COOK v REGINA

Court of Criminal Appeal (NSW)|2010-08-27|Before: Basten JA, Hall J, Price J

JUDGMENT OF: Basten JA at 1; Hall J at 2; Price J at 48

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW- appeal - appeal against sentence- failure to assess objective seriousness - consideration of aggravating and mitigating factors under s21A of the Crimes (Sentencing Procedure) Act 1999 - appeal refused - CRIMINAL LAW- appeal - appeal against sentence - manifestly excessive - proper range of sentences - use of statistics - appeal refused

Davis v Regina [2009] NSWCCA 279 House v The King (1936) 55 CLR 499 CASES CITED : Mulato v Regina [2006] NSWCCA 282 Regina v Henry (1999) 46 NSWLR 346 Williams v Regina [2010] NSWCCA 15

PARTIES: James Allan COOK v REGINA

COUNSEL: C: N Noman A: W Hunt

SOLICITORS: C: S Kavanagh A: S O'Connor

IN THE COURT OF CRIMINAL APPEAL 2008/20345

BASTEN JA HALL J PRICE J

FRIDAY 27 AUGUST 2010 JAMES ALLAN COOK v REGINA Judgment 1 BASTEN JA: I agree. 2 HALL J: The applicant seeks leave to appeal in respect of a sentence imposed on him on 5 June 2009 by the District Court sitting at Lismore (his Honour Judge Black QC). 3 The applicant pleaded guilty to one count of robbery with a dangerous weapon contrary to s.97(2) of the Crimes Act 1900 on 2 June 2009. The plea was entered following the determination of certain preliminary issues on a voir dire which was heard over three days prior to the jury being empanelled. 4 The sentencing judge was requested to take into account on a Form 1, one count of knowingly dealing with the proceeds of crime contrary to s.193B(2) of the Crimes Act. The matter on the Form 1 related to the purchase of a motor vehicle on 28 July 2008 with $9,000, the sum of the amount of $18,405 that had been obtained from the robbery. 5 On offence contrary to s.97(2) carries a maximum penalty of 25 years' imprisonment. There is no prescribed standard non-parole period in respect of such an offence. 6 An offence contrary to s.193B(2), if on indictment, carries a maximum penalty of 15 years' imprisonment. 7 The applicant was sentenced to a term of imprisonment in respect of the offence to which he pleaded guilty under s.97(2) as follows:- Total term: 8 years, 3 months commencing on 31 July 2008 and expiring on 30 October 2016 Non-parole: A non-parole period of 5 years commencing on 31 July 2008 and expiring on 30 July 2013 8 The sentence imposed took into account the offence on the Form 1. The non-parole period represented approximately 60% of the total term imposed. 9 In his application for leave to appeal, the applicant relied upon two grounds, namely:-

(1) The sentencing judge failed to properly assess the objective seriousness of the offence.

Factual matters 10 For the purposes of sentence, the facts relating to the offence under s.97(2) are contained in agreed facts (Exhibit B on sentence) and it is sufficient to record from the facts the following:- "At 7.45 pm, the offender entered the club dressed in a dark coloured jacket, dark tracksuits, white joggers and a dark coloured cap. The offender was wearing white inner gloves, wearing a backpack and a firearm with a sling attached. As a consequence of viewing the CCTV footage and the stills of that footage, Senior Constable Craig Norton, a qualified weapons inspector for the New South Wales Police, indicated in his statement of 28 May 2009 that the firearm was likely to be a single barrel shotgun. The offender walked briskly to the reception area, vaulted the reception counter and entered the office. He pointed the shotgun at the two females in the office. The offender demanded that Ms Foster lie face down on the floor of the office. The offender then pointed the shotgun at (the other victim) and demanded that she open the large safe on the wall of the office. (This victim) complied and opened the safe. She was then forced to the floor and told to lie face down. The two women complied with the demands of the offender fearing for their personal safety. At this point, both women were lying face down on the floor of the office while the offender had access to the open safe. The offender loaded the bank notes from the safe into his backpack. The total amount stolen was $18,405 AUD in cash. The offender left the office, straddled back over the reception counter and ran out of the club carrying with him the backpack and shotgun."

Remarks on sentence 11 The sentencing judge's remarks on sentence, amounting in all to some five pages, recorded the essential facts. His Honour noted the maximum penalty for the offence was a term of imprisonment of 25 years, that he would take into account the Form 1 matters and also noted the relevant facts relating to the offence under s.97(2) ha been set out in Exhibit B. Reference was also made to the fact that the armed robbery had had a significant impact on both female victims. 12 On p.1 of the remarks on sentence, the sentencing judge stated:- "… It was my view a very serious offence of its kind, I accept that the weapon was not loaded, nobody else knew that, certainly the ladies had no reason to suspect that it was not. As far as they were concerned and anybody else who had been caught up in that situation, they were facing a very dangerous and life threatening situation …" 13 Reference was also made in the remarks on sentence to the fact that the impact upon the female victims was the expected consequence of the offence alleged and was therefore part of the gravity of the offence, stating that the impact on the victims would not amount, however, to an "aggravating feature". 14 The sentencing judge concluded and recorded that he considered that the facts indicated that an aggravating feature in terms of s.21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 was that the victims were vulnerable by reason of their occupation. 15 The remarks on sentence then contain observations on the question as to whether or not the offence was planned, it being noted that there was planning as would be expected in a robbery of the kind, stating "so I am taking into account that there was planning by him but I am not satisfied that it is such as to involve being found as an aggravating feature" (p.3). 16 The sentencing judge then turned to what he referred to as the mitigating factors contended for on the applicant's behalf during the course of submissions. These related primarily to his age, the question of remorse, his extremely disadvantaged background and his rehabilitation prospects. 17 The sentencing judge said that he was bearing the applicant's age in mind, to an extent, but did not think it was a factor entitling him to make any significant reduction in "the overall sentence". 18 His Honour referred to the fact that he had been referred to the guideline judgment in Regina v Henry (1999) 46 NSWLR 346 during the course of submissions and stating that, in his view, the present matter was "more serious". 19 Reference was made to the criminal record of the offender, to the amount of money that was stolen as being significant and the element of planning involved. 20 In formulating sentence, regard was had to the applicant's plea of guilty and allowance made for it. In the Crown submissions it was noted that the plea was a late one from which the applicant received a discount of 17.5%, noting there is no complaint about the discount. 21 The sentencing judge found special circumstances apparently upon the basis of the offender's age, issues of drug addiction and what he termed "the Fernando factors". As previously indicated, the non-parole period constitutes a little over 60% of the total sentence.

Ground 1: The sentencing judge failed to properly assess the objective seriousness of the offence 22 It was submitted on behalf of the applicant that the sentencing judge could not be seen to have either found as a fact what the objective seriousness of the offence was nor exercised any "evaluative process" in relation to the issue. 23 If this Court were satisfied for the error contended, then it was submitted the Court could properly make its own assessment of the objective seriousness of the offence. 24 It was further submitted that on re-sentence by this Court, a lesser sentence was warranted at law. 25 Consideration of the issues on this application has been assisted by the submissions of Mr W Hunt of counsel, who appeared on behalf of the applicant, and on behalf of the Crown. The written submissions on behalf of both parties are noteworthy, both for their clarity and conciseness. 26 Mr Hunt cited the observations of Simpson J in Mulato v Regina [2006] NSWCCA 282 at [46] and [47]. Simpson J there referred to the assessment of the objective seriousness of an offence, which if not amounting to a finding of fact, then it involves an exercise of "an evaluative process" akin to fact-finding or the exercise of a discretion, only reviewable on the principles stated in House v The King (1936) 55 CLR 499. Emphasis was given to the importance of respecting the role of the first instance judge and that it was not the function of this Court to substitute its own view of objective seriousness for the sentencing judge's assessment. 27 Attention is drawn to Simpson J's observation that there is a need for first instance judges to make clear findings of fact and clear evaluations of such matters as objective seriousness, however, his Honour adding "… absence of clarity in such matters may result in the need for the appellate court to undertake the task itself" (emphasis added). 28 It is, of course, an obvious fact that the factual complexity that arises in some cases will usually require detailed fact-finding and particular identification of the matters taken into account in determining the objective seriousness of an offence. The extent to which findings of fact and matters of evaluation need to be specified in detail will then, of course, depend upon the facts and circumstances of the case. 29 In the present case, the facts were quite straightforward. I have earlier set out an extract from Exhibit B relating to them. 30 An examination of the transcript of submissions made to the sentencing judge on 5 June 2009 reveals that each of the matters raised on behalf of the applicant going to both the objective seriousness of the offence and mitigating factors received attention from the sentencing judge, although it is true that the remarks deal with such matters in brief, rather than extensive terms. 31 The facts giving rise to the offence fell within a small compass. The applicant, acting alone, simply entered the club premises carrying a firearm, vaulted the reception and then pointed the shotgun at the two females in the office and making demands upon them as I have recorded. He then took a significant amount of money and fled. The facts, in themselves, self-evidently convey the gravity of the offence in question without the need for any elaborate discussion or description of the various aspects or features involved. 32 The level of particularity and detail of an assessment constituting an evaluation of the objective seriousness of the s.97(2) offence in this case, accordingly, must, as I have stated, be considered in light of the nature of the facts giving rise to the offence and their complexity. The absence of clarity in findings made will not necessarily result in the need for intervention by this Court. Hence the reference by Simpson J in Mulato (supra) to the fact that a lack of clarity in that regard "may" result in this Court needing to undertake the task, thereby conveying that it will not necessarily occur in all instances. 33 In oral submissions today, Mr Hunt emphasised that his Honour, having identified correctly the matters so far as mitigation or aggravation, that is objective and subjective factors, should then have made an evaluation. With respect, I do not consider this was incumbent on his Honour having made the findings and the expressed approach taken.

34 In the circumstances of the present matter in which the sentencing judge addressed all of the issues brought to his attention and he clearly having in mind the facts set out in Exhibit B which are referred to in the remarks on sentence, the learned judge plainly undertook an evaluation of the objective seriousness of the offence with relevant observations on objective and subject matters being noted. It has not been suggested that any particular matter bearing upon the objective gravity of the offender under s.97(2) was overlooked or neglected by him. 35 Accordingly, I do not consider that Ground 1 raises a valid ground of appeal.

Ground 2: The sentence is manifestly excessive 36 It was contended that the sentence imposed was manifestly excessive, particularly so, it was argued, given the number of findings made that were beneficial to the applicant. The sentence under challenge in this application was said not to properly reflect the findings made. 37 In support of Ground 2, the sentencing judge was required to have regard both to the objective seriousness of the offence under s.97(2), the maximum penalty for such an offence and for the fact that the Form 1 matter to be taken into account was not an insignificant one, the maximum penalty for which, as earlier noted, is a term of imprisonment of 15 years. 38 The plea of guilty was a late plea and no complaint has been made about the discount allowed. 39 The relevant aggravating and mitigating feature were conveniently summarised in the Crown's written submissions at paragraph 26 as follows:- "(i) The victims were vulnerable: ROS, 2.8.

(ii) Rehabilitation prospects were problematic: ROS, 3.9.

(iii) Although there was substantial emotional harm, this was envisaged in the offence: ROS, 2.5.

(iv) The degree of planning was no more than envisaged as part of the offence: ROS, 3.6

(v) Although facing criminal offences in Queensland, the applicant was not on controlled liberty: ROS, 3.2.

(vii) Age (24 at the time of offending, 25 as at sentence) was not a relevant factor: ROS, 4.3." 40 As the Crown submitted, the sentencing judge was required to have regard to the applicant's criminal antecedents which indicated that prior offending had denied him leniency in determining the sentence to be imposed. The Crown noted that the applicant was released from custody in Queensland in March 2008, committed further offences in Queensland in June 2008 and committed the subject offence (and the other offences on the Form 1 and s.166 certificate) in July 2008. It was contended that this, no doubt, formed the basis for the sentencing judge's determination of less then favourable prospects of rehabilitation. 41 The sentencing judge had regard to the applicant's disadvantaged background, including his drug addiction and these were relevant to the finding of special circumstances. 42 Mr Hunt relied upon Judicial Commission statistics which he contended provided some "extrinsic assistance" as to the range of sentences imposed. It is unnecessary here to set out the full details in paragraphs 29 and 30 of the applicant's submissions, although I have had regard to them. 43 The Crown observed that the statistics reflect that limited regard appears to have been had to the maximum penalty. In relation to the 13 offenders documented as those who pleaded guilty, had Form 1 matters and were aged 21 to 25, three attracted head sentences the same or more than the applicant, with three receiving the same non-parole period. 44 Reference has been made to the caution that this Court should exercise in relying upon statistics: see Davis v Regina [2009] NSWCCA 279 at [16] per Howie J and Williams v Regina [2010] NSWCCA 15 at [23] per McClellan CJ at CL. 45 Whilst it was been submitted for the applicant that the statistics taken in the context of the findings made indicate that the sentence was at the very top of or beyond the range and was manifestly excessive, I do not, with respect, accept that that is the case. 46 I consider that, given the obvious objective seriousness of the offence and the other matters to which the learned sentencing judge had regard in terms of mitigating and aggravating factors, that the sentence imposed, including the non-parole period of 5 years, was within the range of discretion of the sentencing judge. 47 Accordingly, I have concluded that the following orders should be made:-

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