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.