LOGAN v REGINA

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0602 FILE NUMBER(S) : LOWER COURT Kinchington DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60062/03

MEAGHER JA DOWD J BARR J

FREDERICK RALPH LOGAN v REGINA Judgment 1 MEAGHER JA: I agree with Dowd J. 2 DOWD J: The applicant Frederick Ralph Logan applies for leave to appeal against sentence imposed on him consequent upon a plea of guilty in the District Court before Kinchington QC DCJ. 3 The applicant had been charged on an indictment with a count of Robbery occurring on 14 October 2001 in breach of s94 of the Crimes Act 1900 ("the Act") which carries a maximum penalty of fourteen years' imprisonment; a further count of Steal From A Person, the offence occurring on 1 December 2001 contrary to that same section; and a further count occurring also on 1 December 2001 of Malicious Damage contrary to s195 (a) of the Act carrying a maximum penalty of five years' imprisonment. 4 The sentence imposed on the first count was for five and a half years commencing 30 May 2002 being the date of sentence, to expire on 30 November 2007 with a non-parole period of two and a half years to expire on 30 November 2004. 5 On the second count his Honour imposed a fixed term of two years three months to commence on 1 December 2001 and to expire on 30 March 2004. On count three a fixed term of imprisonment for twelve months was imposed commencing on 1 December 2001 expiring on 30 November 2002. 6 The applicant had been arrested on 14 October 2001 on the charge in count one. He was refused bail. On the following day, bail was granted and fairly restrictive conditional bail was entered on 31 October 2001 and continued until 11 December 2001 when he was arrested for the charge in counts 2 and 3.

7 From the date of the second arrest until the expiry of the non-parole period it will be three years before the applicant may be released from custody, the total sentence being some six years.

Facts 8 About 2:00 am on Sunday 14 October 2001 the victim was walking along Darlinghurst Road, Kings Cross on the way home from work and on noticing that the applicant was following him, crossed backwards and forwards over that road a number of times, attempting unsuccessfully to lose him. The applicant said to the victim that he had a knife and that he would stab him and demanded his wallet. There being nothing of value other than a watch, the applicant again threatened to stab the victim. Part of these events were observed by plainclothes officers who were driving past. The applicant abruptly left but was subsequently arrested in the area. The watch, valued at forty dollars was not located nor has it been recovered. 9 The second and third charges arise out of events that occurred at about 6:45 on 1 December 2001. The victim was sitting in a motor vehicle in Waterloo with her handbag beside her on the front passenger seat when the applicant opened the passenger door, seized the handbag containing a mobile phone, seventy dollars in cash and other items before running off into a house. Shortly afterwards the applicant was sighted by police having been identified by the victim. The applicant ran off and was apprehended having the mobile phone in his hand which he then threw forcibly against a nearby brick wall smashing it into several pieces. The victim's handbag and other items were not recovered.

Subjective Factors 10 At the time of the offences the applicant was on conditional liberty in respect of the second and third counts and was also on bail for the first offence. 11 The applicant is a single man now twenty one and has convictions recorded against him under various names in New South Wales and Queensland. In all of those offences he had either been fined, put on probation or good behaviour bonds, but had never been sent to gaol and appears to have been handled somewhat leniently by the criminal justice system, from which I infer that every opportunity has been given to him to put his criminal behaviour behind him. He has also been given every opportunity in life, until the age of fifteen when his younger brother in his care was hit by a motor vehicle and died. This event has clearly had a serious effect on the applicant and has been partly the cause of a substantial dependency on alcohol. 12 He comes from a family in which alcohol abuse was a feature of his upbringing. The applicant has denied any problem with illegal drugs but now concedes that alcohol abuse is a problem, as it is with other members of his family. In interviews in 2002 with a drug and alcohol counsellor, the applicant admitted that the offences arose from his need for funds to purchase alcohol. 13 The learned sentencing judge found, from the evidence before him, that the applicant did have severe problems with alcohol abuse and also that the applicant did not recognise he had a problem as he compared his consumption of alcohol to that of his family. His Honour accepted the evidence that the applicant wished to put his past behind him, and that his pleas of guilty represented a genuine expression of his remorse and contrition. His Honour indicated that he proposed to discount the sentence by approximately 20 per cent for that plea of guilty, and a non-parole period that would encourage him to maintain his present resolve until his recent anti-social life and life of crime were put behind him. 14 However, notwithstanding the finding of an expression of contrition, his Honour stated at page 10 of his remarks on sentence: "To my mind it is a big ask to expect the community in general, the two victims of the offender's criminal conduct, and myself, to believe or accept with any confidence that the offender can so easily turn his life around in the light of his past criminal history, which would indicate that he has previously been given every opportunity by the Courts of this State and Queensland to make something of his life and has failed to do so on more than one occasion".

15 The applicant's submission is primarily based on the argument that in imposing sentence, his Honour gave insufficient weight to the subjective factors of youth, aboriginality and prospects of rehabilitation. It is put on the applicant's behalf that the sentence initially imposed on the first count is to the top of the range and that his Honour, in his discussion in the proceedings on sentence, had referred to the fact of giving a short, sharp sentence and a long period of supervision, and that his Honour failed to do so. 16 It should be said, in relation to the suggestion that the sentence is at the top of the range, that the court must take into account that the legislature has set the top of the range at fourteen years. I, with respect, consider that this court should follow along previous convictions, that the range is what the legislature states and not just what happens in courts. 17 The applicant has had an unfortunate background. The alcohol is a problem for which he is not entirely responsible and any suggestion that his Honour failed to grant appropriate leniency, in my view, is not properly grounded. His Honour did grant a significant period of reduction from the total sentence in terms of the non-parole period that has been fixed, the total non-parole period being some three years out of a total period of six years imposed. 18 The manner in which his Honour adjusted the sentences, making them partly cumulative and partly concurrent, in fact, reflects the principle of totality and a correct application of Pearce v R (1998) 194 CLR 610. It is not correct to say that there was any breach in the application of the principles of totality. The sentences imposed, in my view, are not manifestly excessive. 19 Matters such as rehabilitation were addressed and his Honour made it clear he was very conscious of the applicant's aboriginality and, in particular, the disadvantage that he suffers from being below the median intellectual level, having an effective IQ of something like 74. This does, as submitted by his counsel, constitute a greater likelihood that he will be impulsive in his actions. The second and third counts and, to some extent, the first count, were impulsive offences. 20 It must be remembered, however, that notwithstanding those disadvantages, the sentence imposed had to take into account the objective seriousness of each of the offences, as was stated by King CJ in Yardley v Betts (1979) 22 SASR 108 at 112-3, which has been approved, particularly in Blackman and Waters [2001] NSWCCA 121, as follows: "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in the future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm."

21 While this applicant has been given every opportunity over a period of very many years, he was on conditional release when he committed these offences, committing the second and third offences while he was on bail for the first offence. The community is entitled to be protected, notwithstanding the needs of the applicant for rehabilitation. 22 That rehabilitation, and his need to deal with his alcohol problem is, in my view, reflected in the extensive parole period which his Honour has set out in carefully structured remarks on sentence, and in the sentences which have been imposed. In my view the sentences properly reflect the objective seriousness of the offences in accordance with R v Hayes [2001] NSWCCA 358 and other similar decisions. 23 Therefore, I propose that: i. Leave to appeal be granted. ii. The appeal be dismissed.

24 BARR J: I also agree. 25 MEAGHER JA: The orders of the Court, therefore, are the orders proposed by Dowd J.

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