Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carroll v R [2011] NSWCCA 200 Hearing dates: 14 July 2011 Decision date: 06 September 2011 Jurisdiction: Common Law - Criminal Before: Bathurst CJ at 1 Buddin J at 2 Harrison J at 3 Decision: 1. Grant leave to appeal and allow the appeal. 2. Quash the sentence imposed by Freeman DCJ on 25 June 2010. 3. In lieu of the sentence imposed by Freeman DCJ the applicant is sentenced to a term of imprisonment of 4 years with a non-parole period of 1 year and 9 months commencing on 16 April 2010 and expiring on 15 January 2012 and a balance of term of 2 years and 3 months commencing on 16 January 2012 and expiring on 15 April 2014. 4. The first day upon which the applicant will be eligible to be released on parole is 15 January 2012. Catchwords: CRIMINAL LAW - appeal against sentence - where sentencing judge erred in finding that the case fell somewhere higher up the scale than the Henry range - no error by sentencing judge in terms of parity with co-offender or consideration of the applicant's affectation by drugs and alcohol at the time of the offence - no error by sentencing judge in finding that the lack of harm to the victim was not a mitigating factor - lesser sentence warranted in law Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482 Category: Principal judgment Parties: Jessica Carroll (Applicant) Crown (Respondent) Representation: D O'Neil (Applicant) F Veltro (Respondent) V Carmody-Smith (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/144993 Decision under appeal Before: Freeman DCJ File Number(s): 2009/217585 Judgment 1BATHURST CJ : I agree with Harrison J. 2BUDDIN J : I agree with Harrison J. 3HARRISON J : The applicant seeks leave to appeal against a sentence imposed on her by Freeman DCJ at the Sydney District Court on 25 June 2010. The applicant was found guilty following a trial with her co-accused Joshua Lowe at Coffs Harbour in April 2010 on one count of robbery in company. She was sentenced to a total term of 5 years imprisonment commencing on 16 April 2010 with a non-parole period of 2 years and 3 months expiring on 15 July 2012 and a balance of term of 2 years and 9 months commencing on 16 July 2012 and expiring on 15 April 2015. 4The applicant relies upon the following grounds of appeal: Ground 1 : It was not open to his Honour to find that the offence fell somewhere "higher up the scale" than the guideline. Ground 2 : The applicant suffers a real sense of disquiet that her sentence was not more significantly lower than that of the co-offender. Ground 3 : His Honour failed to take into account the applicant's affectation by drugs and alcohol at the time of the offence. Ground 4 : His Honour erred in finding that the lack of harm to the victim was not a mitigating factor. Background 5The indictment alleged that on 21 March 2009, whilst in the company of Joshua Lowe, the applicant and Mr Lowe robbed the victim of $300, some papers and a mobile phone. The victim had gone to the Coffs Harbour Hotel late on the evening of 20 March 2009 where he played the poker machines. He was not drinking. He won a jackpot of $1,000. The applicant approached the victim several times whilst he was playing the machines. The applicant worked as a prostitute and the victim had engaged her professionally several times in the past. The applicant was aware that the victim had won a large payout that evening. She offered him her services for the night but he declined. She gave the victim her phone number. 6Later that evening the applicant rang the victim. They agreed that she would come to his premises. The applicant met Mr Lowe at the hotel as it was closing at about 2.00am. They did not know each other and fell into a conversation. They went more or less together to the vicinity of the victim's premises. The applicant rang the victim and told him that she was in the laneway outside his flat. She said she was nursing a sprained ankle. She was crying loudly and sought the victim's assistance to make it across the laneway into his building. The victim came down and crossed the lane to assist the applicant. In doing so he stooped down whereupon the applicant took a very strong hold of him across his shoulders. A male's arm was then suddenly clamped around his throat. The applicant said, "Don't hurt him or kill him". The male offender Mr Lowe relaxed his hold of the victim but pushed him to the ground. The applicant then took his wallet. One of them took the victim's phone. The applicant and Mr Lowe then ran away. 7The learned sentencing judge found that whatever may have been the applicant's motive for saying the words that she said, they had the effect that Mr Lowe released his hold upon the victim. As the victim knew the applicant, he was able to give the police sufficient information for them to apprehend her. The applicant and Mr Lowe gave competing accounts of what occurred, both of which the jury rejected. Ground 1 8In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [161] - [165], this Court proposed the following guideline: "[161] In the cases now before this Court, the Crown has propounded a starting point for New South Wales of six years full term, in circumstances where there is a plea of guilty. [162] It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (i) Young offender with no or little criminal history (ii) Weapon like a knife, capable of killing or inflicting serious injury (iii) Limited degree of planning (iv) Limited, if any, actual violence but a real threat thereof (v) Victim in a vulnerable position such as a shopkeeper or taxi driver (vi) Small amount taken (vii) Plea of guilty, the significance of which is limited by a strong Crown case. [163] Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall. [164] There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi). [165] In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court." 9In R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482 at [20], Simpson J commented as follows: "[20] The legislature has prescribed the same maximum penalty for robbery in company as it has prescribed for armed robbery. I consider that the guideline promulgated by this Court in relation to armed robbery offences is equally applicable to offences of robbery in company which can be seen as broadly equivalent. I would therefore proceed on the basis that the sentence promulgated in Henry in relation to offences of armed robbery provides equally a guideline in relation to offences of robbery in company. Of course, as was stressed in Henry and Jurisic 1998 45 NSWLR 209, a guideline sentence is precisely that and is not to be applied inflexibly." 10In R v Hemsley [2004] NSWCCA 228 at [30], Sperling J also observed as follows: "[30] In Thomson and Houlton , it was made clear that the reference to a plea in Henry was to be taken as meaning a late plea. Thomson and Houlton propounded a discount of 10 to 25 per cent for the utilitarian value of a plea of guilty. The guideline range in Henry was accordingly to be taken as having allowed a discount of 10 per cent for a late plea. In the case of an early plea, a discount on the Henry range of up to 15 per cent was accordingly to be allowed." 11His Honour in the present case proceeded to list the Henry criteria, as they appeared to apply to the applicant, noting the following. The applicant was relatively young. She had a limited criminal history. There was limited planning involved in the offence. The offending conduct was relatively unsophisticated and opportunistic, as his Honour expressly acknowledged. The amount of money involved was relatively small. Finally, the victim was not appropriately described as vulnerable in the sense covered by the guideline. 12His Honour then described the offence in the following terms: "This was, however, a robbery in company with actual violence and together with the absence of pleas of guilty provides ample basis in my view to determine that this crime should certainly not be treated less [ sic , "more"] leniently than that in the guideline, indeed, it falls somewhat higher up the scale." 13The applicant took issue with this assessment. His Honour did not in terms provide any indication as to what influence or role a plea of guilty had in the Henry analysis. In this case the applicant was found guilty after a trial. However, given his Honour's findings that the applicant was relatively young, had a limited criminal history, that there was limited planning and a small amount of money involved, and that the victim was not relevantly vulnerable, the applicant contended that an assessment of the crime as "somewhat higher up the scale" simply could not stand. There was no weapon capable of killing or of inflicting serious injury. There was limited violence. 14Her Honour Simpson J dealt with the issue of violence in Murchie at [19] in these terms: "[19] There are, as I have indicated, some of the features nominated in Henry which are not here present. The first is the existence of some kind of weapon, such as a knife or gun, in the commission of the offence. However, that fact is balanced in my opinion by the fact that this was an offence committed by four young men who, it can be seen from witness statements and from the photographs, behaved in a violent and very aggressive fashion. As I observed during the course of argument during the application, we have been able to see that the applicant is a large, well built and apparently fit and healthy young man and the photographs suggest that the same description can be applied to the co-offenders. 15Counsel for the applicant sought to emphasise the difference between that case and the present, where the applicant insisted at the time of the offence that her co-offender not hurt or kill the victim when the co-offender took hold of him. His Honour dealt with this in his remarks on sentence as follows: "Counsel for [the applicant] seeks to derive considerable benefit from the fact his client had uttered this caution, "Don't hurt him or kill him". It is to her benefit but her remark is open to a number of interpretations. One is that she had not contemplated her co-offender taking hold of the victim. Another is that she was simply anxious to ensure that no more serious crime was committed. Counsel submits the first of those interpretations is to be preferred. The idea that the actions of Lowe came as a complete surprise to [her] seems to me to come dangerously close to traversing the jury's verdict. I would, in any event, be more impressed if her statement was unequivocally expressive of surprise, for example, "Take your hands off him", or "Let him go", or "What are you doing?" so as to indicate that what was being done was not part of the plan. I think the latter interpretation is the more likely, namely that the instruction was given partly out of self-interest rather than as indicating that the role being played by her co-offender was entirely unexpected, but whatever be her motivation the fact is that her direction had, from the victim's point of view, the desired effect and the pressure on his neck was loosened." 16In my opinion it is somewhat difficult to see how his Honour came to the view that the instant offence was somewhat more significant that the hypothetical offence contemplated by the Henry guideline. The only real departure from the clutch of factors called up for consideration is the issue of the plea of guilty. That is itself an interesting factor in this case for other reasons, inasmuch as the applicant was well known to the victim. Indeed, her relationship with him was instrumental in enticing him into the situation that became this offence. In those circumstances her ultimate identification and detection were a foregone conclusion. Precisely upon what basis the applicant sought to defend the charge before a jury is therefore something about which one can only speculate. 17His Honour clearly decided that a starting point beyond and above the upper end of the contemplated Henry range of 5 years was appropriate. It was submitted on behalf of the applicant that this was a finding that was not open to him. In support of that contention the applicant argued that a head sentence at the top of that range must mean that the learned sentencing judge failed to take account of other significant factors that should have indicated a somewhat lower head sentence. The most significant of those factors was assistance given by the applicant to the police in identifying her co-accused. To understand that submission it is instructive to examine the way that his Honour dealt with that issue. In his remarks on sentence he said this: "As to assistance, I refer to the judgment of the Court of criminal Appeal in Cartwright ...It seems to me that the principle enunciated in that decision may be regarded as a single edged blade. It cuts in favour of the offender so as to increase the discount provided for assistance, if that assistance was motivated by remorse and/or a genuine desire to assist the process of justice. If however, the provision of information is motivated by some less worthy cause such as revenge, or as in this case, a desire to exculpate herself at the expense of her co-offender, the principle does not cut so as to diminish the advantage gained as long as the information is accurate and truthful. It is the effectiveness of the assistance into which the Court is obliged to inquire. Here there can be no doubt that the information was effective. Absent the identification of her co-offender, Lowe would not have been arrested, would not have been charged and consequently would not have been convicted." 18Part of what passed between counsel for the applicant and the bench in the course of the oral argument in this Court is also instructive. It was as follows: " O'NEIL : His Honour dealt with assistance at the foot of page 9 referring to Cartwright and concluded that even if the assistance or whatever basis for the assistance, it's the effectiveness of the assistance right at the foot of the line which this Court is obliged to enquire. Here there can be no doubt that the information was effective, absent the identification of her co offender, Lowe would not have been arrested, would not have been charged, and consequently would not have been convicted. That is assistance of some significance and that's a factor which must be taken into account external to the factors set out in the guideline. BATHURST CJ : It does not appear that the learned sentencing judge did take that into account. O'NEIL : He did take that into account but what that means, in my respectful submission, is if he ended up with a head sentence of five years which is at the top of the range of the guideline, then prior to getting to five years, notionally there must have been some greater figure because the [ sic ] had to incorporate the matters external to the guideline or additional to the guideline, the subjective factors including the assistance and including his Honour's assessment of the applicant's prospects of rehabilitation as reasonable with a lot of help at about 9.25, so that notionally the approach in the way I am suggesting is his Honour's starting point was above five years and outside the guideline." 19The applicant argued that the Henry analysis, if properly applied in this case, could not have propelled the starting sentence higher than the term of 5 years, which his Honour imposed. In other words, 5 years was the outer limit because a comparison of this case with the guideline judgment indicated that the present case was at worst at the top of, but not beyond, that range. If that is correct, his Honour could not have given the applicant a discount for the assistance she provided, because the sentence would necessarily have been lower than the outer limit of the Henry guideline. The problem has been exacerbated by the fact that the size or extent of the discount for assistance has not been nominated. 20It is difficult to think that a proper discount for the assistance given by the applicant in this case would not have been in the order of approximately 20 per cent. Having regard to its unambiguous utility, it is arguable that a higher figure may have been adopted. Applying that percentage to a starting point head sentence of 5 years necessarily produces a sentence of 4 years. 21I consider that his Honour erred in finding that this case fell somewhere higher up the scale than the 4 to 5 year range referred to in Henry . The violence was in realistic terms fairly mild in the scale of violent robberies and assaults. No blows were inflicted, no weapons were used, no serious, enduring or significant injuries were sustained, the victim was not vulnerable, the amount of money involved was small in the overall scheme of things and the use of the term "planning" in the context of what occurred almost does injustice to the language. To my mind a better description of what occurred would be ill considered opportunism. There is some suggestion from the evidence that any so-called planning that may have been involved occurred at a time when the applicant was under the influence of, and affected by, drugs. Whatever motivated the offence was clearly not overridden, in the case of the applicant, by any rational fear of detection. 22Allowing for the countervailing fact that the applicant took her chances before a jury, for whatever unexplained and possibly inexplicable reason, I would have thought, having regard to what was said in Henry , that 5 years represented the upper limit of any starting point for the head sentence in this case. I consider that an allowance or discount for assistance should have been applied to that starting point. I consider that his Honour was in error to impose the sentence that he imposed. It is at one level difficult to reconcile his Honour's view that the offence fell "somewhat higher up the scale" than that indicated by the Henry guideline on the one hand, and his Honour's later comment that he "accept[ed] the Crown formulation that this offence [fell] within the mid range of objective seriousness for offences of this nature" on the other hand. I remind myself that the Henry analysis emphasised "a narrow sentencing range within which this Court would expect sentences in such cases to fall". I consider that his Honour's sentence in this case was erroneously outside that range and that some other sentence is warranted in law and should have been passed. Something in the order of a head sentence of 4 years is in my view a proper starting point for the applicant's offending in all of the circumstances of this case. Ground 2 23In my opinion there is no merit in this ground of appeal, except to the extent that the applicant's disquiet arises from the matters to which I have already referred. That is not germane to this ground of appeal. In other words, I do not consider that there is any basis flowing from the principles of parity upon which to conclude that a comparison between the applicant's sentence and the sentence imposed on Mr Lowe of 6 years with a non-parole period of 3 years could give rise to any justifiable sense of grievance. Ground 3 24The applicant did not suggest that his Honour did not extensively refer to her drug and alcohol history or that drugs and alcohol affected her at the time of the commission of the offence. His Honour in fact specifically noted that at that time the applicant was "apparently affected" by amphetamines, Ritalin, possibly morphine and that she was certainly heavily affected by alcohol. 25In the course of his remarks on sentence his Honour specifically referred to the fact that her mother had introduced the applicant to drugs. She then later became her mother's carer. Her life was surrounded by discord, violence and substance abuse. She commenced using cannabis and alcohol at the age of 13, amphetamines at 17, heroin at 20 and she has also used morphine and cocaine. The applicant has used prescribed methadone since 2004 but since then she has also been abusing other prescription drugs including Oxycontin, Valium, Serapax and Xanax. 26The applicant's specific complaint is that his Honour did not discuss her history of drug and alcohol abuse or her affectation by drugs and alcohol at the time of this offence as a factor warranting consideration. I agree that his Honour does not in terms make reference to this fact. However, it seems to me to be implicit in his remarks about her drug and alcohol abuse that he assumed or operated upon the basis that the offence was committed in a desperately drug affected or intoxicated state. As I have already indicated, the certainty of detection would appear to be a strong indicator of that fact. 27The applicant emphasised that the offence was so out of character with her prior criminal history that it could not reasonably be explained on any basis other than the overriding effects of substance and alcohol ingestion. Whilst I accept that as a matter of probability in this case, it does not to my mind translate into the identification of an error in the way in which his Honour sentenced the applicant. Her life was a tragic one and his Honour appears clearly to have recognised this. Whereas others may have taken a different view about the way in which or the extent to which that should have been factored into the production of a lesser sentence, I cannot detect error in his Honour's approach. Ground 4 28His Honour said this about the offence and its effect upon the victim: "As to the impact on the victim there is little evidence apart from the fact that [he] was greatly discomforted in giving evidence and spoke of his shock and fear at the time he was robbed. I do not regard the absence of more evidence as indicat[ing] that the harm done to him was not substantial. It is not therefore a mitigating factor. There is, however, no basis on which I would be prepared to find that this was an aggravating factor under s 21A(2)(g)." 29His Honour also observed that the "victim was shocked and sustained minor scrapes to his neck and leg". The applicant submitted that the level and extent of harm suffered or sustained by the victim as a result of the offence was less than one would anticipate to be the normal consequence of such a crime and as such the lack of harm was a mitigating factor within the terms of s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 as follows: " (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial,..." 30In the applicant's view, the only evidence before his Honour suggested unambiguously that any injury, emotional harm, loss or damage caused to the victim by the offence was not substantial. The applicant contended that it was not permissible in these circumstances for his Honour not to have given the applicant the benefit of a mitigating factor with statutory recognition in the absence of evidence indicating and establishing that something more substantial in the nature of injury and the like resulted from the crime. She submitted that such an approach was indicative of error. 31The onus of establishing the existence of facts supporting the existence of a mitigating factor would in the normal course of events rest with the applicant on the balance of probabilities. At the heart of the present submission would appear to be a tacit recognition of the problem confronting someone in the applicant's position, faced with the prospect of having to establish through a potentially hostile witness (the victim) that any injury, loss or damage suffered by him or her of whatever kind was not substantial. Issues of access to sufficient material to establish the facts may be difficult, and questions of privilege may also arise. 32In the present case his Honour expressed the view that the state of the evidence was such that he was not prepared to come to the view that the relevant injury was not substantial. His statement was on one view a comment upon the adequacy of the evidence upon which the applicant could rely, or to which she could point, to prove the true position. His Honour in effect found that the applicant had not proved that the injury to the victim was not substantial. It seems to me that his Honour was entitled to take that view and that he was not in error in doing so. Consistently with the view that his Honour would appear to have formed about the state of the evidence, he was also not prepared to conclude that the injury to the victim was such that it amounted to or established an aggravating factor. In other words, his Honour was not satisfied that there was sufficient evidence to make a finding either way. I can detect no error in the way that his Honour approached the matter. Conclusions 33For the reasons I have given in relation to Ground 1, I consider that some other sentence is warranted in law and should have been passed. Against the contingency that this Court were minded to resentence the applicant, a number of affidavits were read in her application. Some of the matters referred to in those affidavits include the following. 34The applicant's sister is a police officer. The applicant was assaulted in prison on 20 June 2011 and has been in limited protective custody since that time. The applicant considers that there is a connection between the assault and her sister's occupation. Furthermore, on 6 July 2011 the applicant was moved from the Mid North Coast Correctional Centre to Silverwater Women's Correctional Centre. The applicant understands that this move was the result of her being placed in protective custody. This is now a significant distance from her family in Coffs Harbour. Her family includes her two children aged 8 and 6 years, one of whom has a medical condition involving enlarged lymph nodes in his neck. 35The applicant has undertaken an impressive list of courses whilst in custody. Her certificates of achievement are in evidence. They include a Certificate III in Business (Medical Administration), Theory in Hygiene Operations, Fair Trading Skills program and several others. The applicant is now drug free and has sought regular psychological assistance from the Department. She appears to have developed considerable insight into her prior offending and her current predicament. Orders 36I consider that the applicant should be re-sentenced. In lieu of the sentence imposed by his Honour a head sentence of 4 years with a non-parole period of 1 year and 9 months and a balance of term of 2 years and 3 months should be imposed. This has the effect of reducing the original head sentence of 5 years by 1 year and of reducing the non-parole period by 6 months. The applicant would become eligible for release on parole on 15 January 2012. 37The formal orders I propose are as follows: 1. Grant leave to appeal and allow the appeal. 2. Quash the sentence imposed by Freeman DCJ on 25 June 2010. 3. In lieu of the sentence imposed by Freeman DCJ the applicant is sentenced to a term of imprisonment of 4 years with a non-parole period of 1 year and 9 months commencing on 16 April 2010 and expiring on 15 January 2012 and a balance of term of 2 years and 3 months commencing on 16 January 2012 and expiring on 15 April 2014. 4. The first day upon which the applicant will be eligible to be released on parole is 15 January 2012. ********** 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. Decision last updated: 06 September 2011