Moore v Regina

Moore v Regina - [2005] NSWCCA 407 - NSWCCA 2005 case summary — Zoe

[18]

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.

[19]

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.

[20]

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."

[25]

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.

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