[2014] HCA 2
Bland v The Queen (2014) 241 A Crim R 51
[2014] NSWCCA 82
Bloomfield v R [2013] NSWCCA 315
Bugmy v The Queen (2013) 249 CLR 571
[2013] HCA 37
Cowan v R [2015] NSWCCA 118
Currie v R [2013] NSWCCA 267
Dinsdale v The Queen (2000) 202 CLR 321
Source
Original judgment source is linked above.
Catchwords
Zirilli v The Queen (2014) 253 CLR 58[2014] HCA 2
Bland v The Queen (2014) 241 A Crim R 51[2014] NSWCCA 82
Bloomfield v R [2013] NSWCCA 315
Bugmy v The Queen (2013) 249 CLR 571[2013] HCA 37
Cowan v R [2015] NSWCCA 118
Currie v R [2013] NSWCCA 267
Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1Jones v The Queen (2010) 242 CLR 520[2010] HCA 45
House v The King (1936) 55 CLR 499[1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Mulato v R [2006] NSWCCA 282
Mun v R [2015] NSWCCA 234
Neal v The Queen (1982) 149 CLR 305[2006] NSWCCA 242
R v Morrison [2013] NSWDC 334
R v Pham (2015) 256 CLR 550[2015] HCA 39
R v Pham [2013] NSWCCA 217
R v Speechley (2012) 221 A Crim R 175[2012] NSWCCA 130
R v SZ (2007) 168 A Crim R 249[2007] NSWCCA 19
R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383
TYN v R (2009) 195 A Crim R 345
[2009] NSWCCA 146
Vaiusu v R [2017] NSWCCA 71
Veen v The Queen (No 2) (1988) 164 CLR 465
[1988] HCA 14
Wong v The Queen (2001) 207 CLR 584
Judgment (12 paragraphs)
[1]
The applicant's subjective circumstances
This aspect of the factual background is derived from the report of a forensic psychiatrist, Dr Christopher Bench, tendered by the applicant's counsel and a criminal history report tendered by the Crown.
The applicant is an aboriginal man who was born in Newcastle on 26 December 1988. He was aged 25 years at the time of the offence.
The applicant's mother used large quantities of drugs and alcohol during her pregnancy. His parents separated when he was five years of age. He lived with his mother until he was aged seven, when he went to live with his paternal grandmother. His father was also present during this time.
The applicant's father gave him drugs and alcohol at a very young age, commencing with an introduction to cannabis at the age of five. The applicant was a daily user of this drug by the age of ten. He commenced using amphetamines when he was 11 and used this drug daily. From the age of 13, he started using heroin (also on a daily basis).
The applicant had no relationship with his mother for most of his life. His mother was described as an alcoholic and dependent on cannabis. He avoided contact with her as it usually involved requests for money.
In his report, Dr Bench recorded that the applicant had reported his father as being dependent on alcohol, cannabis, heroin and amphetamines. However, the applicant remained very close to his father until he died of an alcoholic liver disease. The applicant's grandmother contributed to his wellbeing. The applicant had lived with her since he was seven years of age. She endeavoured to keep the applicant on "the straight and narrow" including, on one occasion, sending him to Alice Springs for a period of time. She passed away in December 2012.
The applicant denied any history of sexual abuse or violence as a child and had a relationship (which was on and off) with a female for 8 years.
Dr Bench stated that the applicant was diagnosed with attention deficit hyperactivity disorder ("ADHD") at a young age. The applicant denied any history of depression to Dr Bench, but accepted that he had psychotic symptoms during his adolescence and had been prescribed anti-psychotic medication.
Dr Bench noted that he had reviewed an earlier psychiatric report prepared by Dr Jonathan Adams (dated 9 November 2010). In that report, Dr Bench observed a similar history to that presented during his clinical evaluation of the applicant, including the diagnosis of ADHD since childhood. The report by Dr Adams also noted a history of paranoia dating back to the age of 14 and observed that "it is probable [the applicant's] illicit substance abuse history had deleteriously impacted upon both his mental state and overall level of functioning."
Dr Bench stated that it was difficult to make a definitive diagnosis of the applicant's mental condition because of his prodigious substance dependence. He observed that, irrespective of whether the applicant had a drug induced psychotic order or primary psychotic illness, such as schizophrenia, the way in which the applicant would be managed was unlikely to change. If the applicant continued to use illicit substances he would need to be managed as if he had a primary psychotic illness.
It was the opinion of Dr Bench that the applicant met the diagnostic criteria in the "Diagnostic and Statistical Manual (Fourth Edition), Test Revised, for a Psychotic Disorder, Not Otherwise Specified". He considered this disorder and the applicant's polysubstance dependence were present at the time of the offence.
Under the heading "Prognosis and recommended treatment of any relevant mental health issues", Dr Bench opined that the applicant's condition should essentially "be treated like he has a primary psychotic illness such as schizophrenia, as he has had protracted and prodigious substance dependence with such psychotic symptoms being present throughout that period of time."
As to prognosis he observed:
"His prognosis is wholly related to his willingness to abstain from all drugs and alcohol, including prescription drugs and abuse. If he continues to use illicit substances he will likely have persistent psychotic symptomatology and further mental health difficulties. Both his substance dependence and on-going psychotic symptoms will increase his risk of recidivism."
The applicant repeated to Dr Bench that he had not used any illicit substances or "prescription drugs of abuse" since his incarceration for the offence. He had been fully compliant with his anti-psychotic medication.
In a pre-sentence report prepared by Mr David Kelley, Community Corrections Officer, on 28 October 2015 the following was stated with regard to the applicant's "prior management by community corrections" and his approach to conditional liberty:
"Mr Buxton was initially a client of the Department of Juvenile Justice having been placed under their supervision in August 2004. In December 2006 both Community Corrections and Juvenile Justice prepared reports for the Court when he was consequently placed on a Control Order. Mr Buxton was released to conditional liberty in September 2007 however he reoffended within a fortnight. He was released after a further Parole Order was issued in January 2008, only to be breached in March 2008 for failing to comply with the conditions (residential rehabilitation) of that order.
The offender was released from custody to the supervision of this Service on a Parole Order on 23 December 2009, the order to expire on 23 December 2011. He was subsequently breached in March 2010, having been subject to urinalysis which indicated the use of cannabis and methyl amphetamine, and received a formal warning from the State Parole Authority. Mr Buxton re-offended on 6 April 2010 and was subsequently convicted of Aggravated Robbery with Wounding and sentenced to a term of 5 years and 3 months with a non parole period of 3 years.
Mr Buxton was granted parole and release to the supervision of this Service on 31 August 2013. Records indicate that, whilst he complied with reporting requirements, he "presents with significant social impairments" and that his "itinerant status" along with his reluctance to engage with relevant interventions presented a "significant barrier" to facilitating positive outcomes. Mr Buxton was charged with Goods in Custody matters on 19 April 2014 and was subsequently given bail to re-appear on 19 June 2014. On 25 April 2014, whilst still subject to the Parole Order issue by the State Parole Authority and the aforementioned bail, Mr Buxton committed the offences for which he currently appears for sentence."
Under the heading "Assessment and Community Based Sentencing Options" Mr Kelley stated:
"It is apparent that Mr Buxton has difficulty sustaining a usual and lawful lifestyle when in the community, and this would seem unlikely to change whilst he maintains the stated intention of functioning normally whilst using illicit drugs, without committing crime. Consequently, it would appear that Mr Buxton will continue to pose a significant risk to the community when released from custody. He has previously demonstrated his inability to comply with conditional liberty or submit to the supervision of this Service."
Some particular references may be made to the applicant's criminal history. The applicant commenced offending when he was 15 years old. From that age he was regularly in juvenile supervision. The applicant was sentenced to imprisonment for 3 years (with a non-parole period of 12 months) for three occurrences of robbery armed with an offensive weapon in 2008.
In 2010 he was convicted of aggravated robbery with wounding and was imprisoned for 5 years and 3 months, commencing on 1 September 2010 and concluding on 30 November 2015, with a three year non-parole period (the balance of parole was 1 year, 7 months and 7 days). He was on conditional liberty when he committed the offence.
[2]
Remarks on sentence
The sentencing judge mentioned that the two offences were commonly described as "bag snatching or at least attempted bag snatching". They had been the subject of repeated consideration in the courts. His Honour noted it was important, when sentencing the applicant, to have regard to the fact that people are entitled to go about their daily affairs without fear they will be robbed by a "knife wielding bandit". His Honour noted that the consequences for victims of such offences are significant, although the effect may vary between individuals.
His Honour then, un-controversially, recited the circumstances of the offence and in doing so noted, that notwithstanding the politeness of the applicant's request to the two women, "it was clearly a threat backed up by the production of [a] knife".
This analysis was followed by a finding by the sentencing judge, which was the subject of ground 2 of the appeal, namely, "these were serious examples of a serious offence". His Honour then made two further and related observations (the second of which was again subject to ground 2 of the appeal). First, the sentencing judge noted that the offence "carries with it a maximum penalty of twenty years." Secondly, it was observed that when sentencing for an armed robbery matter, attention must be directed to the judgment in Henry. He observed that "Henry in no way sets out the limit" and "regard must be had to the maximum penalty as well as the Henry guideline in determining the appropriate sentence to be imposed on someone who has committed such an offence".
The sentencing judge found that a significant aggravating feature was that the applicant was on parole for aggravated robbery with wounding at the time of the offence. That previous offence had been a serious one, which involved the applicant and others setting upon a 17 year old boy who ended up being stabbed and requiring open heart surgery. Whilst noting that the applicant could not be punished again for that offence it did suggest, in his Honour's view, the need for an element of personal deterrence to be built into the sentence. His Honour had regard for the criminal history of the applicant and, in particular, that he had been engaged in three armed robberies in 2008. His Honour found that the applicant demonstrated "a continuing attitude of disobedience to the law which must be reflected in the sentence".
[3]
Leave to appeal
The applicant submitted that leave to appeal should be granted because the grounds have prima facie merit and the sentence imposed was substantial.
[4]
Ground 1 - His Honour erred in his consideration of the applicant's disadvantaged background
In support of ground 1, the applicant submitted that the sentencing judge failed to give full weight to the reduced moral culpability of the applicant arising from his disadvantaged background and early introduction to drugs. It was submitted that the fact that the applicant's background could have been worse was irrelevant. He submitted that the sentencing judge minimised the significance of the relevant subjective factors, including the separation of his parents, the absence of his mother in his life and the significant emotional neglect, because "he was not subjected to domestic violence on a daily basis or forced to live on the street."
The applicant submitted that whilst he was not subjected to daily violence he was subjected to a different form of abuse, which was insidious because his unusually early introduction to drugs occurred in the context of family dislocation and emotional neglect, despite his grandmother's best efforts. He submitted that this resulted in his development of psychotic symptoms during adolescence.
The applicant submitted that his social circumstances were akin to the background of deprivation and social disadvantage in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44] and R v Fernando (1992) 76 A Crim R 58 because they compromised his ability to mature and learn from experience (reference was also made to Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at [13]; Kentwell v R (No 2) [2015] NSWCCA 96 and Kennedy v R [2010] NSWCCA 260 at [53]).
The applicant submitted that whilst the sentencing judge found that the applicant's early exposure to drugs was not a matter of personal choice and was an important factor "in how his life turned out", his Honour considered these factors to be an explanation for the problems the applicant faced (as well as those which he had caused society) rather than reducing his moral culpability. It was submitted that the sentencing judge "made no finding that [the applicant's] moral culpability was reduced" because of his background.
It was further submitted that his Honour failed to consider whether the circumstances of the applicant's addiction, which was the underlying factor of his offending, in any way diminished the need for retribution and general deterrence in the circumstances of the case (and that this should have been the approach adopted by the sentencing judge).
[5]
Consideration
It is well established that the disadvantaged background of an offender may mitigate the sentence that would otherwise be appropriate: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [37]-[39]; R v Fernando (1995) 76 A Crim R 58 at 62-63; Kennedy v The Queen [2010] NSWCCA 260 at [53]. The weight to be placed on such factors remains within the province of the sentencing judge: Bugmy supra at [24]. However, as was pointed out in that paragraph in Bugmy, the authority of this Court to substitute a sentence could be engaged if the Court was satisfied that by virtue of placing too little weight on some factors and too much weight on other factors, that in the result the sentencing judge imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. The same principle applies where a sentence above that which could justly be imposed consistently with sentencing standards was in fact imposed: see also Johnston v R [2017] NSWCCA 53 at [64]; Bland v The Queen (2014) 241 A Crim R 51; [2014] NSWCCA 82 at [112]-[113].
In the present case it seems to us that the sentencing judge took the applicant's background into account as a mitigating factor. He referred in some detail to the applicant's background. Although it appears, having regard to the remarks he made (see above at [34]), that he did not give significant weight to it, it was a factor he took into account.
In these circumstances it does not appear to us this ground has been made out. However, the subjective circumstances of the offender, including his disadvantaged background, are of course relevant in determining whether the sentence was manifestly excessive.
In reaching this conclusion we have not found it necessary to rely on any particular approach required to be taken in the review of ex tempore judgments of the District Court. Although it is correct that an ex tempore judgment should be scrutinised with a degree of latitude (see Currie v R [2013] NSWCCA 267 at [50]; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48]; R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at [34]; Opacic v R [2013] NSWCCA 294 at [46]; PK v R [2012] NSWCCA 263 at [46]), even reasons given ex tempore must provide an explanation of how issues in dispute were resolved, why they were resolved in a particular way and how the sentence imposed was arrived at: see Lee v R [2016] NSWCCA 146 at [34]; Cowan v R [2015] NSWCCA 118 at [60]; Gal v R [2015] NSWCCA 242 at [39]. The sentencing judge met this standard in relation to the matters the subject of this ground.
[6]
Ground 2 - His Honour erred in consideration of the guideline in R v Henry (1999) 46 NSWLR 346, [1999] NSWCCA 111 and failed to consider facts as relevant to the objective seriousness of the offence
In relation to the second ground of appeal, the applicant submitted that the sentencing judge did not consider the sentencing guideline in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 in any detail and failed to identify any aspect of the offence itself or otherwise which made the offence "more or less serious than that characterised in the guideline" and, in particular, which justified a sentence above the guideline.
The applicant submitted that while the guideline is not "a tramline" it is "a reference point". He submitted that apart from the applicant's criminal history and his breach of conditional liberty, the applicant fell comfortably within most of the factors identified in Henry. Those factors were summarised by the applicant as follows:
1. the applicant was "a relatively young offender, with a weapon capable of killing or inflicting serious injury";
2. there was little planning;
3. there was no actual violence (but "a real threat of it");
4. only a bag was taken (which was recovered);
5. the offence occurred in daylight; and
6. the victims were not vulnerable.
At the hearing, counsel for the applicant submitted the offence was an example of an "unremarkable armed robbery", noting that the victim had the property returned.
The applicant further submitted that were a number of factors in favour of the applicant which the sentencing judge did not mention in the context of considering the application of Henry. Firstly, that the guideline envisages a late plea of limited utilitarian value attracting a usual discount of around 10%, whereas the applicant's representatives here alerted the Crown before the trial date that the applicant would be pleading guilty, thus increasing its utilitarian value (as reflected in the 15% afforded by the sentencing judge). Secondly, that the victims were not in a vulnerable position such as a shopkeeper or taxi driver as the offence took place in an open space, in daylight when people were around to assist and the property was recovered. Thirdly, that the Form 1 offence was relevant to the extent that there were two victims, who were together. The admitted offence related to the victim who ran across the road when confronted.
[7]
Consideration
The applicant has not contended in this ground that the sentencing judge erred in his assessment of the objective seriousness of the offence, although he did take issue with that assessment in his submissions on Ground 3. Rather, the ground seems to relate to the process by which the sentencing judge reached the conclusion that the offence was a "serious example of a serious offence."
The approach taken is understandable. The assessment of objective seriousness is basically within the role of the sentencing judge and this Court is slow to determine such matters for itself or to set aside a judgment made by a first instance judge exercising a broadly based discretion: Mulato v R [2006] NSWCCA 282 at [37], [45]-[46]. Nor was it necessary for the sentencing judge to determine where the offence stood on a hypothetical range of objective seriousness: Pham v R [2013] NSWCCA 217 at [14].
Rather, the complaint was that the sentencing judge erred in his consideration of the guideline judgment in Henry supra.
In Henry, Spigelman CJ delivered a guideline judgment in respect of the offence of armed robbery, setting out a sentencing guideline for an offender committing an offence said to be typical of an offence of this nature: (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [162]-[165]. Three other members of the five member bench agreed with the guideline: (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [213], [278], [332]. However, in considering the use of the guideline and the contention that there was error in the manner it was taken into account by the sentencing judge, it must be remembered, as Spigelman CJ pointed out in Henry, that the guideline does not lay down a requirement or anything in the nature of the rule. The Chief Justice pointed out that the guideline is not a rule of universal application and failure to sentence in accordance with it is not itself a ground of appeal: (1999) 46 NSWLR 346 at [29]; see also Bloomfield v R [2013] NSWCCA 315 at [23].
In the present case the sentencing judge referred expressly to Henry, emphasising correctly that the guideline did not set out the limits of the sentence which could be imposed. In his judgment he set out the facts surrounding the offence and the subjective circumstances of the applicant. It is true he did not identify factors which made the offence more or less serious than that summarised in the guideline judgment but it was not necessary for him to do so. As was pointed out in Bloomfield supra, the guideline judgment is not to be used as a template from which sentencing judges subtract or add different factors with mathematical precision: Bloomfield supra at [23].
[8]
Ground 3 - The sentence is manifestly excessive
The applicant only pressed this ground if the Court did not find error in grounds 1 and 2.
It was submitted that the starting point for the sentence, prior to the 15% discount for the plea of guilty, must have been 9 years and 5 months imprisonment. The applicant submitted that such a sentence was disproportionate to the objective seriousness of the offence and manifestly excessive taking into account the applicant's deprived background and his early exposure to drugs.
The applicant submitted that the offence was unremarkable for an offence of this kind. It was submitted that the applicant fell comfortably within many of the factors identified in Henry and there were a number of factors in his favour, and that these matters were not given appropriate consideration or weight by the sentencing judge.
The applicant acknowledged that personal deterrence may have remained a significant consideration, but submitted that there was a diminished need for retribution and general deterrence. He also pointed to the fact that the sentencing judge accepted the applicant's drug addiction was not a matter of personal choice and had possibly led to thought disorders such as psychosis. The applicant submitted that his capacity to mature and learn from experience must therefore have been compromised, such that his moral culpability for the offending was reduced. It was submitted that given the magnitude of the starting point for sentence, these matters could not have been given appropriate weight.
The applicant further submitted, referring to Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, that while the antecedent criminal history of the applicant was relevant, it could not be given such weight as to lead to the imposition of a penalty which was disproportionate to the gravity of the instant offence.
The applicant further submitted that he was still relatively young. He noted that whilst the pre-sentence report stated that he demonstrated an inability to comply with conditional liberty or to submit to supervision and lacked motivation to address his drug addiction, at the time of sentence he was compliant with his medication and had not taken illicit drugs in custody since his arrest.
Whilst the limitation on the use of statistics was acknowledged, the applicant submitted that there are a large number of sentences for armed robberies under s 97(1) of the Act, reflected in the Judicial Commission statistics, which provided some assistance as a "yardstick". The statistics showed that, of all offenders dealt with between April 2009 and March 2016 for such offences, 1,427 were sentenced to full-time imprisonment with the principal sentences ranging from 18 months to 12 years. In only 9 of those 1,427 cases was a sentence higher than 8 years imposed.
[9]
Consideration
As has been pointed out on many occasions, a sentence which is manifestly excessive is one that is unreasonable or plainly unjust such that it is to be inferred from the result that there was a failure to properly exercise the discretion the law reposes in the court of first instance: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [26]-[27].
In this context two matters must be remembered. First, it is not the function of an appellate court to substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28].
Second, intervention on the ground of manifest excess is not justified simply because the result arrived at is manifestly different from the result in other cases, but only where the difference is such that in all the circumstances the appellate court considers there must have been an error, even though when and how is not apparent from the statement of reasons: Hili v The Queen; Jones v The Queen supra at [59]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. In this context, as was pointed out in Barbaro supra at [28], the conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should have fallen.
In the present case the applicant placed reliance both on what might be described as raw sentencing statistics for sentences under s 97(1) of the Crimes Act, and a number of cases which underlie those statistics, both in this Court and in the District Court, in an attempt to demonstrate that the sentence was outside the range of sentences which could reasonably be imposed. The statistics show that, of all offenders dealt with between April 2009 and March 2016 for such offences, 1,427 were sentenced to full-time imprisonment with the principal sentences ranging from 18 months to 12 years. Only 9 of those 1,427 cases had a sentence higher than 8 years imposed.
[10]
Conclusion
In the result, we would make the following orders:
1. Leave to appeal be granted.
2. The appeal be allowed.
3. The sentence imposed on the appellant on 3 December 2015 for the offence of armed robbery with an offensive weapon be quashed.
4. The appellant is sentenced to a term of imprisonment of 6 years and 5 months commencing on 25 April 2014 consisting of a non-parole period of 4 years expiring on 24 April 2018 and a balance of term of 2 years and 5 months expiring on 24 September 2020.
PRICE J: I have had the advantage of reading the joint judgment of Bathurst CJ and Walton J. The relevant facts and issues in this appeal are comprehensively covered in the joint judgment and I gratefully adopt them. I agree with the Chief Justice and Walton J that grounds 1 and 2 of the appeal should be dismissed. However, I find myself in respectful disagreement with their Honours' conclusion that the sentence imposed by the sentencing judge was manifestly excessive.
As I am in the minority on this issue, I will proceed immediately to my points of departure from the joint judgment.
Their Honours conclude that "the sentencing judge overstated the objective seriousness of the offence and gave insufficient regard to the subjective circumstances of the offender" (see [117] above). The combination of the overstatement with the minimal weight given to the applicant's disadvantaged background resulted, in their Honours' opinion, in the imposition of a sentence which was manifestly excessive.
During his ex tempore sentencing remarks, the sentencing judge said that the principal offence and the offence on the Form 1 were "serious examples of a serious offence" (ROS at 3). As the sentencing judge did not otherwise assess the objective seriousness of the offence, it appears that the Chief Justice and Walton J consider that his Honour's characterisation of the offence as a serious example of a serious offence is an overstatement of the objective seriousness of the applicant's offending.
In my respectful opinion, his Honour's remarks should be read in context and not in isolation. The sentencing judge had earlier referred to the two offences being commonly described as "bag snatching, or at least attempted bag snatching", which he said had been the subject of "repeated consideration in these courts" (ROS at 1). His Honour dilated upon the seriousness of bag snatching, quoting from the remarks of Gleeson CJ in R v Ranse, unreported NSWCCA, 8 August 1994.
[11]
Amendments
19 July 2017 - At [3] - particulars of sentencing proceedings incorrectly entered: "29 October 2015" changed to "3 December 2015".
[12]
At [89] - typographical error: "s 23(3)" changed to "s 22(1A)".
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 July 2017
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146
Vaiusu v R [2017] NSWCCA 71
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Yang v R [2012] NSWCCA 49
Category: Principal judgment
Parties: Zachary Peter Buxton (Applicant)
Crown (Respondent)
Representation: Counsel:
R Burgess (Applicant)
M M Cinque SC (Respondent)
Grounds of appeal
The applicant relied upon three grounds of appeal:
1. His Honour erred in his consideration of the applicant's disadvantaged background.
2. His Honour erred in his consideration of the guideline in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 ("Henry") and failed to consider factors relevant to the objective seriousness of the offence.
3. The sentence is manifestly excessive.
The sentencing judge made a number of findings regarding the applicant's case on mitigation.
His Honour found that the applicant had "an unfortunate upbringing … the main problem was his parents' attitude to drugs." He identified that the applicant's parents separated when he was five and that he was raised for the most part by his paternal grandmother. His father's influence was, at least, "in some areas, not a positive one". The applicant's father was a drug user and provided drugs and alcohol to him at a very young age including cannabis at the age of about 5. His grandmother's attempts to keep him "on the straight and narrow" were unsuccessful. The psychiatric report tendered in the proceedings showed significant emotional neglect caused by his father's substance abuse problems.
These findings were proceeded by a conclusion which was the focus of Ground 1 of the appeal, namely, "[o]n the other hand, not too much can be made of the [applicant's] background." His Honour stated:
"This is not a case where there is any suggestion that he was exposed to domestic violence on a daily basis. This is not a case where he was forced to live on the streets from a young age. He had a positive person in his life; his grandmother."
The sentencing judge balanced these considerations with the effect of drugs on the applicant's life. His Honour stated "[t]hat is not to underplay the effect of drugs in the offender's life. One thing Henry looks at … [is] the circumstances in which addiction to drugs can be a mitigating feature." His Honour had regard to the fact that the problems the applicant had faced, in large part, flowed from early exposure to drugs. He accepted that drugs could be a mitigating factor, because the decision to first take drugs was not the applicant's personal choice, being 5 years old at the time he was introduced to cannabis. The sentencing judge opined that the applicant was "an enthusiastic drug user" and that there was the possibility that his drug use led to thought disorders such as psychosis, which had been present in the applicant from time to time.
His Honour acknowledged the submission on behalf of the applicant that he was "not born of some evil disposition" and that his criminal history was a result of his drug addiction. However, the sentencing judge found that these considerations were counterbalanced by an observation that the applicant's drug addiction might affect his "prospect of rehabilitation". He observed that "if the [applicant's] drug addiction can be dealt with, it is much less likely that he will commit offences in the future".
There is a further passage of his Honour's judgment that goes to mitigation and is significant having regard to ground 1 of the appeal. The sentencing judge stated:
"I do not want to underestimate the effect of the [applicant's] upbringing on the sentence that I will shortly announce. Who knows how Mr Buxton's life would have turned out had he not been introduced to drugs by his father at the age of five? It is undeniable that that feature of the [applicant's] early life has remained an important factor in how his life has turned out. It was not his decision to commence using drugs. It is probably his decision to keep using them but even that decision has to be looked at in the context of the fact that his drug addiction is not really one of his own making."
Committing the offence during parole was "a significant aggravating feature" although the sentencing judge was careful not to "double count" this factor by not commencing the sentence earlier than was appropriate. He thereby chose the date of the applicant's arrest as the date on which the sentence would commence but took into account, in selecting the length of the sentence, the fact the applicant was in breach of parole. The sentencing judge gave the applicant a discount of 15% for the guilty plea. His Honour considered that the plea was "not [entered] at the earliest opportunity but on the day his trial was due to commence".
His Honour did not regard the applicant's mental illness as being a significant reason to reduce the need for general deterrence "to any large extent". There was no suggestion that a custodial sentence would weigh more heavily on the applicant, particularly as he would not be using drugs when in custody.
As mentioned earlier, the sentencing judge did find special circumstances in the applicant's favour. However, he did so with hesitation because the applicant had not taken:
"… advantage of the leniency that was offered to him by a finding of special circumstances … when he was sentenced for the aggravated robbery with wounding matter. He committed this offence only about six months after having been released from custody, in the context of having consumed a large quantity of drugs."
Ultimately, his Honour found that a significant sentence of imprisonment was required in the circumstances.
The applicant submitted that in considering the conflicting purposes of punishment, deterrence, retribution and the protection of the community, there was a failure to take into account, as a counterbalancing consideration relevant to mitigation in the sentencing exercise (particularly when considering general deterrence), the diminished moral culpability of the applicant arising from his family circumstances, emotional neglect and early exposure to drugs.
The Crown submitted that the sentencing judge carefully considered the evidence regarding the applicant's upbringing. It submitted that whilst there was evidence of an unfortunate upbringing, there was equally evidence of his "otherwise unremarkable upbringing", including that he attended school, his father was present throughout his life until his death in 2005, his grandmother provided him with significant support until her death in 2012 and that he had been in a relationship "on and off" for the past eight years. The Crown submitted that the applicant did not suffer from the sort of profound childhood deprivation which could be considered to have mitigating relevance. It submitted that it was wholly within the sentencing judge's discretion to determine what weight to afford to the applicant's various subjective factors and a significant portion of the remarks addressed his subjective case such that no error has been demonstrated.
The applicant submitted that there was a failure to make a finding in relation to objective seriousness apart from stating that "these were serious examples of a serious offence" and that "people are entitled to go about their daily affairs, without fear that they will be robbed by a knife-wielding bandit". Counsel for the applicant submitted that the sentencing judge undertook no analysis of the Henry guideline "factors" which were important when considering the objective seriousness of an offence. However, it was accepted the criminal record of the applicant and the fact he committed the offence whilst on conditional liberty may have justified the imposition of a sentence above the guideline.
The Crown submitted that the issue of the Henry guideline judgment was discussed during sentencing submissions and that his Honour was clearly aware of the relevant principles but appeared to have determined that it had little, if any, direct applicability in this case. The Crown submitted that a failure to follow Henry is not itself a ground of appeal, citing Bloomfield v R [2013] NSWCCA 315 and that the sentence imposed reflected the criminality of the offences.
The conclusion which the sentencing judge reached, after consideration of the circumstances surrounding the offence, was that it was a serious example of a serious offence. That conclusion was not directly challenged in this ground of appeal. It remains for consideration, however, whether the sentence was manifestly excessive. This is the subject of Ground 3.
It follows that Ground 2 has not been made out.
The applicant referred in submissions to a number of cases in which the sentences imposed ranged from 6 to 10 years imprisonment, including sentences imposed in other matters by the sentencing judge. It was submitted that the objective seriousness of the offences in all of the examples provided was greater than the present case, even though all of the offenders in the case examples were from disadvantaged backgrounds, had extensive criminal antecedents and were on parole at the time of the offences.
The applicant submitted, having regard to the Henry guideline, cases and statistics, and giving full weight to the applicant's disadvantaged background, that the sentence was unreasonable and plainly unjust. It was submitted that the sentence was above the range of sentences that could justifiably be imposed and his Honour's discretion miscarried.
The Crown submitted, even if the cases referred to by the applicant established that the sentence was "stern" (citing R v Pham [2013] NSWCCA 217), a stern sentence "which is disparate with other sentences, is not necessarily open to criticism". The Crown further submitted that the practice of approaching sentencing appeals by a search for and comparison with sentences passed in other cases is not helpful, citing Huynh v R [2008] NSWCCA 216 at [61] (per Johnson J with whom Allsop P and Price J agreed).
The Crown sought to distinguish the various cases referred to by the applicant in support of the third ground from the circumstances of the present case, in order to demonstrate the limited reliance that may be placed upon them.
As to Judicial Commission statistics, the Crown referred to the "repeated caution" of this Court about the use of statistics in sentencing appeals. It referred to more recent Judicial Commission statistics, for the period July 2009 to June 2016, which revealed that of the 1,429 offenders sentenced to fulltime imprisonment for s 97(1) offences:
1. 9 received sentences greater than 8 years;
2. 17 received sentences of 8 years;
3. 30 received sentences of 7 years; and
4. 117 received sentences of 6 years.
Finally, it was submitted that the sentence imposed was appropriate having regard to the maximum penalty for the offence, of 20 years imprisonment, and the seriousness of the offence.
It is important in considering the use which can be made of these statistics that what is sought is consistency in the application of legal principles, not numerical equivalence: Barbaro supra at [40]; Hili v The Queen supra at [18]. As was pointed out in Hili v The Queen supra at [54], citing the judgment of Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305], such sentencing history does not establish a range of sentences that is the correct range or the boundaries within which sentences can be set. Rather, such statistics can and should provide guidance to appellate courts, and stand as a yardstick against which to examine a proposed sentence. The position was summarised by French CJ, Keane and Nettle JJ in R v Pham (2015) 256 CLR 550; [2015] HCA 39 in the following terms at [26]-[28] (dealing with a Commonwealth offence):
"[26] That submission should be rejected. As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.
[27] It does not mean that the range of sentences so disclosed is necessarily the correct range or otherwise determinative of the upper and lower limits of sentencing discretion. As was emphasised in Hili, and again more recently in Barbaro v The Queen, the sentencing task is inherently and inevitably more complex than that. But it does mean that to prefer one State's sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.
[28] Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2) The consistency that is sought is consistency in the application of the relevant legal principles.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle." [Citations omitted].
In the present case what we have described as the "raw statistics" provide little assistance. Offences under s 97(1) of the Crimes Act encompass offences committed in a variety of different ways and offenders with vastly different subjective circumstances. The fact that only 9 of the 1427 cases had sentences higher than 8 years is of no assistance without a consideration of the cases themselves as a yardstick in the sense referred to above.
It is also necessary to say something about the relevance of the discount for the plea. In Graham v R [2009] NSWCCA 212 at [40] it was said that what must be considered is the sentence actually imposed rather than the notional starting point. Graham was a case where the sentencing judge gave a discount of 50% for a plea and assistance to authorities. In that case Hoeben J (as his Honour then was) stated at [43] that the application of such a generous discount inevitably raises the issue of the extent to which a sentence can be reduced by discounts before it becomes inadequate and concluded at [45] that even if the notional starting point was too high it was clear that the sentence imposed not only fell within the permissible range of sentences but was very much at the bottom of the range once the 50% discount applied.
Circumstances were similar in R v SZ (2007) 168 A Crim R 249; [2007] NSWCCA 19, one of the cases cited by Hoeben J. In that case Buddin J, with whom the other members of the bench agreed, made the following remarks at [40]:
"[40] Notwithstanding these features of the case, I accept the submission that the starting point or notional sentence for the first two offences, and particularly the first offence, was too high. Although as the authorities make plain, the quantity of drugs involved in any particular matter does not of itself determine the objective gravity of the offence, it is pertinent to observe that the total quantity of drugs supplied as a result of the two offences was 4.5 grams, which is not in the scheme of things, a particularly large quantity. However, in assessing the contention that the sentences imposed were manifestly excessive, it is important to focus upon the sentences actually imposed rather than upon the starting point or notional sentence. As I have already remarked, the sentences were reduced by a combined discount of 62.5%. Not only did counsel for the applicant make no complaint about the extent of the discount but during the course of oral argument sought to justify it as being an appropriate exercise of the sentencing discretion"
A somewhat different approach has been taken in circumstances where there was no challenge to the discount. In TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146 Simpson J (as her Honour then was) described the approach to be taken in such circumstances in the following terms at [33]-[34]:
"[33] If (as is not challenged) the applicant was entitled to reductions of 25% and 33% attributable to her plea of guilty and her (considerable) assistance, then it may well be that a sentence which at first sight and unexplained by those considerations, appears to be within range and even lenient, is, in fact, not within range. The approach taken on behalf of the Crown risks undermining the function of sentence reductions in respect of those two important components. What it does is risk depriving an offender of the full benefit of reductions to which he or she is entitled. Here, the proper question is whether the starting point of 12 years would have been within or outside the appropriate range for this offender and this offence, absent the reduction for the plea of guilty and the assistance.
[34] I am aware that in SZ v The Queen (2007) 168 A Crim R 249 and in Rutkowskyj v R [2008] NSWCCA 10, this Court has held that the focus in a sentence appeal must be the sentence actually imposed, rather than the notional starting point. But in each of these cases, it was held that the reduction allowed was excessive. Here, where it was not contended that the reduction was excessive, justice demands that the focus be on the starting point."
The apparent difference in views was considered by Gleeson JA in Mun v R [2015] NSWCCA 234. His Honour made the following comments at [58]-[63]:
"[58] The focus in an appeal against sentence must be on the sentence actually imposed rather than on the notional starting point: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [40] (Buddin J; Simpson and Howie JJ agreeing). This is because the question for this Court is whether the sentence actually imposed was unreasonable: Adzioski v R at [72]; Graham v R at [40]; Yang v R at [63]; MacDonald v R [2007] NSWCCA 105 at [46]; Charlesworth v R [2009] NSWCCA 27 at [78].
[59] Another reason why the focus should be on the sentence actually imposed rather than upon the starting point or notional sentence, is as explained by R A Hulme J in Yang v R at [63] - the invitation to compare the 'notional starting point' with sentences actually passed in other cases by way of statistics is to compare apples with oranges.
[60] This is not to say that it is never appropriate to have regard to the starting point, if the Court can be confident of what that was: Rutkowskyj v R [2008] NSWCCA 10 at [10] (Barr J; McClellan CJ at CL and James J agreeing). In TYN v R at [33]-[34] Simpson J (as her Honour then was) (Spigelman CJ and James J agreeing) expressed what might be thought to be an even stronger view in this regard. Where there is no dispute as to the reductions in sentence to which an offender is entitled, Simpson J considered that justice demands that the focus be on the starting point.
[61] In Graham v R at [40], Hoeben J (as his Honour then was) (Macfarlan JA and Grove J agreeing) said that he did not read the judgment of Simpson J in TYN v R at [33]-[34] as saying anything to the contrary to SZ v R at [40], MacDonald v R at [46] and Charlesworth v R at [78]. His Honour considered that Simpson J was saying no more than that it was legitimate when considering whether a sentence was manifestly excessive to have regard to the reasoning process which led up to it. In McGeown v R [2014] NSWCCA 314 at [13]-[14], Leeming JA expressed a similar view as to the effect of TYN v R, that is:
'where … there is no dispute as to the reductions in sentence to which an offender is entitled, it is necessary to have regard to the starting point, lest the discounts be used to conceal and thereby sustain what might otherwise be a manifestly excessive sentence.'
[62] The Crown did not submit in response to the applicant's reliance upon TYN v R, that it was never appropriate to have regard to the notional starting point when considering whether the sentence actually imposed was manifestly excessive. Nor was there any dispute here that the applicant was entitled to the 25% discount on sentence. In essence, it is the asserted severity of the 'starting point' that the applicant says explains how the resultant sentence is manifestly excessive: Alpha v R [2015] NSWCCA 225 at [32] (R A Hulme J; Leeming JA and Price J agreeing).
[63] Taking into account the notional starting point here, the actual sentence imposed on the applicant, being a young offender with no prior offences, is undoubtedly a stern sentence. So much was fairly accepted by the Crown in oral argument (tcpt CCA at 9, line 17). Nonetheless, I do not regard a notional starting point of 9 years 4 months as necessarily and obviously excessive on the facts of this case. Nor do I regard the resultant sentence as manifestly excessive."
In the present case it was not disputed that the discount of 15% for the plea of guilty was appropriate. In these circumstances, as Simpson J pointed out, justice demands that the focus be on the starting point and the proper question is whether the starting point would have been within or outside the range of sentences that could have been imposed for the particular offence in question. However, we would add that even if the notional starting point considered alone was manifestly excessive, it remains necessary to consider whether the sentence in fact imposed was manifestly excessive, making allowance for the undisputed discount for the plea. If any further reduction of the sentence would lead to a sentence which was unreasonably disproportionate to the nature and circumstances of the offence (see Crimes (Sentencing Procedure) Act 1999 s 22(1A)), it could not be said that the sentence ultimately imposed was manifestly excessive.
In the present case it must first be remembered that the maximum penalty for the offence is 20 years imprisonment. That of course demonstrates the serious nature of the offence in question.
Second, it is appropriate to take into account the guideline judgment in Henry supra. As we have pointed out earlier, it is important to keep in mind when considering the guideline judgement that it is not a rule of universal application nor does a failure to sentence in accordance with it give rise to appealable error. It is not a template from which sentencing judges subtract or add different factors: see [62]-[63] above.
Nevertheless, a comparison of the offence in the present case with the hypothetical offender referred to in the guideline judgment is of assistance in determining whether the sentence was one it was open to the judge to impose, or whether it was manifestly excessive.
Unlike the hypothetical offender in Henry, the victims were not in an especially vulnerable position, and no money was in fact taken. Further, the discount for the plea was 15%, slightly more than the 10% hypothesised in Henry: see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [161].
Of far greater significance is the fact that the offender only marginally fits the description of a "young" offender, being 25 years old at the time of the offence, and has what can accurately be described as an appalling criminal record. The fact that the offence was committed on parole was not a matter going to the objective seriousness of the offence: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [26]-[32]. However, it is an aggravating factor which also differentiates the case from the hypothetical offender in Henry.
In these circumstances it could not be said that a sentence that was merely above the range suggested for the hypothetical offender in Henry was unreasonable or plainly unjust. The question remains whether or not the sentence in fact imposed was manifestly excessive.
The sentencing judge described the offence as a serious example of a serious offence. It is true that all offences of this nature are serious. So much is evident from the maximum penalty. Even if violence or injury does not in fact occur, it is always a real possibility in cases of this nature. Further, even without violence, such offences can have a serious impact on the victim who is entitled to conduct his or her affairs in a public street without fear of being accosted in the manner that occurred in the present case.
Against this, we do not think that the objective seriousness of the offence could be said to be of such a nature as those where equivalent sentences have been imposed: see [100]-[114] below. The offence does not seem to have been premeditated or planned and whilst we do not place any weight on the fact the applicant's demand for the bags was cast in relatively polite terms, the fact remains there was no actual or attempted violence nor were either of the victim's bags permanently taken.
The applicant was on parole at the relevant time for the offence of aggravated robbery with wounding. That of itself emphasised the need for personal deterrence as well as general deterrence. Quite apart from the sentence for which he was on parole, his lengthy criminal record included other offences of robbery armed with an offensive weapon in 2008 as well as a myriad of other less serious offences. This background meant there was a further need for general and specific deterrence, as well as the protection of the community, to be taken into account in sentencing. However, it must be remembered that the sentence is not to be disproportionate to the objective seriousness of the offence: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477-478; McNaughton supra at [15], [24]-[26].
We have set out the applicant's subjective circumstances above (at [10]-[27]). Although as we indicated in dealing with Ground 1, the sentencing judge took those circumstances into account, we would respectfully disagree with his comment that not much should be made of them. It seems to us that the introduction to drugs at the age of 5 and what his Honour found to be significant emotional neglect caused by his father's substance abuse problems along with the fact that the applicant had no relationship with his mother, were matters of significance. Further, the psychiatric and presentence reports summarised above (at [10]-[24]), which were not challenged at the hearing, demonstrate the applicant's substance abuse had an effect both on his mental state and his overall level of functioning. These matters are significant in assessing the moral culpability of the offender: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [39], [43]-[45], although as was pointed out in that case, the inability to control his impulses may increase the importance of protection of the community: Bugmy supra at [45]; R v Engert (1995) 84 A Crim R 67 at 68.
It is relevant to consider the cases referred to by the applicant while recognising the limited use to which they are to be put and the differences in the nature of the offence and the subjective circumstances of the offender. In Ngati v R [2014] NSWCCA 125 the offender pleaded guilty to two separate charges of armed robbery in company. Associated with each offence were separate charges on a Form 1. The offender was sentenced to an aggregate sentence of 12 years with a non-parole period of 9 years. The indicative sentences were 10 years for each offence.
The first armed robbery occurred on 19 April 2011 at the Ivy Bar. The offender went to the gaming room, pointed a sharp object at the employee's neck and stated "Don't scream or I'll kill you". His associate grabbed the employee making it difficult for him to breath and dragged him to the till. The offender then made him open the till and stole $6,831 after which his associate dropped the victim to the ground.
The first offence on the Form 1 related to a robbery in company which took place at a hotel in Sydney. The offender and his associate requested assistance from an employee. The offender then grabbed the employee and forced her to open the cash register. The charges on the Form 1 also included charges of detaining for advantage arising both out of that incident and the second count on the indictment.
The second count took place in the gaming room of another hotel. The offender's associate sought assistance from an employee who was giving such assistance when the applicant entered the room, placed one hand over the employee's mouth and pressed a knife against her collarbone. The applicant demanded she open the till and took the money out of it. The employee was then forced to crawl to another till and open it and more money was taken from it. The employee's ankles were then taped and she was told not to move and the applicant told her not to press the alarm until he had left or he would come back and stab her in the throat.
Beech-Jones J, with whom Hoeben CJ at CL and Rothman J agreed, stated that the level of criminality was very high and the offences involved planning and co-ordination by the applicant. He noted the applicant's associate was a juvenile who was described by the sentencing judge as acting under the influence of the applicant.
The applicant had an extensive criminal record, including three offences for armed robbery, one of assault with intent to rob armed with an offensive weapon and one of robbery in company. He had a history of substance abuse and psychometric testing indicated his intellectual function was significantly impaired although there was no submission that the applicant was not fully aware of the seriousness or the consequences of his offences.
An appeal against sentence was dismissed.
By comparison with the present case, the offences were far more objectively serious and the past criminal conduct equally bad, although Mr Ngati was not on parole (but was on bail) at the time of the offences the subject of the appeal. The differences in the subjective circumstances were not of great significance. In Mr Ngati's case there was a plea of guilty which was described of limited utilitarian value.
In Hamed v R [2011] NSWCCA 219, Mr Hamed pleaded not guilty to an offence of robbery in company. He was convicted by a jury and sentenced to a non-parole period of 5 years with a balance of term of 3 years. The facts of the case were that Mr Hamed, in the company of another offender, both with their identities concealed, robbed the Post Office at St Mary's, Sydney. One offender entered the store through the front of the premises carrying a firearm and the other entered through a side door carrying a knife. Both weapons were used during the robbery to menace customers and staff to obtain an amount "in the region of $9,000". Following the robbery, the offenders escaped in a stolen vehicle driven by a third person. In evaluating the objective seriousness of the offence, the trial judge took into account that the offence involved a fair amount of planning, it was committed in company and that Mr Hamed was on parole for a robbery offence at the time. He had prior convictions for armed robbery, robbery in company, kidnapping and assault and robbery.
In Hamed, the application for leave to appeal against sentence was argued upon the basis that the sentence was manifestly excessive. On appeal, this Court observed that the sentencing judge correctly identified the relevant factors bearing upon the objective gravity of the offence and had regard to relevant subjective factors, including the applicant's age, his experience in Lebanon and a report from Dr Yolande Lucire together with a pre-sentence report. Their Honours found the applicant had not established any latent or patent error in relation to the sentence imposed and further, had not established that the sentence was either unreasonable or plainly unjust. The appeal against both conviction and sentence were dismissed. The offence objectively was more serious than the present offence, and like the applicant, Mr Hamed was on parole. It should be noted that the charge against Mr Hamed was robbery in company, rather than armed robbery.
In Gardner v R [2015] NSWCCA 170 an appeal against the sentence of 7 years imprisonment with a non-parole period of 3 years and 6 months was dismissed. The sentence was arrived at after allowing a discount of 12.5% for an early plea.
In that case the offender and an associate entered a jewellery store at Crows Nest. The offender took a claw hammer out of his bag and brandished it at the salespersons whilst his associate used an axe to gain access to the window display and took several trays of rings. The applicant demanded the safe be opened and took three rolls of gold and silver chains. The value of the stolen items was $10,000.
The offender was an Aboriginal man who came from a background of extreme domestic violence, having commenced using alcohol and cannabis when he was 11. He had low cognitive ability and an extensive criminal record, having spent most of his adult life in gaol. An appeal against sentence was dismissed. The Court held that a sentence of 7 years could not be described as unreasonable or unjust and the non-parole period was said to reflect the careful and sympathetic assessment of the applicant's subjective circumstances: [2015] NSWCCA 170 at [81].
We were also referred to a number of District Court cases where sentences for similar offences were imposed. The first was R v Cobb [2015] NSWDC 66. The offender was on parole at the time of the offence which involved a robbery of a hotel by the offender and his two co-offenders. The offender was armed with a sword or machete and one of the other offenders had a machete and a third man had a large knife. The offender poked one of the patrons of the hotel with the weapon, then striking him. He demanded money from a staff member, holding the weapon very close to her face. He then sought to bash the office door down until it was opened. The offender took some $30,000 from the desk and the safe, retaining $14,000 of the money, with the balance being given to his co-offenders. The offender was an Aboriginal man with a deprived background. He had numerous prior convictions and was on parole at the time of the offence. He pleaded not guilty and was sentenced to a term of imprisonment of 8 years with a non-parole period of 5 years.
In R v Morrison [2013] NSWDC 334 the robbery occurred in a shop. The offender walked in, grabbed the shop assistant and held a 22-23cm long knife to her throat. He stole $536.55 from the shop. The offender was on parole at the time of the offence and had a lengthy criminal record. He came from a disadvantaged background and had a drug problem. After a 10% discount he was sentenced to 6 years and 9 months imprisonment with a non-parole period of 3 years and 9 months.
The other District Court cases referred to by the applicant seemed to us too remote from the circumstances of the present case to provide any assistance.
These cases can only serve as a yardstick. They do demonstrate however that the sentences for this offence of the length of that imposed on the applicant, namely a notional sentence of 9 years and 5 months, are generally reserved for offences which on their face are significantly more objectively serious. As we indicated, of itself, that does not mean the sentence was manifestly excessive.
However, in our opinion in the present case the sentence was manifestly excessive. As we have concluded above in relation to Grounds 1 and 2, there was no individual appealable error in the sentencing judge's consideration of either the offender's disadvantaged background or the objective seriousness of the offence. However, it seems to us that the sentencing judge overstated the objective seriousness of the offence and gave insufficient regard to the subjective circumstances of the offender. This led the sentencing judge to impose a sentence generally reserved for more serious offences of this nature committed by persons with similar criminal antecedents and subjective circumstances to those of the applicant. The combination of this overstatement with the minimal weight given to the applicant's disadvantaged background, in our opinion, resulted in the imposition of a sentence which was manifestly excessive.
We have taken the offence on the Form 1 into account in reaching this conclusion. That was included because the applicant accosted two women at the same time. Having regard to the circumstances in which this occurred and its aftermath, its existence on the Form 1 does not affect the conclusion we have reached.
In the circumstances it is necessary to resentence the applicant. We have set out the relevant considerations above. Taking into account the seriousness of the offence, the need for punishment and retribution, the fact it was committed on parole, the applicant's extensive criminal record and the consequential need for both personal and general deterrence, his subjective circumstances and the uncertain prospects of rehabilitation, we would impose a head sentence after a discount of 15% of 6 years and 5 months.
No complaint was made concerning the sentencing judge's finding of special circumstances or his consequential variation of the standard non-parole period. In the circumstances, we would impose a non-parole period of 4 years. The sentence should commence from the date nominated by the sentencing judge.
All too often, District Court judges are required to sentence offenders for "bag snatching" offences. Many of these offences do not involve the production of a weapon but are committed by a sudden, forceful seizure of a bag from an unsuspecting victim. In the present case, the applicant produced a knife which was about 15-20 centimetres long and demanded his victims' bags. At the time, he was standing about a metre from the two women. In my opinion, it was open to the sentencing judge to consider that the applicant's offending was a serious example of a "bag snatching" offence.
In the joint judgment, their Honours state that "[t]he offence does not seem to have been premeditated or planned" (see [97] above).
I respectfully do not agree with that conclusion. The applicant was in possession of the knife in the streets of Hamilton at about 5.30pm. He was wearing a black hooded jumper and had a significant prior criminal history of armed robbery. In my opinion, whilst his victims may have been randomly chosen, the only rational inference is that he intended to rob persons who were walking in the streets at that time. I am satisfied beyond reasonable doubt that the offence was premeditated. Although there was no actual violence, there was a real threat of violence. Objectively considered, this is a serious offence.
Their Honours' opine that the sentencing judge gave insufficient weight to the applicant's subjective circumstances. It has often been said in this Court that matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Vaiusu v R [2017] NSWCCA 71 at [29]; Yang v R [2012] NSWCCA 49 at [25]; R v Baker [2000] NSWCCA 85 at [11]. In any event, the focus of their Honours' criticism appears to be at [99] above:
"We have set out the applicant's subjective circumstances above (at [10]-[27]). Although as we indicated in dealing with Ground 1, the sentencing judge took those circumstances into account, we would respectfully disagree with his comment that not much should be made of them." (emphasis added).
If I may with respect say so, I do not think that is what the sentencing judge said. After recounting what his Honour referred to as the applicant's "unfortunate upbringing", his Honour said (ROS at 3):
"In (sic) the other hand, not too much can be made of the offender's background" (emphasis added).
His Honour went on to refer to the applicant having "a positive person in his life; his grandmother" and later said (ROS at 4):
"That is not to underplay the effect of drugs in the offender's life". (emphasis added).
Further on in his remarks, the sentencing judge said (ROS at 6):
"I do not want to underestimate the effect of the offender's upbringing on the sentence that I will shortly announce". (emphasis added).
It appears to me that when dealing with the interplay of the considerations relevant to sentencing the applicant, the sentencing judge comprehensively and sympathetically dealt with his subjective case.
The applicant's history of committing armed robberies and the commission of the present offence whilst he was on parole for the offence of aggravated robbery with wounding and on bail, increased the emphasis to be placed on specific deterrence and protection of the community, which his Honour recognised in his remarks. As was said in Bugmy (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) at [44]:
"Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
His Honour was plainly mindful of the guideline in Henry and the maximum penalty of 20 years imprisonment.
In my respectful opinion, there was neither a misapplication of principle by the sentencing judge nor was the sentence imposed so far outside the range of available sentences as to be manifestly excessive. I would grant leave to appeal, but would dismiss the appeal.