Bain v Regina

COUNSEL: P. Barrett - Crown G. Bashir - Appellant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Appellant

IN THE COURT OF CRIMINAL APPEAL 2005/1617

SULLY J ADAMS J 24 March 2006

1 SULLY J: In August 2004 the applicant stood trial in the Parramatta District Court before his Honour Judge Phegan and a jury. The applicant was so tried upon a charge of robbery while armed with a shotgun. Such an offence contravenes section 97(2) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. On 25 August 2004 the jury found the applicant guilty as charged. On 3 December 2004 the applicant was sentenced to imprisonment for a non-parole period of 6 years 4 months with a balance of term of 2 years 8 months. The total sentence was, therefore, one of imprisonment for 9 years. 2 The applicant now seeks leave to appeal against sentence. There are five notified grounds. It will be convenient to deal with them separately after having noted the general facts of the case.

The Material Facts 3 These are stated sufficiently for present purposes in the following extracts from the remarks on sentence: "About 9 am on 2 December 2003, the prisoner was seen walking past the Bendigo Bank in Glenrose Shopping Centre located at Belrose, a matter that was recorded on closed circuit television in front of the bank premises. At about 9.30, the prisoner returned to the bank and entered the bank carrying a dark coloured sports bag. He walked to the manager's office, which is situated in the public area of the bank separate from the teller area. The prisoner was wearing a baseball cap but beyond that there was no attempt to cover his face with any mask or material. He entered the manager's office and drew from the sports bag an item which was hidden in a sock, which when revealed appeared to be a full length, double barrelled shotgun. The manager, Mr. Graham Auld, was sitting at his desk and the prisoner pointed the barrel directly at Mr. Auld's head. He said to the Manager, "Take me to the money and the safe". The manager complied and walked into the customer service area of the bank. By that time, because of the suspicion of other bank employees who had seen the prisoner enter the bank, the bandit screens on the teller counters had already been activated. The manager entered the door which accessed the teller area and the prisoner continued to follow the manager holding the shotgun at the manager's back. The prisoner continued to ask the manager to : "hurry up, stop wasting time". The manager walked to the safe area which was located in the meal room at the rear of the area occupied by the tellers and attempted to open the safe but realised at that stage that a second key was necessary. The manager informed the prisoner that he was not able to open the safe without the additional key. He left the room and went to the office of another staff member at the front of the bank close to the manager's own office, from whom he obtained the key. He was accompanied by that staff member back into the area where the safe was situated. The safe was unlocked and the prisoner then instructed the manager to place its contents in the bag which he had been carrying. Nine bundles of money were removed from the safe, including notes of various denominations which, it was subsequently estimated, amounted to a sum of $43,500. The prisoner then put the gun back into the sock and placed it on the top of the bag and walked out of the bank. It was at this point that he was again photographed on a closed circuit TV camera, a photograph which was subsequently widely circulated. The prisoner left the bank. He walked down a ramp to an underground car park and out of the rear of the shopping centre where he entered a motor vehicle, a yellow coloured old model Toyota Corolla station wagon, and left the scene of the robbery. It is not necessary for the purpose of sentencing to go into any further detail concerning the history of the investigation and subsequent arrest of the prisoner."

Ground 1 4 The ground is: "The learned trial judge erred in taking into account matters as aggravating features in a manner contrary to law." 5 The genesis of this ground is section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 21A requires that a sentencing Judge fix an appropriate sentence taking into account any aggravating facts that are so prescribed in section 21A(2); any mitigating factors that are so prescribed in section 21A(3); and "any other objective or subjective factor that affects the relevant seriousness of the offence". A prescribed aggravating factor is to be discarded if it is in any event an element of the offence for which the particular sentence is to be passed. 6 Three of the prescribed aggravating factors are:

Section 21(A)(2)(b): "The offence involved the actual or threatened use of violence"

Section 21(A)(2)(d): "The offender has a record of previous convictions"

Section 21A(2)(g): "The injury, emotional harm, loss or damage caused by the offence was substantial" 7 The learned sentencing Judge clearly took into account as relevant aggravating factors each of these three items. It is submitted that his Honour fell into error in connection with each of the three. · The Section 21A(2)(g) Factor 8 His Honour said: "Amongst the aggravating factors which are listed in subs (2) of that section, those which are relevant to this case include the causing of substantial emotional harm. For that purpose I turn to a victim impact statement prepared by Mr. Graham Auld, the bank manager which reads as follows: "Since being involved in an armed robbery on 2 December 2003 at the Bendigo Bank in Belrose, when I had a double-barrelled shotgun pointed at my face and in the back of the head, I've had numerous counselling sessions. I've also had to move offices from where the incident happened to the office next door, as I found it too difficult to work in an office where I visualised the robber putting the gun at my head. I've also found it difficult to sleep, having nightmares about it and am very wary about people, especially those wearing baseball caps and carrying bags. I've also required medication to help calm me down when having panic attacks. I hear noises at home, especially at night, like mobile phones ringing outside my bedroom window, the front gate opening and when I go to investigate, there's nothing there. Overall, since experiencing this ordeal, I feel very uneasy and on edge with day to day living as this has had an impact on my concentration at work and personal life." That statement was dated relatively recently, namely 28 October 2004. That statement in itself is sufficient, in my view, to establish that Mr. Auld, who was the principal victim of this offence, has suffered substantial, emotional harm in the sense required by that section." 9 The applicant attacks this finding of his Honour, relying upon a decision of this Court, (McColl JA, Levine and Hidden JJ), Reg v Youkhana [2004] NSWCCA 412. The applicant relies in particular upon the following portion of Hidden J's reasons with which the other members of the Court agreed: "26. However, before a judge could find 'substantial emotional harm' within the meaning of s 21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery. There was no such evidence here." 10 This exposition of principle requires a sentencing Judge to do two distinct things before finding that the section 21A(2)(g) factor has been established. 11 First, the Judge must consider whether there is in hand evidence capable of establishing at all the incidence of, relevantly, emotional harm of the "more deleterious" kind described by Hidden J. 12 It seems to me to be plain that Mr. Auld's description of a congeries of serious and continuing adverse personal consequences stemming from the applicant's crime is ample to satisfy Hidden J's criterion. 13 Secondly, and given an affirmative answer to the first question thus to be asked by the sentencing Judge, the Judge must then consider whether the contents of the victim impact statement have "established the aggravating factor ………. (which is) ……… a matter to be determined in the circumstances of the particular case". 14 What does that actually mean? The applicant submits that it means at least this: that a finding that any of the section 21A(2) aggravating factors has been established must be a finding made beyond reasonable doubt; and that, at least as a general rule, that cannot be done simply by accepting and acting upon a victim's own description made in a statement that is both unsworn and untested by cross-examination. 15 In the current state of the law I am of the opinion that such submission must be accepted. To accept the submission adds yet another layer of forensic controversy upon those otherwise attending the current statutory provisions respecting victim impact statements; but be that as it may, the decisions of this Court in Reg v Slack [2004] NSWCCA 128 and in Reg v Wilson [2005] NSWCCA 219 seem to me to be clear authority supportive of the applicant's submissions. 16 I do not believe it to be unfair to the learned primary Judge to infer from what his Honour is recorded as actually having said in the remarks on sentence that his Honour did not approach the section 21A (2)(g) topic in the way that the law currently requires. There results, in my respectful opinion, a clear error in the sentencing process. · The Section 21A(2)(d) Factor 17 It is indisputable that the applicant, when he stood for sentence, had a long and bad antecedent criminal history. Many of those antecedent offences could not fairly be described as particularly serious, but the record as a whole shows a pattern of disregard of the law. 18 Some of the antecedent offences are, on any reasonable reckoning, serious breaches of the criminal law. In particular: · In 1986 the applicant was convicted of five armed robberies. It is not quite clear from the Particulars of Trial that all five sentences passed upon the applicant were concurrent, but I infer that such was the case. On that approach, the longest sentence was one of imprisonment for 4 years with a non-parole period of 2 years 9 months. The applicant was released to parole on 10 July 1987. · In 1989 the applicant was convicted of a breach of parole and of a further armed robbery. For that armed robbery he was sentenced to imprisonment for 8 years with a non-parole period of 6 years. He was released to parole on 5 August 1992. He abandoned a projected appeal to this Court. · In 1994 the applicant's then current parole was revoked and he was returned to prison for 2 years 2 months 4 days, being again released to parole on 31 October 1995. · In August 2002 the applicant was given the benefit of suspended sentences of 6 months and of 4 months for the offences, respectively, of possession of house breaking implements, and of goods in custody. 19 The applicant mounts, broadly speaking, two attacks upon his Honour's approach to the antecedent criminal record. 20 The first attack asserts impermissible double counting. The proposition, put simply, is that his Honour found to the requisite standard the particular aggravating factor; but then took that factor distinctly into account a second time in the guise of deterrence both general and special. 21 The submission depends upon a particular analysis and parsing of unconnected passages in the remarks on sentence. I do not believe that a fair reading overall of the remarks on sentence supports the submission. His Honour was required to take into account as an aggravating factor an antecedent criminal record which, however old the individual items in it, was indicative of serious and continuing disregard of the law. Quite how that statutorially mandated aggravation was to be woven into a particular ultimate sentence was a question inseparable from the need for appropriate deterrence, both general and personal. That does not seem to me to give rise to double counting. 22 The second attack has to do with an observation of his Honour that there had been, as indeed there had, a gap of some 15 years between the instant offence and the most recent of the antecedent armed robberies. It is submitted that the sentence ultimately passed by his Honour did not make any mitigating allowance for this gap in criminal offending. 23 One way of dealing with the applicant's submission would be to hold it over until the remaining grounds of appeal, and particularly Ground 5, are discussed and resolved. I prefer a more direct approach which is this: a person who commits six armed robberies for which he serves periods of imprisonment is not expected to refrain from recidivism into that particularly serious type of crime for some period, whether long or short. He is expected to refrain completely from that form of recidivism. If he does not so refrain, then he is entitled to some prudently measured consideration if he has refrained for a longer rather than a shorter time before re-offending. That is, however, a very different proposition from a proposition that a long period between offences of armed robbery somehow reduces to practical sentencing insignificance the earlier offences. I regard that latter approach as contrary to both section 21A(2)(d) itself and to the principles established by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465. · The Section 21A(2)(b) Factor His Honour undoubtedly took account of this factor. It is conceded by the Crown, and in my opinion correctly so, that there was, therefore, clear sentencing error. What should follow from that error will be considered in the discussion of Ground 5.

Ground 2 24 The Ground is: "The learned sentencing Judge erred by setting a non-parole period solely by reference to the applicant's prior criminal history, and the rest of the sentence accordingly." 25 This ground, also, depends upon a selective analysis and parsing of the remarks on sentence. The remarks on sentence extend over 17 pages of transcript. They canvass in detail relevant matters both objective and subjective. The actual passing of sentence is preceded by the words: "I have accordingly decided that, having taken into account all of relevant (sic) matters and including the special circumstances which, in my view, apply in this case, the appropriate sentence is …………. " . 26 I do not see how a fair reading overall of the remarks on sentence can possibly support this ground; and I therefore reject the ground.

Ground 3 27 The ground is: "The learned sentencing Judge erred in the manner in which he purported to give effect to s 44 Crimes (Sentencing Procedure) Act 1999 having made a finding of special circumstances." 28 The applicant stood for sentence after conviction of an offence committed after 1 February 2003. The sentence was required, therefore, to be cast in a form that set first a non-parole period, and secondly a balance of term, the latter not exceeding one-third of the former unless the sentencing Court were to find special circumstances justifying some longer balance of term. 29 In that context the principles relevant to Ground 3 are not in doubt. They are stated by this Court, (Studdert, Whealy, Howie JJ), in Itaoui v Reg [2005] NSWCCA 415. It is an error of principle for a sentencing Judge to set the non-parole period before considering whether or not he is disposed to make a finding of special circumstances. That is so because a finding of special circumstances affects the non-parole period as well as the balance of term. 30 In the present case the learned sentencing Judge said in terms: "Putting aside for the moment the period of custody, I am satisfied that there are sufficient special circumstances to justify a period of parole in excess of the normal one-third of the non-parole period and I will come back to that in due course." 31 I see no error of the kind now submitted. I therefore reject Ground 3.

Ground 4 32 The ground is: "The learned sentencing judge erroneously took into account two cases of other offenders which had distinguishing features from the applicant's as 'general guidance' ". 33 His Honour actually said: "With regard to other decisions that might be of assistance, it has to be said that every case of sentencing in the end depends very much on its own particular facts and that any cases which bear similarly to this case can only be looked to by way of general guidance. In that context, however, I do note two decisions in which the facts in a number of important respects were similar to those in this case. First of all the case of R v Shanks [2002] NSWCCA 438 in which the prisoner was committed to a period of five years imprisonment, that is a non parole period of five years out of a total sentence of eight years and R v Peckham [2003] NSWCCA 293 in which the non parole period was six years out of a total sentence of eight years. However, I note that in both of those cases, there was a plea of guilty which had a quite significant effect in reducing the sentence which would otherwise have been imposed and that in this case the prisoner did not plead guilty then and, therefore, cannot expect the benefit of any reduction on that basis." 34 In my opinion a fair reading overall of this excerpt from the remarks on sentence cannot support a proposition that his Honour gave so clearly disproportionate an importance to Shanks and to Peckham as relevant precedents, as to justify a finding of error. 35 I therefore reject Ground 4.

Ground 5 36 The ground is: "A lesser sentence is warranted in law." 37 I take the correct question to be: is a lesser sentence warranted in law notwithstanding the errors previously herein identified? The first thing to be said is that the stated question cannot be answered by the mantra-like invocation of the guideline judgment of this Court in Reg v Henry (1999) 46 NSWLR 346. The applicant's case has clear differences in profile from the hypothetical profile that the Court adopted for its purposes in Henry. I agree with the relevant Crown submission: "In this matter the applicant was clearly not a young offender with little criminal history. He used a shotgun rather than a knife, a large amount (over $43,000) was taken, and his conviction came after trial". 38 The second thing to be said is that a fair answering of the stated question entails a need to confront one of the abiding difficulties in sentencing such an offender as the applicant, namely, and to borrow from the joint majority judgment in Veen No. 2: "However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide-posts to the appropriate sentence but sometimes they point in different directions." (164 CLR at 476) 39 The third thing to be said is that in answering the stated question the applicant's antecedent criminal history is properly available to be put into the balance, but only with caution and with a proper regard for the well known statement of relevant principles taken from the same joint majority judgment in Veen No. 2: "The antecedent criminal history is relevant, however, to show whether the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of the like kind." (164 CLR at 477) 40 In the present case the applicant's antecedent history is, in my opinion, relevant to all three of the matters that are there enumerated. 41 The applicant's crime, even if it stood alone as a first offence, or even as a first serious offence, would fall nevertheless to be dealt with severely. It is trite that armed robbery of a bank and with the use of a dangerous, or of an offensive, weapon is one of the most serious offences known to the law. 42 The applicant's crime does not, however, stand alone in those senses. It evinces a continuing residual disposition to commit, even after a lapse of years, an aggravated armed robbery as a means of dealing with admittedly unhappy personal circumstances. Such a state of affairs puts in play, as I have said, all three of the previously stated Veen (No. 2) considerations. 43 I would accept at once that the head sentence of 9 years is a very severe head sentence for this applicant, but I am unpersuaded that it falls outside the available range. 44 The learned sentencing Judge found special circumstances, and I respectfully agree with that finding. It would have been, in my opinion, open properly to his Honour to have set a non-parole period somewhat less than 6 years 4 months; but I am not persuaded that the choice of 6 years 4 months was one falling outside the acceptable range. 45 I reject, therefore, Ground 5.

Conclusions and Orders 46 In my opinion cause has not been shown for the intervention of this Court. I propose these orders:

[1] that leave to appeal against sentence be granted;

[2] that the appeal against sentence be dismissed. 47 ADAMS J: I agree with Sully J. **********

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