King v Mainey & Ors [2008] ACTSC 108 (26 September 2008)

Last Updated: 24 October 2008

CORRINDA KING v REBECCA ADA MAINEY & ORS [2008]

ACTSC 108 (26 September 2008)

EX TEMPORE JUDGMENT

R v Taylor [2000] NSWCCA 442 (23 October 2000)

Kennewell v Rand [2005] ACTSC 89 (16 September 2005)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 27 of 2008

Judge: Penfold J

Supreme Court of the ACT

Date: 26 September 2008

IN THE SUPREME COURT OF THE )

) No. SCA 27 of 2008

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CORRINDA KING

Applicant

AND: REBECCA ADA MAINEY

First Respondent

MARTIN STUART BERESFORD

Second Respondent

MATHEW LEE

Third Respondent

TIMOTHY JAMES MURPHY

Fourth Respondent

TROY GEOFFREY EVANS

Fifth Respondent

ORDER

Judge: Penfold J

Date: 26 September 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed, except to the extent necessary to re-sentence the appellant to take account of time spent in custody after the appeal was lodged.

2. The appellant is re-sentenced to a head sentence of 29 months, and a non-parole period of 18 months, both backdated to 28 April 2008, with sentences for the individual offences as specified in the reasons for this decision.

Introduction

1. Corrinda King was sentenced in the Magistrates Court in respect of a total of 8 offences to a head sentence of 29 months imprisonment with a non-parole period of 18 months. She has appealed against all the sentences on the grounds that they were manifestly excessive.

2. The circumstances of the offences and the individual sentences were as follows.

Robbery and related offences

3. The first offence took place in September 2007, during the day. Ms King got out of a car, ran towards an 86-year-old woman who was walking along Corinna Street, Phillip at the time, did what I believe is called a shoulder charge, and knocked the elderly woman to the ground. She landed on the concrete pavement, grazing and bruising her elbow, arms and hands, but she held on to her handbag. Ms King pulled and grabbed at the bag until her victim let go. She then got back into the passenger side of a car and drove away. It appears among other things that her two children were in the car at the time.

4. Shortly thereafter, Ms King bought groceries at a shop in the Lanyon Marketplace using her victim’s credit card. When she was approached by police, other property belonging to her victim was found in her car. In the course of being dealt with by the police initially after she was arrested for that offence, Ms King resisted a police officer’s attempt to get her to stand up, grabbed one of her children and pulled away. She was then restrained and handcuffed before being taken to the cells.

5. Arising from those events she was charged with robbery, obtaining property by deception (that related to the use of the credit card), two counts of minor theft relating to items of the victim’s that Ms King had, and one charge of resisting a Commonwealth official. She was sentenced to 18 months for the robbery, 9 months for the obtain property by deception, 5 months for each of the charges of minor theft, and 3 months for resisting a Commonwealth official.

Child neglect

6. The next incident took place in November 2007 when Ms King was found, apparently under the influence of heroin and possibly another drug, in her car with her two children who were at that stage, I think, three and two, and (I summarise from the case statement) the children were in a distressed and dehydrated state. The younger child was sitting on the rear of the floor of the car wearing a drenched disposable nappy, and his legs were covered in sores. He was crying and appeared to have been for some time. The older child was sitting in her car seat. Both children were red faced and extremely hot to touch. They appeared to be unwashed, their clothes were dirty and their hair unkempt.

7. Police believe that the children had been in a dark coloured car, strapped in seats for at least five hours. There were no nappies or clothes for them, so a nearby childcare centre assisted.

8. And afterwards, it is indicated in the Statement of Facts, the children turned out to have been extremely dehydrated, among other things.

9. Out of that incident Ms King was charged with two counts of child neglect.

Possession of heroin

10. Finally, some time later while Ms King was on bail for those offences she was arrested for breaching her bail conditions, and when searched, a plastic container containing heroin was found. As a result of that she was charged with possessing a prohibited substance.

Sentences

11. For the possession charge Ms King was sentenced to 3 months imprisonment, and for the two charges of child neglect 6 months imprisonment each.

Structure of sentences

12. The sentences were structured as follows:

• All the sentences arising out of the robbery and the related thefts and so on were to be served concurrently.
• The first of the two sentences for child neglect was to be served consecutively on the 18 month sentence for robbery, and the second was to be served consecutively on the first child neglect sentence as to 2 months, making a total term of 8 months to be served on the child neglect charges.
• The sentence for possession of heroin was to be served consecutively on the second child neglect sentence.

13. This resulted in a total head sentence of 29 months, and the learned Magistrate set a non-parole period of 18 months.

Appeal grounds

14. The appeal ground was identified as “manifest excess”, and at the hearing Dr Boss on behalf of Ms King also submitted that the totality principle had been breached by the learned Magistrate’s approach to structuring the sentences. In particular she submitted that the sentences for the two offences of child neglect should have been entirely concurrent.

15. As well, Dr Boss submitted that the learned Magistrate gave excessive weight to general deterrence in relation to the offence of robbery, and gave insufficient consideration to alternatives to imprisonment in relation to the offence of resisting a Commonwealth official.

16. It is convenient to deal with these arguments in reverse order.

Alternatives to imprisonment

17. As to whether her Honour gave insufficient consideration to alternatives to imprisonment for the offence of resisting a Commonwealth official, I consider that if this had been the only offence for which Ms King was being sentenced, if she had never previously served a term of imprisonment, and if she had had a less substantial criminal record in general, it might have been appropriate for her Honour to look more carefully at alternatives to imprisonment. However, since none of these considerations applied, I do not consider that the learned Magistrate fell into error in imposing the term of imprisonment in this case.

General deterrence

18. As to whether the learned Magistrate gave excessive weight to general deterrence in relation to the robbery charge, Ms MacKenzie for the DPP referred me to several authorities for the proposition that a sentence of imprisonment would be the usual starting point for an offence of robbery. In particular, she mentioned the New South Wales Court of Criminal Appeal case of R v Taylor [2000] NSWCCA 442 (23 October 2000).

19. At paragraph [48]—and this case is particularly relevant because it refers to bag snatching, which is a similar offence to the robbery offence we’re looking at today—Wood CJ at CL said:

This Court has made it clear for the offence of bag snatching, where associated with any element of violence, is an offence which absent exceptional circumstances calls for a full-time custodial order.

20. Since I do not understand Dr Boss to have been submitting that there should have been no sentence of imprisonment for the offence of robbery, those authorities do not take me very far.

21. However, in the circumstances of the offence, and in particular:

• the fact that the victim was an elderly woman and as such very vulnerable to the attack that took place; and
• the fact that Ms King’s young children were in the car waiting while she committed the offence,

I find that this was a case in which her Honour appropriately regarded general deterrence as important and did not in any way overestimate its importance.

Totality

22. As to the principle of totality, I find first that her Honour did not err when she made the second child neglect sentence partly consecutive on the first one. In so finding, I mention the case of Kennewell v Rand [2005] ACTSC 89 (16 September 2005), where it was argued on behalf of an appellant that sentences imposed in respect of two counts of culpable driving causing grievous bodily harm should have been imposed to run entirely concurrently. French J as he then was said (at [67]):

Then it is said that, as the offences arose out of one course of conduct, they should be the subject of concurrent sentences. Certainly the offences with which Mr Kennewell was charged arose out of one course of conduct on his part. The offence of culpable driving causing grievous bodily harm is committed in respect of each person who suffers grievous bodily harm by such driving. In a sense the result that anybody suffers grievous bodily harm is fortuitous. Absent injury to any person Mr Kennewell, for the same conduct, might have been charged with only one offence of dangerous driving or driving under the influence of alcohol. It is the fortuitous outcome which is a product of the risk assumed by such driving, namely the infliction of grievous bodily harm or death on other persons that gives rise in each case where such harm has occurred to a separate offence. Having regard to that conceptual underpinning and the evident policy behind it the usual arguments as to the desirability of imposing concurrent sentences for offences constituting a single transaction do not have the same force. In my opinion the learned magistrate is not shown to have erred in the exercise of her discretion in this respect.

23. I point out that in this case there was a single course of conduct by Ms King, the effect of which was to neglect two children, which it seems to me puts this case very much in line with the Kennewell v Rand finding.

24. Secondly, I find that her Honour did consider the principle of totality when she sentenced Ms King to a total of 29 months, and then set a non-parole period of 18 months, which was, in her view “the minimum period the defendant should spend in custody given the gravity of her offending behaviour”. I take that comment from the learned Magistrate to indicate that she was quite consciously thinking about the totality of the behaviour and the totality of the sentence that she was imposing.

Manifest excess

25. As to the general appeal ground of manifest excess, apart from the matters already addressed, nothing was put before me to substantiate the claim that the sentences, or any of them, were manifestly excessive such that error could be inferred from that. There was general discussion about whether the sentences, in particular the 18 months for robbery, and the sentences of 6 months each for child neglect, were within or out of range, but no attempt was made to identify what might have been the range for these kinds of offences (and I do note the difficulties with the child neglect offences, and the issue of the need to look at particular circumstances).

26. The only guide I have, therefore, is the maximum penalty for the offences, which in the case of robbery is 14 years imprisonment, and in the case of child neglect is two years imprisonment. In each case, having regard to the circumstances of the particular offence as already described, and as found by the learned Magistrate, I can see no ground for finding that the sentences in question were excessive. Nor was any case made that any of the other sentences was excessive, except in relation to the offence of obstructing a Commonwealth official, to which I have already referred.

Conclusion

27. Accordingly, the appeal must be dismissed, except to the extent necessary to re-sentence Ms King to take account of the period she spent in custody after her appeal was lodged and before she was released on bail. Now, that means that I need, as I indicated, to do some resentencing and that’s slightly complicated by the fact that by my calculations the two minor theft sentences and the resisting a Commonwealth official sentence have in fact been served, or will have been served.

Re-sentencing

28. Ms King will be re-sentenced as follows:

• On the charge of robbery, 18 months imprisonment backdated to 28 April this year.
• On the charge of obtain property by deception, 9 months backdated to 28 April this year.
• On the two charges of minor theft, 5 months backdated to 28 April, so in fact they won’t expire until tomorrow.
• On the charge of resisting a Commonwealth official, 3 months backdated to 28 April, so that one has already been served.
• On the first charge of neglecting a child, 6 months imprisonment to start at the end of the 18 months for the robbery charge.
• On the second charge of neglecting a child, 6 months imprisonment to start two months after the first child neglect sentence.
• On the charge of possessing a prohibited substance, 3 months imprisonment to start at the end of the second child neglect sentence.

29. That amounts to a total of 29 months imprisonment with an 18 month non-parole period. The non-parole period will expire on 27 October next year.

30. Ms King, please stand. I won’t go through all of those specifically, but I sentence you to a head sentence of 29 months imprisonment, backdated to 28 April this year, with a non-parole period of 18 months which will expire therefore on 27 October next year. You may sit down.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 15 October 2008

Counsel for the applicant: Dr B Boss

Solicitor for the applicant: Legal Aid Office (ACT)

Counsel for the respondent: Ms K MacKenzie

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 26 September 2008

Date of judgment: 26 September 2008