R v Karl HERDEN and Iga SOSINSKA [2013] NSWDC 219

District Court New South Wales

Medium Neutral Citation: R v Karl HERDEN and Iga SOSINSKA [2013] NSWDC 219 Decision date: 29 August 2013 Before: Cogswell SC DCJ Decision: For offence of offence of robbery in company - Sosinska: a sentence of 4 years imprisonment, non-parole period of 2 years. Herden: a sentence of 3 years and 9 months imprisonment, non-parole period of 1 year and 10 months. Catchwords: CRIMINAL LAW - Particular offence - robbery in company - victim withdrew money from ATM - chased, tackled, punched and money taken - Sentence - relevant factors - gravity of offence - lower third of objective seriousness - spontaneous, unplanned, involved some violence - response to charge - no plea of guilty - jury trial - nature and circumstances of offenders - both experienced significant childhood trauma - drug addiction - prior criminality - Sosinska on conditional liberty when offence committed - engaged in rehabilitation since offence - special circumstances - requires support in the community for rehabilitation. Legislation Cited: Crimes Act 1900, s 97(1). Cases Cited: Callaghan v R [2006] NSWCCA 58. R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. Category: Sentence Parties: Regina (Crown) Karl Anthony Herden (Offender) Iga Agata Sosinska (Offender) Representation: Counsel: K N Magnus (Crown) B Rowe (Offender - Herden) M Crawford-Fish (Offender - Sosinska) File Number(s): DC 2012/188943 (Herden) DC 2012/188949 (Sosinska)

REMARKS ON SENTENCE HIS HONOUR: Mr Herden and Ms Sosinska, you probably know the routine. I have got to talk about your case in what we call my remarks on sentence. I have got to say what you did and look at the arguments that have been put for you and then I announce your sentences at the end and you will have to wait till then. Some judges tell you in advance. I do not, because I want you to listen to what I am saying. 1I am having to sentence Karl Anthony Herden and Iga Agata Sosinska for a serious crime. I have a lot of information about them personally. They have had two lives as ordinary people but had particular challenges as young people. In both cases they had to deal with some significant trauma. One of the ways of coping with those challenges and trauma was the use of illegal drugs and alcohol. But things did not improve and they became addicted to more potent drugs and the addictions gripped them both. They did not know each other as young people but now they are a couple. They committed the crime that I am sentencing them for together. 2Their lives before this crime are reflected in their criminal records. Each of them have committed offences of petty crime dealt with in the Local Court but now they have committed a more serious offence which I have to deal with in the District Court. They bashed and robbed a man who was doing no more than withdrawing some money from an ATM. They therefore transferred or imposed upon him some measure of trauma. 3The crime that I am sentencing each of them for is called robbery in company. It is a serious crime. It is made into a crime by s 97(1) of the Crimes Act 1900 and carries a maximum of 20 years imprisonment. 4I need to say something briefly about what happened. A man went to an ATM in Oxford Street, Darlinghurst to withdraw some money. It was a busy Saturday evening. Ms Sosinska sidled up next to him and tried to grab the money from him. All it was was $60. She was unsuccessful in getting the money and the man tried to get away. Mr Herden was with her. He was standing back a little. Ms Sosinska in the meantime chased the victim. Mr Herden joined in. The victim was tackled, punched and the money was taken. I do not need to find who exactly delivered the punch. To my mind the offence was initiated by Ms Sosinska but then Mr Herden joined in. 5Ms Sosinska pleaded guilty to the charge of robbery but that was not accepted by the Crown who proceeded with the charge of robbery in company against both. The trial proceeded before me and a jury and on 13 June 2013 the jury returned verdicts of guilty of robbery in company in respect of both of the offenders. 6It is important for a judge to say something about the personal circumstances of an offender in addition to the details of the crime. I have some material about each of Mr Herden and Ms Sosinska. 7I will start with Mr Herden. Mr Herden is 37. He has a criminal record. In fact he has been dealt with by the District Court before for an aggravated enter a dwelling in company. He was given a 2 year prison sentence for that crime. Otherwise his offences have been petty crime dealt with by the Local Court but the crimes included one assault and one assault occasioning actual bodily harm. 8There is a report from a clinical and forensic psychologist named Mark Milic about Mr Herden. He noted the trauma which Mr Herden faced as a child which included the suicide of a brother and the death of his grandfather when he was an adult but reasonably young. When he was still in year 11 at school his mother died. 9He has done various kinds of jobs and his longest job was as a cleaner for three years. He has two sons who are about eight and about ten and is presently in a relationship with Ms Sosinska who is not the mother of those boys. He has taken in the past marijuana, amphetamines, heroin and the amphetamines included ice. He has spent time in hospital with an episode of marijuana induced psychosis. To his credit he overcame his heroin addiction with the help of methadone, but relapsed using ice amphetamines. 10He is interested in pursuing some vocational training. Mark Milic thought that Mr Herden "articulated realistic plans to improve his work skills and gain access to his two children." Mr Milic thought that Mr Herden "would benefit from drug relapse prevention counselling." 11Ms Sosinska is 34. Her criminal history includes petty crime dealt with in various Local Courts. There was one common assault in 2009. She has had a lot of leniency extended to her, perhaps I should say opportunities. She has been given the benefit of various good behaviour bonds but resorts to petty crime such as shoplifting and goods in custody. She has breached bonds and spent time in gaol. She also has a conviction for the Federal offence of knowingly obtaining a payment which was not payable. In fact, significantly, Ms Sosinska was on parole when she committed this offence. She had been released only about a week earlier on parole for a driving offence when she committed this offence. She had to serve the balance of that parole and I will say something more about that later. The commission of the offence that I am sentencing her for was the only reason for the revocation of her parole. 12There is a pre-sentence report prepared by the Silverwater Community Corrections Unit concerning Ms Sosinska. It referred to the fact that she has a son who is about 11. It referred to some trauma in her childhood when she says that she was sexually assaulted by the relative of a friend of hers. She was only about 12 years old. She in fact left school at year 12. She has undertaken various types of casual employment and has also taken government benefits. She has also undertaken work whilst in custody. 13Ms Sosinska started drinking alcohol when she was 12 and started using cannabis the following year. She linked that to the claim that she had been sexually assaulted. She began to experiment with ecstasy and amphetamines and LSD. This was when she was a teenager. She remained a cannabis user but had also become addicted to heroin by the time she was 19. She obviously needed a lot of money to support her habit which is reflected in her criminal record. 14To her credit, this year she completed a 3 month residential drug and alcohol program at Guthrie House. As the pre-sentence report said her "positive urinalysis in June 2013 for 'Xanax' would indicate that the offender struggles with illicit drug use and appears to have unresolved emotional and drug abuse issues." She had been using drugs on the day that she committed the offence that I am sentencing her for. She is being treated with anti-anxiety medication by Justice Health whilst she is in custody. She said that she experiences symptoms of anxiety, depression and paranoia and she copes with these, when her life is not in control, by the use of illicit drugs. The author of the report thought that Ms Sosinska "appears to have insight into her personal and drug related issues, however, she struggles to address her longstanding reliance on illicit drugs." 15Ms Sosinska's mother lives in Poland and she has a family friend but her main relationship is with her co-offender, Mr Herden. She expressed some empathy for the victim of the offence. There were some recommendations for referral to various rehabilitation programs. 16There is a psychological report which has been prepared regarding Ms Sosinska by a forensic psychologist Caroline Hare. Ms Hare noted the same history which I have already referred to, including Ms Sosinska's reliance on and descent into illegal drugs in order to cope with her emotional challenges. Her son was from a previous partner and she was in a violent relationship with him. Ms Hare thought that Ms Sosinska should have "ongoing close monitoring of her mental health needs, and development and helpful and healthy coping strategies". She thought that it was positive that Ms Sosinska had engaged in rehabilitation and individual therapy after this offence and thought that she would benefit from further therapy. She needed some relapse prevention interventions. 17There is a report from a psychologist whom Ms Sosinska saw a couple of years ago, Tom Gross, who noted the struggles that she has and issues with custody of her son. 18Mr M Crawford-Fish who appeared as counsel for Ms Sosinska on her trial and also in the sentence proceedings tendered a number of certificates and documents pointing to Ms Sosinska's education. There was also a note from a drug and alcohol worker at Leichhardt Women's Community Health Centre which noted that Ms Sosinska had in fact attended for a drug and alcohol counselling assessment before she was returned into custody. 19Mr Herden has been in custody since 15 June 2012 on this offence only and I will date the sentence from then. 20Ms Sosinska's history of custody is a little more complex. As I said, she committed this offence when she was only about a week into her parole for another offence. That parole was revoked from 20 July 2012. Mr Crawford-Fish drew my attention to the judgment of Simpson J with whom the other judges agreed in the Court of Criminal Appeal in Callaghan v R [2006] NSWCCA 58 about whether or not a sentence should be backdated somewhat when the only reason for the revocation of the parole was the offence which the sentencer is about to impose. It was acknowledged that sometimes of course an offender may get a further allowance of parole. On the other hand Simpson J expressed the view that that may not be appropriate where an offender has committed another offence within a short time of being released on to parole - that is certainly the case here - and when an offender has a relatively short period of parole - that is certainly the case here. In the circumstances I propose to make an allowance of 7 days in respect of the balance of parole. 21Looking at exhibit B which is the Crown sentence summary, it indicates that the calculation of time spent in custody regarding this offence is 148 days up to 9 August 2013 when I heard sentence submissions. I propose to add another 21 days to that so that it becomes an allowance of 169 days and I will add the 7 days for the balance of the parole and backdate the sentence by 176 days so that it will commence on 6 March 2013. 22I was reminded by Mr K N Magnus who appeared for the Director of Public Prosecutions in the sentence proceedings of the principles which relate to the sentencing of persons convicted of offences against s 97 of the Crimes Act. 23Both Mr Crawford-Fish and Mr B Rowe (who appeared for Mr Herden) emphasised the fact that the robbery was obviously spontaneous and unplanned. I accept that submission. I accept Mr Crawford-Fish's submission that his client is showing positive signs and has made some significant steps towards her rehabilitation. I do note that the offence in this case involved some violence and also that in Ms Sosinska's case she was on conditional liberty when she committed the offence. There are, I accept from both counsel, special circumstances for adjusting the usual ratio between a non-parole period and a head sentence. Normally a non-parole period would be 75 per cent of a head sentence but in each case I will reduce the non-parole period. 24Mr Magnus drew my attention of course to the Court of Criminal Appeal's guideline judgment about armed robbery which applies to robbery in company in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. Drug taking is not an excuse for this sort of crime. In fact the impression one gets is that most of these armed robberies are committed by persons who are addicted to drugs. But the community cannot tolerate people assaulting and robbing its own members in order to supply themselves with their illicit drugs. The guideline judgment suggests a range of 4 to 5 years as a sentence. That of course assumed a plea of guilty. In this case there was a trial and no plea of guilty. I accept that the offence was in the lower third of objective seriousness for this kind of offence. On the other hand the maximum is 20 years imprisonment. 25I had in mind that an appropriate sentence for each offender would be in the range of 5 years imprisonment. However I was provided with the statistics produced by the Judicial Commission which became MFI 28. It is apparent from those statistics that for all offenders only 24 per cent received a sentence of 4 years or greater and I am going to take that into account as a factor. I am not confident that I am right in taking that into account but I also bear in mind the efforts of each of the offenders to deal with their drug problems. 26I regard an appropriate sentence for Ms Sosinska as one of 4 years imprisonment. Normally a non-parole period for that sentence would be one of 3 imprisonment but I propose to reduce the non-parole period to 2 years imprisonment. The special circumstances are the support that she will need in the community for her rehabilitation efforts. Backdated to 6 March 2013 her sentence will expire on 5 March 2017 and her non-parole period will expire on 5 March 2015. 27I propose to impose a sentence on Mr Herden which is slightly less than that of Ms Sosinska. It will be 3 years and 9 months. That is because there was not present in his case the aggravating feature of the offence being committed whilst on parole. Mr Herden's sentence of 3 years and 9 months will commence on 15 June 2012 and will expire on 14 March 2016. I propose to fix a non-parole period in respect of Mr Herden of 1 year and 10 months which will commence on 15 June 2012 and will expire on 14 April 2014. HIS HONOUR: All right, Mr Herden, if you would stand up. 28Mr Herden, I sentence you to imprisonment for 3 years and 9 months. The non-parole period is 1 year and 10 months. It commenced when you went into custody on 15 June 2012 and it will expire on 14 April 2014. The balance is 1 year and 11 months commencing on 15 April 2014 and expiring on 14 June 2016. The first date on which you are eligible for parole will be next year, 14 April 2014. Have a seat. 29Ms Sosinska, I sentence you to 4 years imprisonment. That sentence will commence on 6 March 2013 and it will expire on 5 March 2017. I fix a non-parole period of 2 years commencing on 6 March 2013 and expiring on 5 March 2015. The first date on which you will be eligible for parole is 5 March 2015. If you would have a seat. HIS HONOUR: Now take your time and do the calculations to make sure I have it right. ROWE: Your Honour, in relation to Mr Herden, I thought your Honour gave a balance of 1 year and 11 months commencing on 15 April 2014. I'm not renowned for my mathematical ability or even arithmetic but I think that would be 14 March 2016. HIS HONOUR: I should have said 14 March 2016. You are right. ROWE: Thank you, your Honour, I might have misheard your Honour. 30So to make it clear, Mr Herden's sentence is 3 years and 9 months. The non-parole period is 1 year and 10 months. The sentence commenced on 15 June 2012. The sentence expires overall 14 March 2016. The non-parole period expires 14 April 2014. ROWE: Thank you, your Honour. HIS HONOUR: Does that make sense? ROWE: Yes, your Honour. HIS HONOUR: Mr Crawford-Fish? CRAWFORD-FISH: Your Honour, I agree with the figures. HIS HONOUR: Ms Kelly, it seems right? KELLY: Yes, your Honour. HIS HONOUR: Now I need very briefly to explain to each offender. Is there anything else that I need to do? And I don't fix the release because they're both over 3 years. Now one thing is that you might get instructions on, both of them have a psychological report, a couple in Ms Sosinska's case. The Corrective Services authorities who classify prisoners say that such reports are very helpful to them in the classification and my associate can send those today or tomorrow but will not - some people don't want that sort of material floating around so if you would get instructions. ROWE: My client has no objection to that, your Honour, thank you. CRAWFORD-FISH: Yes, Ms Sosinska would be grateful that that be done. HIS HONOUR: Thanks Mr Crawford-Fish, thanks Mr Rowe. Now I'm just stating the obvious but I have to explain it to you. Ms Sosinska, you've received a 4 year sentence. It's backdated to take into account the time you've spent in custody and I've given you a week for the balance of parole as well. So it started back on 6 March 2013 and the overall sentence will expire 5 March 2017, so you're still under sentence until then. I have specified a non-parole period of 2 years so that you'll be eligible for parole on 5 March 2015, do you understand that? Whether you get parole, as you know, is up to the Parole Board, not me. Mr Herden, your sentence is 3 months less because Ms Sosinska was on parole when she committed the offence, you weren't. So your overall sentence is 3 years and 9 months. I've backdated it to when you first went into custody last year on 15 June. It therefore expires overall on 14 March 2016. You're under sentence until then. Your non-parole period is 1 year and 10 months and that will expire on 14 April next year when you'll be eligible for parole and, as you know, whether you get parole is up to the Parole Authority. Anything else from anyone? ROWE: Nothing, your Honour. HIS HONOUR: Mr Crawford-Fish? CRAWFORD-FISH: Your Honour, I tendered certificates on sentence and I'm not sure of the exhibit number but I wondered whether I could substitute copies of those certificates and have the original certificates returned. HIS HONOUR: Yes, I think that is right. Yes, I think what we'll do is if you provide the copies for a start. The court officer will take the copies. You also provided working copies and I've been working from those and what we'll do is my associate will retrieve the originals from the court file, I will mark the copies as the exhibit - is that okay, Ms Kelly? KELLY: Yes. HIS HONOUR: And my associate will send back to you in the document exchange the originals. Is that satisfactory? CRAWFORD-FISH: Yes, your Honour. HIS HONOUR: Anything else? CRAWFORD-FISH: No, your Honour.