Michael Lawrence WAUGH (aka WILLOUGHBY) v R

The application 8 The applicant was unrepresented in this Court. He contended that the sentence is excessive, arguing that the sentencing judge fell into error in specific respects. He relied upon written submissions, which he expanded orally. 9 Firstly, he argued that his Honour had given inadequate weight to the fact that he was under the influence of the drug Stilnox at the time of the offence. His Honour accepted evidence that he had been using that drug to help him sleep, and the author of a psychological report explained that it could produce side effects, "including psychotic symptoms and anterograde amnesia". His Honour had regard to this material in the light of the principles concerning the sentencing of offenders with a mental abnormality or disability summarised in R v Hemsley [2004] NSWCCA 228. He found that the applicant suffered from a mental condition which contributed to the commission of the offence in a material way, so that there was not "the same call for denunciation and punishment as would otherwise have been the case …" He also accepted that the condition rendered the applicant an inappropriate vehicle for general deterrence, moderating that consideration "to some extent". 10 His Honour emphasised, however, that the deduction for those factors would be "modest", referring to R v Wright (1997) 93 A Crim R 48. The applicant contended that his Honour's approach to this issue demonstrates that he had not appreciated the extent to which he was affected by the drug at the relevant time. However, it is clear that his Honour accepted that he was significantly affected. The question was the extent to which that factor should moderate the sentence otherwise appropriate, and it was in that context that his Honour used the word "modest". In the circumstances of the case, it was open to his Honour to conclude that that "moderation need not be great", to use the words of Hunt CJ at CL in Wright at 51. There was no error in this approach. 11 Secondly, the applicant complained that his Honour had not taken into account his background and childhood. He referred to his troubled early upbringing, the fact that he was made a ward of the state at the age of 10 or 11, that he was abused physically, mentally and sexually throughout his youth, that it was in those circumstances that he took to the use of heroin, that he had longstanding psychological issues, and that in his youth he did not have the guidance and support he needed. In fact, in his remarks on sentence his Honour referred to all these matters in a comprehensive review of the applicant's subjective case, and it is clear that he did give it appropriate weight in the sentencing exercise. 12 Thirdly, the applicant challenged his Honour's finding that there was a degree of planning in the armed robbery. Addressing the applicant in his remarks, his Honour said "… I am satisfied here that there was some degree of planning because you took the knife with you and obviously went to the service station with the intention of using the knife." The applicant contended that the offence was impulsive and opportunistic, noting that he committed it in broad daylight, undisguised, and used a taxi to leave the scene. 13 However, his Honour referred to the degree of planning in the context of examining the features of the typical armed robbery considered in the guideline judgment in R v Henry [1999] NSWCCA 111, 46 NSWLR 346, per Spigelman CJ at [162]. One of those features is a "limited degree of planning". Nothing his Honour said suggested that he considered the applicant's offence to have been planned in any careful or sophisticated way. He found a level of planning which was no more than limited, and that finding was clearly available. 14 Fourthly, the applicant argued that his Honour had not taken into account the fact that he had reassured the victim of the robbery that she would not be hurt. As he put it in his written submissions, "there was a very low or no intensity of threat shown." However, as is apparent from my recitation of the facts, that reassurance was of little comfort to the console operator, who feared being stabbed and who burst into tears after the offence was committed. As Giles JA observed in R v Speeding [2001] NSWCCA 105, 121 A Crim R 246 at [24]: "When robbery is committed under the threat of a knife, I see no room for alleviating the seriousness of the offence and, as part of that seriousness, the possible traumatic effect on those threatened, by the use of so-called reassuring words." 15 Finally, the applicant complained that his Honour had not given appropriate weight to the effect of his incarceration upon his family, and to the fact that his desire to pursue drug rehabilitation in prison had been frustrated by lack of facilities. He gave evidence in the sentence proceedings about both these matters. 16 At the time of sentence, he had been living with his partner and her son, and the boy was under the care of both of them. His evidence was that, because of his incarceration and his inability to provide for them, his partner and the child had been evicted from their home and were living "house by house" without stable support. However, it seems that no submission about this matter was made to his Honour. This, no doubt, is because the applicant's legal representative was aware of authority to the effect that hardship to third parties occasioned by the imprisonment of an offender is a matter to be taken into account only in exceptional circumstances. 17 In R v Edwards (1996) 90 A Crim R 510, Gleeson CJ said at 515: "There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment."