R v Shillingsworth & Middleton [1998] QCA 454 (3 December 1998)

Last Updated: 9 May 2016

[1998] QCA 454

COURT OF APPEAL

de JERSEY CJ

McPHERSON JA

CHESTERMAN J

CA Nos 345 and 346 of 1998

THE QUEEN

v.

SALLY EMMA SHILLINGSWORTH

AND

GABRIELLE CHRISTINE MIDDLETON Applicants

BRISBANE

..DATE 03/12/98

JUDGMENT

McPHERSON JA: The applicants pleaded guilty in the District Court at Warwick to a charge of armed robbery in company with personal violence and another of deprivation of liberty. They were each sentenced to imprisonment for three years. No recommendation for early parole was made.

It should be mentioned at the outset that, at sentence, both counsel for the prosecution and for the defence urged his Honour not to make a distinction between the applicants in the matter of the punishment imposed.

The applicant Sally Shillingsworth, who is 25 years old, is married with three young children. At the time she was in a state of serious depression. There was little food in the house and no money with which to buy any. Her sister, Gabrielle Middleton, who is 30 years old, agreed to help Sally with the robbery.

At about 10 o'clock at night, the applicants entered a local bus terminal. Sally Shillingsworth, who was wearing a balaclava pointed a knife into the back of the male employee at the terminal, put him in a headlock, and walked him over to the cash till. She demanded that he reveal where the money was kept. She threatened him by putting her foot on his head to hold him down and kicked him a number of times in his back.

Middleton was wearing a stocking over her head. She threw the female employee to the ground and wrapped some tape around her head and feet. Middleton also bound the male employee's feet with the tape. The applicants escaped with about $895.

Despite their ordeal, the victims of these offences are not shown to have suffered any long term ill effects like those not infrequently encountered in offences of this kind.

The applicants seek leave to appeal against their sentences on the grounds that they are manifestly excessive. The applicant Shillingsworth does not challenge the head sentence of three years, but submits that she should have received an earlier recommendation for parole. She draws attention to personal mitigating factors in her case including the difficult life she has had, during which she suffered sexual abuse as a child at the hands of her older brothers. And at the time of the offence, she was attempting to bring up three children aged five years, four years and five months, as well as taking care of her sick parents.

She had entered into a marriage with a man who comes from a traditional Aboriginal background, whose extended family had come to stay with her and her husband at the time at which these offences were committed. There were thus 13 people in and out of her house during that period, including a number of her husband's relatives who became a financial drain on the family. The applicant was suffering from depression and she says she committed the offences out of need as there was so little food in the house.

She afterwards demonstrated genuine remorse and, as I have said, pleaded guilty, and she wrote a letter of apology to the complainants offering to make reparation.

She has a brief record of minor offending in the past, consisting of a previous conviction in 1992 for assault occasioning bodily harm for which she was admitted to probation for 12 months, possession of a pipe in connection with a drug in 1997, and unauthorised dealing in shop goods in 1998.

The applicant Gabrielle Middleton, who is aged 30, also submits that her sentence is manifestly excessive. She relies as mitigating factors in her case that it was her sister's condition that led her to agree to help Sally Shillingsworth commit the offence in order to obtain money for food.

She has also to some extent demonstrated remorse, for example by her plea of guilty and her willingness, so it is said, to make it up to the victims.

Unlike her sister, however, the applicant Middleton has an extensive record of previous convictions, which include a serious assault on a police officer, possession of drugs and a pipe, wilful and unlawful damage, disorderly behaviour, as well as a number of convictions in New South Wales for prostitution, stealing and forgery.

The applicant Sally Shillingsworth wrote an explanation of what had motivated her to commit these crimes. It is an impressive and in some ways a moving account. She has evidently tried to do her best under circumstances that were daunting. Even allowing for the desperate situation in which she found herself, however, it is difficult to understand why she did not turn to others for assistance rather than attempting to solve her problems by committing what was a serious and in some ways a violent planned robbery.

There is a reference in her statement to her being a regular church goer, and one is perhaps left to wonder why she did not turn to the church or to other charities for help. There are several organisations such as Lifeline and St Vincent de Paul that appear to be dedicated to supporting people in just such a position as the applicant Shillingsworth found herself.

The problem, so far as these applications are concerned, is in the end that the sentencing judge was, as he himself recognised, faced with the need to balance two competing considerations or factors. One was a natural tendency to sympathise with Mrs Shillingsworth in her plight and to take proper account of her remorse. The other was the need to protect ordinary members of the community from criminal actions of this kind, which have a great potential for serious consequences.

The victims in this case were quite innocent, and their position must be considered in relation, of course, to the matter of sympathy. The notion that individual financial and social problems can be solved by resort to crimes of this kind is not one that any community can afford to tolerate. For offences of this nature a head sentence of imprisonment for three years is below, even perhaps substantially below, the penalty that is commonly imposed even for a first offender in the case of an offence or offences of the kind committed here.

The learned sentencing judge specifically mentioned that he was refraining from making an early parole recommendation because of the fact that he had taken account of the mitigating factors by reducing the head sentence. The head sentence, in fact, imposed demonstrates to my mind clearly that he had taken the course he said he did.

In the ordinary course of events, the applicants can expect to be considered for parole after serving 18 months of the sentence of three years imposed. Both of them now ask for a recommendation for parole after 12 months. That would represent a reduction of only six months in the term to be served.

Despite what I have described as the sympathetic sentiments inspired by reading about Mrs Shillingsworth's position, I have reached the conclusion that, on any view of the matter, it would not be proper to interfere with the exercise of the judge's discretion in fixing the sentence as he did, the more so as I am by no means persuaded that his Honour erred in any way.

In my opinion the applications for leave to appeal against sentence should be refused.

THE CHIEF JUSTICE: I agree.

CHESTERMAN J: I agree.

THE CHIEF JUSTICE: The applications are refused.