R v Leighton[2014] QCA 169

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The applicant, Maree Leighton, pleaded guilty in the District Court at Ipswich on 13 December 2013 to the following indictable offences: armed robbery in company on 14 May 2012 (count 1); assault with intent to steal with violence while armed on 17 May 2012 (count 2); assault occasioning bodily harm while armed on 17 May 2012 (count 3); armed robbery on 19 May 2012 (count 4); being in premises with intent to commit an indictable offence on 19 May 2012 (count 5); and robbery while pretending to be armed on 19 May 2012 (count 6).  She also pleaded guilty to the following summary offences: two counts of stealing, the first on 26 February 2012 and the second on 7 May 2012; receiving tainted property on 18 May 2012; and possessing a drug implement on 18 May 2012.  She was sentenced to eight years imprisonment on count 2 and to lesser concurrent terms of imprisonment on the remaining counts.  Parole eligibility was set on 12 December 2015.  A period of 245 days presentence custody was declared as time served under the sentence.  She was convicted but not further punished on the summary offences.  She has applied for leave to appeal against the sentences contending they are manifestly excessive; that the judge failed to take into account mitigating circumstances; and that the judge failed to properly take into account or made a factual error about the time she spent in custody on an earlier sentence.

The circumstances of the offending

[2] The circumstances of the offending are as follows.  The applicant, who suffered from Hepatitis C, and a female accomplice entered a car park lift in Brisbane city with the 39 year old complainant in count 1.  After the doors closed, one offender demanded money.  The accomplice said, "We have AIDS" and held out a syringe.  The complainant pleaded not to be hurt and offered them $40.  The accomplice demanded $100 and credit cards and the complainant complied.  The accomplice also demanded the complainant's driver's licence and the complainant reluctantly complied.  The accomplice read out the complainant's address, the applicant repeated it and said she knew it.  The accomplice told the complainant not to go to the police, stating, "We don't want to have to hurt you and your kids."  The complainant pleaded with them to return her licence and the offenders complied after wiping it for fingerprints.  They continued to threaten her.  One offender said, "We are sorry to do this to you.  We have AIDS."  The complainant avoided eye contact, was crying and pleaded, "OK, OK, please don't hurt my family."  When the lift doors opened, the offenders left.  The complainant locked herself in her car, phoned her husband and asked him to cancel the credit card.  She then called police.  The credit card was used unlawfully once.  There were several unsuccessful attempts to use it at convenience stores, a supermarket and in a taxi.

[3] On 17 May 2012 the applicant followed the 59 year old female complainant in counts 2 and 3, a medical practitioner, into a car park at the Roma Street Transit Centre and then into the car park lift.  As the complainant walked to her car she heard footsteps behind.  When she unlocked her car she saw the applicant standing between her car and another car, blocking her exit.  The applicant demanded money, stating that she was "Hep C positive" and threatened to stab her with the syringe in her hand which appeared to contain blood.  She had her thumb close to the plunger.  The complainant told the applicant she did not have to do this.  The applicant said, "I'm desperate, give me $200 or I will stab you."  The complainant said she did not have much money.  The applicant told her to get into her car and drive to an ATM.  The complainant tried to persuade her to return to the Transit Centre but the applicant lifted the syringe as if to stab the complainant in the abdomen.  The complainant grabbed her wrist and during the struggle the applicant continued her demands and the complainant called for help.  The driver of a passing vehicle stopped and called police.  The applicant eventually desisted and walked towards the lift.  The complainant's hand was bleeding and the syringe needle was bent.  The complainant returned to her surgery where a colleague treated her injury.

[4] On 19 May 2012 the 75 year old complainant in count 4 parked in a disabled car park and walked to an ATM where she withdrew $200.  The complainant had suffered a broken left hip and used a walking stick.  The applicant took the card from the machine, handed it to the complainant and snatched the cash.  The complainant reached out for her money and said, "No".  The applicant said, angrily, "Don't touch it, I need it.  I've got a syringe."  She reached into her hand bag and pulled out a syringe, pointing it at the complainant.  The applicant walked quickly away.

[5] On 19 May 2012, the 39 year old complainant in counts 5 and 6 went to the bathroom at the cinema.  Whilst washing her hands, she felt a stabbing sensation on her left shoulder blade.  She looked up and saw the applicant standing behind her.  The applicant said, "I have a syringe in your back, give me your money."  She told the complainant to hand over her purse and the complainant complied.  The applicant ordered her into a cubicle and told her not to scream and to wait there for five minutes.  The complainant closed the cubicle door but heard the applicant repeat three times, "I'm still here."  The complainant waited a short time before seeking the assistance of an usher and her husband.  Her husband left the cinema and confronted the applicant but she denied the offending.  The complainant identified her as the robber.  As they walked towards the cinema, the applicant admitted her guilt, removed the complainant's purse from her bag, threw it on the ground and left.

[6] The summary offences occurred in this way.  On 26 February 2012, CCTV footage recorded the applicant stealing a hand bag containing $740 cash, a driver's licence and bank cards from a centre at Kingston where the 35 year old complainant was attending a birthday party.

[7] On 7 May 2012, the applicant stole the 55 year old complainant's purse containing her driver's licence and credit cards from a shopping trolley.  The credit card was used to purchase items valued at over $8,000.  The complainant's driver's licence was subsequently found at the home of the applicant's mother.

[8] Later that day, the applicant stole another hand bag from a complainant at a cinema.  She removed $500, bank cards, a driver's licence and an iPhone and left the handbag in the cinema bathroom.  One credit card was used to purchase ice creams at a nearby store.

[9] On 18 May 2012, police executed a search warrant at the home of the applicant's mother and found a water pipe in the applicant's bedroom.

The applicant's antecedents

[10] The applicant was 41 at the time of the offending and 43 at sentence.  She had a significant criminal history commencing in 1997 and extending over three pages, principally for dishonesty and drug offences.  She did not take advantage of the many non-custodial sentences she received.  Of most significance, on 14 May 2010 she was sentenced in the District Court for the offences of armed robbery in company with violence and attempted armed robbery to three years imprisonment with 242 days declared as time served under the sentence with her parole release date fixed at 14 July 2010.  During that offending, she robbed a taxi driver of $200 whilst armed with a syringe, and attempted to rob another taxi driver in the same manner.  One victim was 72 years old.  She was on parole for those offences at the time of the present offending.

[11] After her arrest on the present charges in May 2012, she was returned to custody to serve the balance of the 2010 sentence which she completed on 12 April 2013.  She served 244 days which was declared as presentence custody and in addition was in custody for 11 months serving the 2010 sentence which could not be so declared.

[12] Her parole officer's court report[1] unsurprisingly noted that her response to supervision was poor and that her unsatisfactory performance suggested she was not suitable for further community based orders.

The submissions at sentence

[13] The prosecutor tendered two victim impact statements[2] which attested to the dreadful effect of the applicant's offending on two of the complainants.  The mental anguish caused to the unfortunate complainant in counts 2 and 3 who had to deal with the risk of transmission of serious diseases through the needle injury was particularly concerning.

[14] The prosecutor submitted that the most serious offence was count 3 as it involved a protracted physical struggle whilst the applicant, who knew she had Hepatitis C, was armed with a syringe containing blood with the needle injuring the complainant.  The applicant's recidivism made general and personal deterrence important sentencing factors.  The prosecutor referred to R v Brown[3] where nine years imprisonment was imposed, and R v Keating[4] where a seven and a half year sentence with a declaration under Part 9A Penalties and Sentences Act 1992 (Qld) was imposed.  The applicant had been in custody since May 2012 but 11 months of that time could not be declared as time served under the sentence.  Her guilty plea and cooperation should be acknowledged by setting a parole eligibility date after she had served somewhere between one-third and one-half of her sentence.

[15] Defence counsel contended that R v Morrow;[5] R v Styles[6] and R v Horne[7] were  comparable.  She tendered a report from psychiatrist Dr Michael Beech.[8]  The report set out the applicant's unhappy childhood including the sexual abuse perpetrated by her maternal grandfather when she was five years old.  She told Dr Beech that she was a troubled teenager who struggled at school and moved in with a boyfriend at 16.  She had a series of failed, abusive relationships which produced four children, now aged from 25 to six.  She became a drug addict.  She entered drug rehabilitation and did well for a time but relapsed.  The youngest child is in the custody of her mother and her 13 year old daughter lives with the girl's father.

[16] The report noted that the applicant used heroin to rid herself of bad feelings by numbing her senses.  Dr Beech considered she had a chronic post-traumatic stress disorder from childhood sexual abuse and a chronic depressive disorder that at times deteriorated into a major depressive disorder.  She also had a substance dependence disorder involving heroin.  Dysfunctional relationships and drug use suggested a borderline personality disorder.  When released from prison in early 2012 she ceased her anti-depressant medication, took the prescription drug, Xanax and deteriorated.  She abused and probably became dependent on Xanax.  Intoxication probably played a role in some of her behaviour.  She required further counselling, psychiatric oversight of her depression and medication.

[17] Defence counsel emphasised that the applicant had been in custody for at least a year and a half but that not all that period could be declared as time served under the sentence.  She tendered certificates relating to courses the applicant had completed whilst in custody which helped with her self-esteem and gave future hope for her rehabilitation.  She regretted and was ashamed of her actions.  She did not deliberately strike or injure any complainant; the injuries were accidental.  She indicated a very early willingness to plead guilty.  She had no prior convictions for violence until 2010.  Defence counsel urged the judge to impose a sentence of no more than five years imprisonment.

[18] In reply the prosecutor emphasised that the applicant had actually injured a complainant so that the circumstances of the present offending were much more serious than the 2010 convictions.  The cases relied upon by defence counsel were distinguishable.

The judge's sentencing remarks

[19] In sentencing, the judge set out the circumstances of the offending which he described as despicable, premeditated, persistent, opportunistic and determined.  The applicant targeted vulnerable women whilst armed with a syringe; in one case she injured a complainant.  Two tendered victim impact statements showed that those complainants had suffered greatly as a result of the offending.  His Honour referred to Dr Beech's psychiatric report and to the applicant's dependence on drugs, her remorse and the courses she had undertaken.  Personal and general deterrence were important factors.  Her actions were capable of communicating serious disease.  The maximum penalty for many of the offences was life imprisonment.  His Honour imposed an effective eight year sentence with parole eligibility after about two years and eight months.  The judge did not advert to the presentence custody of 11 months which could not be declared as time served.

The parties' contentions

[20] Counsel for the respondent concedes that the sentencing judge failed to properly take into account the fact that the applicant had been in custody for 11 months (completing her 2010 sentence) which could not be declared as time served under her present sentence.  The judge should have tempered the sentence to ensure that the total period of imprisonment she would serve, both at full-time discharge and at her eligibility date for release on parole, was not crushing.  After taking into account the presentence custody declaration, her present sentence continues for seven years and four months from the date of sentence.  Her earliest prospect of parole release is 12 December 2015, by which time, taking into account her declared presentence custody (about eight months) and the 11 months of the 2010 sentence, she will have served three years and seven months imprisonment.

[21] During discussion at the appeal hearing between the Bench and the applicant's counsel, the question was raised as to whether the applicant's prospects of release on parole were so poor that, if error was established and this Court resentenced, the sentence should reflect all mitigating features by discounting the head sentence instead of setting an earlier parole eligibility date.  The applicant's counsel contended that, despite her former breach of parole, she was doing well in prison and had some prospects of obtaining future parole.  He submitted that the mitigating features should be reflected both in a reduction of the head sentence and in an early parole eligibility date.

Conclusion

[22] None of the cases to which counsel referred support a sentence as high as eight years for offending of this kind after an early guilty plea and such a lengthy period of presentence custody.  It seems that the judge erred, as the respondent conceded, in not taking into account in a general way the fact that the applicant had been in custody serving a sentence on another matter for 11 months after her arrest on these charges.  It is true that the applicant was required to serve the 11 months because she re-offended on parole but that does not excuse a sentencing court from taking this factor into account with the myriad other factors to be considered in determining the appropriate sentence.  It need not be considered, however, in any precise mathematical way.  This error requires the Court to re-exercise the sentencing discretion.

[23] The offences are serious for the reasons identified by the primary judge.  The applicant's recidivism make general and personal deterrence, denunciation and community protection important sentencing considerations.  On the other hand, the applicant has had a dreadful early life, significant psychiatric issues and is not without hope of rehabilitation if given appropriate support.  None of the cases relied on by counsel are closely comparable to the unusual combination of facts in this case. The closest factually are Styles and Morrow.  In Styles an effective sentence of six years imprisonment with a parole recommendation after 21 months was found not to be manifestly excessive.  He, however, was not on parole at the time of his offending, was but 21 years old and had only one minor conviction.  In Morrow, this Court allowed the appeal against sentence and substituted an effective term of four years imprisonment suspended after nine months and three years probation for three counts of armed robbery and one count of assault.  She had served five and a half months presentence custody which could not be declared.  At 26, Morrow was younger than this applicant and, unknown to the sentencing judge, suffered from a major mood disorder.

[24] Those cases suggest that, after balancing the exacerbating and mitigating features, including the early guilty plea and the time in presentence custody, 11 months of which could not be declared as time served, a sentence of six years imprisonment is appropriate here.  I would set parole eligibility after about two years and two months.  This sentence appropriately reflects the gravity of the offending but also gives credit for the mitigating features by both significantly discounting the head sentence and setting a parole eligibility date slightly earlier than the statutory half way point but not as early as one-third.

[25] I would grant the application for leave to appeal and allow the appeal by vacating the sentence of eight years imprisonment on count 2 and substituting the sentence of six years imprisonment and by vacating the date the offender is to be eligible for parole and substituting the date, 12 May 2015.  I would otherwise confirm the sentence imposed at first instance.

[26] GOTTERSON JA:  I agree with the orders proposed by McMurdo P and with the reasons given by her Honour.

[27] HENRY J:  I agree with the reasons given by McMurdo P and confine my additional reasons to one aspect of the matter.

[28] In this case a paroled prisoner was arrested for new offences while on parole, was returned to custody to serve out the 11 month balance of her existing sentence and then continued in custody on remand for 244 days before eventually being sentenced to imprisonment for the new offences.  Had the sentence for the new offences occurred earlier in the applicant’s continuous period of incarceration, during the initial 11 month period, it would necessarily have been imposed cumulatively upon the existing sentence, per s 156A Penalties and Sentences Act 1992 (Qld).  As explained in R v Shillingsworth [2002] Qd R 527, the cumulative effect of such a sentence would have been a relevant circumstance to take into account in imposing a sentence for the new offences, not by reason of the totality principle derived from Mill v The Queen (1988) 166 CLR 59, but to punish in a way that was “just in all the circumstances”, per s 9(1)(a) Penalties and Sentences Act 1992 (Qld).

[29] The practical effect of the learned sentencing judge here declaring the 244 days as presentence custody but not considering the earlier 11 months in custody when sentencing for the new offences was akin to imposing a retrospectively cumulative sentence without regard to its cumulative context.  The fact that the sentence happened to occur at a stage during the applicant’s continuous period of incarceration after, rather than before, the expiration of her former sentence did not render the cumulative effect of the sentence irrelevant, see R v Baxter [2010] QCA 235 [23].  The duration of the applicant’s continuing period of incarceration remained a relevant circumstance to consider in arriving at a punishment that was “just in all the circumstances”.

[30] Whether such a circumstance will result in a material tempering of the sentence which would otherwise be imposed will depend on the individual circumstances of the case.  As McMurdo P’s reasons emphasise, it is not a mathematical exercise.  In this instance it is the failure to consider the circumstance at all which has enlivened this court’s discretion to re-exercise the sentencing discretion.

[31] I agree with the orders proposed by her Honour.