GADSDEN v R

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

R v Baker [2000] NSWCCA 85 R v Govinden (1999) 106 A Crim R 314 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Lattouf, 1996, unreported, NSWCCA, R v KM & Ors [2004] NSWCCA 65 R v Wall [2002] NSWCCA 42 R v Glen Wilson (2001) 125 A Crim R 450

The Crown PARTIES: Robert Geoffrey Gadsden (Resp)

J Bennett SC (Crown) COUNSEL: C B Craigie SC ( Resp)

Solicitor for Public Prosecutions (Crown) SOLICITORS: Legal Aid Commission of NSW (Resp)

IN THE COURT OF CRIMINAL APPEAL 2005/1509

HODGSON JA McCLELLAN CJ at CL HALL J

WEDNESDAY 14 DECEMBER 2005 GADSDEN, Robert Geoffrey v REGINA Judgment 1 McCLELLAN CJ at CL: The respondent pleaded guilty to one count of armed robbery with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 for which the maximum penalty is 20 years imprisonment. 2 The respondent also asked that an offence of assault with intent to rob whilst armed with an offensive weapon (which formed part of the same criminal activity) be included on a Form 1. That offence is also contrary to s 97(1). 3 The respondent was sentenced to 200 hours community service. The Director of Public Prosecutions appeals that sentence. 4 The offences occurred around 10 pm on 15 October 2004 when the respondent was in the company of two other males, Kyle Young and another young person. All three were in a vehicle belonging to the respondent. As the respondent drove his vehicle in Smith Street, South Penrith, they passed two persons, Mr Timothy Paterson and Ms Caroline Iglesias. The respondent then turned into a side street and parked the car. 5 All three got out of the vehicle and approached Mr Paterson and Ms Iglesias from behind. One of the males said "we're coming after you, we're going to catch you." Mr Paterson was carrying backpacks belonging to himself and Ms Iglesias, which contained various items of property belonging to them both. 6 One of the three men was armed with a silver aluminium baseball bat. He walked around in front of the victims and waved the bat in front of the victims' faces and yelled "give us your fucking money." Mr Paterson told the male he did not have any. Both of the other males stood immediately to the rear of Mr Paterson and Ms Iglesias. Ms Iglesias told the three that she lived in a nearby house. She ran off and tried to raise some help. The male standing behind Mr Paterson took the backpacks from him while the male with the bat continued to threaten him. The backpacks contained clothing belonging to Mr Paterson and a mobile phone with distinctive cover belonging to Ms Iglesias. All three males then ran off. 7 Mr Paterson and Ms Iglesias observed the males getting into a vehicle, which they described as similar to a Sigma. They contacted the police immediately. Around 10 minutes later, the police observed the respondent driving his vehicle still in the company of Young and the other male. The vehicle was stopped on High Street, Penrith. The other male was seated in the front passenger seat and Young was in the rear seat. 8 Police observed a baseball bat on the rear seat. They also saw a mobile phone matching the description given by Ms Iglesias of her phone in the glove box. The respondent was arrested and interviewed. He denied any knowledge of the offence or of the stolen property found in his vehicle. 9 Some time later, the respondent was again interviewed and on this occasion he admitted his involvement in the offence. The second interview took place three months after the original events. 10 His Honour made detailed findings with respect to the sequence of events during the course of the evening. He found that Young was the instigator of the activity. Having been to a party together, the three young men were in the motor vehicle when they observed the victims. The person Young said, "I hate punks" and told the respondent to pull over. The respondent did as he was told and Young got out and at the same time told the respondent to get out. The respondent replied that he wanted to go home, but Young started swearing at him and said words to the effect of "get out of the fucking car." The respondent could not see that his companions were holding anything until he got out of the car when he observed the baseball bat. As they got out of the car Young said to the respondent, "come for a walk." The respondent obeyed and they walked together a few hundred yards up the road until they confronted the victims. 11 His Honour accepted the respondent's evidence when he said, "I woke up and it makes me sick in the stomach to think how I affected other people's lives, not just their lives but my parents' lives." He had also had discussions with his solicitor and the probation officer about sending a letter to express remorse and say sorry to the victims. It is not apparent that the respondent has given effect to those intentions. 12 The respondent gave evidence at the sentencing hearing. The sentencing judge found that the respondent was genuinely remorseful, had no prior convictions and that he had regular employment. 13 His Honour found that the two people who were the victims were dressed in punk clothes. His Honour was not aware of the age of Ms Iglesias but the young man Paterson was only fifteen years of age. His Honour, in my opinion, correctly described the experience as a terrifying one for the two victims. Although a gun or a similar more dangerous weapon was not used, the baseball bat was nevertheless capable of inflicting very severe injury and would have excited great alarm in the victims. His Honour found that some items of clothing and the mobile phone were taken from the victims. 14 His Honour found the task of sentencing difficult. The respondent has no previous convictions and he was spoken of highly by persons who gave evidence on his behalf. In particular, he had worked for Mr Rowlands, who has a roofing business. Mr Rowlands described the respondent as "a very good person who was responsible and reliable." Mr Rowlands trusted him completely. 15 After he was arrested and charged, the respondent was not immediately granted bail and was in prison for approximately 4 weeks. Because of his incarceration for this period he lost his apprenticeship with Mr Rowlands. 16 However, after he was released he obtained a position as a junior storeman with Enzed at Wetherill Park. They also speak highly of him and see a future for him with the organisation. 17 The pre-sentence report also speaks highly of the respondent. His work history has been regular. The report also indicates that the respondent had only limited familiarity with his co-offenders. It also accepts that he was pressured by Young, who had been aggressive and intimidating towards him. The respondent indicated to his probation officer that he felt that the assault had happened quickly and he had had "no time to think." 18 The respondent also offered to assist the police in relation to the matter. He gave an undertaking to give evidence and, in his record of interview, set out complete details of the matter. His Honour found that the respondent had suffered threats from Young as a result of the assistance he gave to police. 19 When the respondent was sentenced, Young had not pleaded guilty and the respondent had said on his oath to his Honour that he would be prepared to give evidence against Young if this was necessary. 20 His Honour summarised the difficulties in sentencing in the following terms: "The problem that confronts me is that this is a very serious offence. The objective facts may not fall into the most serious for armed robbery, but even the most minor armed robbery is still very serious. I am bound by the Court of Criminal Appeal judgment of Henry (1999) 46 NSWLR 346 and the guidelines which are there and, although I must fit the sentence to this particular offender, I note that the courts, both in that case and in a whole range of cases, have emphasised the importance of a full-time custodial sentence, generally in the period of 4 or 5 years for these types of offences and that that applies even in circumstances where a young offender is involved, there is a limited degree of planning, a limited degree of actual violence and a small amount is taken, and there is a plea of guilty. There are other factors and these are set out in para 162 of Henry. " 21 His Honour found that the objective facts do not fall on all fours with the matters listed in [162] of Henry. In particular, the weapon was a baseball bat rather than a knife or similar weapon. The victim was not a shopkeeper or a taxi driver but was nevertheless in a vulnerable class of persons. 22 His Honour noted that there is authority which permits a court, when it might otherwise be appropriate in exceptional circumstances, not to impose a custodial sentence. His Honour referred to Govinden (1999) 106 A Crim R 314 and Lattouf (1996) Court of Criminal Appeal, unreported. The Court in Lattouf was particularly concerned with ensuring that the punishment inflicted upon an individual did not have the effect of turning someone, who would not otherwise pursue a criminal career, emerging from a period of incarceration with confirmed criminal tendencies. 23 His Honour was also mindful of the importance of rehabilitation, especially with a young person who is a first offender. However, his Honour correctly observed that the decision in Henry made plain that generally, considerations of rehabilitation do not outweigh the importance of general deterrence. 24 Having considered these matters, his Honour concluded that "there are excellent prospects for rehabilitation in this case." His Honour continued: "Indeed, bearing in mind the offender's evidence - which I accept - and bearing in mind the prior good record, the fact that he was influenced and, to a certain extent, not just influenced but under the duress of others, and the excellent character material that he has put forward, suggests to me that there are not just excellent prospects for rehabilitation but, insofar as I can predict these things, it seems to me unlikely that he would offend again." 25 His Honour was careful to consider relevant matters under s 21A of the Crimes (Sentencing Procedure) Act 1999. Having considered those matters his Honour concluded: "In all the circumstances, I do consider this is an exceptional case. Indeed, it would be reasonable to say that it is a most exceptional case, bearing in mind particularly the following factors: The fact that he did not initiate the offence, but rather seems to have got caught up with other people and the fact that there were threats made to him to continue with it. Second, the genuine remorse that he has shown and, finally, the assistance he has given. This is not to say that I do not consider all the other matters that I have previously referred to, but those three matters combined with the others seem to me to make it an exceptional case, and, in those circumstances I do not propose to impose a term of imprisonment. However, I do consider that he has to undergo a significant punishment and I propose to deal with that by way of Community Service together with a bond and conditions." 26 The Crown challenges his Honour's finding that the circumstances of the case were "most exceptional." It is also submitted that his Honour gave excessive weight to the respondent's subjective features and insufficient weight to the objective seriousness of the offence. 27 The Crown emphasises that the touchstone for the appropriate penalty for armed robbery is the guideline judgment in Henry which was confirmed in R v (Glenn) Wilson (2001) 125 A Crim R 450 at [55]. The Crown submits that, having regard to Henry, the usual term of imprisonment for a single offence of armed robbery that meets the relevant criteria is a term of imprisonment of between four and five years. It is submitted that this case fits squarely within the Henry criteria. 28 In the Crown submission, the present case does not meet the requirements of a most exceptional case for the following reasons: · Although the respondent has offered to write a letter of apology, it had not been written. Furthermore, although he had asked if he could attend a meeting to apologise this had not yet happened. · The respondent did not, when first apprehended in relation to the matters, make admissions and it was not until some three months later that he accepted his involvement in the offence. · The respondent played a significant role in the offences, being the driver of the vehicle. · Because of the behaviour of the co-offender Young in expressing aggression towards punks, it should have been obvious to the respondent that he was being urged by Young to alight from the motor vehicle with a view to confronting the victims, even if not carrying out a robbery. · The respondent facilitated the offenders' getaway in the motor vehicle. It is also submitted that by using the motor vehicle there was a degree of premeditation involved. · The offences were aggravated by being committed in company. · There were two victims of the offences, which creates a "special need" to consider the separate aspects of criminality involved when there is more than one victim see R v KM & Ors [2004] NSWCCA 65. · His Honour was also required to take into account the further offence on the Form 1. 29 This Court has on many occasions expressed the principles which apply to a Crown appeal in relation to the sentence of an offender. In R v Wall [2002] NSWCCA 42 at [70] Wood CJ at CL said: "… it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 449, applies to crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of a sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; Wong & Leung v The Queen (2001) 76 ALJR 79 at para 58 and para 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere; R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons': per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321, at para 61 and para 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong & Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder & Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62." 30 Wood CJ at CL referred to R v Baker [2000] NSWCCA 85 where Spigelman CJ said at [19]:

"The authorities make it clear that Crown appeals should be rare. It may be that the present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred."[19] 31 In Dinsdale Gaudron and Gummow JJ said at 329:

"In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been 'upon the facts …. unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.' (23) Was the sentence 'manifestly wrong'?" [24] 32 I have not found this an easy matter to resolve. The decision in Henry was concerned with armed robbery when it was committed by a young person with no or little criminal history, but involving a weapon and a victim in a vulnerable position. The Chief Justice characterised the typical offender considered in Henry at 162 in the following terms: "(i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case." 33 The Chief Justice indicated that sentences for an offence of the relevant character should generally fall between four and five years full time custody. However, his Honour pointed out at 169 that "aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point." 34 Some of the factors which the Chief Justice identified at 170 as being relevant to a particular offender, may include any criminal record, co-operation with the authorities, a guilty plea in the absence of a strong case, rehabilitation efforts or an offence committed whilst on bail. Circumstances of particular relevance may include:

(i) the nature of the weapon; (ii) the vulnerability of the victim; (iii) the position on a scale of impulsiveness/planning; (iv) the intensity of threat, or actual use, of force; (v) number of offenders; (vi) amount taken; (vii) effect on victim(s). 35 As has been pointed out, the decision in Henry has been applied in many cases. It provides fundamental guidance to all courts sentencing young offenders for armed robbery. However, as the Crown acknowledges in its submissions, there will be exceptional cases which fall outside the guidelines and a different sentence may be appropriate. That sentence may be greater or less than the sentence contemplated in the guideline judgment. 36 In the present case his Honour found that it was reasonable to say that this was a most exceptional case. I have come to the conclusion that, in this respect, his Honour was correct. In my view, the matters relevant to this finding are as follows: · The respondent did not initiate the offence, and although the driver of the vehicle, there was no suggestion that the offenders had come together to embark upon some joint criminal enterprise; · The respondent became caught up in the activities, which were initiated by the offender Young, who apparently threatened the respondent into participating in the enterprise; · Following his evidence, the sentencing judge accepted that the respondent was genuinely remorseful; · The respondent has offered assistance to the authorities which has, and will no doubt in the future, have the potential to create threats to his personal safety; · The amount of property stolen was relatively small; · Although the three men were armed with an offensive weapon capable of inflicting considerable harm, it did not pose an immediate threat akin to that posed by a knife or similar weapon; · Although the events were no doubt terrifying to the victims, as it happened they did not suffer physical injury. Ms Iglesias was able to escape at an early stage. · The respondent has already spent a short period in custody before he was granted bail; · The respondent has a good employment record, his employers speak highly of him, and there is every reason to believe that he is capable of putting this incident behind him and leading a life free of crime in the future. That prospect may be impaired by a term of full time custody; and · Finally, the respondent has no prior criminal convictions. 37 If I had been carrying out the task of sentencing the respondent, rather than reviewing the matter on appeal, I would have been inclined to impose a term of imprisonment. However, that term would have been relatively short and I would have imposed a significant period of parole to ensure that the respondent understood the need to conform to the norms of society in the future. However, as this is a Crown appeal it is necessary to be mindful of the principles to which I have referred. Those principles have led me to conclude that, in this case, it would not be appropriate to interfere with the sentence imposed by the sentencing judge. The respondent has served a short period in custody and is required to undertake a significant period of community service. Having regard to his personal circumstances, and the evidence that points strongly towards prospects of effective rehabilitation, I do not consider that it would be appropriate in response to a Crown appeal to impose a sentence of fulltime custody. 38 In my opinion the appeal should be dismissed. 39 HODGSON JA: I agree. 40 HALL J: I also agree. 41 HODGSON JA: The order of the Court is appeal dismissed. **********

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