Antonio v R

Crimes Act 1900 s 94, s 97(1), s 527(1)(a) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A(2), s 44(2), Criminal Appeal Act 1912 s 5D

Hamze v Regina [2006] NSWCCA 36 Pearce v The Queen (1998) 194 CLR 610 R v Bottin [2005] NSWCCA 254 R v Hemsley [2004] NSWCCA 228 CASES CITED : R v Huynh [2005] NSWCCA 220 R v Smith [2005] NSWCCA 339 R v Tobar (2004) 150 A Crim R 104 R v Way (2002) 60 NSWLR 168 R v Wickham [2004] NSWCCA 193 Regina v Wall [2002] NSWCCA 42

PARTIES: Tamilo Antonio Regina

COUNSEL: Mr T Gartelmann (Applicant) Mr D Arnott SC (Respondent)

SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Christie ADCJ

IN THE COURT OF CRIMINAL APPEAL 2007/4763

McCLELLAN CJ at CL BARR J PRICE J

1 McCLELLAN CJ at CL: I agree with Price J. 2 BARR J: I agree with Price J. 3 PRICE J: The applicant seeks leave to appeal against the severity of the sentences imposed upon him in the District Court at Penrith on 17 July 2007. He had pleaded guilty to an offence of robbery in company on 21 September 2006 at Mount Druitt contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for such an offence is 20 years imprisonment. A plea of guilty had also been entered to an offence of robbery on 23 September 2006 at Blacktown contrary to s 94 of the Crimes Act. The maximum penalty for this offence is 14 years imprisonment. Five matters on a Form 1 were taken into account on sentence for the s 94 offence, namely an offence of intimidation contrary to s 562AB of the Crimes Act, the maximum penalty for which is 5 years imprisonment and four offences of goods in custody contrary to s 527(1)(a) of the Crimes Act, the maximum penalty for which is 6 months imprisonment. 4 The applicant was sentenced to imprisonment for 7 years 6 months to date from 23 September 2006 and to expire on 22 March 2014 with a non-parole period of 3 years 6 months to date from 23 September 2006 and to expire on 22 March 2010 for the s 94 offence. For the robbery in company, a fixed term of imprisonment of one year commencing on 23 March 2010 and expiring on 22 March 2011 was imposed. The overall effective sentence was 7 years 6 months with a non-parole period of 4 years 6 months. 5 The Judge had found that the applicant was entitled to a utilitarian discount of 25 per cent for the pleas of guilty. 6 The applicant relies upon the following grounds: 1. The sentencing Judge erred in determining the term of the sentence consequent upon finding that special circumstances existed for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 2. The sentencing Judge erred in finding to be present certain aggravating factors for the purposes of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 3. The sentences are manifestly excessive. 7 There is a cross-appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 in relation to the sentence imposed for the robbery in company. The Crown claims that the sentence was manifestly inadequate. The Crown has appealed in order to preserve its position having regard to the differences of opinion expressed in this Court concerning the conjunction of s 6(3) and s 7(1A) of the Criminal Appeal Act: see R v Bottin [2005] NSWCCA 254 at [37] and R v Smith [2005] NSWCCA 339 at [32]-[40].

The offence of robbery in company on 21 September 2006 (the s 97(1) offence). 8 At about 7pm on 21 September 2006, the victim, a 23 year old man, was waiting for a bus at a terminal in Mt Druitt. The applicant approached him. Two unknown males stood nearby. The applicant asked him for spare change and the victim gave him some. The applicant asked for more and the victim opened his passport to demonstrate that he had no more but a $5 note fell out. The applicant took the note and refused to give it back. One of the unknown males asked the victim about the passport. The applicant spoke with an unknown male. He asked the victim for his mobile phone which the victim refused. The applicant said "Don't make things hard for yourself 'cause you know what will happen." The victim believed he would be assaulted so he gave the applicant his mobile phone. 9 The applicant told the victim to give him his watch which he refused to do. The applicant raised his voice, stood over the victim and again demanded it. The victim feared he would be assaulted and so he gave the applicant his watch. He was told by the applicant to put the watch on the applicant's wrist and he did so. The victim walked to a bus stand and the applicant followed. He told the victim to empty his pockets which he did producing $190. The applicant took the money, told the victim he could leave but not to tell the police, and left. The victim informed police and provided a description of the offender. The description of a particular tattoo led to the applicant's identification. When he was arrested on 23 September 2006, the applicant was found to be in possession of the victim's mobile phone and watch.

Intimidation (Form 1) 10 On the morning of Saturday 23 September 2006 the applicant walked into a H & R Block taxation agency office in the Blacktown shopping centre. Stating that he had a gun, he demanded of Mr Tan, who was standing at the front desk, money and his mobile phone. Mr Tan did not believe he had a gun and explained his business completed tax returns, there was no money, no safe and told the applicant he could take the work telephone if he wanted it. The applicant then left.

Robbery on 23 September 2006 at Blacktown (the s 94 offence)

11 After leaving the taxation agency, the applicant walked along the shopping centre concourse and into a clothing hire shop. The shop assistant, a 46 year- old woman, was behind the counter. He ordered her to open the till stating that he had a pistol under his jumper. He held his jumper up over his face to just below his eyes and also held his right arm underneath his jumper. When the shop assistant protested that it was her first day and did not know how to open the till, the applicant became animated and aggressive and the shop assistant feared she would be shot or assaulted. He came around to her side of the counter and removed the entire float of $400 from the till and then left the store. The shop assistant chased after him yelling, "Stop him, he just robbed me." Security guards then apprehended the applicant as he was getting into a taxi. He was holding in his hand money which he had stolen from the store. The money was returned by the security guards to the shop assistant. The applicant then started to run away but the shop assistant gave chase and tackled him. He escaped again but was subsequently arrested at a nearby train station.

Goods in custody of four mobile phones (Form 1) 12 When the applicant was searched he was found to be in possession of four mobile phones that did not belong to him.

Subjective circumstances 13 The applicant was born on 3 December 1981 of Samoan parents and was 24 years-old at the time of the offences. He left school in year 10. He has an extensive criminal history which includes offences of assault with intent to rob while in company, aggravated robbery, robbery and aggravated assault with intent to rob. On 8 March 2002 on a robbery offence, he was sentenced in the District Court to 12 months imprisonment commencing on 31 March 2001 and expiring on 30 March 2002 and for an aggravated robbery he was sentenced to imprisonment for 2 years 6 months commencing on 30 March 2002 with a non-parole period of 12 months. 14 On 6 April 2004, he was sentenced in the District Court for an offence of assault with intent to rob in circumstances of aggravation to imprisonment for 5 years with a non-parole period of 3 years commencing on 22 June 2003 and expiring on 21 June 2006. The balance of the sentence was to expire on 21 June 2008. At the Penrith Local Court he was sentenced to imprisonment for 3 months commencing on 21 June 2006 being in breach of a bond for a larceny offence. 15 The applicant was released to parole on 20 September 2006 - the day before the offence of robbery in company. 16 During the proceedings on sentence, a report of Dr Barbara Sinclair, a psychiatrist, was tendered. Dr Sinclair noted that the applicant had a history of mental illness and that multiple assessments and diagnoses had been made. She opined that the applicant was suffering from a major mental illness - schizoaffective disorder or bipolar disorder. In addition the symptoms he was exhibiting demonstrated paranoid ideation. Substance abuse disorder, anti-social personality traits and repeated head trauma due to boxing were noted. The psychiatrist wrote: "I believe that at the time of the alleged offence, Mr Antonio was suffering from a mental illness; was unmedicated for 24 to 48 hours. He had not received his daily dose of methadone and therefore would be becoming increasingly agitated likely as a result of methadone withdrawal. It is also possible that at the time of the alleged offences that he was under the effect of illicit substances, either intoxication or withdrawal." 17 A Probation and Parole pre-sentence report was also before the Judge. The author of the report wrote that the offender appeared to have a history of mental health issues that may have been drug induced. The applicant had said that he was prescribed medication for these issues when he was released but did not have medication for two days which appeared to have been an underlying factor in his re-offending. His narcotic use had commenced at age 18 years to which he became addicted. He was currently on a methadone maintenance program. 18 The applicant did not give evidence during the sentencing proceedings.

Ground one - The sentencing Judge erred in determining the term of the sentence consequent upon finding that special circumstances existed for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 19 Counsel for the applicant submitted that the term of the sentence was extended, rather than the non-parole period reduced by the Judge in order to provide a longer period of parole than that mandated by s 44(2) of the Crimes (Sentencing Procedure) Act and his Honour erred. This Court's attention was directed to the following passage in his Honour's sentencing remarks: 20 The Judge said (ROS at 3): "It seems to me that having regard to all of the circumstances of both these offences, and I shall deal with those circumstances briefly in a minute, that it would be necessary to pass a not insignificant sentence, at least, to partly create a substantial parole period because in relation to the sentence I propose to find special circumstances, indeed, I have no difficulty in finding special circumstances because it is perfectly plain that these offences were committed whilst the prisoner was suffering from mental illness." 21 Immediately after the submissions on sentence were completed, the Judge proceeded to sentence the applicant. What was said by the Judge in the passage quoted at [20] is to be considered in the context of the whole of his ex tempore remarks. At a later stage the Judge said (ROS at 9): "I think I did say during the course of this hearing that absent the elements of mental illness one would have to consider a very substantial non parole period here because this man had just completed a sentence of five years, non parole three years and he has committed a number of offences that are not dissimilar to the offence that he had just completed a sentence for… And I stated here during the course of the hearing, and I do not resile from it, that absent the elements of mental illness and having regard to both the question of totality but also having regard to the fact that both of these sets of events were entirely separate then one would be looking at a non parole period of somewhere around seven, possibly as high as eight years, when one accumulates some of the sentence."

And (ROS at 12): "In relation to the second event historically, but the first one with which I will deal in terms of sentence, that is the robbery on 23 September 2006, I would originally propose to pass a sentence of ten years imprisonment. But I would reduce that by twenty five per cent by reason of the prisoner's plea of guilty which would reduce that sentence to seven years and six months. I sentence the prisoner in relation to that particular offence to a period of imprisonment of seven years and six months to date from 23 September 2006 the date of his arrest to 22 March 2014. I find special circumstances, indeed the special circumstances here are clearly apparent. Having found special circumstances, I fix a non parole period of three and a half years…" 22 Various exchanges between the Judge and the applicant's counsel were extracted in written submissions by the parties to this Court . I do not think that they provide additional assistance from what might be discerned from the sentencing remarks. 23 It would have been an error for the Judge to extend the head sentence to enlarge the period of eligibility to release to parole: R v Huynh [2005] NSWCCA 220 at [39]; R v Tobar (2004) 150 A Crim R 104. When all of what was said by his Honour is considered, I am not persuaded that he extended the term of the sentence to allow for a longer period of parole. It seems to me that his Honour having found special circumstances reduced the non-parole period. 24 The first ground of appeal has not been established.

Ground two - the sentencing judge erred in finding to be present certain aggravating factors for the purposes of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 25 It was submitted for the applicant that the Judge erred in having regard to the threatened use of force as a factor aggravating the offence of robbery committed on 23 September 2006. The threatened or actual use of force to compel the victim to part with the property, the Court was reminded, was an element in the commission of the offence. 26 When considering aggravating factors to be found in s 21A(2), the Judge said: "There was in this particular instance a threatened use of violence and a threatened use of a weapon, although I concede of course that he did not actually have a weapon that he could have used. But there was certainly a threatened use of violence and a threatened use of a weapon." 27 It appears that the Judge did take into account the threatened use of violence as an aggravating factor and was in error in doing so. A threat of the use of violence is an element of the offence of robbery and could not be taken into account as an aggravating factor: R v Way (2002) 60 NSWLR 168 at [106]; Hamze v Regina [2006] NSWCCA 36 at [28] and double counting is prohibited: R v Wickham [2004] NSWCCA 193 at [22]-[24]. It was open to the Judge, however, to consider the nature of the threatened use of violence. As was explained in Hamze by Giles JA at [29]: "…while the bare fact of threatened use of violence could not be taken into account, that did not preclude regard to the nature of the threatened use of violence in considering the seriousness of the offence." 28 In the present case, the applicant ordered the shop assistant to open the till stating that he had a pistol under his jumper. He held his right arm underneath his jumper. The manner in which the applicant threatened the shop assistant increased the seriousness of the offence. I might add that a threat of the use of a weapon is not an element of a s 94 offence. 29 Although the Judge erred, it seems to me, that his error would not have materially affected the sentence imposed. Ground three - the sentences are manifestly excessive. 30 Although the ground of appeal is expressed in this way, the applicant did not contend that the sentence for the robbery in company was excessive. The complaint was confined to the sentence for the s 94 offence. 31 The applicant referred to the undiscounted starting point of 10 years imprisonment and submitted that in light of the maximum penalty of 14 years imprisonment, the starting point did not correspond with the Judge's assessment of the objective seriousness of the offence when he said that each of the offences fell "significantly short of the worst in their category" (ROS at 2). 32 It was submitted that the additional criminality involved in the offences on the Form 1 was not such that required a substantial increment to the sentence. Whilst acknowledging that the commission of the offences in breach of conditional liberty was an aggravating factor, a countervailing consideration was the applicant's mental illness. General deterrence was of less relevance. Although the sentence for the robbery in company was not excessive, the imposition of an excessive sentence for the robbery resulted in an aggregate sentence which was manifestly excessive. 33 The Crown submitted that the sentence for the s 94 offence, although stern, was within the Judge's sentencing discretion. The sentence imposed for the robbery in company was, it was argued, manifestly lenient. The total aggregate sentence, the Crown contended, was an appropriate reflection of the applicant's total criminality. 34 As the Judge was sentencing the applicant for two offences, he was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610. 35 The offence of robbery was objectively a serious one. The threatened use of the pistol and the applicant's aggression understandably caused the shop assistant to fear being assaulted or shot. This offence was committed three days after his release to parole for an offence of robbery in company which was an aggravating factor. The offence of intimidation being one of the offences on the Form 1 was a serious offence in its own right and called for an increased sentence. The applicant had walked into the H & R Block office stating that he had a gun and had demanded money and property. His prior history of like offences entitled the Judge to give more weight to considerations of retribution, personal deterrence and the protection of the community. 36 The Judge accepted that the applicant was suffering a mental illness and found that he was "not fully appreciative of the activity that he was then engaged upon". He expressly considered what has been said by this Court in R v Hemsley [2004] NSWCCA 228 as to the four ways in which mental illness may be relevant to his sentencing task. His Honour recognised that the applicant's mental illness reduced his moral culpability for the offence and moderated the consideration to be given to general deterrence. The maximum sentence for this offence is 14 years imprisonment. In view of the Judge's findings concerning the applicant's mental illness, the indicated undiscounted starting point of 10 years imprisonment was in all the circumstances, to my mind, manifestly excessive. The undiscounted starting point should not have been more than 8 years.

The Crown appeal 37 The principles relevant to Crown appeals against sentence are well established and are summarised in Regina v Wall [2002] NSWCCA 42 per Wood CJ at CL at [70]. 38 The offence of robbery in company was objectively serious. The applicant in company of two others robbed a person who was waiting at a bus terminal at night. The offence was committed the day after he had been released to parole. His mental illness did not diminish the weight to be given to personal deterrence and the protection of the community. The applicant should be made aware by the sentence imposed upon him that he cannot continue to commit offences of robbery. The maximum sentence for this offence is 20 years imprisonment. Notwithstanding the Judge's findings on the applicant's mental illness a fixed term of imprisonment of one year was manifestly inadequate. A fixed term of imprisonment of 2 years is, in my view, a sentence at the bottom of the available range. 39 The sentence for the robbery has been found to be manifestly excessive and the sentence for the robbery in company manifestly inadequate. When the total criminality of the applicant's offending is considered, the total overall effective sentence of 7 years 6 months with a non-parole period of 4 years 6 months was, in my opinion, appropriate and no lesser punishment was warranted. The affidavit of the applicant sworn on 5 August 2008 does not alter that opinion. 40 In view of the competing appeals, it seems to me to be necessary to re-structure the sentences notwithstanding that the same result will be achieved. 41 I propose the following orders: 1. Grant leave to the applicant to appeal. 2. Applicant's appeal allowed.

3. Crown appeal allowed. 4. Quash the sentences imposed in the District Court on 17 July 2007. 5. In respect of the offence of robbery in company contrary to s 97(1) of the Crimes Act sentence the applicant to a fixed term of imprisonment of 2 years to commence on 23 September 2006 and to expire on 22 September 2008. 6. In respect of the offence of robbery contrary to s 94 of the Crimes Act sentence the applicant to imprisonment for a non-parole period of 3 years to commence on 23 March 2008 and to expire on 22 March 2011 and a balance of term of 3 years commencing on 23 March 2011 and expiring on 22 March 2014. The overall effective sentence will be a non-parole period of 4 years 6 months commencing on 23 September 2006 and expiring on 22 March 2011 and a balance of term of 3 years commencing on 23 March 2011 and expiring on 22 March 2014. The Court finds special circumstances being the accumulation of the second sentence upon the fixed term imposed for the offence of robbery in company. The earliest date on which the applicant will be eligible for release to parole is 22 March 2011.

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