Emiliano BUONOCORE v REGINA

CATCHWORDS: Sentence only - Armed Robbery and Form 1 offence - weight to be given to personal deterrence arising out of Form 1 offence - whether manifestly excessive.

R v Elfar [2003] NSWCCA 358 R v Qutami (2001) 127 A Crim R 369 CASES CITED: R v McGourty [2002] NSWCCA 335 R v Henry & Ors. (1999) 46 NSWLR 346; [1999] NSWCCA 111 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 ; [2002] NSWCCA 518

PARTIES: Emiliano BUONOCORE - Applicant REGINA - Crown

COUNSEL: S Flood - Applicant JA Girdham - Crown

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

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2006/257

McCLELLAN CJ at CL HALL J LATHAM J

3 LATHAM J: The applicant seeks leave to appeal against a sentence imposed upon him by Marien DCJ SC on 8 July 2005 in respect of one count of Armed Robbery under s 97(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The applicant asked that a further offence of Armed Robbery be taken into account on a Form One when sentenced for the principal offence. The applicant received a sentence of 7 years imprisonment with a non parole period of 4 years 6 months. The Offences

4 A statement of agreed facts which was before his Honour was largely reproduced in the course of the remarks on sentence. The circumstances surrounding the commission of the offence on indictment were that at about 3:15 p.m. on Monday 9 December 2002, two female employees of a large pharmacy at Silverwater went to the National Australia bank in Silverwater to deposit the weekend takings of the business. The driver of the vehicle, a Ms Osores, was a co-offender, having discussed with the applicant over a period of two weeks prior to 4 December 2002 the means by which they would rob the business of a sum of money. The applicant had been employed on a casual basis between June 2000 and early December 2002 and knew of Ms Osores' responsibility for the banking. Ms Osores told the applicant how and when she did the banking and that the largest amount of cash was banked on a Monday. The applicant's girlfriend, a Ms Thomas, who also worked in the business, was directed to send a coded text message to the applicant, letting him know when Ms Osores and the co-worker were leaving the premises to go to the bank. The female passenger however was entirely ignorant of the plan. Ms Osores parked the vehicle near the entrance of the bank in a car park, whereupon a male co-offender approached the driver's door, placed his arm through the driver's window (which was partially open by prior arrangement) and said "Give me the bag". The male co-offender produced a knife approximately 20 cm in length which he brandished towards Ms Osores. She gave the co-offender a bag containing $24,103.60 in cash and cheques to the value of $22,419.04. The male co-offender then ran from the car park to a vehicle, driven by the applicant. It was, of course, necessary for a person unknown to the female passenger to approach the vehicle and demand the takings. None of the cheques were ever presented.

5 Police investigations into the commission of the offence proved fruitless until the commission of the offence which found its place on the Form One, that is the armed robbery of the 17 February 2003. Once again, at about 3:15 p.m. on that Monday, two male employees of the same pharmacy went to the National bank in Silverwater to deposit the takings of the business. The driver parked the vehicle opposite the entrance to the bank, opened the door and got out of the vehicle. A male co-offender approached the driver and said, "Give me the bag, get back in the car". The driver saw a cylindrical, grey object in the male's right-hand and was unsure whether it may have been a firearm. Apprehending that it was a firearm, the driver handed a bag to the co-offender containing $26,752.45 in cash and cheques to the value of $16,305. The co-offender was seen to enter a vehicle driven by the applicant. None of the cheques were ever presented. Neither of the male employees on this occasion had any prior knowledge of the robbery or any involvement in it. An eyewitness to this robbery recorded the number plate of the vehicle. Police inquiries revealed that the numberplate related to a wrecked car belonging to a friend of the applicant. The wreck had been stored in the applicant's backyard for some period of time. The vehicle driven by the applicant was another car, belonging to a male co-offender. Police were able to establish that the numberplate had been on the wreck when it was delivered to the applicant's house.

6 The lawful interception of the applicant's mobile telephone confirmed the police suspicions that the applicant was a prime mover in both robberies. In one of a number of telephone calls between the applicant and his girlfriend, after the latter had been interviewed by police, the applicant said "Tell them about the car … the car only. .. Tell them what the coincidences are and see if we've got any problems to worry about". On 11 July 2003 the applicant's girlfriend implicated the applicant in both robberies. She said she saw the proceeds of the robberies being divided between the offenders, and the expenditure of the applicant's share on cars, motorbikes and an expensive gold chain. These details were confirmed by later inquiries with the RTA. The applicant was arrested and charged with both offences on 12 February 2004. He denied any knowledge of the robberies.

7 The applicant had no prior criminal history and, on any view, had powerful subjective features in his favour. He was 24 years of age at the time of sentence. The applicant's subjective case is canvassed below in the course of dealing with the grounds of appeal.

8 It is appropriate to refer briefly to the background of the proceedings. The applicant's trial in respect of two counts of armed robbery was set for 7 February 2005, but was vacated. A further trial was listed for 23 May 2005, on which date the applicant's application to sever counts one and two on the indictment was refused by his Honour. The applicant was remanded to 25 May 2005, at which time the applicant pleaded guilty on the basis that the later of the two offences was placed on the Form One, as noted above. The negotiation of this result bears some relevance to the sentence ultimately imposed by his Honour. Grounds of Appeal

9 Three grounds of appeal were argued, namely the :- (i) His Honour failed to adequately take into account the applicant's prospects of rehabilitation.

(ii) His Honour failed to consider all of the evidence before finding that an increase in the sentence was necessary to give effect to considerations of personal deterrence, given the offence on the Form One. (iii) The sentence imposed is manifestly excessive in all the circumstances. Prospects of Rehabilitation

10 As to the first of these grounds, the applicant takes issue with the remarks by his Honour that it was "hard to determine what are the prospects of rehabilitation" and that it was difficult to assess what weight to place upon the submission that the applicant was unlikely to re-offend. It is submitted that the effect of these remarks demonstrates that his Honour clearly ignored the evidence placed before the court by the applicant, demonstrating that the applicant had excellent prospects of rehabilitation. That evidence included a letter from the applicant expressing his remorse for the commission of the offences and stating his intention never to "do anything like it again". In addition, there was a report under the hand of Dr Lennings, wherein Dr Lennings expressed the view that the applicant had a very low risk of recidivism and quite good prospects of rehabilitation. Furthermore, there were four testimonials placed before the court containing evidence of the applicant's employment since the commission of the offences, his volunteer work, his prior good character and his expressions of remorse to others.

11 The applicant gave no evidence in the course of the proceedings. The applicant now complains that if the sentencing judge placed little weight on the evidence outlined above, owing to its hearsay nature, that aspect of the matter was never raised with the applicant and no opportunity was afforded to him to supplement the material by further evidence. It is said that his Honour was under an obligation to disclose his approach to the material and reliance is placed in this respect upon the decision of the Court in R v Elfar [2003] NSWCCA 358.

12 As to this latter contention, Elfar was a Crown appeal against the inadequacy of a sentence imposed after the admission of hearsay statements made by the offender to a psychologist, to which no objection was taken by the Crown. The material was relied upon, and accepted by the sentencing judge, in order to excuse the commission of the offences, essentially on the basis that the offender was coerced by his father, the real culprit. In the course of his judgment, Whealy J. revisited the decisions of the Court in R v Qutami (2001) 127 A Crim R 369 and R v McGourty [2002] NSWCCA 335 (both Crown appeals), describing the principle stated in those decisions (that self-serving and untested statements by an offender to others are not a proper basis for findings which minimise an offender's criminality) as "plainly important" and requiring "emphatic endorsement by this Court". His Honour went on to say that "considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court." (emphasis added) Later, his Honour said :- In some situations, the evidence placed before a sentencing court will be so inconsistent, so contrary to common sense and the agreed facts that, even without Crown intervention, adverse submission or opposition, it will be quite apparent to the sentencing judge that little or no weight should be given to the material. The duty of the sentencing judge will be plain in such a situation. There will be a need for the sentencing judge to inform the parties of his preliminary attitude to the tendered material and to invite submissions and provide the opportunity for further evidence. (emphasis added)

13 In my view, the applicant's reliance upon these remarks by Whealy J. (with whom Ipp JA and Davidson AJ agreed) is misplaced. It is clear, both from the context of the decision and its terms, that the duty of a sentencing judge to disclose an adverse view of hearsay material is one which arises where the offender provides an account to others which substantially differs from, or substantially qualifies, an otherwise uncontested account of the offences, with the aim of minimising his/her criminality.

14 I am not persuaded that the authorities to which I have referred apply to the reception of expert or opinion evidence, going to the offender's prospects of rehabilitation or "risk profile". It is commonplace for psychologists' reports to express an opinion on an offender's prospects of rehabilitation and it is rarely the case that any objection is taken to that material, provided the psychologist is suitably qualified. As opinion evidence, the sentencing judge may accept it or reject it, if it does not accord with other evidence in the proceedings. Moreover, it is entirely a matter for the sentencing judge what weight he/she places upon it. Similarly, the applicant's letter and the testimonials were capable of bearing upon the issue of the applicant's rehabilitative prospects, but the weight to be attached to that aspect of those documents was a matter for his Honour. Counsel for the applicant on sentence was undoubtedly aware of the advantages and disadvantages of calling his client to give evidence. The deliberate forensic decision not to call the applicant, but to tender a letter from the applicant expressing contrition and his resolve not to re-offend, avoided the perils of exposing the applicant to cross examination by the Crown. In my view, Judge Marien was under no obligation to indicate to the applicant what view he took of the evidence tendered on the applicant's behalf on the issue of rehabilitation, or to provide the applicant with an opportunity to call further evidence.

15 It is pertinent to review what his Honour did say on the subject of the applicant's prospects of rehabilitation:- Mr Wilson submits it is unlikely that the offender will re-offend and that he has good prospects of rehabilitation. Where one is able to identify a cause of criminal conduct, sometimes for example, it is a drug addiction where it can be seen that an offender is on the road to rehabilitating himself or herself from that drug addiction, the court is in a position often to make an assessment of the prospects of future rehabilitation. When here, I am satisfied that the motivating factor for the commission of these offences was pure greed, it is hard to determine what are the prospects of rehabilitation. I am also confronted with a situation where the offender committed the same offence twice in only a few months. As to what weight I can put on Mr Wilson's submission that it is unlikely he would re-offend, it is difficult for me to assess. However, I do accept those submissions to some extent because there can be no doubt that the mere fact that the offender has been subject to the criminal justice process and will now be subject to a lengthy term of imprisonment, that must provide a salutary lesson to him in respect to any thoughts of future re-offending." (ROS 20 ; emphasis added)

16 Earlier, his Honour had said:- There is nothing before me to suggest that these offences were committed for the purpose of gaining funds to satisfy a drug addiction. So often the courts have before them offences of armed robbery, where the offender was in the grip of a serious drug addiction at the time of committing the offences. The courts say that very rarely will evidence that an offender who has committed an armed robbery was addicted to drugs ever constitute a mitigating factor on sentence, although it may serve to explain the serious criminal conduct. In this case, I have nothing before me to explain the extraordinarily serious criminal conduct on the part of the offender other than pure greed. (ROS14-15)

17 When read in context, it seems to me that these remarks partly reflect aspects of the Court's decision in R v Henry & Ors. (1999) 46 NSWLR 346; [1999] NSWCCA 111. In particular, Wood CJ at C L (at 397-398 ; [273]) summarised the principles applicable to the influence of a drug dependency on the sentencing process in terms of its relevance as a subjective circumstance, "in so far as the origin or extent of the addiction, and any attempts to overcome it, might impact upon the prospects of recidivism/rehabilitation, [or] … justify special consideration in the case of offenders judged to be at the 'crossroads'." Simpson J. also remarked (at 413-414 ; [351]-[355]) on the influence of a drug addiction as a factor in the sentencing process, namely that where a background to the addiction may explain the offender's decision to use drugs and where there is demonstrated progress towards rehabilitation, a penalty that favours rehabilitation over the punitive and deterrent aspects of sentencing may be appropriate.

18 His Honour was in effect contrasting two very different scenarios. On the one hand, lies an offender who commits an armed robbery or a series of armed robberies in the grip of a drug addiction and whose demonstrated progress towards drug rehabilitation allows the sentencing court to assess the prospects of that offender committing further like offences, absent a drug addiction ; on the other hand, lies an offender (the applicant) with a proven employment history, good psychological adjustment, good cognitive function and no substance abuse issues, committing two objectively serious armed robberies for purely financial gain. In the latter case, a sentencing judge might well have difficulty assessing the prospects of re-offending, absent any meaningful explanation for the commission of the offences. If such a person could descend into serious criminality for no other reason than the desire for some extra cash, what would restrain any future similar leanings? His Honour's comments were in my opinion entirely justified.

19 The whole of the sentencing remarks do not justify the conclusion that his Honour ignored the applicant's evidence touching on his prospects of rehabilitation. Pages 9 through to 12 of the remarks on sentence set out at length the findings of Dr Lennings, including that the applicant appeared to have "excellent rehabilitative opportunities". In fact, Dr Lennings himself expressed some reservations on this score. Under the heading "Risk Assessment", Dr Lennings says that the applicant "presents as something of a conundrum in terms of psychological assessment." After noting that the applicant "presents as a young man with good prior adjustment and continuing good adjustment, coming from a stable family with good relationships and good family support", Dr Lennings records that the applicant's "cognitive assessment identified that he is of average intelligence, …. [not] especially immature, … with no substance abuse problems, … no mental health difficulties, … [and] good community adjustment. …Accordingly, his rehabilitation prospects appear to be quite good". No complaint is made, or could be made, of his Honour's reluctance to accept Dr Lennings' conclusion that the applicant's motivation for the offences appears to have coincided with a time when he was vulnerable because of a lack of employment. One might be forgiven for thinking that Dr Lennings himself was unable to comprehend the applicant's offending.

20 At page 13 of the remarks on sentence, his Honour also refers at length to the contents of the letter written by the applicant and admitted as Exhibit 1 in the proceedings. Relevantly, his Honour goes on to say that the applicant "with planning, which was somewhat elaborate, in conjunction with his co-offender, perpetrated extremely serious criminal acts on innocent persons. As I have already said he is clearly a young man of intelligence and with ability. He is presently a sales representative with Coca-Cola Amatil. I have no doubt at all that when he perpetrated these offences he fully appreciated the ramifications of his serious criminal conduct. Further, having committed the first offence, he came back some few months later again to commit exactly the same offence on exactly the same victim, namely, his former employer." (ROS 14)

21 His Honour also referred to "a number of references attesting to his good character and his standing in the community". His Honour then names each referee in turn, before noting that "all the persons who have provided these references, … cannot understand how this young man, with his abilities, his intelligence, his support in the community, particularly the support from his family, could come to commit these extremely serious offences. In that respect I must accept, of course, that these offences are out of character." (ROS 15)

22 In short, far from ignoring the evidence called on the applicant's behalf going to the issue of his rehabilitative prospects, his Honour dealt with it in some detail. Ultimately however, his Honour was unable to accept that evidence unreservedly, as he was entitled to do. I can see no error in the exercise of his Honour's sentencing discretion in this regard. This ground of appeal fails.

23 The essence of the applicant's complaint on this ground is that his Honour ought not to have increased the sentence to take account of the Form One offence to the extent that he did, because personal deterrence was not a factor that needed to be reflected in that increased sentence, given the applicant's sound prospects of rehabilitation, what was said to be his insight into his offending behaviour, the fact that the offending was out of character, the relatively brief period of offending and the fact that no further offences had been committed in the two years between the offences and sentence. The applicant acknowledges that some increase was warranted to take account of the need for retribution in relation to the Form One offence. However, it is said that his Honour erred in giving any weight to personal deterrence simply because there was an additional offence on the Form One.

24 The personal deterrence of which Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 ; [2002] NSWCCA 518 speaks is that which implicitly flows from the commission of the offence or offences on the Form One (the "further offences"), as the following makes clear :- The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate , ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. Per Spigelman CJ at 159; [42] (emphasis added)

25 It is true that the Chief Justice refers to "offences [that] will frequently indicate", not necessarily always indicate, the need for personal deterrence to be given additional weight, and that these observations assume a number of other offences on the Form One. The extent of that additional weight is, of course, a question of degree in each case. Ultimately, it is a matter for the judge in the exercise of the sentencing discretion.

26 The applicant has not demonstrated that Judge Marien's discretion miscarried. There is no basis for concluding that his Honour did not consider the applicant's subjective case when taking account of the Form One offence. The applicant's letter to the court, the testimonials tendered on his behalf and his prior good character were all expressly noted by Judge Marien before his Honour turned to this issue. His Honour cited the passage from Attorney General's Application No. 1, set out above, at pp17-18 of his remarks on sentence. He went on to say that "in sentencing the offender for the primary offence and in taking into account the fact that a further charge of armed robbery is on the Form 1 document before me, additional weight needs to be given to the considerations of personal deterrence and denunciation." Personal deterrence is a factor which, according to Attorney Generals' Application No. 1, ought to be given greater weight, and is entitled to greater weight, by reason of the course of conduct in which the applicant engaged. It may be that the greater the number of offences on the Form One in a given case, the greater the weight to be accorded to personal deterrence, but a single offence on a Form One nonetheless indicates a course of conduct. This ground of appeal fails.

27 The applicant's contention on this ground is that the sentence imposed is manifestly excessive, taking into account that there was no actual violence in the commission of the offences, that the applicant undertook a "lesser role" in that he was the driver of the vehicle, "not the actual robber", that there was only one offence on the Form One, the applicant's plea of guilty and the absence of any criminal history. One of these circumstances may be dealt with briefly, that is, the applicant's "lesser role" in the commission of each offence. I would reject this characterisation of the applicant's participation in the offences. On the contrary, there was incontrovertible evidence that the applicant was in fact a prime mover in the planning and execution of the offences. Both the applicant's girlfriend and a former co-worker (Ms Osores) were integral to the commission of the principal offence and clearly acted on the instructions of the applicant. The applicant's role as the driver of the vehicle was dictated by the fact that it was imperative that the assailant on each occasion was a person unknown to the employees of the pharmacy.

28 His Honour reviewed the guideline judgment of R v Henry & Ors. at pp. 16 to 17 of the remarks on sentence and noted two aspects in particular which took the matter beyond the Henry guideline, namely the proceeds of the principal offence and the degree of planning involved. An amount slightly in excess of $24,000 (disregarding the value of the cheques) was taken in the course of the principal offence and his Honour found that it disclosed a high degree of planning. These features were rightly considered by his Honour as aggravating that offence and justifying a sentence above the narrow range of a four to five-year head sentence, identified by the Court as a starting point. His Honour then took into account the offence on the Form One, which was in almost every respect identical to the principal offence and objectively serious in its own right. The fact that only one offence appeared on the Form One is of no assistance to the applicant. Where, as here, the offence on the Form One is as objectively grave as the principal offence, "it is wrong to suggest that the additional penalty should be small" ; Attorney General's Application No. 1.

29 As for the proposition that no actual violence was inflicted in the commission of either offence, the Henry guideline acknowledges that the narrow range identified by the Court applied where there was no actual violence, but a real threat thereof. In the course of the principal offence, the passenger in the pharmacy vehicle was confronted with a knife, admittedly brandished towards Ms Osores. However, the threat of violence was no doubt real to that passenger and to the two male victims of the Form One offence, who were threatened with an object resembling a firearm. His Honour assumed, as he was entitled to do, that the three victims suffered psychological harm, whilst accepting that the applicant did not intend any actual harm.

30 The sentence imposed by Judge Marien was stern, but well within his Honour's discretion. The applicant has not established latent error. This ground of appeal fails. I would grant leave to appeal and dismiss the appeal.

18/05/2006 - typographical error in coversheet - Paragraph(s) -

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