R v Ball [2016] NSWDC 301

District Court New South Wales

Medium Neutral Citation: R v Ball [2016] NSWDC 301 Hearing dates: 5 February 2016 Date of orders: 05 February 2016 Decision date: 05 February 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Impose an aggregate sentence of imprisonment consisting of a non-parole period 2½ years and a head sentence of 5 years Catchwords: CRIMINAL LAW – Sentence- Armed robbery – Robbery with detention – Form 1 – Robbery – Steal from a dwelling Legislation Cited: Crimes Act Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R Category: Sentence Parties: The Crown Renee Ann Ball Representation: Solicitors: Director of Public Prosecutions Legal Aid Commission – The offender File Number(s): 2015/50418

Judgment 1. HIS HONOUR: There was a delay in bringing Ms Renee Ann Ball up from the cells so that her sentence proceedings could commence today. With the consent of both parties, I was given some documents to read in the meantime. One of those documents was a criminal history which, as is common these days, contained a photograph of the offender on her arrest. When Ms Ball was eventually brought up from the cells I, at first, thought that I had been reading the wrong papers, such was the contrast between Ms Ball's appearance when arrested and her appearance today. She is, in many respects, a much different person today than she was when she committed the offences for which I must sentence her. 2. At the time of those offences she was using drugs, mainly ice, but other drugs on occasion as well. In order to fund her addiction, she committed a number of serious offences. In many ways, these offences were pathetic, both in terms of the way they were carried out and the monetary reward that they brought Ms Ball, but they were, nevertheless, harmful and dangerous and objectively very serious indeed. It is for that reason that Ms Ball must spend a substantial period in custody, even given the rehabilitation that she has achieved since her arrest. 3. I am to sentence Ms Ball today for two offences of armed robbery and one offence under s 95 of the Crimes Act of robbery with detention. When I sentence her for that last offence, I am to take into account two offences on a Form 1, an offence of robbery and an offence of stealing from a dwelling. 4. What I will do now is describe the offences in the order in which they were committed. 5. The first offence is on the Form 1 as an offence of robbery. In the early evening of 9 February the offender approached two female American tourists in Hunter Street. She said, "I need your money. I have a knife and my friend across the street has a gun. Give me your money, I'm very sick, I have a baby. I'm very sick and I need the money." There is no suggestion that there was any truth to the threat involving the supposed friend across the street with a gun and it was apparent that Ms Ball never had a knife. 6. When she made the threat that she did have a knife she had her hand behind her back and so no doubt the victims of this offence believed her. However, as she became more animated, she motioned with her hand and it was apparent that she did not have a knife in it. 7. Ms Ball was told that the women did not have any money, so she said, "Go to the nearest ATM and take out all you have." At this stage one of the women gave the offender $150 and Ms Ball left, saying, "God help me if I ever see you on the street again, I'll give it back to you." 8. We then come, on 14 February, to what is agreed to have been the most serious offence committed by Ms Ball. A Swedish au pair was walking along Beaumont Street in Hamilton South. Ms Ball approached her and started to talk to her. She then grabbed her and held her from behind. She pushed something into the woman's back and said, "I'm pushing a knife to your back right now. Give me your wallet." One can only imagine the fear and indeed terror which was likely to have been engendered by the violence and threat. 9. The victim removed her wallet, gave it to the offender who took $50 out. That was not enough for Ms Ball. She said, "Do you have any more money?" The victim said, "My cards are empty." Ms Ball did not give up. She said, "Is there anyone in this area who could bring you money right now?" The victim said, "No" and still Ms Ball persisted, saying, "You must come up with a way." So the victim phoned a friend but that friend did not have any money. Ms Ball said, "Is there anyone else you can call?" The victim made reference to the family for whom she worked, who lived around the corner. Ms Ball said, "Call the lady in the family. Tell her to come here with all the money that they have in the house." The victim called the family and asked if they had $100 in the house. She was told "No". Ms Ball said, "Just ask if there's any money at all." 10. One can only imagine the state that the victim was in by now. She had been held for some considerable period, with what she was told was a knife pressed into her back. She started to beg the family for whom she worked to bring the money. They began, that is the two of them, walking towards that house. One of the occupants, a male, came out of the house. He was concerned by the telephone call he had got from the au pair. He saw Ms Ball holding the victim from behind and told her to let the au pair go. Ms Ball did so. She then started to walk away. The male followed her, caught up with her, demanded she return the victim's wallet and so Ms Ball took him to where the wallet was hidden. 11. We now come to a series of offences on 17 February 2015. At about 9.25am a Ms Versilla was walking to her place of work in Newcastle East. It was her job to open the business up. As she did so, the offender followed her in. They were both in the premises and, following some small talk from the offender, she said, "Give me your bag." Ms Versilla said, "No." Ms Ball repeated the demand and then lunged at Ms Versilla, grabbing the bag. They struggled for possession of it. It was at this stage that Ms Ball produced a box cutter and lunged at the victim with it. Not surprisingly, Ms Versilla let go of the bag and Ms Ball left with it. 12. Ms Versilla called out for help. Her cries for help were heard by passersby who followed Ms Ball into a lane and photographed her. She was cornered and returned the handbag but managed to slip away before police arrived. 13. About an hour later, at 10.30am, she walked to premises in Mayfield and knocked on the door of a Ms Gjuroski. There was no evidence as to how old Ms Gjuroski was but there is evidence that she was frail and relied on the use of a walking frame to move around the home. When she opened the door to Ms Ball the latter said, "I'm tired, I've been walking too much." Ms Gjuroski acted like a good Samaritan, she allowed Ms Ball to enter and asked if she had seen a doctor. Ms Ball asked her to lend her some money so she could go to the doctor's and asked how much money Ms Gjuroski had. She said she did not have any. Ms Ball persisted, asking for $20, then $10. Ms Gjuroski replied on each occasion she did not have any money at all. 14. Ms Ball began talking about her baby, that she was pregnant at the time and said that she was hungry. Ms Gjuroski, being the good Samaritan that she was, said that she would get a banana and walked into the kitchen. Ms Ball took advantage of Ms Gjuroski's generosity, took advantage of her good nature, by grabbing her handbag and leaving, taking with her Ms Gjuroski's purse containing $20, various bankcards and personal cards, as well as a key to her house. 15. This was a nasty offence. When I discussed this offence with Ms Ball while she was giving evidence, quite appropriately, Ms Ball expressed her remorse for how she had treated Ms Gjuroski. 16. Then, on the same day, at 2.45pm, Ms Ball went to a florist's shop. A Ms Hickson was working there. Ms Ball entered while Ms Hickson was dealing with a customer. After that customer left Ms Ball said to Ms Hickson that she was pregnant, complained of the heat and there was some discussion about purchasing flowers. So, Ms Hickson started to make the flower arrangement. 17. At this stage it appeared to Ms Hickson that Ms Ball was not terribly well. She started to puff and breathe heavily and so Ms Hickson offered to get her a seat and a glass of water. While she was out getting the water she heard Ms Ball at the till, so she came back into the shop. Ms Ball turned to Ms Hickson and said, "Open the till." Ms Hickson said, "No" and so Ms Ball produced the box cutter and again said, "Open the till" whilst pointing the box cutter at Ms Hickson's chest. Of course, Ms Hickson was extremely scared. She again said, "No" and started backing away from Ms Ball and ran out screaming for help. 18. Ms Hickson locked Ms Ball in the shop. Ms Ball finding herself trapped, began to violently shake the front door and Ms Hickson decided to let Ms Ball out rather than take the chance there would be further damage done to the shop. So, she left the store having taken $10. Other people attracted by the commotion followed her and, again, she was photographed. 19. That same day she was arrested and has been in custody ever since. She made admissions in relation to the offences and, consistent with those early admissions, pleaded guilty in the Local Court. The utilitarian value of her pleas should be recognised by me imposing a sentence upon her which is 25 per cent less than what it would otherwise have been. 20. Ms Ball has a sad history. She told a psychologist that as she was growing up she was abused, physically and verbally, by her brother, Martin. Her mother did nothing to protect her from her brother's behaviour, telling her at one stage, "My job is done now you are older." She left fulltime education very young, at 13 and has had relationships which were detrimental to her. Drug use has been a feature of her adult life. She supported her drug habit through offending at times and prostitution at other times. 21. Her relationship with a Mr Cassel ended when he left her. She began a relationship with a Mr O'Brien. It was then that she began to use the drug ice, having been on a methadone program for some time. She gave up methadone, began using heroin and committed crimes to fund her drug addiction. 22. She had a number of children with Mr Cassel. When they separated the Family Court gave him custody. Ms Ball had the right to contact her children but she did not engage with that process and so her contact with her children ceased shortly after. She began using heroin again, became homeless and it was in these circumstances that she committed the offences which I have described. 23. She told the author of a psychological report "I'd lost my kids, I was pregnant with no methadone and desperate." She expressed her remorse too, saying, "I wish I could take it back. I wish they", referring to the victims, "could feel and understand how sorry I am that I'd just take it back." 24. Whilst in custody she has been doing well. She tries to keep herself as busy as she can. She is on the methadone program and, as I began these remarks on sentence, is a much healthier looking woman from the one who was photographed on her arrest. 25. She has a criminal history but two matters are of note. Firstly, there are no offences as serious as these on it and, secondly, there are significant gaps in that criminal history, which clearly indicate that she is capable of, at times, living a law abiding life. Her lengthy gap in offending coincided with her being stable on the methadone program. There are, thus, I am prepared to find, good prospects for her rehabilitation. 26. Of course, Ms Ball was in a very poor state when she committed these offences, but, despite that, it is to be noted that she was prepared to scare others and to steal from vulnerable people for her own purposes. 27. The objective gravity of her offending is significant and so significant sentences are required, even taking into account the pathetic state Ms Ball was in when she committed these offences. 28. Mr Burke, who appears for Ms Ball today, recognises that a further period of custody is required but asked me to make it as short as I could. I have done that. 29. Of course, I have paid attention to the R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R guideline judgment, as in many respects these offences are typical of the standard case referred to in that judgment. There are some differences, of course. The plea was early, not a plea of limited utility and Ms Ball is not a young offender. 30. I should say one thing about a particular submission that Mr Burke made. He asked me, I understand, to find that the weapon Ms Ball used, a box cutter, was a less serious weapon than a knife. I reject that. Ms Ball had a weapon capable of inflicting significant injury on others. She, on occasion, demonstrated a willingness to use that weapon, emphasising the seriousness of the threats she was making, particularly by lunging, at least on one occasion, towards an unfortunate person, whilst armed with that box cutter. I regard a box cutter, in Henry terms, as a weapon like a knife, capable of causing serious injury. 31. There are, of course, special circumstances in this case. They relate to Ms Ball's ability to live a law abiding life. It is in the community's interest, as well as Ms Ball's, of course, that she be assisted to return to a law abiding lifestyle. If that happens, then there will be no other victims who have to experience the type of offence for which I must now sentence Ms Ball. 32. I am going to impose an aggregate sentence. Were it not for that circumstance, I would have imposed on each armed robbery matter imprisonment for three and a half years and, on the robbery with detention matter, imprisonment for four years. Instead, I will impose the following sentence: 33. Ms Ball is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 17 February 2015. I set a head sentence of five years. Ms Ball's non-parole period will expire on 16 August 2017, on which date she is eligible to be released to parole. I recommend that consideration is given to a condition of Ms Ball's release being that she enter into a residential rehabilitation program, as she said in evidence she would be willing to do.