Moore v Regina

Markarian v The Queen (2005) 79 ALJR 1048 Regina v De Simoni (1981) 147 CLR 303 Regina v Henry (1999) 46 NSWLR 364 R v Lattouf (unreported, NSWCCA, 12 December 1996) CASES CITED: Regina v Leoni [1999] NSWCCA 14 R v Simpson (2001) 53 NSWLR 704 R v Solomon [2005] NSWCCA 158 R v Youkhana [2004] NSWCCA 412 R v Zamagias [2002] NSWCCA 17

Christopher Moore - Applicant PARTIES: Crown - Respondent

H Dhanji - Applicant COUNSEL: P Ingram - Respondent

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

IN THE COURT OF CRIMINAL APPEAL 2005/1342

SIMPSON J ADAMS J HOEBEN J

Friday, 2 December, 2005 Christopher MOORE v REGINA Judgment 1 SIMPSON J: I have read in draft the judgment of Hoeben J. I agree with the orders proposed, and, subject to the single matter which follows, with his Honour's reasons. 2 I have grave doubts that suspension of the sentences was, or would have been, open to the sentencing judge, as proposed in para [44]. This was a very unusual case, and the applicant's circumstances excite more than the usual level of sympathy. He is very young, his prior character is good, he has had a difficult start in life, and he was led into the condition that gave rise to his offending as a result of his wish to establish some contact with his father. The applicant's conduct in disclosing his offences and surrendering himself is worthy of the very considerable recognition it was given. All of this is capable of diverting attention from the gravity of the offences committed. What cannot be escaped is the nature of the two offences committed by the applicant. His Honour held that a full-time custodial sentence was the only option and I think that not only was that conclusion open to him, but that it was well nigh inevitable. 3 In all other respects I agree with the judgment of Hoeben J. 4 ADAMS J: I agree with Hoeben J. 5 HOEBEN J: Offences and sentence On 16 November 2004 the applicant pleaded guilty in the Queanbeyan Local Court and was committed to the District Court for sentence:

Charge 1 - That on 11 July 2004 at Queanbeyan the applicant robbed Michael Charles Lloyd of certain property being cash and other items and at the time of that robbery used corporal violence on Michael Charles Lloyd, contrary to s95(1) of the Crimes Act 1900 for which the maximum prescribed penalty is imprisonment for 20 years.

Charge 2 - That on 7 July 2004 at Queanbeyan while armed with an offensive weapon namely a steak knife, the applicant robbed Karne Risteveski of $350 contrary to s97(1) of the Crimes Act 1900, for which the maximum prescribed penalty is imprisonment for 20 years. 6 The applicant was sentenced in respect of those matters by his Honour Judge Hosking SC at the Queanbeyan District Court on 17 February 2005. The sentences imposed were:

Charge 1 - A non-parole period of 16 months imprisonment to date from 14 February 2005 and to end on 13 June 2006 and an overall term of 32 months to date from 14 February 2005 and to end on 13 October 2007.

Charge 2 - A non-parole period of 16 months imprisonment to date from 14 June 2005 and end on 13 October 2006 and an overall term of 32 months to date from 14 June 2005 and end on 13 February 2008. 7 The matter was re-listed before his Honour on the following day, 17 February 2005 when the initial sentences were rescinded because of arithmetical errors. The applicant was then re-sentenced as follows:

Charge 1 - A non-parole period of 10 months imprisonment to date from 14 February 2005 and to end on 13 December 2005 and an overall term of 21 months to date from 14 February 2005 and to end on 13 November 2006.

Charge 2 - A non-parole period of 10 months imprisonment to date from 14 June 2005 and to end on 13 April 2006 and an overall term of 21 months to date from 14 June 2005 and end on 13 March 2007. 8 As four months of the sentence for Charge 2 were to be served cumulatively upon the sentence imposed for Charge 1, the aggregate non-parole period of both sentences was 14 months and the aggregate overall term of both sentences was 25 months. 9 The applicant has appealed against the severity of those sentences.

Factual background 10 In relation to Charge 2, which was first in point of time, a telephone order for a home delivery was received at Dominos Pizza in Queanbeyan at about 6 pm on Sunday, 11 July 2004. At about 6.30 pm Michael Lloyd, the victim, who was a relatively young man, attended the nominated address. At the time he was carrying approximately $120 in cash. When the victim got out of the vehicle he was met by the applicant at the bottom of the driveway of the address. 11 As the victim turned towards the front of his car to illuminate a receipt in the headlights, the applicant grabbed him around the neck from behind and wrestled him to the ground. While the victim was fighting back the applicant said words to the effect, "Don't struggle I've got a knife where's the money". The victim then handed over the $120 and observed the applicant walk to the bottom of the driveway where he was joined by another male and then both walked away. 12 The events relating to Charge 1, which was second in point of time, occurred at about 1.45 am on Wednesday, 7 July 2004. The victim was Mr Risteveski, a taxi driver. He was seated in his taxi at a rank outside the National Australia Bank in Monaro Street, Queanbeyan when the applicant with two other males got into the taxi. The victim was directed to an address in Gilmore Place in Queanbeyan. When the taxi came to a stop at the nominated address, the applicant placed his left arm around the victim's throat and pulled his body back in the seat. He then produced a steak knife and held that in front of the victim's face. The applicant and a male who was seated in the front of the taxi, demanded money from the victim. The applicant and the two other males took the victim's wallet and the bag containing his receipts for the night. They then disappeared into nearby bushland. 13 As his Honour noted, the next events in point of time are somewhat unusual. At about 4 pm on Saturday, 31 July 2004 the applicant telephoned the Queanbeyan Police Station and admitted his involvement in the two offences. The applicant gave the police an address in Queanbeyan and told them that he wished to surrender himself to them. Thereafter the applicant made two calls to the police to ensure that they were coming. Just before 5 pm on that day police officers attended the address given and the applicant made admissions, which were electronically recorded. The applicant was then arrested and taken to the Queanbeyan Police Station where a further record of interview was taken. The applicant fully admitted his involvement in the two offences. 14 In relation to the robbery of Mr Lloyd, the applicant advised police that he was not armed although he had used the threat of being armed to stop Mr Lloyd from resisting. The applicant told police that he committed these offences because he was addicted to amphetamines and wanted money for them. He appeared remorseful to the police and was entirely co-operative. He told the police that he wanted professional help for his addiction. 15 It was agreed that had the applicant not surrendered himself to the police, he may well not have ever been arrested for these offences. His co-offenders have still not been apprehended.

Subjective matters 16 Until these offences the applicant had no prior criminal record. In the sentence proceedings the applicant gave evidence as did his grandmother, Mrs Everingham. The evidence of both those witnesses impressed his Honour. The applicant was born on 8 April 1986 and was 18 years and 3 months of age when the offences occurred. 17 The applicant was raised by his grandmother from eight months old, together with his brother from the time when his brother was only four days old. This was because their mother was an alcoholic and was unable to look after them. The applicant's father was a heroin addict who according to Mrs Everingham had "never done a day's work in his life" and had "spent long periods in gaol for supplying heroin". The applicant had little contact with his mother over the years. 18 The applicant did not have any contact with his father until he turned 17. At that time without the knowledge of his grandmother he visited his father in Grafton. The effect of that visit was to turn a formerly law abiding young man into a person who had become interested in and addicted to illegal drugs, in particular amphetamines and cannabis. The experience with his father was very unsettling for the applicant and upon his return from Grafton he ceased living with his grandmother and for a time lived with his girlfriend. He continued to abuse amphetamines and cannabis. The offences occurred during this period. 19 The applicant later went back to live with his grandmother and thereafter he has continued to live with her. His situation and attitude has significantly improved. The applicant had been working regularly as a removalist. A presentence report dated 24 January 2005 was very positive in relation to the applicant's past efforts at rehabilitation and for the future. He had successfully completed the Magistrate's Early Referral Into Treatment program (MERIT). His Honour considered that his rehabilitation prospects were very good. 20 By way of further background, the applicant was a footballer of very considerable talent. He excelled in rugby league and AFL, although his preference was for rugby league. He was apparently an outstanding schoolboy footballer in both codes. The applicant hoped to return to that activity when released from gaol. He did not perform well academically at school. He is the father of a young daughter, as a result of a relationship, which is no longer current. Before his imprisonment he was seeing his daughter on a weekly basis.

Remarks on sentence 21 His Honour noted that the offences were serious, not only because they involved robbery, but because the second in point of time involved the use of a knife. His Honour also noted that the victims were persons in vulnerable positions such as taxi drivers and pizza delivery personnel who often had little choice as a practical matter about the addresses which they had to attend (ROS 6.5). 22 His Honour considered that the applicant fitted the profile of the offender identified in Regina v Henry (1999) 46 NSWLR 364. In some respects his Honour thought the offences were worse than that considered in Henry because of the actual violence offered to Mr Risteveski. His Honour noted that it must have been a very frightening experience for both victims to be confronted in the way in which they were. His Honour noted the range of sentences suggested in Henry of between 4 and 5 years imprisonment. 23 In relation to aggravating features under s21A of the Crimes (Sentencing Procedure) Act 1999 his Honour noted that the offences were committed in company, that in each case the victim was in a vulnerable position and that there was some degree of planning for each offence. In relation to the effect on the victims his Honour said: "I do not know the extent of the emotional harm caused to Mr Lloyd (sic) or to Mr Risteveski but I would be surprised if there was none." 24 In relation to mitigating factors his Honour noted the plea of guilty at the earliest opportunity, the absence of any prior record of previous convictions and the applicant's previous good character. His Honour was of the opinion that the applicant was unlikely to re-offend. His Honour assessed the applicant as having very good prospects of rehabilitation. He thought the applicant had shown genuine remorse for what he had done. Most particularly his Honour found that by giving himself up in the way in which he did, the applicant had assisted the police in a most unusual way. 25 In relation to this last matter his Honour stressed how important it was that recognition be given by the courts to such conduct so as to send out the message that this conduct is to be encouraged and that a significant discount should be provided for it. In that regard his Honour gave to the applicant a 25% discount for the early plea of guilty and a further 35% discount for surrendering himself to the police, ie a total discount of 60% on the sentence which he would otherwise have received. 26 In calculating the sentences his Honour used as his start point 4½ years, being the middle of the range of sentences suggested in Henry. His Honour then applied to that figure the discounts previously referred to. Because of the seriousness of the offences and the fact that they involved two separate victims, his Honour partially accumulated the sentences. His Honour found special circumstances because of the need for a significant period on parole under supervision in order to assist the applicant with any residual drug problems which he might have and to help integrate him back into the community. In relation to special circumstances his Honour also had regard to the applicant's youth. 27 Because of the way in which the appeal has been argued, the following extract from his Honour's remarks on sentence is of assistance (ROS 9.4). "In my view, in the circumstances of this surrender to police as I have described it, his discount should be 35% because to my mind it must be greater than the 25% percent for his plea of guilty. Lots of people plead guilty. It is not the case that lots of people surrender themselves to the police. His discount for the latter must therefore be significantly greater. I would make it even greater still were it not for the fact that sentencing judges have been warned by superior courts to be careful about adding discounts to discounts to produce a result in terms of quantum of sentence which is inappropriate in all the circumstances."

Grounds of Appeal Ground 1 - The learned sentencing judge erred in treating the offences as aggravated on the basis of emotional harm caused to the victims. 28 The applicant submitted that to the extent that his Honour regarded this as being an aggravating factor for the purposes of s21A(2)(g) - "the injury emotional harm loss or damage caused by the offence was substantial" - his Honour had erred. Reliance was placed on R v Youkhana [2004] NSWCCA 412 where the following was stated: "[26] However, before a judge could find "substantial emotional harm" within the meaning of s21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly deleterious than that which any ordinary person would have when subjected to an armed robbery." (Hidden J)

In R v Youkhana McColl JA and Levine J agreed with Hidden J. That statement of principle was approved by this Court in R v Solomon [2005] NSWCCA 158. 29 The applicant submitted that the evidence did not support "substantial emotional harm". The statement of the pizza delivery driver indicated that he was scared at the time but nothing more. The taxi driver's statement was silent on the issue of emotional harm. It was submitted that either there was insufficient evidence to establish the aggravating feature to which his Honour referred or alternatively his Honour had erred in treating as an aggravating factor a level of harm which was inherent in the offence itself. 30 I am of the opinion that this ground of appeal has been established. It was not open to his Honour on the evidence available to make a finding that the offences had been aggravated on the basis that substantial emotional harm had been caused to the victims within the terms of subs 21A(2)(g).

Ground of Appeal 2 - The learned sentencing judge erred when sentencing the applicant with respect to the offence of 11 July 2004 by taking into account as an aggravating factor that the offence was committed in company. 31 It was submitted by the applicant that although some other person may have been present when the offence of 11 July 2004 occurred, that person had not directly participated in the offence in the sense that by his or her presence the victim had been intimidated. As articulated in the written submissions the complaint by the applicant is contrary to the analysis of the meaning of "in company" as used in s97(1) Crimes Act 1900 in Regina v Leoni [1999] NSWCCA 14. Adams J made it clear in that case that presence at the scene with the intention of physically participating, if required, is sufficient to satisfy the section even if that presence is unknown to the victim. 32 As articulated in oral submissions, however, this ground of appeal went no further than a submission that even if his Honour was correct in characterising the offence of 11 July 2004 as having been committed in company, the practical effect of such "company" was minimal and ought not be regarded as significantly aggravating the offence. 33 I am of the opinion that the finding by his Honour that the offence of 11 July 2004 was committed in company was open to him. The applicant in his evidence used the word "we" when referring to that offence and the victim saw the applicant joined by another person immediately following the offence. Even if that were not so, the offence of robbery in company contrary to s97 Crimes Act 1900 carried the same penalty as the s95 offence with which the applicant was charged. Accordingly, the principles in R v De Simoni (1981) 147 CLR 303 were not contravened. In the event the weight given to this factor by his Honour was small and did not affect the overall sentence structure. 34 This ground of appeal has not been made out.

Ground of Appeal 3 - The sentencing judge erred in failing to have proper regard to the circumstances of the applicant's drug addiction and his rehabilitation. 35 The applicant submitted that his subjective case, in particular the circumstances leading up to his addiction, (ie the contact with his father), his prior good character, his age, and the fact that he surrendered to the police in circumstances where he would not otherwise have been apprehended, were such that they constituted "most exceptional circumstances" as referred to in Henry. Accordingly even though the offences were very serious, a non-custodial sentence was warranted or a sentence less than that which was awarded. Reference was made specifically to the observations by Simpson J in Henry at para 272. 36 It is clear from his Honour's remarks on sentence that he took into account all of the unusual and somewhat special circumstances which were raised in the applicant's subjective case. That being so, it was open to his Honour to award a lesser sentence. Just because that option was available does not mean that his Honour erred in failing to sentence the applicant in that way. Once it is clear that his Honour was fully aware of and had due regard to the applicant's strong subjective case (which he clearly did), it was equally open to him to balance that against the high objective seriousness of the offences and to award the sentences which he did. This ground of appeal has not been made out.

Ground of Appeal 4 - The learned sentencing judge erred in adopting a mathematical approach to the sentencing exercise. 37 The applicant submitted that Markarian v The Queen (2005) 79 ALJR 1048 advocated the "instinctive synthesis" approach to sentencing and warned against an unduly mathematical approach. It was submitted that his Honour had fallen into this error in that he had started with the sentencing range suggested in Henry and had then merely applied in a somewhat mechanical fashion discounts for the early plea of guilty and co-operation with the police. 38 With due respect to the careful analysis of authority carried out by counsel for the applicant, this ground of appeal involves a somewhat unfair characterisation of his Honour's judgment. It is clear that his Honour carefully balanced a number of competing and conflicting considerations before exercising his sentencing discretion. In particular his Honour balanced the objective circumstances of the offence and the need for general deterrence against the applicant's powerful subjective case. His Honour also sought to balance the aggravating and mitigating considerations provided for by s21A of the Crimes (Sentencing Procedure) Act 1999. 39 It is also not without significance that Markarian contains a powerful restatement of the wide discretion enjoyed by a sentencing judge: "[27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." 40 I am of the opinion that his Honour did not follow an unduly mathematical approach to sentencing in this case. As is clear from the passage quoted [para 27] his Honour was concerned when applying discounts to ensure that the end result produced an adequate sentence when looked at against the whole of the facts, rather than a simple mathematical answer. This ground of appeal has not been made out.

Ground 5 - The learned sentencing judge erred in failing to consider whether the sentences of imprisonment should be suspended pursuant to s12 Crimes (Sentencing Procedure) Act 1999. 41 The thrust of the applicant's submission under this ground is that his Honour failed to consider a suspended sentence when that option became available as a result of the applicant being re-sentenced following the discovery of the mathematical error in the original sentences. Reliance was placed upon the process of reasoning set out in R v Zamagias [2002] NSWCCA 17 at [25]-[30]. 42 It is true that his Honour did not in terms expressly refer to and reject the option of a suspended sentence. Nevertheless, when his Honour was balancing the applicant's strong subjective case against the objective seriousness of the offences it is clear from the totality of the remarks on sentence that his Honour was of the opinion that a custodial sentence was warranted. The fact that his Honour did not expressly refer to the option of a suspended sentence in his reasons and then reject it does not amount to error on the facts of this case. 43 The question of a suspended sentence was raised in argument. His Honour was referred to R v Lattouf (unreported, NSWCCA, 12 December 1996) at transcript 16 February 2005, pp 16.10-20 and 20.30-54. It was in the course of that discussion that counsel for the applicant said: "But yes we concede there must be a custodial sentence the issue is how long, given his age and the prospects of rehabilitation." 44 In relation to the question of a suspended sentence generally, although this option would have been available to his Honour had his Honour decided that the applicant's subjective case amounted to "most exceptional circumstances" his Honour was not bound to do so. It was equally open for his Honour to assess the matter in the way in which he did and award the sentences presently under consideration. This ground of appeal has not been made out.

Conclusion 45 Although Ground of Appeal 1 has been made out, this Court will not intervene unless it is satisfied that some other less severe sentence was "warranted in law" and should have been passed. (s6(3) of the Criminal Appeal Act 1912, R v Simpson (2001) 53 NSWLR 704.) 46 I am not satisfied that some other less severe sentence was warranted in law and should have been passed. I am of the opinion that his Honour took into account all relevant considerations and that the sentences awarded were well within the range available to his Honour. The sentences passed with their period of accumulation are fully consonant with the very serious nature of the offences and need for general deterrence. 47 The orders which I propose are:

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