Citation: Sandra Elsie Wiggins v R [2008] NSWCCA 19
Court: New South Wales Court of Criminal Appeal
Date: 15 February 2008
Judge(s): McClellan CJ at CL, James J, Barr J
Background
The appellant was a 48-year-old woman who, together with her domestic partner, carried out a planned robbery in Revesby in October 2004. She posed as a sex worker to lure a driver to a house, where her partner threatened the complainant with a blood-filled syringe and took $50. Both then coerced the complainant to drive them to an ATM. The complainant escaped by feigning a vehicle problem and fleeing on foot. The appellant responded by stealing the complainant's van and its contents, which she and her partner later sold or discarded.
Both offenders were arrested approximately 18 months later, after her partner's fingerprint was identified on the van. Both pleaded guilty in the Local Court and maintained those pleas in the District Court. The appellant also made an offer to assist authorities in the prosecution of her partner.
In the District Court, Bennett SC DCJ sentenced the appellant to an effective sentence of six years with a non-parole period of three years. Her partner received an effective sentence of seven years with a non-parole period of four years. The appellant sought leave to appeal, arguing the sentences were manifestly excessive and that a disparity with her partner's sentence gave rise to a justifiable sense of grievance.
Legal Issues
- Whether the sentences imposed on the appellant, individually and in combination, were manifestly excessive, including by reference to the guideline judgment in R v Henry
- Whether the appellant's objective and subjective circumstances justified a sentence below the guideline range
- Whether the differential between the appellant's sentence and her co-offender's sentence gave rise to an unjustifiable disparity
Decision
On the manifest excess ground, Barr J (with whom McClellan CJ at CL and James J agreed) rejected the submission that the robbery was objectively no more serious than the scenario described in R v Henry. The court also dismissed the argument that the use of the syringe was subjectively less serious because of the appellant's "unusually non-aggressive" demeanour. The court noted that nothing in the evidence could explain why the complainant complied with the offenders' directions unless he remained in genuine fear, regardless of any reassuring words spoken.
The court acknowledged the appellant's significant personal difficulties, including a difficult childhood, mental illness, cognitive impairment, substance dependency, chronic pain, and susceptibility to being led by others. However, the sentencing judge had already accounted for these matters and had applied a 35% discount for the early guilty plea, remorse, and the offer to assist authorities. The court found no error in that approach and concluded the sentences were within the available range.
On the disparity ground, the court identified meaningful differences between the two offenders' cases. The entire episode of criminality was undertaken for the appellant's benefit alone. She had played important roles in luring the victim, maintaining his compliance, and stealing the van after his escape, with the theft significantly delaying the investigation. Her partner, by contrast, had wielded the syringe, was younger, and had been clean of drugs by the time of sentencing. The court found the one-year differential in non-parole periods was unremarkable and well within the sentencing discretion.
Orders Made
- Leave granted to appeal
- Appeal dismissed
Key Takeaways
- Reassuring words spoken by an offender during a robbery do not reduce the objective seriousness of a threat where the victim's conduct demonstrates continued fear and compliance.
- A discount of 35% for an early guilty plea, remorse, and an offer to assist authorities in the prosecution of a co-offender falls within the recognised range confirmed in R v Thomson; R v Houlton.
- Disparity in co-offender sentences does not automatically give rise to a justifiable sense of grievance; the court examines the full range of objective and subjective differences between each offender's case individually.
- In dismissing the disparity ground, the Court of Criminal Appeal treated the theft of the victim's van and its consequence of delaying arrest by 18 months as an aggravating factor weighing against the appellant, distinct from matters weighing in her favour such as her mental illness and co-dependency.
- Significant personal hardship, including psychiatric history, cognitive impairment, and a disadvantaged background, does not necessarily bring a sentence outside the guideline range where those matters have been weighed by the sentencing judge and reflected in the discount applied.
Legislation and Cases Referenced
Cases Cited:
- R v Henry and Others [1999] NSWCCA 111 (armed robbery guideline judgment)
- R v Thomson; R v Houlton [2000] NSWCCA 309 (guilty plea discounts)
- R v Blackman and Walters [2001] NSWCCA 121
- R v Legge [2007] NSWCCA 244
Legislation: No specific legislation was identified in the provided text.