Legge v Regina

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

R v Black and Walters [2001] NSWCCA 121 R v Henry [1999] NSWCA 111; 46 NSWLR 346 CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Roberts (1994) 73 A Crim R 306 R v Whyte (2002) 55 NSWLR 252

PARTIES: Ashley Ronald Legge (Applicant) Regina (Respondent)

COUNSEL: B Rigg (Applicant) P Ingram (Respondent)

SOLICITORS: S O'Connor - Legal Aid Commission (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/1245

SPIGELMAN CJ SIMPSON J HARRISON J

27 JULY 2007 ASHLEY RONALD LEGGE v REGINA Judgment 1 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed on him by Judge Hughes in the District Court on 16 October 2006 following his plea of guilty to a charge of assault with intent to rob whilst armed with an offensive weapon (a knife), an offence against s 97(1) of the Crimes Act 1900, which section prescribes a maximum penalty of imprisonment for 20 years. Hughes DCJ sentenced the applicant to imprisonment for two years and seven months commencing on 17 September 2006 with a non-parole period of one year and four months, which will expire on 16 January 2008.

The facts 2 The offence was committed on 19 November 2005. On that day, at about 11.55am, in a shopping centre at Castle Hill, the applicant approached a male, Kieran Glenzendorf, who was using an automatic teller machine. The applicant placed his arm around Mr Glenzendorf's shoulder, leaned towards him, and demanded that Mr Glenzendorf give the applicant the money he had just withdrawn from the ATM. Mr Glenzendorf declined. The applicant reached into the front pocket of the jumper he was wearing and again demanded the money. This time he told Mr Glenzendorf that he had a knife. Mr Glenzendorf took hold of the applicant and pushed him against a wall. The applicant attempted to gain access to the knife. 3 As it happened, Mr Glenzendorf was a police officer who was, in plain clothes, on duty in the shopping centre. He was accompanied by a partner, Senior Constable Sharon Brown. Senior Constable Brown came to Mr Glenzendorf's assistance and prevented the applicant from gaining access to the knife. Mr Glenzendorf identified himself as a police officer. The applicant replied: "It is just a joke, I thought I knew you". 4 Another male person approached from nearby, apparently to assist the applicant. He attempted to secure the applicant's release. He failed, and made his own escape. 5 The applicant did in fact have a knife in the front pocket of his clothing, which Mr Glenzendorf was able to confiscate. 6 The applicant was arrested and taken to Castle Hill Police Station. He was interviewed. He gave an account of his actions. He told police that he had travelled by train and bus from Kingswood to Castle Hill with a male person whom he had met the night before and whom he identified only as "Ape". He said that he thought Mr Glenzendorf was a mate of his called Justin, whom he knew from Mount Druitt TAFE, and that Justin had bragged about robbing people at ATM's. Hence, when he saw who he thought was Justin at an ATM, and in order to "give Justin some of his own medicine", he approached him and demanded the money. It was only after being subdued by the police officers that he realised his mistake and that Mr Glenzendorf was not his friend Justin. He said that he had borrowed the knife from "Ape" in order to scare Justin. 7 In a statement to police on 8 September 2006 the applicant gave a different account. He said that on 19 November 2005 he and a number of other men had gathered at a home in which a person whom he named lived. That person was a person from whom the applicant purchased cannabis. He said that that person stated his intention of committing a robbery at Castle Hill, and intimidating the applicant into participating. The person threatened violence to the applicant if he did not join in. He said that he then travelled in a car with "Ape Boy" and "Rebel" to Castle Hill where they walked around for a while, looking for a victim. He maintained the story that he thought he saw a friend and decided to play a joke on him. He declined to elaborate on this. (The statement of 8 September was not itself in evidence. A paraphrase of its contents was contained in Exhibit C, an affidavit outlining assistance given by the applicant to police.) 8 The applicant said that he returned to the person's house the following day to purchase more cannabis, when there was more discussion by that person about additional robberies, and more intimidating behaviour by him. 9 In evidence on the sentencing proceedings the applicant gave a different account again. He acknowledged that the version he had given in the interview was false. When asked why he had given this false account, he answered: "Basically because I got told when I answered that that if I did not do it I would have got beaten up and when I got done if I told the cops I was going there to do it because I would have got beaten up because [the person] was going to do, they would have gone back to [the person] he would have got in trouble for it and got blamed for and then I would have got beaten up anyway and either way I would have got my head kicked in." 10 He reiterated the name of the person whom he had named, who he said used to be his drug dealer. 11 He said that the two people with whom he had travelled to Castle Hill were basically that person's second in charge and that if he had not done as he was directed all three of them would have beaten him up. 12 He said that in the September statement he had maintained the story that he thought Mr Glenzendorf was a friend and he had intended to play a joke on him because: "I was still sort of buying off [the person] and the cops were still hard on [the person] to get him done."

He feared that identifying that person would only worsen his own position, for which he held the person responsible. 13 He was by then willing to give evidence against the person, and to help the police "as much as I can". His attitude in this respect had changed dramatically because he recognised how significantly his conduct had affected his own life. 14 In cross-examination he said that, when it was initially suggested that he go to Castle Hill, he refused but that the person said to him: "You go frigging now or I am going to smash your head in."

He said the person threatened him with "a two pound axe and a baseball bat".

Subjective circumstances 15 The applicant was born on 9 July 1987. He was therefore just eighteen at the time of the offence. He had no prior criminal record. Besides his own evidence, there were before the sentencing judge a Pre-Sentence Report and a report of Ms Katie Seidler, a psychologist. These disclosed a somewhat troubled childhood and adolescence. His parents divorced when he was about five years of age. At about six years of age he was diagnosed as suffering from Attention Deficit Hyperactivity Disorder and at nine years from Tourette's syndrome. He used medication for these conditions for some years, but abandoned medication at 16 years of age. He has also been diagnosed as suffering from Obsessive Compulsive Disorder; this diagnosis appears to have been made when he was about seven years of age. 16 There is some history of mental illness on both sides of his family; his maternal grandmother suffered from schizophrenia, and other relatives from depression. His paternal uncles have suffered bi-polar disorder and some (unidentified) psychosis. 17 Ms Seidler considered that the applicant would require ongoing psychiatric/psychological care and treatment to manage his conditions. 18 The Probation and Parole Officer who prepared the Pre-Sentence Report described him as "an immature and somewhat naïve young man". While his family appeared to be close and supportive, he was living in somewhat isolated circumstances because his mother had moved, with her current husband (who is not the applicant's father) to Tasmania in 2004. He had used cannabis from the age of about 15, and his use escalated after his mother's relocation to Tasmania. He acknowledged to Ms Seidler that he was addicted to this drug. He has also used alcohol to excess, having begun drinking at the age of 10, with disastrous results, which caused him to abstain until the age of 16. Thereafter he had periods of binge drinking. He has also experimented with amphetamines. 19 He told Ms Seidler that, at the time of the offence, he had been intoxicated and under the influence of cannabis, after consuming alcohol and cannabis for some hours. She reported that he told her that he was groomed into the criminal activity by others who had placed some pressure on him, although he initiated the robbery with little provocation or encouragement. Ms Seidler said that the applicant expressed appropriate remorse and regret for his actions and demonstrated what appeared to her to be genuine empathy for Mr Glenzendorf. 20 Ms Seidler also took a history of auditory hallucinations which began when the applicant was approximately eight years of age and, in the context of his family history, considered that this ought to be closely monitored. 21 Of some significance is the applicant's attitude to the offence as expressed to the Probation and Parole Officer. She reported that the applicant said that he regretted his action but had been threatened by his drug dealer to undertake the robbery under threat of being assaulted himself. She thought he appeared to hold remorse "in relation to the consequences to himself". She added: "Mr Legge stated that he felt he should have been disciplined by the officer and let go. He also stated that while he felt sorry for the officer, he would have felt more sorry had the victim not been a copper."

That attitude was not so evident in the report of Ms Seidler, who said: "31. Mr Legge expressed appropriate remorse and regret for his actions and demonstrated what appeared to be genuine empathy for the victim. Even though the victim was a police officer, he acknowledged that his behaviour could have been frightening and may have also caused some harm." 22 In his evidence the applicant essentially confirmed what had been contained in these reports. He explained his attitude to the victim of the offence, as expressed in the Pre-Sentence Report by saying that police officers were accustomed to dealing with such situations and were unlikely to be as vulnerable as other citizens to the kind of conduct to which Mr Glenzendorf had been exposed.

The Remarks on Sentence 23 Hughes DCJ recounted the facts, drawing upon an agreed statement of facts that had been put before him. The following passages from the Remarks on Sentence are, having regard to the grounds of the application, particularly relevant: "Ms Hall [counsel for the applicant] in an eloquent submission on sentences, took me to the Henry guideline case and believes this was a case in which the Henry guidelines appear. In the Henry case, it was clear that except for exceptional circumstances, an offence such as this one or like offences, a custodial sentence is usual and except for exceptional circumstances, the custodial sentence should be something in the range of three to five years.

… I was and I think it is conceded that this was a planned and organised criminal activity and it was. According to the offender Eli planned and organised this activity to occur, that they would go to Castle Hill to rob someone for the purpose of gaining money.

He was in fear of Eli and that if he did not do what Eli said then he was frightened of being bashed up but as the Crown properly said this criminal enterprise Eli was not there. He was back at the original place where they slept the night, he could have left the scene and even as the Crown suggested go to his mother in Tasmania if he was so frightened of Eli. That story is one in which it is not an excuse for the criminal activity which the offender indulged himself in.

As I said this crime can only result in a custodial sentence. It is not something even given the circumstances of the offender one could avoid it. The Henry guidelines is three to five years, even that, given that the maximum penalty according to the statute is 20 years, three to five years puts it in the lowest quarter anyway of objective criminality."

(The reference to "Henry" was a reference to the guideline judgment of this court in R v Henry [1999] NSWCA 111; 46 NSWLR 346.) 24 His Honour noted the applicant's previous good character and concluded that it was likely that he would not re-offend and that his prospects of rehabilitation were good. He stated his intention of reducing the sentence to be imposed by a total of 35 percent, made up of 15 percent in recognition of the early plea of guilty and 20 percent in respect of assistance to the authorities. 25 He found, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Procedure Act"), that special circumstances existed justifying departure from the ratio there contained between the total sentence and the non-parole period. He proceeded to impose the sentence I have mentioned.

The grounds of the application 26 Four grounds of the application were advanced. They were framed as follows: "1. The sentencing judge erred in failing to take into account the evidence given by the applicant of duress.

2. The sentencing judge misconceived and misapplied the guideline judgment in Henry.

3. The sentencing judge erred in finding that the offence was aggravated by virtue of being a 'planned and organised criminal activity'.

Ground 1: duress Ground 3: planned and organised criminal activity 27 I will deal firstly with grounds one and ground three together. 28 In support of the first ground counsel who appeared for the applicant argued that the evidence amounted to a compelling case that he was acting under duress and that this ought to have been treated as a substantially mitigating feature. 29 S 21A of the Sentencing Procedure Act sets out matters to be taken into account by a sentencing court, either as aggravating factors (subs (2)), or as mitigating factors (subs (3)). S 21A(3)(d) requires that, where an offender is acting under duress, a sentencing court take this into account as a mitigating factor. Far from doing so, counsel argued, his Honour took the duress into account as an aggravating factor, perceiving it as establishing that the offence was part of a planned and organised criminal activity. Where that is established, s 21A(2)(n) requires that it be taken into account as an aggravating factor. This, indeed, is what the judge did. He expressly stated that the offence was part of a planned and organised criminal activity. 30 To the contrary, the Crown argued that the sentencing remarks ought to be read as containing a rejection of the applicant's evidence of the circumstances in which he had come to commit the offence. Although no specific passage, or conclusion of fact, in the Remarks on Sentence was, in the written submissions, identified as so doing, counsel confirmed that the reference was to that passage in the Remarks in which his Honour considered the possibility of the applicant leaving the scene or going to Tasmania as the foundation of the submission. 31 Counsel for the Crown also expressly drew on the statement of 8 September 2006 as lending support to his contention that his Honour rejected the applicant's account of duress. I do not so read the statement: the paraphrase of the statement in Exhibit C attributes to the applicant an explicit assertion that the person to whom I have referred had "intimidated" the applicant into going to Castle Hill threatening to "bitch-slap" him and "kick his arse". 32 What his Honour did not do was make an express finding of fact about what the applicant alleged in terms of the pressure and intimidation under which he was placed to secure his participation. However, in my opinion, it is reasonable to infer that he accepted the applicant's evidence in this respect. If he had not done so, then there was no evidence that the offence was part of a planned and organised criminal activity. The comment on other causes of action available to the applicant was not a rejection of the applicant's evidence about what had happened but a proposed alternative that would have been available to him to meet the intimidation. In this respect it should be noted that the comment overlooks the evidence of the applicant's financial position which was that he had three dollars in cash on him when he was arrested and ten dollars in the bank. 33 I think there is substance in these submissions advanced on behalf of the applicant. If his evidence were not accepted as truthful, then there was no basis on which to make a finding that the offence was part of a planned and organised criminal activity. But if his evidence were accepted, then it was evidence that the applicant was under some level of duress, or at least intimidation. His Honour did not make any finding about the applicant's credibility but there is no reason to think that he did not accept the evidence given by the applicant. I would also add that the evidence about the presence of the second man, who disappeared shortly after trying to rescue the applicant, would support the applicant's account in this respect. In those circumstances the error asserted on behalf of the applicant rebounded doubly upon him: he was denied the benefit of a mitigating circumstance for which express statutory recognition is given; and he was treated as though the facts giving rise to that circumstance aggravated his offence and exposed him to a more severe penalty. 34 No doubt the offence was planned; but, on the applicant's evidence, he was not involved in the planning and was not responsible for it. That evidence was not rejected. S 21A(2)(n) was not, in my opinion, intended to be used to aggravate an offence where the offender being sentenced was not involved in, or part of, the planning and organisation. 35 In my opinion each of grounds one and three is made out.

Ground 2: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 36 In Henry this court, in a five judge bench, promulgated a guideline in respect of sentencing for offences against s 97 of the Crimes Act 1900. It identified a common category of cases, having the following features: "(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." 37 Leaving aside the question of planning, with which I have already dealt, each of these, except the vulnerable position of the victim, here applies. The applicant's case fits comfortably into the Henry profile. 38 In the circumstances described, the guideline sentence promulgated is of a full term of between four and five years. Also relevant to a determination of the gravity of such an offence are the following: "(i) nature of the weapon; (ii) vulnerability of the victim; (iii) position on a scale of impulsiveness/planning; (iv) intensity of threat, or actual use, of force; (v) number of offenders; (vi) amount taken; (vii) effect on victim(s)."

These are in addition to: "… factors which may arise in any case, for example, youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc …"

To the extent that these circumstances are relevant in this case, except for the nature of the weapon, all significantly favour the applicant. 39 On behalf of the applicant it was contended that three errors are discernible in the passages I have extracted. The first is his Honour's perception that, before a court could depart from the guideline, it was necessary that the applicant demonstrate exceptional circumstances. 40 Guideline judgments, and subsequent judgments that apply them, have repeatedly stressed that the guideline promulgated is not prescriptive. In R v Jurisic (1998) 45 NSWLR 209, the first formally recognised guideline judgment to be delivered in this jurisdiction, Spigelman CJ said: "In my opinion, guideline judgments should now be recognised in New South Wales as having a useful role to play in ensuring that an appropriate balance exists between the broad discretion that must be retained to ensure that justice is done in each individual case, on the one hand, and the desirability of consistency in sentencing and the maintenance of public confidence in sentences actually imposed, and in the judiciary as a whole, on the other.

Such guidelines are intended to be indicative only . They are not intended to be applied to every case as if they were rules binding on sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents.

In accordance with this approach, guideline judgments perform a limited role. Nevertheless, in my opinion, such judgments will provide a useful statement of principle to assist trial judges to ensure consistency of sentencing with respect to particular kinds of offences. I reiterate that such guidelines are not binding in a formal sense . They represent a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator." (emphasis added)

Statements to similar effect have been made in many subsequent cases. 41 In my opinion, the passages extracted from the Remarks on Sentence demonstrate that the sentencing judge misunderstood the effect of the guideline judgment in Henry. Perhaps that is founded upon a misunderstanding of what, in the following paragraph in Jurisic, Spigelman CJ said: "The critical difference between judicial guidelines and statutory guidelines - whether minimum penalties or a grid system - is the flexibility of the former. There is provision for the special or exceptional case . There is recognition that sentencing must serve the objective of rehabilitation, as well as the objectives of denunciation and deterrence. A trial judge can respond appropriately to all the circumstances of a particular case." (emphasis added) 42 It would be wrong to elevate the reference to "exceptional case" in this paragraph to a principle that, before a sentencing judge departs from the guideline, exceptional circumstances have to be demonstrated. That is not what his Honour said and it is not how what he said should be interpreted. 43 In Henry Spigelman CJ quoted from the decision of Hunt CJ at CL in R v Roberts (1994) 73 A Crim R 306 as follows: "This Court has always made it clear that armed robbery is to be regarded as an offence of the utmost gravity which, except in the most exceptional circumstances, must carry a full-time custodial sentence." 44 It is one thing to say that "exceptional circumstances" need to be demonstrated before it would be appropriate to impose any sentence other than a custodial sentence in respect of a particular offence, in this case, an offence against s 97. It is another thing altogether to say that exceptional circumstances must be demonstrated before a sentence of less than the guideline promulgated in Henry may be imposed in respect of such an offence. The former proposition is supported by authority. The latter is not, and is wrong. 45 Hughes DCJ appears to have considered that exceptional circumstances had to be demonstrated in both respects - in order to impose a non-custodial sentence, and in order to depart from the sentencing range of four to five years. The former proposition is correct, the latter is not. Roberts and Henry are authority for the former; they are not authority for the latter. In this respect error is demonstrated. Indeed, the Crown conceded as much. 46 The second error postulated on this aspect of the Remarks on Sentence is that the judgment in Henry "presupposed a crime relatively low in the hierarchy of seriousness for armed robbery offences". 47 I must confess that I find it difficult to understand what his Honour meant in the fourth of the passages I have extracted. It may be that, as contended on behalf of the applicant, he was saying that, because the guideline of "three to five years" (sic) is "in the lowest quarter" of the maximum sentence of 20 years, such offences are "relatively low in the hierarchy". In any event, given the circumstances of the present offence, I would accept that the applicant's offence was, in the overall scheme of offences against s 97, "relatively low in the hierarchy". 48 The third error postulated is the failure to recognise that Henry allows for a non-custodial sentence "where exceptional circumstances are shown". See R v Black and Walters [2001] NSWCCA 121. I have already extracted the passage from Henry which supports that proposition. 49 I do not, however, accept that it has been demonstrated that his Honour was in error in considering that, only in an exceptional case, will a non-custodial sentence be imposed in respect of an offence against s 97. Nor do I accept that this was necessarily such an exceptional case. 50 It was, in my opinion, open to his Honour to consider a non-custodial sentence; but this is far from a case where such a sentencing option was the only option available. 51 Notwithstanding the concession that the error in the approach to Henry has been demonstrated, counsel for the Crown argued that other errors in the approach unduly favoured the applicant. For example, he allowed a discount of 15 percent by reference to the plea of guilty. As has been pointed out, the guideline judgment in Henry takes into account a plea of guilty. The additional reduction amounted to double counting. 52 Counsel also argued that the discount of 20 percent referable to assistance to authorities was "inapposite" having regard to the terms of Exhibit C and the requirements of s 23 of the Sentencing Procedure Act. 53 The position adopted by the Crown in this respect was that the applicant had failed to establish, pursuant to the terms of s 6(3) of the Criminal Appeal Act, that a sentence "… less severe is warranted in law and should have been passed …".

Ground 4: manifestly excessive 54 In support of this ground it was pointed out that the applicant was a young man of just 18 years of age, socially isolated, and with no criminal record at the time of the offence. By his cooperation he had done as much as he could to remedy the harm that he had done. 55 There are important mitigating circumstances and I think that the Remarks on Sentence do demonstrate that inadequate attention was given to them. These are important. 56 Given the errors that I have identified already, I am of the view that this court ought to grant leave to appeal, allow the appeal, quash the sentence and re-sentence the applicant. Against that possibility the court received additional evidence, in the form of affidavits affirmed by the applicant's solicitor and by the applicant himself. The affidavit of the applicant's solicitor annexes documentary material derived from the NSW Department of Corrective Services, outlining the applicant's conduct whilst in custody. This is, except for one matter, universally favourable. The one matter concerns a caution given in relation to some behaviour, but which was considered to be explained by his Tourette's Syndrome. The applicant's affidavit gives more detail of his custodial circumstances and, as I read it, is encouraging as to his prospects of rehabilitation. It also sets out circumstances of his custody that establish that he is serving his sentence in harsher conditions than would be the case if he did not suffer from the mental illnesses that he does. I would also take into account the applicant's trilogy of mental illnesses. There was some evidence that they had a causal connection with his offending. His family history is also a matter to be taken into account. In all these circumstances I propose that the sentence be set aside and the applicant be re-sentenced. I would not interfere with the head sentence. I would reduce the non-parole period to ten months expiring on 16 July 2007. The applicant would be entitled to immediate release. 57 I propose the following orders:

(3) The sentence imposed in the District Court quashed.

(4) The applicant be sentenced to imprisonment for two years and seven months commencing on 17 September 2006 and expiring on 16 April 2009 with a non-parole period of ten months, expiring on 16 July 2007.

(5) Direct that the applicant be released forthwith. 58 SPIGELMAN CJ: I agree and would add only a few observations with respect to his Honour's error in applying the guideline judgment as if it could only be departed from in exceptional circumstances. This, as Simpson J has noted, is quite inconsistent with the basis or the guideline judgment as outlined in Jurisic at the paragraphs to which her Honour has referred. It is also inconsistent with the extended treatment of the nature of the guideline in Henry itself, particularly at paragraphs 12 through to 42. Subsequently in the case of R v Whyte (2002) 55 NSWLR 252 this Court affirmed the basic nature of the guidelines as a check, a guide or an indicator or as a sounding board (see at [112]-[116]. Further Whyte contains a detailed analysis of the inter-relationship, in the context of formulating and applying the guideline, between the principle of individualised justice and the principle of consistency (at [143]-[189]). 59 The manner in which his Honour appears to have applied the guideline would, if it were valid, constitute an impermissible confinement of the exercise of the sentencing discretion. His Honour appears to have proceeded on that basis. The authorities in this Court make it quite clear that a guideline is not a tramline. 60 I agree with the orders proposed by Simpson J. 61 HARRISON J: I also agree with the orders proposed by Simpson J. 62 SPIGELMAN CJ: The orders of the court are as indicated. **********

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