CM v R

Court of Criminal Appeal (NSW)|2013-12-10|Before: Ward JA, Harrison J, Hulme J

Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2010/348039 Decision under appeal Jurisdiction: 9101 Date of Decision: 26 October 2012 Before: Maiden SC DCJ File Number(s): 2010/348039

Judgment 1WARD JA: I agree with R A Hulme J. 2HARRISON J: I agree with R A Hulme J. 3R A HULME J: CM ("the applicant") seeks leave to appeal against sentences imposed upon him by his Honour Judge Maiden SC in the District Court at Newcastle on 26 October 2012. 4The applicant had pleaded guilty to a charge of armed robbery and had been found guilty at trial of two further armed robberies; a robbery; and an attempted robbery. 5Armed robbery is an offence contrary to s 97(1) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 20 years. Robbery is an offence against s 94 and the maximum penalty is imprisonment for 14 years. No standard non-parole period is prescribed for either offence. 6The judge imposed a total effective sentence of nine years with a minimum custodial component of seven years, dating from 20 October 2010. The applicant will become eligible for release on parole on 20 October 2017. The individual offences and sentences were as follows:

Robbery - Woolworths Liquor, Kotara on 5 April 2010: sentenced to three years with a non-parole period of two years dating from 20 October 2010.

Facts 11The robbery of the Woolworths Liquor Store at Kotara on 5 April 2010 occurred at about 9.40am. The liquor store is located within a Westfield Shopping Centre. The applicant entered the centre via a loading dock and made his way to the liquor store. He was wearing a hat and glasses which served to conceal his appearance. He engaged the 25-year-old male shop attendant in a purported transaction but once the cash register drawer opened he demanded money. The shop attendant hesitated and the applicant replied, "Do it. I want all the money. Do it, or I'll shoot you. I'll light the place up". The shop attendant was said to have been "very shocked" by this and so co-operated by putting $310 from the till into a paper bag. The applicant then fled the store and left the shopping centre via the same loading dock. 12On the following day the applicant drove his own vehicle but with a stolen number plate attached to it to the vicinity of the IGA supermarket in South Street, Telarah. The number plate had been stolen from a car earlier that morning in Maitland. 13The applicant was wearing the same hat, glasses and clothing as he had worn the previous day. In addition he had a toy pistol stuck in the waistband of his jeans. 14Shortly before noon he entered the IGA supermarket and made his way to a checkout register where he purported to engage in a small transaction. He then demanded that the 51 year old female attendant provide him some money from the till. He pulled up his T-shirt to reveal the "gun". He said, "Just give me the money, remain calm and everything will be alright". The attendant opened the cash register drawer and placed $1700 in cash into a shopping bag. The applicant then fled. 15On the morning of 14 May 2010, the applicant attached a stolen number plate to his car, which he then drove to the vicinity of the Edgeworth Post Office. Wearing a hat to cover his face he entered the Post Office carrying a blue cloth "enviro" supermarket bag. The 74-year-old male postmaster was alone. The applicant approached him, pushed the blue bag across the counter and said, "money". The postmaster hesitated a few seconds and the applicant lifted his shirt up and reached across to his side in a way that led the victim to think that he was going to produce a gun or some other type of weapon. However, the victim pushed the bag back across the counter to the applicant. The applicant said, "Oh come on mate, fair go", but grabbed the bag and then fled. 16Later that day the applicant went to the East Maitland Pharmacy. He was wearing the same cap to conceal his face as well as glasses. He had the toy pistol concealed under his T-shirt and tucked into the waistband of his jeans. He approached a 16-year-old female trainee at the counter. She asked if she could assist him and he replied, "You're going to do something for me and it's going to be really quiet. You're going to open the till and give me all the cash or I'm going to shoot". She baulked at this and he then lifted his T-shirt to display the handle of the apparent gun tucked into his pants and said, "Open it, or I'll shoot you". The young woman took the threat literally; she believed the gun was real and that she would be shot if she did not comply. Understandably, she became scared. She later suffered an asthma attack. 17An assistant pharmacist emerged from the lunchroom and approached and asked if there was a problem. The applicant looked directly at her and said, "Put it in the bag or I'll shoot you". The trainee emptied the till of $910 and placed it in the applicant's blue bag. She was hyperventilating and then retreated to the lunchroom. The applicant grabbed the bag, ran out of the pharmacy and fled in his vehicle. 18The stolen number plate attached to his vehicle had been stolen at Edgeworth on 23 April 2010. 19On 20 October 2010, the applicant attended the drive through bottle shop at The General Roberts Hotel in New Lambton shortly before midday. He was wearing a cap and reading glasses to cover his face and had a toy pistol tucked into his waistband covered by his T-shirt. He approached the 22-year-old male attendant and demanded that he put money into a bag. The attendant queried whether he was serious and the applicant replied, "Fuck oath, I'm serious" and lifted up his shirt to reveal the apparent gun. The attendant thought it was real and co-operated. He opened the till and removed the $50 notes upon the applicant's demand. The applicant then said, "Yeah that'll do" and fled. The proceeds of this robbery were $150. 20When sentencing for that offence the judge took into account a further offence of stealing a number plate. That number plate had been stolen on 16 April 2010 and was found in the boot of the applicant's car after his arrest. There were also three offences of dishonestly obtaining property by deception. These each concerned the applicant attending a service station in his own vehicle with a stolen number plate attached and leaving without paying for petrol or LPG. 21In assessing the objective seriousness of the offences the judge referred to there having been "a significant amount of planning", particularly given the theft of number plates and their use to disguise his own car. Earlier in his remarks he alluded to the modification of the appearance of the toy gun to make it look real. The judge also referred to the wearing of a cap or hat and glasses and that the applicant appeared to keep his head down so that his face could not be seen by CCTV cameras. In relation to the pharmacy robbery, the judge also referred to CCTV footage which showed the applicant driving past on a number of occasions apparently checking for an appropriate time to enter the store. Also in relation to that offence, one of the victims was pregnant at the time and "suffered great distress" as a result.

Other matters relevant to sentence 22The judge referred to the applicant being 50 years of age at the time of sentence. He noted that the offences were committed because the applicant was in need of money. The applicant had the support of his mother upon his eventual release into the community. The judge also noted that the applicant had been involved in unpaid community work prior to his arrest. A former employer spoke highly of the applicant in a reference. 23A forensic psychologist, Mr William Warren, considered that the applicant "does not appear to [have] any significant psychological or psychiatric illness which would predispose him to criminal behaviour in the future". 24The applicant had a criminal history which included 10 armed robbery or similar offences for which he was imprisoned in 1982. There were subsequent entries in 1984, 1996, and 2007 for number of offences which resulted in community service, bonds and a fine. 25The judge was of the view that the applicant was not remorseful. He did, however, allow a reduction of sentence of 5 per cent for the utilitarian value of the applicant's plea of guilty to the last of the robberies. He also allowed a reduction of 20 per cent for the applicant's assistance to authorities. He described that assistance as involving the applicant volunteering information and possibly putting himself at some risk in gaol as a result. He described the information as being of "real assistance in respect of the intelligence that has either confirmed other police intelligence or has instigated a line of enquiry". It did not appear to the judge that there would be a need for the applicant to give evidence, but the information was considered to be truthful, reliable and complete. 26The judge made a finding of special circumstances in the following terms: I have, after some thought, formed the view that special circumstances is appropriate in the matter, because notwithstanding his relatively mature years, he does have hope of rehabilitation. (R/S 4) ... As I have indicated, I will find in respect of each matter special circumstances, and those are on two bases. Firstly, the matter that I indicated before, which has been his support and the support of his family that he will have in the future; and secondly, his actions to a lesser or greater extent that will involve him having to be careful whilst in custody. (R/S 7) 27The judge considered the guideline judgment in R v Henry (1999) 46 NSWLR 346 and made some comparison between the typical case there described and the facts of the present offences.

Ground 1: His Honour erred in only applying the discount of 20% for assistance to authorities (pursuant to section 23 of the Crimes (Sentencing Procedure) Act 1999) to charge 5 and not the balance of the offences. 28The applicant's argument in support of this ground is subsumed by that which was put in support of Ground 4 and will be discussed in that context.

Ground 2: The sentence imposed on charge 5 was manifestly excessive. 29The sentence for the fifth offence (armed robbery at The General Roberts Hotel) was one of 5 years. It was reduced from what it otherwise would have been by 25 per cent on account of the applicant's plea of guilty and assistance. The judge did not say so, but this must mean that the starting point must have been 6 years 8 months. 30The sentence for the fourth offence (armed robbery at the East Maitland Pharmacy) was one of 6 years. 31It was submitted for the applicant that 6 years 8 months was not only manifestly excessive, having regard to the Henry guideline, but also inexplicable when the objective seriousness of the fifth offence was similar to that of the fourth offence and arguably less. Reference was made to the fourth offence involving two victims whilst the fifth offence involved only the one. 32The Crown submitted that the sentence for the fifth charge was not manifestly excessive and, in written submissions, pointed to a variety of factors which justified it; for example, the offence had features that distinguished it from the features of the typical offence described in Henry. 33In oral submissions it was asserted that there was justification for this sentence being longer in that it was the last in a series of serious robbery offences; there were more offences to be taken into account on its Form 1 document; and the victim impact statement indicated significant deleterious consequences had been suffered as a result. The victim in this matter said that he had to leave his job at the hotel and has continued to suffer from anxiety which has affected many aspects of his life. 34I cannot understand why the starting point for the sentence for the fifth (hotel) offence was significantly more than the sentence for the fourth (pharmacy) offence. The exceedingly brief ex tempore reasons given by the judge provided no explanation. The additional offences taken into account on the Form 1 justified some increment but modestly so. Being the last of the offences was not a real point of distinction from the second last of the offences. The victim impact for this offence was significant. But it must also have been for the fourth offence where there were two victims, one of whom was a pregnant 16-year-old young woman who hyperventilated and later suffered an asthma attack, and both of whom were not only threatened with the display of the "gun", but were threatened with being shot. 35I am not, however, prepared to conclude that the sentence, having regard to the starting point, for the fifth offence was unreasonable, or plainly unjust: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 It differed from the typical case in Henry to an extent that warranted a higher sentence that the 4 to 5 years suggested there for that typical case. Comparison with another sentence imposed by the same judge is not a basis for concluding manifest excess. The seriousness of the offending was such that it is just as much open to argue that the sentence for the fourth offence was inadequate as to argue that the sentence for the fifth offence was excessive. 36I would not uphold this ground.

Ground 3: His Honour erred in failing to give practical effect to the finding of special circumstances in the total effective sentence. 37Ground 3(b) was abandoned at the hearing, which leaves Ground 3(a) in the terms above. 38I set out earlier the two passages from the judge's sentencing remarks in which he provided reasons for finding that there were special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for setting a balance of the term of the sentence that was more than one-third of the non-parole period. 39A finding of special circumstances does not compel a variation in the non-parole period. But if no variation is made, a judge is expected to give reasons as to why the finding is not being reflected in the ultimate term: Saad v R [2007] NSWCCA 98 at [33]-[36]; Heron v R [2006] NSWCCA 215 at [31]-[32]. This Court may also intervene where the result of accumulation of multiple sentences is to remove the effect of a finding of special circumstances: Stoeski v R [2008] NSWCCA 230 at [25]; Cicekdag v R [2007] NSWCCA 218 at [47]-[49]. 40Where there is no adjustment of the 3:1 ratio of non-parole period to parole period in the overall term, it may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation. A recent example of the former may be found in Houri v R [2013] NSWCCA 279; see also Phipps v R [2008] NSWCCA 178; and Stoeski. Examples of both varieties of the latter can be found in the cases collected by McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31]-[40]. Appeals asserting such error are not uncommon, and as Howie AJ remarked in Maglis v R [2010] NSWCCA 247 at [24], their success will often "depend upon what can be gleaned of the Judge's intention from the sentencing remarks". 41In this case, all that is to be found in the judgment is a statement that there were special circumstances, adjustment of the usual proportions in four of the five individual sentences, but then through the process of accumulation of sentences a final result where the minimum custodial component is some 78 per cent of the overall term. There is nothing to indicate that the judge was aware of, or intended, this result. The statement at the end of the short reasons that "I cannot give any further discounts or leniency" cannot be interpreted as advertence to the end result, even making all allowances for the brevity of ex tempore sentencing remarks delivered immediately following submissions. 42I am satisfied that the sentencing discretion miscarried and that this ground should be upheld.

Ground 4: The total sentence imposed of 9 years with a non-parole period of 7 years is manifestly excessive. 43 Submissions advanced by senior counsel on behalf of the applicant at the hearing of the application crystallised the argument to be this: a total effective sentence of 9 years for these offences, where the judge found that the applicant's assistance to authorities warranted a reduction of 20 per cent, was unreasonable and unjust. 44Reference was made to the judgment of Howie J, with whom the other members of the Court agreed, in Felton v R [2010] NSWCCA 79 at [45]. There his Honour spoke of the need to assess the individual sentences, including any applicable discount, in accordance with Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 and then to consider totality. But in relation to the latter it is important to ensure that any discount is not eroded by the process of accumulating sentences. 45The argument advanced by the applicant in relation to Ground 1 concerned the application of the discount for assistance to authorities being confined to the fifth charge. The assistance was not related to any of the offences for which the applicant was sentenced. Accordingly, there was no reason to confine the discount to just one of the five sentences. It was accepted that the judge had a discretion in this respect: R v Gallagher (1991) 23 NSWLR 220 at 230E -231D. It was accepted that the judge may have been led to confine the discount as he did by the submissions that were made. It is unnecessary to delve into this because the principal issue is that referred to in the preceding paragraphs. 46The Crown submissions in relation to Ground 4 referred to the "unduly generous" approach of the judge in ordering that the sentences for the second and third offences be served concurrently. I do not regard that as a relevant matter. He could have ordered some partial accumulation and still arrived at the same overall result. 47Applying the discount for assistance to the last of the sentences to be served had the effect of reducing the overall term of the sentence. If it had been applied to the other sentences, with one exception, it would not necessarily have affected that result. The exception concerns the first offence where other sentences were completely accumulated upon the non-parole period. If the discount had been applied to the sentence for the first offence that would have brought back the commencement of subsequent sentences by about four or five months. 48When there is a degree of accumulation of multiple sentences, I know of no authority (and none were cited) that requires the discount to individual sentences to be reflected with mathematical precision in the resulting overall term. Obviously, however, there is a need for some proportionality. I have come to the view that the judge should have discounted each of the sentences for the applicant's assistance to authorities. There was no reason not to. This should have had a bearing on the overall term, but only to a modest degree. 49Ground 1 should be upheld but Ground 4 should not.

Re-sentencing 50The need for re-sentencing primarily arises because of the error identified under Ground 3, but there is the lesser, though additional, need to do so in respect of Ground 1. 51It is convenient to use the aggregate sentencing provisions in s 53A of the Crimes (Sentencing Procedure) Act. (If they had been used in the District Court, the error identified under Ground 3 would more likely have been noticed by the judge.) 52The individual sentences that would have been imposed involve a reduction by 20 per cent of those imposed in the District Court for the first to fourth matters with some rounding to achieve a practical result. Thus they are:

Robbery - Woolworths Liquor, Kotara on 5 April 2010: a sentence of 2 years 5 months.
Armed robbery - IGA Store, Telarah on 6 April 2010: a sentence of 3 years 2 months.
Attempt robbery - Edgeworth Post Office, Edgeworth on 14 May 2010: a sentence of 2 years 3 months.
Armed robbery - East Maitland Pharmacy on 14 May 2010: a sentence of 4 years 10 months.
Armed robbery - General Roberts Hotel, New Lambton on 10 October 2010: a sentence of 5 years.

Orders 53I propose the following orders:

Leave to appeal granted.
Appeal allowed.
Quash the sentences imposed in the District Court and, in lieu, impose an aggregate sentence of 8 years 9 months with a non-parole period of 6 years. The sentence is to date from 20 October 2010. The earliest day the applicant will be eligible for release on parole is 20 October 2016.

Amendments 20 February 2014 - Information identifying the applicant removed at his request with the concurrence of the respondent. Amended paragraphs: 3 and coversheet 07 December 2021 - [40] typographical error 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: 07 December 2021

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