The Queen against Cheree Ann Lorenz [1998] ACTSC 275 (14 August 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   CRISPIN J

  

  

   Criminal Law - trial
by judge alone - offence of robbery with offensive
weapon.

  

   Duress - nature of defence - whether available when threat to
kill if money
not obtained unaccompanied by any demand that the accused commit the acts
constituting the offence.

  

   Battered
Woman Syndrome - relevance to defence of duress.

  

   Necessity - nature of defence - whether available when offence committed
to
obtain money demanded with a threat to kill the offender if not provided.

  

   Supreme Court Act 1933

  

   R v Hurley & Murray [1967] VR 526 at 543

   R v Hudson [1971] 2 QB 202 at 207

   R v Williamson [1972] 2 NSWLR 281
at 299-300

   R v Lawrence [1980] 1 NSWLR 122 at 143

   R v Palazoff (1986) 43 SASR 99 at 110

   R v Brown (1986) 43 SASR 33

   R v Brown & Morley [1968] SASR 467 at 497

   DPP v Lynch [1975] AC 653 at 677, 682 and 714

   R v Abusafiah (1991) 24 NSWLR
531

   R v Dawson [1978] VR 536 at 538

   R v Loughnan [1979] 1981 VR 443

  

  

   CANBERRA, 6-7 August 1998 (hearing), 14 August
1998 (decision)

   #DATE 14:8:1998

  

   Counsel for the DPP: Mr C Todd

   Instructing Solicitors: Director of Public Prosecutions

   Counsel for the Defendant: Mr T O'Donnell

   Instructing Solicitors: Legal Aid

  

  

   THE COURT FINDS THAT the accused
is guilty of the offence that on 20
November 1996 at Canberra in the Australian Capital Territory she did rob
Deborah Ann Cole of
$360 in cash and at the time of doing so had with her an
offensive weapon namely a knife.

  

   THE COURT ORDERS THAT:

  

  
1 The accused be convicted of this offence.

  

   2 Sentence be deferred on condition that the accused enter into a
recognisance,
without surety, in the sum of $1,000 to be of good behaviour for
a period of three years.

  

  

   CRISPIN J

  

   1. The accused
was arraigned on one count that on 20 November 1996 at
Canberra in the Australian Capital Territory she did rob Deborah Ann Cole
of
$360 cash and at the time of doing so had with her an offensive weapon, namely
a knife. Upon her arraignment she pleaded not guilty.

  

   2. She elected to be tried by judge alone. Accordingly, I am bound by the
terms of section 68C of the Supreme Court Act 1933 which is in the following
terms:

  

  

   "1 A Judge who tries criminal proceedings without a jury may make any
finding that could
have been made by a jury as to the guilt of the accused
person and any such finding has, for all purposes, the same effect as a
verdict
of a jury. 2 The judgment in criminal proceedings tried by a Judge
alone shall include the principles of law applied by the Judge
and the
findings of fact on which the Judge relied. 3 In criminal proceedings tried by
a Judge alone, if a law of the Territory would
otherwise require a warning to
be given to a jury in such proceedings, the judge shall take the warning into
account in considering
his or her verdict."

   3. The trial of the action followed a somewhat unusual course in that Mr
O'Donnell, who appeared for the
accused, made certain admissions even before
the Crown case had been opened. Those admissions were in the following terms:

  


 

   ". . . on 20 November 1996 at Canberra, in the Australian Capital
Territory, Cheree Ann Lorenz entered the Ace Supermarket
in Kambah and took
$360 in cash from Deborah Ann Cole and at the time she had with her a pen
knife."

   4. Mr O'Donnell then explained
that the only issue at the trial was whether
the accused was entitled to an acquittal on the grounds of duress. He
foreshadowed adducing
evidence to the effect that the accused had been the
victim of a violent and abusive relationship and that the defence of duress
would be based upon what was described as "the battered woman syndrome".

  

   5. The Crown case was then opened. It was alleged
that the complainant Ms
Cole was working at the Ace Supermarket at Mannheim Street, Kambah in the
Australian Capital Territory on
20 November 1996 when, at about 1.20 pm, the
accused entered the store. She attempted to purchase some cigarettes by means
of her
EFTPOS card and asked for $20 in cash. Ms Cole attempted to complete
the transaction using the card in the EFTPOS machine but it
became apparent
that there were insufficient funds in the account. Ms Cole spoke to the
accused about it but she maintained that
there was money in her account and
she could not understand what had gone wrong. Ms Cole then suggested that she
try again but confine
the transaction to the purchase of the cigarettes. That
attempt also failed due to insufficient funds being available. There was
some
further discussion and the accused then left the store.

  

   6. Ms Cole continued with her normal duties for about 10 minutes
before she
turned and saw the accused coming into the store holding a knife. She
approached Ms Cole with the knife held out in front
of her and she said "give
me all your fucking money or I'll slit your throat". Ms Cole was shocked and
asked whether she was serious.
The accused told her that she was and demanded
money. Ms Cole proceeded to give her all of the notes that were in the till in
denominations
of $10 and $20. The accused took the money and went outside. Ms
Cole followed her and saw the accused get into a white motor vehicle
which she
recognised as a Datsun because it had the letter "D" on the front grill. There
were no number plates on either the front
or the back of the vehicle. The
accused then drove away. Ms Cole called the police who were able to identify
the accused from the
records of the EFTPOS transactions. A search warrant of
her home in Bonython revealed the Advance Bank debit card which the accused
had used and a pair of sunglasses she had worn during the incident. The white
Datsun was parked in the driveway and a search of that
vehicle revealed the
knife.

  

   7. During the execution of the search warrant the accused denied any
involvement in the robbery
but she later accompanied them to the Tuggeranong
Police Station where she admitted her involvement in the offence and explained
how the money had been spent.

  

   8. Following this opening Mr O'Donnell made a formal admission on behalf of
the accused admitting
all of the facts which had been so alleged.

  

   9. In view of these extensive admissions the learned prosecutor quite
properly
decided to limit the Crown case to three witnesses. Ms Cole gave a
brief description of the incident and described the different
demeanour
exhibited by the accused on the two occasions she entered the shop. On the
first occasion her demeanour was pleasant and
there was nothing out of the
ordinary which had drawn Ms Cole's attention to her. On the second occasion
she was very agitated and
"completely different to the person I'd seen
before". Ms Corrine Homera, a cousin of the accused, gave evidence of having
been with
her on the day of the robbery and described not only her movements
but various conversations. Detective McCann gave evidence concerning
the
execution of the search warrant and the subsequent interview with the accused
at the Tuggeranong Police Station.

  

   10.
The defence of duress was based upon a threat which she said was made
by Mr Jason Henshaw on the night before the robbery and repeated
the following
morning to the effect that if she did not obtain enough money to enable him to
re-register his car he would kill her.

  

   11. This threat followed a pattern of violent and threatening behaviour
towards her over a number of years. She met Mr Henshaw
when she was 15 and
became pregnant to him when she was just over 16. He began to become violent
about a year later. Thereafter she
was frequently beaten. The beatings
extended to being hit, kicked, jumped on and thrown against walls. On at least
one occasion she
was threatened with a machete and on another she was attacked
with a baseball bat which had nails and screws protruding from it.
She said
that she had been admitted to hospital as a result of assaults by Mr Henshaw
at least four or five times because of injuries
which he had inflicted. The
assaults often occurred after he had been drinking and frequently related to
arguments about money. She
said that he was very jealous and exerted
considerable control over her lifestyle, refusing to allow her to go out
socially without
him, contacting her by telephone at lunchtime each day to
ensure that she was still at home and demanding receipts for everything
that
she spent.

  

   12. The accused had known for at least a fortnight that Mr Henshaw wanted
to register his car in the Australian
Capital Territory and she had applied
for what was described as a loan or advance payment from the Department of
Social Security.
She was due to receive her normal social security cheque on
the day of the robbery but that would have amounted to only about $360
and the
cost of the registration was apparently about $550. During the course of the
morning she went to the office of the Department
of Social Security in
Tuggeranong and completed a further form to obtain the advance payment
urgently. She was told it might be available
in two or three days. She then
drove around, apparently aimlessly, and found herself in Kambah. She said that
she was very frightened.
She decided to commit the robbery just before pulling
up at the store.

  

   13. The accused was cross-examined extensively. She
conceded that she had
sometimes been extravagant and sometimes gambled small amounts of money on
poker machines. She also conceded
that she had sometimes been aggressive
towards Mr Henshaw particularly in response to some of the more minor assaults
and abuse that
she had experienced from him though she said that she had been
unable to fight back during some of the more severe beatings she had
received.
She admitted that she had lied to Dr Saboisky, a psychiatrist called on her
behalf, about her relationship with another
man identified only as "Rob". It
was also suggested that she had exaggerated as to the extent of some of the
beatings she had received
and as to the nature and extent of her injuries.

  

   14. Despite these criticisms the concessions made in cross-examination and
the overall attack on her credibility I must say that I was left with the
impression that the account which she gave of the relevant
events was
essentially truthful. Most of the facts relied upon by the Crown in relation
to her credibility had been candidly admitted
during her evidence. I do accept
that there was some measure of some exaggeration, the most obvious of which
related to her assertion
that the beating which involved the use of the
baseball bat had continued for about five hours. However, such exaggerations
seemed
to occur as occasional embellishments to an otherwise truthful account
rather than as a pattern of dishonesty which pervaded and
tainted the whole of
her evidence.

  

   15. My impression as to the inherent truthfulness of her evidence was
confirmed by the
significant corroboration which was derived from the evidence
of other witnesses.

  

   16. Ms Hamera gave evidence that whilst
she had not ever observed any
physical violence between Mr Henshaw and the accused, she had seen a baseball
bat with nails in it
and the accused had indicated that she was afraid of him.
She had also seen the accused with facial swelling and bruising on the
legs
and arms after fights with Mr Henshaw. She was aware that the accused had been
admitted to hospital on a number of occasions
and was also aware that she had
sought refuge with Ms Hamera's mother from time to time.

  

   17. Mr Terrence Lorenz, who was
the brother of the accused also gave
evidence concerning Mr Henshaw's treatment of the accused. He recalled one
occasion when he
received a phone call from his sister who was distressed and
wanted help. He went to her home and found her "battered and bruised".
She
showed him what he described as a club which had six inch nails and screws in
it. He then took her back to his home in Taree
and destroyed the club. He also
gave evidence of an earlier occasion in which he had arrived at the flat which
was shared by the
accused and Mr Henshaw. He said that as he walked in Mr
Henshaw had the accused by the throat. Mr Lorenz' aunt was already there
and
Mr Henshaw punched the accused. Mr Lorenz approached him but Mr Henshaw
produced two machetes forcing him to back off. He had
not seen any other
incidents of violence but there had been occasions when he had observed
bruising and his sister had made numerous
complaints to him over the years.
None of this evidence was challenged in cross-examination.

  

   18. Ms Christine Lowe, who was
the maternal aunt of the accused, also gave
evidence of Mr Henshaw's violent behaviour. The first instance she recalled
had occurred
when the accused was about sixteen years old but just prior to
her first pregnancy. The accused had contacted her because Mr Henshaw
was
drunk and she was frightened. As Ms Lowe approached the flat Mr Henshaw ran
down the stairs towards her and threatened her with
a large Japanese samurai
sword. She said that there had been many times when the accused had sought
assistance from her and stayed
at her home and many occasions when she had had
to take care of the accused's children because she had been injured. Ms Lowe
said
that she had personally seen the accused with various injuries, was aware
that she had been admitted to hospital and had in fact
visited her in
hospital. As the Crown conceded Ms Lowe was a most candid witness who readily
conceded that the accused had herself
been physically aggressive not only to
Mr Henshaw but to her, that she sometimes wasted money and that she sometimes
told lies. I
have no doubt that her evidence was both truthful and reliable.

  

   19. It is true, as the learned Crown prosecutor pointed out
that nursing
notes relating to the various submissions to hospital and other medical
records concerning the accused's injuries were
not tendered. On the other
hand, Mr Henshaw did not attend court to give evidence denying the evidence
concerning his behaviour.

  

   20. Having regard to all of the evidence I am satisfied that the accused
was subjected to repeated violence, abuse and intimidation
over a period of
several years up to the date of the robbery. I am also satisfied that Mr
Henshaw was a violent and perhaps dangerously
unbalanced young man who had
assaulted the accused with a baseball bat imbedded with nails and screws,
threatened her and other members
of her family with one or more machetes and
threatened her aunt with a samurai sword. I have no doubt that in the context
of this
history the accused would have been extremely frightened if he had
threatened to kill her especially if that threat was contingent
upon a demand
for money she did not have.

  

   21. Furthermore, despite the forceful submissions made on behalf of the
Crown I
am satisfied that the threat was made.

  

   22. It is true that Ms Hamera who had stayed with the accused the night
before the
robbery did not recall hearing such a threat. However whilst the
accused said that the threat in the evening had been uttered in
a loud voice,
she also said that she and Mr Henshaw had been in a bedroom with the door
substantially closed and that Ms Hamera had
been in the living room with
another bedroom between those rooms. Even if she were still awake it is by no
means certain that she
would have heard the words with sufficient clarity to
enable her in the context of other verbal arguments which she had heard she
would have taken any notice of what was being said or even shouted on this
occasion. When the threat was repeated in the morning
Ms Hamera was still
asleep.

  

   23. It is also true that the accused did not tell Ms Hamera of the threat,
but Ms Hamera was
then only about sixteen years old and the accused may have
been reluctant to frighten her by mentioning a threat about which she
could
have done nothing except, perhaps, contact the police or take other steps
which the accused could have taken for herself.

  

   24. In addition, the Crown relied upon the accused's failure to tell the
police about the threat and the aggressive attitude
she had initially
displayed towards them. She explained the attitude which she displayed during
the execution of the search warrant
by reference to her fear of Mr Henshaw but
conceded that she felt more comfortable with the investigating police officers
when she
was interviewed at the police station. As the learned prosecutor
submitted, she had ample opportunity to mention the threats at that
time.
However the videotape of that interview reveals that she was visibly
distressed during the interview. Furthermore, she did
tell the police that she
had "to get money somehow", that the urgency had been caused by the fact that
Mr Henshaw was "that sort
of person that, you know, he's got to have it
straight away" and that "he needed rego on the Datsun today".

  

   25. Ms Hamera
confirmed that on the morning of the robbery the accused had
said that she owed Mr Henshaw some money for the cars, that on his return
home
that day he had asked her if she had all the money. Ms Hamera said that whilst
the money which the accused was able to give
him did quieten him down he was
still angry that evening. She also confirmed that the accused used to be very
frightened of Mr Henshaw
when she knew that she could not provide money or
other things that he wanted.

  

   26. The Crown also relied upon the fact that
the accused had previously
exhibited a willingness to leave Mr Henshaw or ask him to leave her if he
became violent. It was submitted
that if he had threatened to kill her as she
claimed she would have again left him. Hence I should be satisfied that threat
was not
made. In response to this contention Mr O'Donnell who appeared for the
accused submitted that any failure of the accused to leave
Mr Henshaw or
otherwise avoid the consequences of the threat may be explained by what Dr
Saboisky described as the battered woman
syndrome.

  

   27. Dr Saboisky explained that some women particularly those who have had
an abusive early childhood stay in abusive
relationships because of a
psychological phenomena which he referred to as "learned helplessness". Whilst
objectively certain avenues
of escape may be available to them they become
psychologically incapable of taking those avenues. It was submitted on behalf
of the
Crown that the accused simply did not fit this pattern not only had she
persistently left the accused when the violence became too
great but she had
maintained an aggressive attitude towards him as well as other people and even
on the night after the robbery had
been willing to behave aggressively towards
the investigating police officers. Despite these factors Dr Saboisky remained
of the
view that as the result of the battered woman syndrome her intense fear
of being physically attacked by Mr Henshaw led her to act
in an impulsive and
socially deviant way.

  

   28. Dr Saboisky was an impressive and objective witness who readily
conceded his
reliance upon what the accused had told him, expressed concern at
some of the inconsistencies between what she had said in evidence
and the
history she had given to him and said that he would like to have corroboration
of the general truth of the account that she
had given him. He maintained,
however, that it is not possible to make a diagnosis of battered woman
syndrome on the basis of certain
inflexible criteria because people respond in
different ways. He maintained that what frequently compels them to remain in
the relationship
is not fear of violence but rather fear of losing the
relationship. They may feel that the relationship has offered them the only
love they have ever had in their life and accept the violence and the abuse
due to a fear of losing that love.

  

   29. In the
present case I accept that the accused was an assertive and at
times aggressive young woman who was able to "hold her own" in some
conflicts
with Mr Henshaw. However, I am satisfied that she was unable to cope with the
extremity of his violence and that over the
years she became emotionally
overborne by him to a significant extent. There were times when she became
very afraid of him and the
violence led to separations. I think that Dr
Saboisky is probably right in suggesting that she returned to him on each
occasion because
as bad as the relationship may have been it involved the only
source of apparent love that she had known and she was afraid of losing
it. It
was also significant that she had two children by him and was again pregnant
at the time of the robbery. She may well have
thought that life offered few
other real options.

  

   30. I accept that after failing to obtain immediate payment of the advance
payment she expected to receive from the Department of Social Security she
became frightened and confused and that the robbery was
an impulsive act
committed due to a fear that Mr Henshaw might carry out his threat to kill
her. In my view her failure to attempt
to extricate herself from the situation
whether by leaving him or otherwise is largely explicable by her fear and
confusion. Furthermore,
she may have thought that any escape would have been
only temporary and that sooner or later Mr Henshaw would have been bound to
have caught up with her and carried out his threat.

  

   31. A diagnosis of battered woman syndrome does not of itself give rise
to
any defence. The law does not recognise any general principle that people
should be absolved from criminal conduct because they
had been beaten or
abused or because a psychological condition caused by such treatment may have
led them to commit the offences
with which they are charged. Nonetheless,
evidence that such a person may have had a psychological condition of this
kind may be
relevant to several defences known to the law. As previously
mentioned Mr O'Donnell initially indicated that he relied upon a defence
of
duress.

  

   32. The law relating to duress was summarised in the following passage from
the judgment of Smith J in R v Hurley
& Murray [1967] VR 526 at 543:

  

  

   "Where the accused has been required to do the act charged against him (i)
under a
threat that death or grievous bodily harm will be inflicted unlawfully
upon a human being if the accused fails to do the act and
(ii) the
circumstances were such that a person of ordinary firmness would have been
likely to yield to the threat in the way the
accused did and (iii) the threat
was present and continuing, imminent and impending . . . and (iv) the accused
reasonably apprehended
that the threat would be carried out and (v) he was
induced thereby to commit the crime charged and (vi) that crime was not
murder,
nor any other crime so heinous as to be excepted from the doctrine and
(vii) the accused did not, by fault on his part when free
from the duress,
expose himself to its application and (viii) he had no means, with safety to
himself, of preventing the execution
of the threat, then the accused, in such
circumstances at least, has a defence of duress.

   33. This formulation has long been
accepted as an accurate statement of the
basic elements of what is referred to as the defence of duress in this
country. It is clear
that an accused who seeks to rely upon duress does not
shoulder any legal burden of proof. Once it is properly raised on the evidence
an accused will be entitled to be acquitted unless the Crown proves beyond
reasonable doubt that the acts constituting the offence
charged were not
committed under duress.

  

   34. In the present case the Crown contended that even if the threat was
made such
a defence could not be established.

  

   35. Firstly, it was submitted that the accused had ample opportunity to
avoid the threatened
violence by leaving Mr Henshaw as she had done in the
past or by reporting the threat to the police. It is true, of course, that
a
defence of duress will cease to be available if the threat is ineffective at
the time the crime was committed or if the accused
failed to take advantage of
a reasonable opportunity to render the threat ineffective: R v Hudson [1971] 2
QB 202 at 207; R v Williamson
[1972] 2 NSWLR 281 at 299-300; R v Lawrence
[1980] 1 NSWLR 122 at 143 and R v Palazoff (1986) 43 SASR 99 at 110. In R v
Brown (1986)
43 SASR 33 King CJ observed at 40 that the ordinary way in which
a person will render a threat ineffective is to seek the protection
of the
police. Under normal circumstances that must be assumed to be an effective
means of neutralising intimidation. If that were
not so society would be at
the mercy of criminals who could carry out their criminal enterprises by
forcing others to do their work
by means of intimidation. However a trial
judge must bear in mind that police cannot always provide effective protection
and that
even if police protection is initially effective it may not save the
complainant from the threatened violence at some later stage.
See R v Brown
& Morley [1968] SASR 467 at 497; R v Hudson at 207 and DPP v Lynch [1975]
AC 653 at 677, 682 and 714. Having regard
to all the circumstances, including
the relationship between the accused and Mr Henshaw, their young children, the
fact that the
accused was again pregnant to him, his constant control over her
and the nature and extent of his violence I am not satisfied that
the threat
was ineffective at the time was committed or that the accused failed to take
an advantage of an opportunity reasonably
owed them to render it ineffective.

  

   36. Secondly, it was submitted that however the accused might have
responded the hypothetical
person of ordinary firmness of mind would not have
yielded to the threat in the manner that she did.

  

   37. It is clear that
in deciding that issue the court must take into
account not only the nature of the threat in its proportion to the crime
committed
but also any circumstances known to the accused concerning the
person making the threat which might reasonably have affected the
ordinary
person's reaction to it: R v Abusafiah (1991) 24 NSWLR 531 per Hunt J at 545.
The question is then whether the Crown has
established that there is no
reasonable possibility that a person of ordinary firmness of mind would have
yielded to the threat in
the way that the accused did. Having regard to the
extremity of the actual and threatened violence previously displayed by Mr
Henshaw
I am not so satisfied.

  

   38. Finally and in my view most importantly, the Crown pointed to the
obvious fact that Mr Henshaw
did not ask her to commit the offence with which
she is charged or in any way suggest that she should do so. In R v Dawson
[1978]
VR 536 at 538 the Full Court of the Supreme Court of Victoria held that
a defence of duress was not open to a defendant who had escaped
from lawful
custody in order to avoid threats of violence. Anderson J, with whose reasons
for judgment Starke J agreed, observed
that in all of the cases relating to
duress of which he was aware the offence which the accused person had been
constrained to commit
had been nominated by the person making the threats. His
Honour took the view that that was an element of the defence. Harris J also
expressed the view, at 542-543 that the defence was limited to cases in which
the threats had been made to coerce the accused into
committing the act which
was the basis of the offence with which he was charged. Mr O'Donnell was not
able to refer me to any authority
to the contrary.

  

   39. There are theoretical and public policy reasons for confining the
defence of duress in this manner.
The theoretical basis of the defence of
duress is that if a person has carried out an act because his or her will has
been overborne
by threats then that act cannot be said to have been committed
voluntarily. If the threat was related to a more generalised demand
such as
one for the production of money then whilst the accused may have acted under a
significant compulsion his or her will would
not have been overborne in
relation to the particular act chosen in order to satisfy the demand and it
could not be regarded as involuntary.
As a matter of public policy it is
important to ensure that the ambit of the defence is not expanded to relieve
people from criminal
responsibility for offences to which the coercion was not
directed. The fact that a person has acted in response to such a pressing
need
will obviously be regarded as a strong mitigating factor. However, pressing
needs arise for reasons unrelated to threats. It
would not be practicable to
effectively excuse criminal behaviour in every case in which it was so
motivated.

  

   40. In any
event, whilst it is not strictly binding, the decision of the
Full Court of the Supreme Court of Victoria in R v Dawson must be given
considerable weight.

  

   41. For the reasons previously given I am satisfied that Mr Henshaw's
conduct in threatening to kill
the accused when she was pregnant with his
third child imposed enormous emotional pressure, the affect of which was
aggravated by
the history of violence and intimidation and the emotional
sequelae described by Dr Saboisky. Nonetheless, he did not direct her
to
commit the offence with which she is charged and in these circumstances, I am
obliged to find that no defence of duress is available.

  

   42. In the alternative, Mr O'Donnell relied upon a defence of necessity. In
R v Dawson , Harris J expressed, at 543, some
scepticism as to whether such a
defence was known to the law. However in the later case of R v Loughnan [1981]
VR 443 the Full Court
of the Supreme Court of Victoria constituted by Young CJ
and Crockett and King JJ accepted the existence of such a defence.

  

   43. In that case Young CJ and King J held, at 449 that the defence applies
only if certain elements are established. First, an
urgent situation of
imminent peril must exist in which the accused must honestly believe on
reasonable grounds that it is necessary
for him to do the acts which are
alleged to constitute the offence in order to avoid the threatened danger.

  

   44. Secondly,
those acts must not be disproportionate to the threatened
danger. Their defence has been tightly confined. Indeed, in R v Dawson
,
Anderson J observed, at 539, that there were virtually no reported cases in
which the defence of necessity had succeeded though
text books abounded with
hypothetical situations in which the authors suggested such a defence should
succeed. Those examples had
frequently involved cases in which the destruction
of property was said to be justified by the need to avoid some catastrophic
situation
such as the spreading of a fire or the floundering of a ship. In
argument Mr O'Donnell suggested another example, namely the use
of a
prohibited weapon to repel an imminent and potentially murderous attack. For
present purposes I am prepared to assume that a
defence of necessity might be
available in circumstances of that kind.

  

   45. In the present case, however, the imminence of
the danger fell well
short in the examples so postulated. In my view the threat made by Mr Henshaw
did not create such an imminent
danger as to give rise to a defence of this
nature.

  

   46. Notwithstanding the arguments which Mr O'Donnell has advanced I am
satisfied beyond reasonable doubt that the acts were committed with the
requisite voluntariness.

  

   47. Accordingly, whilst
I am not insensitive to the plight in which the
accused found herself I am obliged to find the offence proven.

  

   48. However,
whilst I am constrained by legal principles to find that the
accused did commit the offence with which she stands charged I am quite
satisfied that she did so only because she was extremely frightened by the
threat that Mr Henshaw had made. I am also satisfied that
she succumbed more
readily to that threat because of the long history of violence and abuse to
which she had been subjected and its
psychological impact upon her. The
accused has no previous convictions for any criminal offences and as I have
previously mentioned
was not only the mother of two young children but was
pregnant at the time of the offence. The robbery was obviously carried out
impulsively she recognised that the use of the EFTPOS machine made her
identification and subsequent apprehension inevitable. I am
satisfied that the
accused is an essentially decent young woman whose only breach of the criminal
law occurred because of her understandable
fear that she might be killed if
she could not obtain the money that Mr Henshaw wanted.

  

   49. In the present case the impact
of the robbery upon Ms Cole should not
be overlooked. However badly the accused may have been treated by Mr Henshaw,
Ms Cole was
an innocent victim who had caused her no harm. Yet she has been
intimidated with a knife and left with a legacy of continuing fear.
I am
satisfied the accused appreciates the continuing psychological distress which
she has caused to Ms Cole and is genuinely remorseful
for what she has done.

  

   50. At the conclusion of the trial I was asked to defer delivering judgment
for seven days. Both counsel
also indicated that they had no wish to call any
further evidence or make any further submissions as to the appropriate
sentence
to be imposed in the event that I found the offence proven. The Crown
relied, of course, upon the gravity of the offence and the
well known
principle that save in exceptional circumstances a sentence of immediate
imprisonment will normally be imposed for offences
of armed robbery. That is a
principle which I have repeatedly endorsed. It cannot be emphasised too
strongly that those who put other
people into fear of death or serious injury
in order that they may steal their property must expect severe penalties.
However for
the reasons I have given I regard this as a most exceptional case.

  

   51. The accused left Mr Henshaw shortly after the robbery
and has now
formed a relationship with another man. She has just turned twenty three years
of age, has three children and is pregnant
to her new partner. Her present
relationship is apparently a happy one and she is endeavouring to establish a
new life for herself
and her children. I think she should be given the
opportunity to do so. In all the circumstances I think it is appropriate to
proceed
by deferring passing sentence on condition that she enter into
recognizance to be of good behaviour for a period of three years.