Bichar v Regina

Court of Criminal Appeal (NSW)|2006-01-23|Before: Basten JA, Howie J, Hall J

JUDGMENT OF: Basten JA at 1; Howie J at 2; Hall J at 28

DECISION: Application for leave to appeal against sentence is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentence - armed robbery - failing to give discount for plea of guilty based upon Henry guideline - whether drug addiction mitigating - whether any less sentence warranted.

Crimes Act 1900 - s 97(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A(3) Criminal Appeal Act 1912 - s 6(3)

R v Henry (1999) 46 NSWLR 346 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Hemsley [2004] NSWCCA 228 R v Sundar [2005] NSWCCA 93 CASES CITED: R v Johnson [2005] NSWCCA 186 Douar v R [2005] NSWCCA 455 R v Ibrahimi [2005] NSWCCA 153 R v Solomon (2005) 153 A Crim R 32 R v SY [2003] NSWCCA 291 R v Gagalowicz [2005] NSWCCA 452

COUNSEL: V. Lydiard - Crown A. Francis - Applicant

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

IN THE COURT OF CRIMINAL APPEAL 2005/1860

BASTEN JA HOWIE J HALL J

MONDAY 23 JANUARY 2006 Therry Gillar BICHAR v Regina Judgment 1 BASTEN JA: I agree with the orders proposed by Howie J and with his Honour's reasons. 2 HOWIE J: The applicant, Therry Bichar, pleaded guilty in the Local Court to a charge of armed robbery contrary to s 97(1) of the Crimes Act. This is an offence for which a maximum penalty of 20 years imprisonment is prescribed. He adhered to his plea of guilty in the District Court and on 4 April 2005 Judge Phegan (the Judge) sentenced him to a non-parole period of 18 months imprisonment with a balance of term of 18 months. The sentence dated from 1 November 2004 and the non-parole period expires on 31 May 2006. The applicant seeks leave to appeal against the severity of that sentence. 3 The facts were not in dispute and can be stated relatively briefly. On 1 November 2004 the applicant approached the victim, who was standing at Liverpool station waiting for a train, at about 10.45 pm on a Monday evening. The applicant struck up a conversation with the victim while they waited. Eventually the train arrived and the victim boarded it followed by the applicant. The applicant sat immediately behind the victim who had with him a small bag and a computer case. The victim started to use a laptop computer. 4 As the train approached Sefton station, the applicant put his right arm around the victim's neck from behind and held a used syringe to the left side of his neck, about 10 cm away from the victim's body according to the victim's account. The prisoner said to the victim,

I'm sorry I have to do this but I need to take your laptop and your other bag. If you resist I will stab you with the needle."

The victim said, "You're kidding mate" and the applicant said, "No, I'm not. I'll take your bag and will stab you if you don't give it to me". The victim then complied and allowed the applicant to take the bag and his computer. 5 The applicant then left the train at Sefton. The victim also left the train and at the same time dialled Triple 0 on his mobile phone. The victim pursued the applicant for some time and was assisted by the driver of a vehicle that had been flagged down by him. Police shortly arrived at the scene and the applicant was apprehended. He told police that he had thrown the syringe away. 6 In a recorded interview with police the applicant admitted the offence and said that he needed money. He said he had used some Rivotril tablets shortly before the robbery and it made him feel strange. He had been attending a detoxification centre but had left there and had been without methadone for about two days. He explained that the syringe was one that he had used for injecting heroin. He said that he had intended to scare the victim but not to stab him. He was planning to sell the computer to get some money for food and, if he could not get back on methadone, to buy some heroin. 7 The applicant was 32 at the time of the commission of the offence. He has a relatively minor criminal record for drink driving offences and dishonesty. On 2 September 2002 he received a six month suspended sentence for shoplifting. In February 2003 the order of suspension was revoked and he was required to serve the sentence by periodic detention. A pre-sentence report noted that the applicant had failed to accept supervision of the Probation and Parole Service at this time or address his drug issues which led to the breach of the bond. In September 2003 the applicant was imprisoned for one month and 23 days for failing to comply with the periodic detention order. 8 The applicant left school after completing his School Certificate and entered the army in 1989. He served in Cambodia and Malaysia and was medically discharged in 1997 suffering from Post Traumatic Stress Disorder arising from witnessing the deaths of, and injuries to, children caused by land mines. This had resulted in his abuse of alcohol for which he was successfully treated after leaving the army. He had not used alcohol since. 9 The applicant commenced employment as a railway guard in 1999. In October of that year he suffered a serious head injury during the course of his employment. He was treated at the Brain Injury Unit at Westmead Hospital. As a result of his injury he suffered headaches, neck pain, dizziness and had difficulty controlling his temper. He also had feelings of depression and hopelessness with suicidal thoughts. At the time of his injury the applicant was living with his father and brother. 10 The applicant told a psychologist, who prepared a report for the sentencing court, that he commenced using heroin while rehabilitating from his injury. The psychologist suggested that this might have been to assist with pain control. The Probation and Parole officer reported that the applicant was introduced to heroin through a lady friend in 2000 and that it dispelled his "worries" and depression". He soon began taking a gram of heroin a day. 11 The applicant was first admitted to the Corella Drug Treatment Service at Fairfield Hospital in July 2000 and between then and November 2002 had undertaken 13 episodes of detoxification treatment, 10 as an inpatient. He commenced a methadone treatment programme in April 2003 and continued taking methadone during his short period of imprisonment. Dr McCaul from Jacaranda House reported that, following the applicant's release from custody, his methadone dose was gradually increased and by April 2004 the applicant had stopped using heroin. The applicant began gradually to decrease his methadone but became depressed and recommenced using heroin. The applicant entered a rehabilitation programme and stopped taking methadone. However, he left after a few days. He told the Probation and Parole officer that he got "scared" at the rehabilitation centre and decided to leave on the day of the offence. He said that he had a "shot" of heroin and "3 pills" given to him at the station. 12 Dr McCaul believed that the optimum treatment for the applicant was to stabilise his methadone use at an effective dose. Ms Collins, the psychologist, believed that the applicant needed drug and alcohol counselling with random urine analysis and treatment for his "poor mental state". The Probation and Parole officer stated that it was difficult to gauge his commitment in genuinely addressing his past drug use because the applicant had opted to leave the rehabilitation programme. However she noted that the applicant had made contact with an alcohol and drug worker on return to custody and he could benefit from further programmes. 13 The applicant and his brother gave evidence before the sentencing judge. The applicant confirmed that he had never used drugs before suffering the head injury. He said that he left the detoxification centre because he was "stressed out" and had to wait 24 hours before getting "detoxification tablets". He bought some heroin and was given three Rivotril tablets by a friend. They made him feel "really weird" and made him feel "like it wasn't me". Although the applicant initially gave evidence that he would have probably sold the computer because he was a drug addict, he later expressed doubts that this was the reason because he said that he had money from his army pension of $420 a fortnight. He gave evidence that he was trying to mend the difficulties in the relationship with his father as a result of his drug usage and had undertaken a rehabilitation course while in custody. He had withdrawn from methadone while on remand. 14 The applicant's brother gave evidence of having noted a change in the applicant since he had been in custody and was no longer using methadone. The applicant seemed to have more confidence. He said that both he and his father were prepared to assist the applicant if he was prepared to give up drugs. 15 There is only one ground of appeal relied upon. It asserts that the Judge erred by having insufficient regard to the applicant's plea of guilty. As has been noted the applicant pleaded guilty in the Local Court. That fact might justify a discount of about 25 per cent. The Judge did not indicate what discount he was giving for the plea of guilty. Rather, when dealing with the mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act, the Judge stated that the guilty plea was "absorbed in the Henry formula and therefore is not, in my view, a matter to be taken into account over and above the guidelines laid down in that case". The reference to the "Henry formula" was a reference to the guideline laid down in R v Henry (1999) 46 NSWLR 346. However, as was made clear in R v Thomson and Houlton (2000) 49 NSWLR 383 at [161], the plea of guilty taken into account in Henry was a late plea of guilty of little utilitarian value; see R v Hemsley [2004] NSWCCA 228 at [30] and R v Sundar [2005] NSWCCA 93 at [17]. 16 The Crown accepts that the Judge was in error in holding that the discount for the early plea of guilty had already been taken into account in applying the Henry guideline. The question that arises is whether any lesser sentence is warranted in law: see s 6(3) of the Criminal Appeal Act. There has been some question raised as to how the section is to be applied in light of the decision of this Court in R v Johnson [2005] NSWCCA 186. The relevant cases and competing arguments are collected in the judgment of Johnson J in Douar v R [2005] NSWCCA 455. It is unnecessary to consider the question in order to resolve the present application. Although the applicant has relied upon fresh evidence of events that have occurred since sentencing, they do not in my opinion effect the basis upon which the Judge sentenced the applicant or suggest that some other sentence was warranted than that imposed by the Judge. 17 When finding special circumstances to vary the relationship between the non-parole period and the balance of the term, the Judge stated:

……………….this is a case where special circumstances of a quite significant kind have been established, that the prisoner while not yet at a stage where he could state with absolute confidence that he will remain free of drugs once the term of imprisonment comes to an end, is nonetheless genuinely committed to rehabilitation. There is a very real need in support of that commitment for appropriate counselling of the kind referred to by Ms Collins and the author of the pre-sentence report. There is along with that, the offer of genuine and realistic support from the members of his family with whom he remains attached"

18 The fresh material relates to action taken by the applicant since he was sentenced toward his rehabilitation. There is evidence of the courses undertaken by the applicant while in custody including drug and alcohol education and anger management. He has withdrawn from methadone and has progressed to C3 classification. His father is prepared to have the applicant live at home on his release. There is an offer of work from the applicant's brother. Much of this material merely supplements evidence given by the applicant during the sentencing hearing. For example, he told the Judge that he had withdrawn from methadone after arriving at Parklea and had undertaken counselling relating to drug and alcohol use. The rest of the fresh evidence does no more than confirm the Judge's assessment that the applicant was genuinely committed to rehabilitation was correct. In my opinion it does not warrant the Court's intervention to re-sentence the applicant. 19 The applicant argued from a mathematical approach and by making assumptions as to what the Judge intended was to be the relationship between the sentence to be passed upon the applicant and the guideline specified in Henry. It was submitted that it is clear that the Judge intended to impose a sentence below the lowest end of the range of the guideline by a year so as to reach an overall sentence of three years but this included only a discount of 10 per cent and so, the argument ran, the sentence should be reduced by a further 15 per cent to give the appropriate discount for the plea. It was further submitted that the Judge intended to markedly depart from the lower end of the range identified in Henry but did not achieve that result because of his error in relation to the discount for the plea of guilty. 20 The Henry guideline only imperfectly applied to the applicant. The guideline was based upon one of the criteria that the offender was young with no or little criminal record, whereas the applicant was aged 32 years and had served a short gaol sentence. It was also a factor in the application of the guideline that there was a small amount taken in the robbery, where as in the present case the applicant stole a laptop computer. The judge apparently took into account that the victim was not in a position of vulnerability such as a taxi driver or a shopkeeper, but the victim was vulnerable as he was travelling alone late in the evening on a public train: see R v Ibrahimi [2005] NSWCCA 153. As the Judge recognised, the offence was objectively serious because of the use of a syringe, a weapon calculated to put considerable fear into the victim. Although the Judge found that there was no planning, this was not a matter of any great weight as the guideline took into account only limited planning. 21 The Judge took into account, as a matter mitigating the use of the syringe, the fact that the applicant used words indicating that he was sorry to have to do what he did. In my view there is no element of mitigation at all in the fact that the offender apologises for threatening the victim with a dangerous weapon at the outset of the offence. Nor was there any mitigation, as the Judge found there was, in the fact that the victim was prepared to chase the applicant to try to have his property returned. The offence was complete and whether the victim remained fearful of the offender or not was, to my mind, irrelevant. 22 The Judge returned to this matter when considering the mitigating factors under s 21A(3)(a) and came to the conclusion that "so far as the long term is concerned" the injury or emotional harm caused by the offence was not substantial. In my opinion there was no basis for that conclusion. There was simply no evidence on the subject and the Judge could not assume that there was no lasting impact upon the victim. As was explained in R v Solomon (2005) 153 A Crim R 32, the court assumes that the effect upon a victim of an armed robbery is substantial and this is taken into account in the penalty to be imposed. Had there been evidence of a long lasting effect on the victim, this might have been a matter of aggravation. 23 Of perhaps more significance was the fact the Judge took into account as a matter of mitigation the applicant's drug addiction. He did so relying upon what Wood CJ at CL said in Henry and concluded that the applicant did not choose to embark upon drug taking but that it was a result of his experiences on active service and of the injury he suffered in his employment as a train guard. The Judge stated, "It is reasonable to assume that without those events in his life he would be very unlikely to have resorted to illicit drugs". In my respectful opinion the Judge erred in treating the appellant's drug taking as a matter of mitigation. It is very often the case that there will be some life experience or some psychological or psychiatric state that causes, or at least contributes to, the use of drugs. One will almost always be able to assume that without that experience or without the disturbed psychological or psychiatric state the person would have been unlikely to have resorted to illegal drugs. 24 In any event the fact that some traumatic or injurious event results in a person using drugs does not mean that drug addiction is a matter of mitigation. There is nothing in what Wood CJ at CL said in Henry to suggest otherwise. The relevant passage in the judgment of the Chief Judge is at [273] where his Honour stated:

(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as: (i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported); (ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism; (iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c) it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might: (i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported); (ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R v Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete; (iii) justify special consideration in the case of offenders judged to be at the "cross roads": R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394. 25 There was no evidence in the present case that paragraph (c)(ii) above applied or that in any other way that applicant's use of heroin was not a matter of personal choice notwithstanding that it might have helped him overcome the effects of his personal experiences or the results of the injury he suffered. The psychologist, without any factual support, suggested that the applicant might have used heroin to overcome pain. But that was not the evidence of the applicant. In any event self medication by the use of prohibited drugs to overcome psychological or physical trauma is not a mitigating factor: R v SY [2003] NSWCCA 291 at [62] and following. Nor can it be said that the applicant did not make a choice to continue to use the drug rather than to remain in rehabilitation: see Henry per Spigelman CJ at [201] and R v Gagalowicz [2005] NSWCCA 452. He had been given numerous opportunities and extensive support to overcome his addiction but had failed to take advantage of them. 26 In my opinion the sentence is a lenient one for what was a serious instance of the offence. In particular the non-parole period of 18 months was extremely generous and verges on the inadequate. A lesser minimum period of incarceration could not possibly reflect the objective seriousness of the offence and the importance of general deterrence. I am firmly of the view that no other sentence is warranted in law. 27 I propose the application be granted but the appeal be dismissed. 28 HALL J: I agree with Howie J. **********

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