R v Morrow[2006] QCA 305

The second robbery took place about half an hour later at a clothing shop in Woolloongabba.  The applicant selected clothes and tried them on and then approached the counter with the clothes and produced a blood-filled syringe which she again brandished at the assistant.  She left the shop without paying for the clothes.  When staff followed her she continued her threats before saying that she would come back in two weeks' time to pay but that she needed the clothes now because the police were after her.  The only clothes taken by her were a top and a pair of shorts.

The police were called and found the applicant nearby a short time later wearing the stolen clothes.  She was taken to the Upper Mount Gravatt CIB and interviewed in relation to counts 1 and 2.  After the interview she abused a police officer and, while handcuffed, spat in his face near his mouth.  It was then believed, based on what she said, that she was positive to Hepatitis C but subsequent tests have shown that not to be the case. 

The third count of robbery occurred whilst the applicant was on bail in relation to the two counts of robbery and the count of assault.  She went to a service station in Carina where she asked the attendant for cigarettes.  When he collected a packet for her she produced a syringe and threatened him.  She left with the packet of cigarettes without paying for them. 

The applicant was born on 1 January 1979 and so was 26 years old when she committed these offences.  The offences were committed some 12 months into an 18 month probation order that had been imposed on 25 November 2004 in relation to one count of wilful damage.  She has four children aged between three and seven years who reside in New South Wales under the care of the Department of Community Services.  Her husband left her in December 2002 when the oldest of the four children was only five years old.

She has had a serious drug problem for which she has been treated in custody with decreasing amounts of Subutex.  The learned sentencing judge referred to the fact that the robberies were committed while she was suffering from a very serious drug addiction and were out of character given her previous history.

The respondent referred to the following comparable cases.  In R v Styles [2003] QCA 374, the applicant was convicted on two armed robbery counts, two counts of armed robbery in company and one count of attempted break and enter.  He was sentenced to six years' imprisonment and there was a recommendation for parole after serving 21 months.  The offences involved some degree of pre-planning and the stealing of money.  Two of the offences were committed in company and multiple weapons were used.  On the counts of robbery committed alone he was armed with a knife and a blood-filled syringe.  On both of the occasions when he committed robbery in company, one offender was armed with a knife and the other with a hand gun.  It was the applicant who had the knife and his co-offender who carried the gun. 

There were victim impact statements indicating that some of the victims of those robberies had suffered significant personal consequences.  The applicant had absconded after the offences and remained at large for a substantial amount of time, but during that time had made a genuine effort to rehabilitate himself.  After the offences he obtained employment, in the course of which he had injured his back and by the time of the appeal was in a wheelchair and would be in a wheelchair for the time he was in custody.  In that case it was said that the appropriate range was six to seven years and the application for leave to appeal against sentences was refused.

The next case referred to by the respondent was R v Horne [2005] QCA 218.  The applicant had been convicted of one count of entering premises with intent to commit an indictable offence and one count of armed robbery in company.  He was sentenced to three years' imprisonment suspended after nine months, with an operational period of four years.  The robbery took place in a bakery in the early hours of the morning.  The applicant's co-offender was armed with a piece of wood and the applicant was armed with a metal pipe.  They stole $750. 

The applicant was not located by police until more than a year later.  He made full admissions and his evidence established the case against his co-offender.  He appeared to be genuinely remorseful.  He had no relevant criminal history, there was no actual violence or planning and there were substantial prospects of rehabilitation.  He had committed the offences whilst drunk.  The applicant had maintained good conduct and employment for two years after the offence before he was dealt with.  The Court of Appeal found that the sentencing judge had erred in failing to take account of his co-operation with the authorities. 

The application for leave to appeal against sentence was allowed and a sentence of three years' imprisonment, suspended after 83 days, was imposed on the break and enter charge and for the armed robbery a sentence of 83 days' imprisonment was imposed, with the applicant then to be released on probation for two years and nine months.  Restitution was ordered.  Eighty-three days was the time he had already spent in custody.

The offending in this case fell between that found in Styles and Horne.  There was more than one occasion when the offending took place, the applicant was on probation at the time of all of the offending and on bail at the time of the last offence.  She was armed with a blood-filled syringe. 

On the other hand the applicant was not in company, was not armed with a knife or a gun and her offending was in part explained by the separation from her husband and children and her drug addiction. She had, by the time of sentence, made some progress in her rehabilitation.  I note that the latest prison report, which could not have been before the sentencing judge, shows that that progress has been maintained and she has successfully completed the drug treatment program.  She has been unable to see her children whilst in custody.  The amounts stolen in the robberies were relatively insignificant.

When she appeared on the appeal she told the Court that almost immediately after sentencing she was diagnosed with bipolar disorder.  A report has been sent to the Court from a psychologist from the Brisbane Prison Mental Health Service which says that that service

"is a service designed solely to treat people with a major mental illness, using criteria which is generally commensurate with the mental health services offered to the wider community."

It says that Ms Morrow has been a patient of that service since 3 March 2006 and has a diagnosis of a Mood Disorder.  She is currently prescribed medication and has been compliant with the same.  I infer from that report that she has been diagnosed with a mood disorder which is regarded by the Prison Mental Health Service as a major mental illness. 

Bipolar disorder is, of course, a type of mood disorder but the report does not explicitly say that she has bipolar disorder.  The respondent has objected to the receipt of this report but the Court has an unfettered discretion to receive new evidence. In my view, the particular circumstances of this case require, in the interests of justice, that the evidence be received: see R v Maniadis [1997] 1 Qd R 593.

There seems to me to be little doubt that had the sentencing judge known of the major mental illness from which the applicant appears to suffer, he would have imposed a sentence which made it more likely that she would have received supervision on her release from prison.  This is particularly so when one adds to the diagnosis of treatable mental illness the history of more recent drug abuse.

This lack of significant relevant information put before the sentencing judge meant that the applicant was sentenced, in my view, on an incorrect basis, so it falls to this Court to exercise the sentencing discretion afresh.  In those circumstances, the head sentence which should be imposed on count 4 should be four years' imprisonment suspended after nine months, with an operational period of four years.

On counts 1 and 2 I would impose nine months' imprisonment, followed by probation for three years.  The sentence of six months on count 3 need not be disturbed.  However, a sentence of probation may only be imposed if the applicant agrees to it so I must ask you, Ms Morrow, if you agree to the following terms. The requirements of the probation will be that you must not commit another offence during the period of the order.  You must report to an authorised corrective services officer within 24 hours of your release from prison at Stones Corner.  You must report to and receive visits from an authorised corrective services officer as directed by the officer.  You must take part in counselling and satisfactorily attend other programs as directed by an authorised corrective services officer during the period of the order.

You must notify an authorised corrective services officer of every change to your place of residence or employment within two business days after the change happens.  You must not leave or stay out of Queensland without the permission of an authorised corrective services officer.  So, if you wish to visit your children in Sydney you would have to get that permission to do so.

You must comply with every reasonable direction of an authorised corrective services officer.  In addition I would add the extra requirement that upon your release from custody you report for assessment to a community mental health service and comply with any treatment prescribed for you by that service.

Are you prepared to comply with those terms of probation?

APPLICANT:  Yes, your Honour.

ATKINSON J:  I would impose those sentences in place of the sentences that were imposed by the learned sentencing judge.

THE PRESIDENT:  I agree with the orders proposed and the reasons for those orders given by Justice Atkinson.

WILSON J:  I agree and wish to add only a few small comments.  In my view regardless of the question of the mood disorder the head sentence of five years was, in the circumstances of this case, excessive and four years is the appropriate head sentence.  In my view the mood disorder is relevant to the fashioning of the sentence so that it provides for some supervision upon her release and I agree with the manner in which Justice Atkinson has proposed this be done.

THE PRESIDENT:  The orders are as set out by Justice Atkinson.