The Queen v Sarah Louise Carpenter [1999] ACTSC 103 (8 October 1999)

Last Updated: 11 October 1999

THE QUEEN v SARAH LOUISE CARPENTER [1999] ACTSC 103 (8 October 1999)

Crimes Act 1900, s 499

Drugs of Dependence Act 1988

R v Irvine [1999] FCA 1286, Spender, Madgwick and Dowsett JJ, 15 September 1999 (unreported)

R v Henry & ors [1999] NSWCCA 111 (Spigelman CJ, Woods CJ at CL, Newman, Hulme and Simpson JJ)

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

No. SCC 122 of 1999

Judge: Higgins J

Supreme Court of the ACT

Date: 8 October 1999

IN THE SUPREME COURT OF THE )

) No. SCC 122 of 1999

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

SARAH LOUISE CARPENTER

REASONS FOR SENTENCE

Judge: Higgins J

Date: 8 October 1999

Place: Canberra

THE COURT ORDERS THAT:

1. You be imprisoned for a period of four years commencing on 16 September 1999.

2. You may not be eligible for parole before serving two years of the sentence.

1. The offender has pleaded guilty to one count of armed robbery committed on 21 October 1998. She has asked that four other offences, including some summary offences, to be taken into account.

2. One of those four offences was committed before the armed robbery - (CC98/8005) - Drive Vehicle without authority. The next two were committed after the armed robbery but before the offender's arrest for that offence (CC98/10112 - unlawful possession; CC98/1018 - minor theft) the fourth was committed on 4 July 1999 - stealing a man's suit from Grace Bros.

3. The facts admitted by the offender concerning the armed robbery were that, on 19 October 1998, she was visited by one Torek Hassan Jamal (Jamal). He was her boyfriend though he lived in Sydney and she in Canberra. Both were heroin users. Jamal suggested that they rob a bank. He had proposed that he be accompanied by a male person who was also at the house but that person declined to be involved. Jamal had possession of a 9mm pistol and a quantity of ammunition. The offender agreed to assist Jamal instead.

4. Together, they drove to the Colonial State Bank building at Fyshwick in a stolen car. Jamal was carrying the hand gun. They entered the bank, their faces partially obscured. As they approached the counter Jamal produced the pistol and threatened the four employees present. The offender then jumped the counter to search for cash in accordance with Jamal's directions. Jamal demanded that the staff produce money. Due to a security device, the staff were unable to do so. To further intimidate the staff Jamal fired a shot into the wall. It narrowly missed one staff member. He then pointed the gun, at short range, at another staff member saying:

"If you haven't given me the money by the count of three, you are dead."

5. The staff member pretended to attempt to disarm the security device. She well knew that was not possible. She gave a set of keys to the offender in an attempt to placate Jamal. The offender searched some cash drawers. Jamal and the offender then left the scene.

6. It appeared from a later reconciliation that $287 in coins had been taken. Jamal and the offender, later that day, used $100 to obtain heroin which they then used.

7. Police received information suggesting the offender's involvement in the robbery and searched her premises on 30 November 1998. Incriminating items were found. She then admitted her involvement.

8. In the interview with police she claimed she participated in the robbery because of her fear of Jamal.

9. It is difficult to imagine a more terrifying ordeal for the bank staff nor a more serious example of such an offence short of actual injury being inflicted. That conclusion is supported, so far as it needed to be, by statements from some of the victims of this offence.

10. The prosecution tendered a schedule of reported armed robberies from 1 January 1998 to 30 November 1998 and "at 12 July 1999". Apart from the gross numbers and the relative distribution between banks (including building society and credit unions) and other premises, those figures do not assist to form or support a view as to the relative prevalence, as at October 1998, of offences of armed robbery. Nevertheless, it is notorious that offences such as robbery and burglaries are typically committed to obtain money for drugs and that drug-related crime generally is increasing in prevalence.

11. It has frequently been stated by this Court that robbery, particularly armed robbery will, in the absence of exceptional circumstances, result in a substantial period of full-time imprisonment even for first time offenders with reasonable prospects for rehabilitation. That expectation is intended both to reflect an appropriate condemnation of the offence in question and to act, so far as is possible, as a general deterrent.

12. Nevertheless, in each case, to determine the appropriate level of response, regard must be had to the personal circumstances of the offender, his or her role in, and moral culpability for the offence and, if significant, the extent of cooperation with and assistance to the authorities.

13. There may, of course, be some who would consider that only the seriousness of the offence and the impact of it on the victims should be given consideration. That is, that offenders should forfeit all right to consideration by reason of the seriousness of their crimes.

14. However, to adopt that view would not only be inhumane and socially counter-productive, it would also be contrary to the specific requirements of the Crimes Act 1900 (ACT), s 429ff.

15. Even where full-time custody is mandated, issues which may mitigate penalty must be given due weight.

16. A number of reports were presented concerning the offender.

17. There was a report from a psychiatrist, Dr Hervey Whiteford. The offender told him of her relationship with Jamal. She had met him in November 1997. She was then eighteen, Jamal was twenty-eight. The relationship between them continued up until October 1998. The did not live together continuously. Both used heroin. The offender said she also sold drugs for Jamal.

18. In April 1998, she claimed, Jamal accused her of stealing his heroin. He threatened to cut her throat and harm her family. He extorted $700 from her family and left for Sydney.

19. Notwithstanding this, their relationship re-commenced in May 1998. About a week before the bank hold-up, the offender claimed, Jamal viciously assaulted her. It was during that stay that he proposed a robbery for money to purchase drugs.

20. Her account to Dr Whiteford, in January 1999, was that Jamal asked her if she knew anyone who could assist in the robbery. She said she did not. Accordingly, Jamal asked her to assist. She said she agreed to do so out of fear that he would end the relationship and/or assault her again.

21. They shared the proceeds of the robbery.

22. The offender, had, she said, commenced her heroin use when aged sixteen. She had undergone rehabilitation which ultimately succeeded. She only recommenced using, she said, when she became acquainted with Jamal. She also claimed to have been in an earlier abusive relationship between 1994 and 1997.

23. No psychiatric abnormality was noted.

24. However, Dr Whiteford considered that, at the time of the offence, the offender was "under a degree of psychological influence" from Jamal. To assess moral culpability a judgment must be made as to the extent of that influence. It did not, in Dr Whiteford's opinion, amount to "battered wife syndrome". He does not exclude in addition to the motives suggested by the offender, the desire "to secure money with which she could purchase drugs for her heroin addiction".

25. There was no explanation, other than self-indulgence, offered for her heroin addiction. Its resumption in 1998 is not apparently explicable otherwise than as a result of a desire to gain or continue her relationship with Jamal.

26. Dr John Anderson, psychotherapist, also gave a report. He was told that the offender had, as at 21 April 1999, been on the Naltrexone program for nearly five months. She admitted bingeing on heroin every couple of weeks. Dr Anderson reports being told that, amongst other illicit drug usage, the offender started smoking heroin at fourteen years of age. His testing of her led him to conclude that her history was "consistent with an ADHD (Attention Deficit Hyperactivity Disorder) process". There were indications of "depression and obsessive compulsive tendencies".

27. He felt she was genuinely attempting to cope and was "responding well to low dose methadone".

28. It will be observed that the histories reported from the above sources contain some, not necessarily significant, contradictions, particularly the history of drug abuse.

29. The pre-sentence report confirmed the incident of abuse by Jamal, reported by Dr Whiteford, resulting in the extortion of the $700. The physical assault of a week prior to the offence was also corroborated. However, as at 4 August 1999, the offender was suggesting that there was no possibility of reconciliation with Jamal. Indeed, in January 1999, she had formed another relationship, regrettably, also based on mutual heroin use. She had become pregnant and was then at twenty-three weeks. Her doctor corroborated that assertion.

30. She reported a drug use history to Ms Towns, the reporting officer, more similar to that reported to Dr Whiteford than to Dr Anderson.

31. The offender's attitude caused Ms Towns considerable concern. The offender appeared to exhibit a "no-care" attitude. That may have been a result of depression and ADHD but it could have been a lack of remorse and of commitment to rehabilitation.

32. She had been previously, in 1995, supervised by corrective services in relation to a theft matter. Her response to supervision and community service was described as poor. On bail in May 1999, she breached bail conditions. After being subjected to breach proceedings her performance improved. She became co-operative.

33. The offender offered two contradictory accounts to Ms Towns as to her prior knowledge of Jamal's criminal intentions. She did consistently claim, however, that she agreed to participate only out of fear of being assaulted. She claimed empathy with the victims and appeared to Ms Towns to be remorseful.

34. Though the offender had attempted a number of rehabilitation measures they had not demonstrated any great degree of success. Indeed, both urine samples up to the date of the report had revealed recent heroin use.

35. Her pregnancy has rendered long term residential rehabilitation impracticable.

36. On 9 August 1999, the offender gave evidence. She said that she had commenced smoking heroin at age fifteen. Although she had some periods of abstinence she had, at the period immediately preceding the robbery, been using $300-$400 worth of heroin daily. She said that she had financed that habit by theft.

37. She claimed to "feel terrible" about the effect of the robbery on the bank staff who had been threatened.

38. Further, though conceding she had visited Jamal twice whilst he was on remand, she claimed to be and have been fearful of him.

39. For that reason, she stated that she would decline to give evidence against him, even though it was possible that such evidence might be important to the prosecution.

40. She also agreed that she had committed offences on bail and whilst subject to a suspended sentence.

41. The investigating police officer acknowledged that, whilst the offender had no prior convictions for offences of violence, Jamal was known to be a violent offender with violent associates.

42. I then released the offender on bail. It seemed to me that if she was genuine about her desire for rehabilitation and if her role in the robbery was predominantly coerced by an abusive partner, then that would be a powerful mitigating factor. If, further, she had offered to assist the prosecution of Jamal by giving evidence against him, it could well be an exceptional case warranting unusual leniency (see R v Irvine [1999] FCA 1286, Spender, Madgwick and Dowsett JJ, 15 September 1999 (unreported)).

43. On 24 September 1999, the matter continued. Two security officers from Grace Bros gave evidence. They had apprehended the offender on 4 July 1999 when she stole a suit.

44. The first officer, Mr Tranda, recounted a conversation he said he had with the offender concerning the armed robbery. She said to him, he said, that she had not felt good about the robbery because she had to point a gun. She said she had spent the money on clothes and jewellery. She referred to her pregnancy, saying another male person, not Jamal, was the father. She did not mention being coerced and did not appear remorseful. Indeed, Mr Tranda described her as "laughing about it".

45. He spoke to her again on 28 August 1999 at Grace Bros. This time she claimed that person she previously named was not the father of her child.

46. As to Jamal, she said she wasn't going to "lag" on him.

47. It was not until 14 August 1999 that Mr Tranda gave a statement to police concerning what was said on 4 July 1999. He claimed to have notes of it but did not produce them.

48. He was clearly wrong about the gun. It was not pointed by the offender on any account of it. It is highly improbable that she would have claimed to have done so. Given her addiction, it is unlikely that the relatively small sum taken from the bank would have been expended on "clothes and jewellery".

49. However, his account of her attitude to the offence, though perhaps a little exaggerated, is consistent with the "no care" attitude identified by Ms Towns.

50. Mr Tranda was on each of the above occasions accompanied by another officer Ms Jackson. She did, by and large, corroborate Mr Tranda. However, some details she also got wrong. She recalled the offender saying that she and the co-offender had stolen "six grand" and got three each. That was wrong. However, she recalled the offender also saying the money was spent on "gear", which she took to be drugs not clothes and jewellery. That could assist to explain Mr Tranda's obvious misapprehension.

51. However, whatever the details, the tenor of that evidence is not consistent with the offender's portrayal of herself in her evidence.

52. An updated pre-sentence report was presented, together with a report under the Drugs of Dependence Act 1988 (ACT). There were some positive aspects reported by Ms Towns. The offender has reported as required.

53. The offender's relationship with her new boyfriend terminated, due to her continued association with Jamal. She claims to Ms Towns that her new boyfriend is not the father of her child. Jamal has been in custody since October 1998 and remains so.

54. On 13 August 1999, the offender was placed in custody for refusing to give evidence against her co-offender. Further, since July 1999, she is reported to have had eighteen contact visits with Jamal. She claims Jamal is the father of her child though he was in maximum security at the time of conception. She explained this by claiming that she used a false identity. That is currently being investigated by prison authorities.

55. Her drug abuse has continued. All five urine tests since the last hearing have proved positive for heroin use.

56. There are some rehabilitation programs prepared to accept the offender. She is currently on 40mg of methadone but, despite that, concedes that she is still using heroin.

57. Ms Towns concludes that the offender's attitude towards Jamal remains ambivalent. Despite his violence and past abuse, she seems to want them to be regarded as a couple. She has not taken the opportunity to distance herself from him.

58. I agree with Ms Towns. I think that, if given the opportunity, the offender would continue to associate with Jamal and assist his criminal activities. Her refusal to give evidence against him, I believe, is more due to misguided loyalty than fear of vengeance, though there may be an element of fear as well.

59. Given that, since October 1998, notwithstanding her pregnancy, the offender has continued to use illicit drugs, Ms Towns doubts her commitment to rehabilitation. I share those doubts. Undoubtedly the offender needs help. She needs to disassociate herself from Jamal and the drug and crime culture. She needs to deal with her drug problems. My assessment is that she is not prepared to accept help at present. Hopefully she may become "help-ready" after her child is born.

60. Nevertheless, it seems to me likely that, if this offender is at liberty, she will continue to abuse drugs. She will continue her association with Jamal, possibly through his criminal associates. She will inevitably offend more seriously than by reference to simple illicit drug use.

61. There is nothing to be gained by deferring sentence. Nor is a community based sentence possible, not only because of the seriousness of the offence and the lack of exceptional circumstances, but also because there is no current likelihood of a positive response to rehabilitation.

62. I was referred to the New South Wales Court of Criminal Appeal decision of R v Henry & ors [1999] NSWCCA 111 (Spigelman CJ, Woods CJ at CL, Newman, Hulme and Simpson JJ). That is a so-called "guideline" judgment. It relates to offences of armed robbery.

63. The purpose of such a judgment is to promote consistency in sentencing. However, as the CCA recognised, such guidelines are not intended to be binding rules of law fettering a trial judge's proper exercise of discretion (see Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513). Further, though a guideline may suggest a particular range of penalties for the typical case, no individual case is likely to conform to that normative assumption. What the guideline, if accepted in a particular jurisdiction, does do is identify a norm or standard to be compared with the instant case. Armed robbery, in New South Wales (with a dangerous weapon or in company) attracts a maximum penalty of twenty-five years imprisonment, s 97(2) Crimes Act 1900. Other armed robberies attract twenty years imprisonment (s 97(1)).

64. In that case the CCA was furnished with material relevant to the increasing prevalence in New South Wales of armed robberies and the general effect of an armed robbery on the victims of such offences. The latter, however, was regarded as of assistance only "at the level of sentencing principle". The objective gravity of a particular offence, it was held, should be established by evidence of the particular impact on the particular victims involved. The former statistics, the Court held, though entitled to some weight, should be treated "with caution".

65. The starting point was the proposition, uncontroversial in this Territory, that cases of non-custodial disposition of armed robbery offenders should be "exceptional".

66. The guideline was directed towards a category of case in which there was - (par 162):

"(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."

67. These factors save for (v) and (vii) are demonstrably present in this case. As to (v) banks are not, generally, assumed to be "soft" targets. I have no indication, as to (vii), of the strength of the Crown case against this offender apart from her admissions.

68. For New South Wales, the CCA proposed that an offence of armed robbery by the typical offender should attract a full term of four to five years. That is a starting point, of course, before aggravating or mitigating factors are considered.

69. At par 170, Spigelman CJ identified further factors, some general, some particular to armed robbery. I would respectfully adopt his Honour's comments (and those of Wood CJ at par 213) concerning the role of drug addiction in the sentencing process and the role of general deterrence in that context.

70. It was particularly pointed out by Wood CJ that, a prison sentence otherwise appropriate, ought not to be avoided merely because it may be counter-productive of rehabilitation. To quote his Honour (par 267):

"...the problem is better addressed by the development of adequate programs and rehabilitation options within the prison environment, than it is by a significant change in sentencing policy."

71. Despite doubts about the effectiveness of general deterrence in relation to drug addicted persons, Spigelman CJ pointed out that even addicts have choices as to their offending behaviour. There is also perceived (par 205) to be a positive effect in holding out to others who are or who might become addicted, the degradation and punishment that will follow if help is not sought or addiction avoided.

72. I now turn to the effect of these principles and observations in the particular circumstances of this case.

* Drug addiction

73. This does not serve to lessen this offender's culpability. It does explain her relationship with Jamal, at least initially. It does suggest that a rehabilitation component in any sentence is indicated. It may, given her past struggle to become drug-free indicate that her offending behaviour is out of character.

* The weapon and its use

74. This offender did not have use of the weapon. She did not, though perhaps her judgment was clouded, appreciate it would be used till shortly before the robbery. She did not encourage Jamal to discharge the weapon.

* Preplanning and her role in it

75. The offender was persuaded to participate at the last minute. Not earlier than the evening before the robbery she agreed to take the place of Jamal's preferred associate. I do not accept that she was coerced but there was an element of fear. The past assault and abuse support this view. However, there was also an element of desire to have a continuing relationship with Jamal, to see herself as his life partner. The ambivalence of her statements about Jamal and whether or not her unborn child is his, supports that view.

* Cooperation with authorities

76. She has fully cooperated, I believe, in relation to her own role in the robbery. I believe she told the truth at least about that. She fully disclosed Jamal's role in the crime but will not, mainly out of misguided loyalty, give evidence against him.

* Guilty plea and remorse

77. The offender has pleaded guilty. She expresses apparently genuine remorse and regret concerning the harm the victims were caused. The primary responsibility for that harm rests, of course, with Jamal. I accept that she, at times, has displayed bravado, a "no care" attitude, but I think that is a false facade. I am persuaded to that view by the psychiatric assessments as well as the view of Ms Towns.

* Rehabilitation and past efforts

78. At present, the offender's desire to have an ongoing relationship with Jamal has blinded her to her own needs as well as the interests of her unborn child. That may change. She has shown, in the past, some dedication towards rehabilitation. It is to be hoped that she will do so again, particularly after her child is born.

* The offender's health and circumstances

79. The offender has not been gaoled before. She will have a more difficult experience in prison than a comparable offender, not only because of her drug addiction but also because of her pregnancy and the difficulty of having a child in a prison environment.

80. In all the circumstances, it is not possible to avoid a custodial sentence, a substantial part of which must be served. However, I will allow for the possibility of release on parole including a lengthy period of residential rehabilitation.

81. Sarah Louise Carpenter, stand.

82. I take account of the scheduled offences. On the count of armed robbery, I record a conviction and impose a sentence of four years imprisonment to commence on 16 September 1999. I direct that you serve two years from that date before becoming eligible for parole.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour, Justice Higgins.

Associate:

Date: 8 October 1999

Counsel for the Offender: Mr G C Corr

Solicitor for the Offender: Aboriginal Legal Service

Counsel for the Crown: Mr S Whybrow

Solicitor for the Crown: ACT Director of Public Prosecutions

Date of hearing: 24 September 1999

Date of judgment: 8 October 1999