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Court of Criminal Appeal 17 November 2003

Regina v Fosse

[2003] NSWCCA 347

Assault & violenceFraud & dishonestyTheft & property
CRIMINAL LAW AND PROCEDURE SENTENCE ELDERLY AND VULNERABLE VICTIM OFFENDER SUFFERING FROM BI POLAR DISORDER AND DEPRESSION RELEVANCE AND ASSESSMENT DISCUSSED

Citation: Regina v Fosse [2003] NSWCCA 347
Court: New South Wales Court of Criminal Appeal
Date: 17 November 2003
Judge(s): Handley JA, Grove J, Adams J

Background

The applicant, a 53-year-old woman, pleaded guilty in the District Court at Port Macquarie to five offences arising from events in June 2002. The most serious was robbery in circumstances of aggravation: she attended the home of an 82-year-old man suffering from dementia, whom she had known for approximately ten years, and physically struggled with him when he refused to lend her money. She then took his bank book, coerced him into signing a withdrawal slip, and made two unsuccessful attempts to withdraw $2,000 from his account. A separate charge of stealing petrol rounded out the proceedings.

At sentencing, Freeman DCJ in the District Court noted the gravity of the offending against a vulnerable and elderly victim, but also acknowledged significant mitigating circumstances. These included the applicant's diagnosis of bi-polar disorder and depression, a lengthy period of prior good conduct, and a series of traumatic life events. The applicant was on suspended sentences at the time of the offending, which the sentencing judge treated as an aggravating factor.

The applicant sought leave to appeal against the sentence, concentrating her challenge on the four-year term imposed for the aggravated robbery, with an 18-month non-parole period commencing April 2003.

  • Whether the sentencing judge made material errors of fact in assessing the applicant's culpability, particularly in relation to her awareness of her mental state before the offending and her admission to a psychiatric unit the day after the offences.
  • Whether the circumstance of aggravation for the robbery charge (that the applicant maliciously inflicted actual bodily harm on the victim) could be proved in the absence of a confession by the applicant, given that only she and the victim were present.
  • Whether the overall sentence was manifestly excessive in light of the applicant's mental illness, personal circumstances, and prior conduct.

Decision

On the first ground, the Court found that while the sentencing judge's remarks contained some statements about the applicant's relationship with her medication that lacked clear evidentiary foundation, the judge had nevertheless taken the applicant's impaired mental state into account to a significant degree. Adams J, writing separately, expressed concern that His Honour's language could be read as implying the applicant freely chose not to take her medication for lifestyle reasons, and stated this would have been wholly unjustified on the evidence. However, all members of the Court agreed that no sufficient error affecting the sentence could be identified.

On the second ground, the Court rejected the argument that a circumstance of aggravation can only be established through the offender's own admission when no other witness was present. The Court confirmed that circumstances of aggravation can be proved by evidence other than a confession, and the facts here supported the finding that actual bodily harm had been inflicted.

Adams J, while noting he was not certain he would have imposed the identical sentence, agreed with Grove J that the sentence could not be characterised as erroneous. Having regard to the serious nature of an attack on a helpless, elderly man living alone in his own home, no lesser sentence than that imposed was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A circumstance of aggravation in a robbery charge does not require proof by confession from the offender; the Court of Criminal Appeal confirmed it can be established by other available evidence, including the facts surrounding the offence.
  • Mental illness, including bi-polar disorder and depression, is a relevant consideration at sentencing, but its weight must be assessed carefully and on the evidence before the court, including medical records and expert opinion where available.
  • Adams J cautioned that generalisations about a mentally ill offender's control over their medication or behaviour are unsound without proper evidentiary foundation, such as medical records and evidence from treating clinicians.
  • In dismissing the appeal, the Court acknowledged it was not unanimous that the precise sentence was the only available outcome, but confirmed that appellate intervention requires identification of error, not merely a different view of the appropriate penalty.
  • Offending against elderly and cognitively vulnerable victims, particularly in their own homes, remains a significant aggravating consideration at sentencing.

Legislation and Cases Referenced

Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v Hayes [2001] NSWCCA 410

Legislation: No specific legislation was cited in the provided text.