Re Tania Amos v R [1985] FCA 15 (6 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: TANIA AMOS
And: THE QUEEN
No. ACT G179 of 1984
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Fox J.
Blackburn J.

CATCHWORDS

Criminal Law - Appeal from sentence - Whether sentence excessive.

HEARING

CANBERRA
6:2:1985

ORDER

The head sentences be confirmed.

The non-parole period ordered by the trial judge be set aside and in lieu thereof the appellant serve a non-parole period of twelve months.

DECISION

I agree with the orders proposed by Fox J. and am in accord with his reasons.

This is an appeal from sentences imposed in the Supreme Court of the Australian Capital Territory on three charges to which the appellant had pleaded guilty. One offence was for breaking, entering and stealing on 6 February 1984, one was for assaulting, in company, one Andrew Coppin with intent to rob him, committed on 7 February, and the other was for detaining Andrew Coppin with intent to hold him for the appellant's advantage, committed on the same day. For the first offence I have mentioned, the appellant was sentenced to one year's imprisonment, and for each of the others three years imprisonment, the latter to be served concurrently, but to be cumulative on the first, making a total of four years. A non-parole period of two years and six months was fixed.

The offences were all part of the one activity. The appellant was at the time eighteen, nearly nineteen years old, unmarried and unemployed. She had an older brother Edward, who was addicted to drugs and had been taking heroin regularly. At the time of the commission of the crimes, in which both participated, they had been living in Sydney. For the heroin which had been supplied to him, the brother had run up a large bill, of about $6,500. Because of default in payment he had been "beaten up" in Sydney, and told, under threat of harm to his children and of more violence to himself, to go to an address in Canberra (being that of Andrew Coppin and his father) and steal some guns. The appellant was fond of her brother, and had adopted a protective, sisterly, attitude towards him. She knew that he took drugs, that he was heavily in debt, and of the assault on him.

He persuaded his sister to drive him to Canberra. She knew that he intended, possibly with her active assistance, to break into a property and steal. She did not know that they were to get guns. Nor was she aware, as the fact was, that he took with him a shotgun, which had apparently been shortened in some way. They went directly to the nominated address. One of them entered through a window, and let the other in (their accounts differ in this regard). They stole a video recorder, a portable television set, a watch, a bayonet (Mr. Coppin was serving with the Army Reserve) and a hunting knife. It was thought that the guns, if any, were in a safe in the house, which was locked. The value of the property stolen was estimated at $2,510 (although the charge may not relate to the whole). An unspecified part was recovered when the car they were using was involved in an accident on the following day (7 February) as they were returning to Sydney. Some of the stolen property (value unspecified) was damaged beyond repair in that accident.

On 7 February, the appellant's brother, in order to proceed with the assigned purpose, purchased an "angle grinder", a pinch bar and other items to aid in the purpose, but in the event these proved quite inadequate. They went again to the house and one of them knocked on the front door. The knocking was answered by Mr. Coppin, and the appellant's brother then produced the gun he had brought from Sydney, and pointed it at Mr. Coppin. The evidence is unchallenged that the appellant did not know that her brother had the gun with him. It was in fact unloaded, but looked no less threatening because of that. Apparently, the brother did not have cartridges for it. Mr. Coppin was forced back into the house. The appellant tied his hands behind him with tape and they were also tied with a belt, but by whom is not clear. He was asked for the key to the safe but said he did not have one. He was taken into the bedroom and a pillow case put over his head. It is not necessary to follow the remaining events in detail. The brother did not gain access to the safe, although he went away for a period to look for oxy-acetylene gear. Mr. Coppin was provided with something to eat and drink; his bonds were loosened for this purpose and the pillow case raised. The appellant had earlier interceded when her brother suggested that he might use force on Mr. Coppin to extract the truth about the keys to the safe, and her conduct towards him was, relatively speaking, reasonably considerate. He was not injured or roughly treated, and because his bonds had been loosened, managed to escape. Mr. Coppin, it might be added, was one month younger than the appellant. Nothing was stolen on this occasion.

The appellant was injured in the car accident to which I have referred, and was admitted to Campbelltown Hospital. Presumably, her implication in the crimes was immediately apparent. Her brother was arrested the following day when he came to visit her.

In sentencing the appellant the judge pointed to the degree of her active participation and her opportunity to "extricate" herself. The judge mentioned that it was she who (on the first occasion) broke in and let her brother in the front door. There were, as I have said, differing accounts of what had happened in this regard. The "breaking" would seem to have been of a technical nature, because the only evidence is that the window was open.

In his reasons, as relating to the appellant, his Honour said:

"You, Tania Amos, present a very difficult problem for a sentencing judge, because you are so young. You have had such a good reputation to date, unblemished as put to me by Mr Refshauge, and you were well-liked by your employer, Mrs Ford, and by other people. Certainly, it is commendable that you wanted to help your brother out of what you recognised as a threatening situation to him, but really, that is misplaced love and affection, and I hope you now realize that it is misplaced love and affection. You should have let him do it on his own. It was his idea but you went along with it and now you also have to face the consequences.

I will take all that into account. I will also take into account my assessment that Mr Refshauge's submission is correct: that the impact of this arrest and imprisonment for seven months has been a sufficient lesson for you, and you are not likely to offend again. You have pleaded guilty to the offences; you have made confessions to the police; and you have expressed your remorse. I accept all those matters, and I take them into account."

and later,

"Tania Amos, in respect of the offence of breaking, entering and stealing, I have listened carefully to everything Mr Refshauge has put to me on your behalf, but in my view, and in my judgment, a prison sentence is the only appropriate sentence, even though it is your first offence. It is such a major entry into the criminal area that the subjective factors are outweighed by the stark reality of what you have done.

In respect of the break, enter and steal, I sentence you to one year's imprisonment. In respect of the assault with intent, I sentence you to three years imprisonment, and in respect of the detaining for your own advantage, three years imprisonment. Both sentences will be concurrent - those last two will be concurrent, but they will be cumulative upon the sentence of one year for break, enter and steal. That makes a total of four years.

What I have said to your brother applies to you also, and in fixing a non-parole period, I take account of the remissions that you will probably earn. At least you will become entitled to them if you are industrious and of good behaviour. I fix a non-parole period of two years and six months."

Both the appellant and her brother have been in custody since they were arrested on 8 February 1984.

The papers suggest that the appellant appeared, or was due to appear, in the Court of Petty Sessions in Canberra on 13 February. Both had by then made fully incriminatory statements. On 9 April the appellant pleaded guilty to the three charges and was remanded to the Supreme Court for sentence. Sentence was delivered on 28 August. This extraordinary delay has not been explained. The appellant has spent 267 days in custody up to the date of hearing of this appeal.

The report of the welfare officer contains the following comments under the heading "Relevant attitudes":

"In discussing the offences with Tania, she claims that she went to the house with Edward because she perceived he needed her help. She claims she did not know of the weapon possessed by Edward, nor did she expect events to occur in the manner they did.

Tania has expressed regret and shame for her involvement and states that at no time did she wish to harm that person in any way.

She advised that she does not use drugs and has tried to help Edward overcome his heroin use on many occasions. This has been confirmed by Edward and other sources. Mrs Moore and Mrs Ford indicated that Tania's involvement and behaviour was completely out of character."

and under "Evaluation":

"As with all heroin users, her brother Edward functions characteristically by manipulating other (sic) to meet personal needs. Given this long standing influence over Tania, her underlying grief, and Mrs Moore's statement above Tania could well have been prone to Edward's manipulation. It is considered this perceived fear for Edward's well-being may be the major factor in her involvement in these offences."

and later:

"It is felt that imprisonment could well be a traumatic and destructive influence on Tania.
It is felt that Tania could well benefit from supervision counselling, to enable her to work through her depression and loss of important figures in her family. The support of her own family is also present as well as the practical and emotional support in Sydney, of Mrs. Ford."

The principles guiding an appellate court reviewing a sentence have been stated many times, and do not need repetition. The fundamental bases of these principles are, I think, two. The first is that an appellate system does not operate satisfactorily if the value judgments of a trial judge are to be supplanted by value judgments of other judges. The second is that a trial judge has many advantages denies appellate courts; the dry bones of the typed record are no substitute for the flesh and blood of the trial court. On the other hand, appellate proceedings offer the opportunity for an informed reflection on the case which is aided by what the trial judge has said, and by a deeper analysis than may have been possible at the trial. Arguments of counsel are often different, if not more refined (note, however, in this connection what was said by Street C.J. in R. v. Melville (1956) 73 W.N.(N.S.W.) 579 at 581). It is acknowledged that one function of an appellate court is to try to bring about some uniformity in sentencing, having in mind that guidance in that direction is only obtained by comparison.

In the present case the head sentences his Honour imposed are, in total, considerably greater than I would myself have thought appropriate. The sentence of three years in respect of each of the offences committed on 7 February are heavy, having in mind all the circumstances, but are not so heavy that I regard it proper to interfere. A matter which has caused me greater concern is the fact that they were made cumulative upon the sentence of one year for the breaking, entering and stealing which occurred on 6 February. The test generally applied is whether the offences were part of the "one enterprise" (see per Street C.J. in R. v. Melville, supra, at 583) or "arising out of the same facts" (per Bray C.J. in R. v. Carey (1975) 11 S.A.S.R. 575 at 577. In Dicker v. Ashton (1974) 65 L.S.J.S.(S.A) 150 at 151 Wells J. posed a test cited in Daunton-Fear, Sentencing in South Australia (1980) 105,6:

"I am of the opinion that, unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a Court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct."

It was, however, the expressed view of Bray C.J. in R. v. Carey (supra), that "there is no hard and fast rule either way". There is in fact a limitation on making sentences cumulative imposed by the need to keep the total duration of sentences given at the one time within reasonable and proper bounds. See also Cross, The English Sentencing System (1981) pp. 100-102. It is apparent in the present case that the applicant's brother set out to steal guns thought to be in Mr. Coppin's house, and persisted in his attempt to do so. The appellant, also, saw herself as engaged in the one enterprise. It is true that a distinct offence was committed on 6 February, but this is the common situation. The breaking on that day was not principally, if at all, for the purpose of stealing such sundry items as might appear attractive, but for the purpose of stealing guns. The conclusion was open that concurrent sentences were appropriate.

The appellant is a young person, of previously good character, of whom a number of people, accepted as credible, have spoken well. In sentencing such a person, full account has to be taken, in the interests of the community no less than of her own, of the effect of a term of imprisonment upon her. She will be released into the community after serving her sentence, and it is to everyone's advantage that she returns no worse in character, no more prone to commit a criminal offence, and no more anti-social in behaviour than when she commenced her punishment. Unfortunately, research shows that the character of a person such as herself may well be worsened by prison experience, particularly if it is at all lenghty. (See, among a vast literature, The Failure of Imprisonment (1979), Tomasic and Dobinson espec. at pp.132-133; and Vinson, The Long Journey from Knowledge to Policy in Prison Administration, paper delivered at A.N.Z.A.A.S. Conference, 1984; The Report of the Royal Commission into New South Wales Prisons, (1978) pp.358,359.) In many cases that result has to be accepted because of considerations such as that of retribution, but it is important that the likelihood, which many think a strong likelihood, be borne in mind. The welfare report in the present case contains the passage, already set out: "It is felt that imprisonment could wll be a traumatic and destructive influence on Tania". I do not know what view the judge took of that report, or the particular passage, as he did not mention either. He did however say: ". . the impact of this arrest and imprisonment for seven months has been a sufficient lesson for you, and you are not likely to offend again."

The appellant has already been in custody for a long period, although up to the time of the sentence, at least, this would seem mainly, if not wholly, to have been in the Belconnen remand centre, in the Australian Capital Territory.

On the whole, I believe that justice can be done, consistently with principle, by substantially reducing the non-parole period. It seems likely that in arriving at the non-parole period of two and a half years, his Honour followed the same approach as he did in R. v. Paivinen. On appeal, the Full Court of this Court has held that approach to be wrong. It is likely that his Honour added one half or thereabouts to the term of imprisonment he thought should be served, so that, on an application of the Probation and Parole Act (N.S.W.) 1983, s.25 and Regulation 18, and assuming the appellant would gain maximum remissions, the actual term served would be the base figure. On this view of the course adopted by his Honour, the non-parole period he would have ordered, before the passing of the Probation and Parole Act (1983) N.S.W., would have been about 20 months. Error having occurred, it is necessary for this Court to consider the matter for itself. In my view, the period should have been twelve months.

I would therefore allow the appeal, but in respect of the non-parole period only. In lieu of the order made, it should be ordered that the non-parole period be 12 months, to be calculated from the day the head sentence took effect.

In my opinion, the first principle to be followed by this Court in its appellate jurisdiction is that the decision under appeal is assumed to be correct until it is shown to be wrong. A sentence should be varied or set aside only if it is plain that the judge made an error of principle; it is not sufficient for the appellant to show that the judge's remarks on sentence are open to the interpretation that he may have made an error of principle. A sentencing judge is not obliged to mention in his remarks every principle of sentencing and every factor which he takes into account, putting them all in their correct proportions and showing the relative weight which he gives to each. He does not have the onus of making remarks on sentencing which show beyond doubt that he was correct in principle.

It is of course true that the severity of the sentence itself may show that insufficient weight was given to a particular factor even if the judge expressly took that factor into account. As it is commonly said, the severity of the sentence may itself show the error of principle.

In this case, counsel for the appellant subjected the learned judge's remarks to a most thorough scrutiny, for which I am grateful. But in my opinion his submissions failed to show that the learned judge was in any respect wrong.

In his first submission, counsel contended that among the subjective factors which motivated the appellant in committing the crimes, the learned trial judge failed to consider the family circumstances of the appellant which had been outlined in the welfare report. But there is nothing to show that his Honour failed to consider these circumstances. The Court cannot infer that he failed to consider them from the mere fact that he did not expressly mention them.

The second ground of appeal was that the trial judge erred in failing to attach any, or any sufficient weight, to the period of nearly seven months which the appellant had already spent in custody. In my opinion this Court cannot possibly come to that conclusion. His Honour did mention that the accused had been in prison for seven months at the time of sentence, and there is no indication that, a minute or two later, he had completely forgotten this fact, when he pronounced sentence.

The next ground of appeal was that the learned judge erred in according too much significance to the aspect of general deterrence, and too little weight to the subjective circumstances generally of the appellant. Counsel submitted that the only purpose of punishment which the learned judge mentioned in his remarks on sentencing was deterrence, to the exclusion of any other purpose. From this it does not follow that he had no other purpose in mind, or that he gave too little weight to other purposes.

The next ground of appeal was that the learned judge erred in failing to attach any, or any sufficient weight to the youth and good character of the appellant. In fact, the learned judge said this:

"You, Tania Amos, present a very difficult problem for a sentencing judge, because you are so young. You have had such a good reputation to date, unblemished, as put to me by (counsel)."

This does not satisfy me that he failed to give sufficient weight to these factors.

The next ground of appeal was that the judge erred in failing to attach any, or any sufficient, weight to evidence of the appellant's confession and subsequent plea of guilty. What the learned judge said was

"You have pleaded guilty to the offences; you have made confessions to the police; and you have expressed your remorse. I accept all those matters and I take them into account."

Nothwithstanding these plain words, it was contended that the sentence actually passed showed that the learned judge did not sufficiently take into account these matters. This argument is taken up in the next one.

The next ground of appeal was closely linked to all the argument just mentioned. It was contenden that the sentence was manifestly excessive. I am unable to agree with this contention. The accused, who was eighteen years old at the time of the crimes, had an elder brother who was addicted to heroin. Both lived in Sydney. In order to get money to support his drug habit, and also because he was threatened with violence if he did not pay a debt of $6,500 which he owed for heroin, her brother decided to go to Canberra and commit the crime of breaking, entering and stealing. The accused, who was fond of her brother and wished to help him, decided that the way to do so was to assist him in this course of crime, knowing what he intended. She assisted him to hire a car, and drove him in the car from Sydney to Canberra in order to commit the crimes. She did not know that he had a firearm with him. The brother and sister together arrived in Canberra, broke into a house, and stole a substantial quantity of goods, but found that they could not break into a safe which was in the house. They placed the goods in the car, and then had what the appellant described as "not much" discussion on the question of returning to the house the next day. They then went to a motel in Canberra and there had another discussion about returning to the house and breaking open the safe. The appellant's brother acquired some house-breaking instruments, and they returned to the house the next day. At the front door of the house they were met by the victim, and the appellant's brother pointed the firearm at him (this being the first time the appellant knew of the firearm). The victim went back into the house, and the appellant then tied his hands; a pillowcase was put over his head; his wrists were taped together by the appellant, while the appellant's brother attempted to break open the safe, the appellant threatened to use chloroform on the victim. The appellant persuaded her brother not to use more violence to the victim in order to get the keys to the safe.

The learned judge, addressing the appellant, said

"You are no innocent bystander, you are a major accomplice in major

grave crimes and I must sentence you accordingly . . . in my judgement, a prison sentence is the only appropriate sentence, even though it is your first offence. It is such a major entry into the criminal area that the subjective factors are outweighed by the stark reality of what you have done."

He sentenced the appellant to one years' imprisonment in respect of the charge of breaking entering and stealing, to three years' imprisonment in respect of the charge of assault with intent, and to three years' imprisonment (concurrent with the second sentence) in respect of detaining the victim with intent to hold him for her advantage. The concurrent three year sentences were cumulative upon the sentence of one year for breaking, entering and stealing, making a total head sentence of 4 years' imprisonment. The non-parole period was fixed at two years and six months.

I am unable to agree that these sentences are manifestly excessive so as to call for the intervention of this Court. Premeditated crimes of violence require stern sentences because the gravamen of the offences is putting the victim in fear; the fact that in the result the violence actually applied was slight is less significant. In my opinion the sentences imposed were within the range of a proper exercise of discretion by the learned trial judge.

It was also contended that it was wrong in the circumstances to make the concurrent three year terms cumulative upon the one year term for the breaking, entering and stealing which occurred the day before.

The evidence is quite clear that the crimes committed on the second day were considered after the commission of the crime on the first day, and after discussion about what the appellant and her brother would do. Moreover, it is inescapably clear from the evidence that the appellant realized that her brother intended to use at least threats to the occupant of the house, when she went with him to the house on the second day. The appellant's complicity in the crimes committed on the second day was a separate decision by her for which she was separately responsible. In my opinion the circumstances justified the course taken by the learned judge of treating the offences on the second day as separate from that of the first day, and as requiring cumulative sentences.

It was also said that the learned judge placed reliance on what he saw as the need to protect the people of the Territory from persons who come from elsewhere to commit crimes in the Territory. What his Honour said was:

"The purpose of punishment is protection of the society in which we live, and this court must do everything it can to discourage people who think that the Australian Capital Territory residents are easy game for people from out of the Territory.

I have to reflect in the sentences that I impose upon you, a warning and a lesson to anybody who thinks that they can do that; that is, that they can resort to the Australian Capital Territory and commit this sort of crime, and if they are caught, gaol is almost an inevitable result."

There is not the slightest indication that his Honour passed a more severe sentence than he would have passed had the appellant been resident in the Territory, and there is no reason to assume that so experienced a judge made so elementary a mistake. His remarks were relevant to the need to extend the influence of general deterrence beyond the confines of a small population in a small Territory. It appears that, quite properly, he was speaking with a view to the reception of his remarks by persons outside the Territory.

On the question of the fixing of a non-parole period by reference to the new regulations made under the Probation and Parole Act 1983 (N.S.W.) I adhere to what I said in Paivinen v. The Queen. I consider that the learned judge's method of determining the non-parole period was correct. As my brethren think otherwise, a non-parole period of one year is appropriate.

I would dismiss the appeal.