Andrews v Regina

R v Henry 1999 46 NSWLR 346 R v Kelly [2005] NSWCCA 280 CASES CITED: R v Murchie [1999] NSWCCA 424 R v Simpson 2001 53 NSWLR 704 R v Way [2004] NSWLR 168 Smith v Desmond 1965 AC 960

COUNSEL: C. Smith (Applicant) W. Dawe QC (Respondent/Crown)

SOLICITORS: S. O'Connor (Applicant) S. Kavanagh (Respondent/Crown)

IN THE COURT OF CRIMINAL APPEAL 2005/1845

GILES JA GROVE J HOEBEN J

6 March 2006 MARK ALLAN ANDREWS v REGINA Judgment

1 GILES JA: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Dodd DCJ at Sydney District Court on 14 December 2004. 3 The applicant adhered to a plea of guilty previously given to a magistrate to a single count of robbery in company, an offence contrary to s97(1) of the Crimes Act 1900. His Honour sentenced the applicant to imprisonment consisting of a total term of six years commencing on 2 May 2004 with a non parole period of three years commencing also on that date. The first date of eligibility for parole therefore is 1 May 2007. The statutory maximum penalty is imprisonment for twenty years. 4 The applicant has a considerable criminal record which, omitting reference to earlier years, shows that he has spent most of the last half decade in custody serving various relatively short terms of imprisonment until he was committed to custody in respect of the present charge on 2 May 2004. 5 The facts were that on Sunday 2 May 2004 shortly after 6 pm the victim left the hotel at which he was staying in the Rocks area of Sydney and was exercising by jogging about the foreshore area. The applicant had encountered another person and whilst they were idly nearby they perceived the victim taking some money from an ATM. The applicant agreed with the suggestion from his companion that they would rob this person and he later told police that "we followed him and jumped him". 6 As the victim jogged along Hickson Road the applicant approached him, obstructing his progress thus giving the co-offender an opportunity to grasp the victim from behind. The victim denied to them that he had any money and the second offender said to him that he had a knife and "we will hurt you". 7 The victim called for help. A struggle ensued and the applicant put his hand into the victim's pocket and removed a Motorola flip style silver mobile phone. This was the item ultimately the subject of the robbery. The victim apparently was having the better of the two offenders in the struggle and they sought to flee, however a passing limousine driver, concerned by what he had seen, made enquiry of the victim whereafter he caught up with the applicant and detained him. Police were called and the applicant was placed under arrest by a constable. 8 He was taken to the police station where he was electronically interviewed and made full admissions about the offence, as indeed he had made such admissions to the arresting constable. 9 The applicant relies upon two express grounds of appeal:

1. The sentencing judge erred by taking into account as aggravating factors that the offence involved actual violence and the threatened use of a weapon. 2. The sentence is manifestly excessive. 10 It is significant in dealing with ground 1 to observe that the transcript of the hearing before his Honour on 14 December 2004 records counsel for the applicant saying: "Your Honour I'll deal with the aggravating features first. There was threatened use - or there was actual use of violence. There was threatened use of a weapon. As your Honour alluded to prior to lunch he has a lengthy criminal history and studies have revealed that he has really entered into the big league with this offence after a lengthy criminal career". 11 In the light of that submission it is hardly surprising that in his remarks his Honour said: "The aggravating factors acknowledged by your counsel are actual violence, that being the physical struggle, threatened use of a weapon, and your lengthy criminal history". 12 Despite this course of events, it is the thrust of ground 1 that his Honour's remarks were demonstrative of error. The terms of the submission by counsel above set out suggest that reference be made to s 21A of the Crimes (Sentencing Procedure) Act 1999 as some sort of checklist. This is not an appropriate approach, nor is it either necessary or desirable. I would endorse the comment of Rothman J in R v Kelly [2005] NSWCCA 280 that it is an unfortunate aspect of the prescription of aggravating factors in s 21A that such an approach seems to have been taken all too often. 13 The applicant relies upon the restriction provided in s 21A that "the Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". 14 Robbery is not defined in the Crimes Act. The common law ingredients were stated by Lord Pearce in Smith v Desmond 1965 AC 960 @ 993 namely: "The essence of the offence is that violence is done or threatened to the person of the custodian who stands between the robber and the property in order to prevent or overcome his resistance and oblige him to part with the property and submit to the thief stealing it". 15 Thus, it was submitted that there was error by his Honour in taking into account as aggravating circumstances actual violence and threatened use of a weapon. Actual or threatened use of violence is elemental to the offence and accordingly the statute inhibits having additional regard to such. 16 The pleading of the charge was effected by a Court Attendance Notice and insofar as it charged robbery it did not (nor was it required to) specify whether it was alleged that violence was done or threatened or both. The existence of either alternative suffices to found the charge. His Honour recited the facts of the offence which included actions and statements of the co-offender for which the applicant bears liability. The facts included the threatening and doing of violence. 17 It is not apparent what additional regard, if any, his Honour had to such elemental facts and I would comment that his words are strongly suggestive of a formal repetition of what was being treated by counsel as a form of checklist. However, it cannot be denied that in adopting the expression "aggravating factors" his Honour can be understood to convey a notion of elevation of seriousness. 18 His Honour's expression leaves unarticulated in what way, and to what extent, he applied his finding that there were the stated aggravating factors in his assessment of sentence and the implication that he treated them as elevators of seriousness cannot be ignored. It cannot be assumed that he did not increase sentence by reason of treating an element of the offence of robbery as an aggravating factor. The absence of explanation of how precisely the nominated aggravating factors were taken into account creates a risk that there has been "double counting" by increasing punishment for a factor which has already been taken into account as an element of the offence. That absence constitutes relevant error. 19 To make these observations is not to derogate from the capacity of a sentencing judge to take into account the level of seriousness of a particular element but his Honour's brief remarks did not limit his reference to consideration of that type: see R v Way [2004] NSWLR 168. 20 The contention in ground 1 is made out. 21 Ground 2 is sought to be sustained by promulgating the guideline considerations in R v Henry 1999 46 NSWLR 346, a case dealing with armed robbery, as pertinent to an offence of robbery in company. That is an appropriate utilization of the guideline: R v Murchie [1999] NSWCCA 424. 22 Whilst there is a distinction in favour of the applicant in that his admission and plea of guilty were made at the very first opportunity, whereas the tabulated characteristic in Henry refers to lesser promptness, the applicant is significantly disadvantaged in any claim to lenience by being an older offender with a very significant criminal history as distinct from postulation in Henry of a young offender with little such history. It is convenient to note that although his Honour at one point referred to the existence of criminal history as an aggravating matter, his remarks showed that he used it in an appropriate fashion. It was not contended otherwise. 23 It is true that the applicant has made some enquiry which points towards an apparent desire to seek rehabilitation, but his Honour did not ignore the matter and concluded that it was, in this case, appropriate to reflect this by reduction of the non parole period. His conclusion and application were not erroneous. 24 This was an opportunistic crime which merited a significant reflection of both personal and general deterrence. 25 I am unpersuaded that, allowing for a notional assessment prior to discount for the plea of guilty, the sentence was manifestly excessive. 26 It remains to consider whether the intervention of this Court should follow the sustaining of the argument in support of ground 1. It needs to be remembered and it has recently been stressed: "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence ….is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied". - R v Simpson 2001 53 NSWLR 704 @ 720. 27 In my opinion no other (lesser) sentence in this case was warranted in law and should have been passed. I would grant leave to appeal against sentence but dismiss the appeal. 28 HOEBEN J: I agree with Grove J and the orders he proposes.

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