by a strong Crown case. The court was also reminded of the observations in R v Thomson; R v Houlton [2000] NSWCCA 309 at [161], that the plea of guilty referred to in R v Henry must be taken to have been entered late. 12 It was submitted that the offences committed by the applicant were objectively no more serious than those contemplated in R v Henry. As to the use of the syringe, it was submitted that it was subjectively less serious because the applicant's demeanour was "unusually non-aggressive". The reference was, I think, to the applicant's statement that she and Carlino did not wish to hurt the complainant, just take his money. In my opinion that submission should not be accepted. Nothing in the evidence could explain why the complainant drove his van as directed by the applicant and Carlino unless he continued to fear the consequences of disobedience, whatever soothing words the applicant might have uttered. 13 It was submitted that although she was not young, as is the hypothetical offender in R v Henry, her prospects of rehabilitation were good and her personal circumstances and the state of her health gave her at least as strong entitlement as any young offender to leniency. It was submitted that that was especially so since the sentencing judge considered these matters important enough to warrant an adjustment of the sentence components in favour of parole. It was submitted that sentences more lenient than the Henry range have been upheld by this Court where there have been found to be particular rehabilitation or mental health needs. Reference was made to R v Blackman and Walters [2001] NSWCCA 121 and R v Legge [2007] NSWCCA 244. 14 It was submitted that the age, the mental health problems and the medical condition and other subjective circumstances of the applicant justified a sentence less than the range contemplated in R v Henry. Reliance was placed on the conclusion that the robbery was an offence more serious than the taking for advantage, the former having been planned and the latter not so. So if the robbery sentence was excessive by the standards of R v Henry, the sentence on the second count was even more so. 15 I do not accept that the sentence imposed for either offence was outside the range of the sentencing discretion. There are several features that distinguish the case from the R v Henry hypothesis. The planning of the robbery, though not of any complex kind, made it more serious. The part played by the applicant in tricking the complainant and luring him to the place where he would be dealt with was especially reprehensible. 16 While it is true to say that the robbery was the more serious offence, being planned, the subsequent offence, in which the complainant was taken away in fear against his will, was by no means a trivial one. It bore the aggravating feature that it was it done in company. Although it was opportunistic, the applicant played an important part in it, seating herself beside the complainant. Notwithstanding the significant additional criminality, the applicant obtained a substantial benefit in the imposition of the wholly concurrent sentence for the second count. 17 Neither were the taking of the van and its contents trivial matters, and the sentencing judge was obliged to take them into account when fixing the sentence for the first count. 18 The whole of this episode of criminality was entered into for the sole benefit of the applicant, who needed money to buy medicine but had gambled it all away. 19 The applicant was not a person, like the hypothetical offender in R v Henry, having little or no criminal history. Although the applicant's criminal history was not serious, it was significant and she had been dealt with leniently by the courts a number of times. Moreover, she was at the time of this offence in breach of her bond to be of good behaviour. She had been given the benefit of that bond on 2 February 2004 when she was dealt with in the Local Court for assault. 20 In my opinion the assertion that the sentences fell outside the range of discretion according to R v Henry has not been made good. 21 The second ground of appeal asserted that the applicant had a justifiable sense of grievance by comparing her sentences with those imposed on Carlino. Carlino was 33 years old at the time of the offences and 36 years old at sentence. The sentencing judge found that he had a history of drug dependency. By the time of sentence he was clean of drugs, a fact accepted by the sentencing judge, and had good prospects of rehabilitation. Like the applicant, he had pleaded guilty in the Local Court at an early stage. The sentencing judge allowed him a discount of 30% for the plea and all the favourable features. 22 Like the applicant, Carlino was on conditional liberty at the time of the offence. 23 Of course, Carlino had offended for the sole benefit of the applicant. He had used the syringe. The applicant was always present, approving what he did. She sat beside the complainant as he drove his van away in fear. After he managed to get away she took the opportunity to steal the van and drive it away so that she and Carlino could escape detection, a measure which presumably resulted in the long delay before they were arrested. 24 His Honour was bound to and did distinguish between the objective and subjective cases presented by the applicant and Carlino respectively. Those entitling the applicant to a lesser sentence were her preparedness to assist the authorities in the case against Carlino, difficulties with her personal life, particularly the consequences of her mental illness, her dependency on others including, in this case, Carlino, the fact that it was Carlino, not she, who had wielded the syringe, and, perhaps, her somewhat better prospects of rehabilitation. Against that had to be put the important roles played by the applicant in the robbery and in coercing the complainant to drive away his van, her theft of the van and its important consequences for the administration of justice, together with the fact that this whole episode of criminality was entered upon for her benefit alone. 25 Otherwise both offenders fell to be dealt with in much the same way and might have expected to receive similar sentences. It seems to me that the differential sentences imposed by his Honour, the effect of which was that, provided that they progress well during their custody, the applicant may expect to be released to parole one year earlier than Carlino, was unremarkable and was entirely within the range of sentencing discretion. In my opinion this ground of appeal has not been made good. 26 I would grant leave to appeal but would dismiss the appeal. **********