R v Antecki

Court of Criminal Appeal (NSW)|2001-08-10|Before: Dowd J, Smart AJ, Smart J

CITATION : R v Antecki [2001] NSWCCA 312 FILE NUMBER(S) : CCA 60551/00 HEARING DATE(S) : 10 August 2001 JUDGMENT DATE : 10 August 2001

PARTIES : Regina v Nigel Thomas Antecki JUDGMENT OF : Dowd J at 30; Smart AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/2087 LOWER COURT JUDICIAL Sides DCJ OFFICER :

1 DOWD J : The Court is in a position to give judgment in this matter and Mr Acting Justice Smart will give the first judgment.

2 SMART AJ : Nigel Thomas Antecki seeks leave to appeal against the severity of sentences imposed upon him by judge Sides for eight armed robberies and two attempted armed robberies.

3 On counts 1 to 9, being seven charges of armed robbery and two charges of attempted armed robbery, the applicant was sentenced on each count to imprisonment for a fixed term of five years to commence on 29 October 1999 and to expire on 28 October 2004. On count 10, being a charge of armed robbery and taking thirteen offences of armed robbery and one of attempted armed robbery into account, the applicant was sentenced to imprisonment for six years to commence on 29 October 2004 with a non-parole period of two years. Thus, the effective head sentence was eleven years and the effective non-parole period was seven years.

4 Each armed robbery, with one exception, was committed in company and the applicant was armed with an offensive weapon, a kitchen knife. The robberies were committed at service stations throughout the western and south-western suburbs of Sydney. The offenders were the applicant and a man called Kendall.

5 The method of operation was similar in that the applicant and Kendall entered a service station and usually selected some confectionery or a container of soft drink or a magazine. They then attended the counter giving the impression that they were going to pay for the items selected. On the items being scanned for sale, the offenders pulled down their beanies to disguise their faces or drew a scarf across the lower portion of the face. The knife was produced and a demand was made for the money in the till or "all your money". One offender usually remained at the front of the counter. The other either jumped the counter or walked around the side of the service counter and took the money from the till of the cash register. Sometimes the offenders walked straight to the counter and made their demands.

6 The judge found that the victims were threatened but very little physical violence was involved. In most instances very little money was taken, except in the case of the BP Service Station at Fairfield (matter 4 on the Form 1 Schedule) where $3400 was taken. The next largest amount is $1100. Most of the amounts taken were under $500.

7 In nearly all of the robberies and attempted robberies the offenders were filmed on video footage. A public appeal was made through newspapers and on national television programs to identify the offenders. The applicant and Kendall were identified accordingly.

8 Items of clothing identical to those worn by the applicant during the robberies were found at his home. During his police interview the applicant admitted the subject offences. It is unnecessary to rehearse the facts of each offence. The offences were committed between 11 July 1999 and 18 October 1999.

9 The victims in each case were console operators and, of course, they were particularly vulnerable to the sort of attack that was made. They would have been fearful

10 The judge found that the pleas of guilty were entered at the earliest opportunity and that this attracted the maximum mitigation extended upon the basis of the benefit to the criminal justice system. He also took into account the applicant's admissions to the police and his nomination of his co-offender.

11 The judge held that if the charges had been defended, identity would have been in issue and that, apart from the admissions, the Crown case could not be described as strong. He also held that the applicant's early co-operation and other evidence demonstrated contrition and that the plea of guilty entered at an early stage was a further indication of that contrition.

12 The applicant was born on 5 November 1980 and was therefore aged eighteen at the time of the offences. His record reveals no offences until 22 April 1998 when he was placed on twelve months probation for robbery in company and given a six months recognisance for supplying a prohibited drug. On 5 January 1999 for maliciously damaging property, he was ordered to perform forty hours community service.

13 Then in July 1999 the spate of armed robberies began. It does appear that the crimes were committed to obtain funds to feed the applicant's drug habit but, notwithstanding this, no entirely satisfactory explanation appears for the sudden embrace of serious crime.

14 The applicant has had an unsettled upbringing. His parents separated in 1990. The offender lived with his mother until her death in 1992. The period prior to her death was difficult. The applicant was devastated by her death. It removed the foundation of his life. He went to live with his father but this did not work. Some years later he went to live with his grandmother. His schooling was not successful and he did not do well in the School Certificate. He left school in year 10. His first job was in a factory making kitchen cabinets. This ended when he was injured by a fragment that lodged in his eye. His next job as a form worker lasted for about four to six months due to drug abuse. He met his co-offender on that job.

15 The applicant commenced using drugs during year 8. Heroin abuse started about two years later. Initially it was by smoking but later intravenously. The judge held that the applicant's descent into drug abuse was to self-medicate in an attempt to deal with the pain of his mother's death. The judge thought that the applicant would not, at his age and because of his immaturity, have appreciated the long-term consequences of such abuse. The judge continued: "For these reasons, his drug abuse that lies behind his offending is a factor that can be taken into account in relation to his offending ... it is also relevant to rehabilitation."

16 The judge then referred to Regina v Henry (1998-1999) 46 NSWLR 346. He accepted that the applicant had shunned drugs whilst in gaol, had undertaken a number of courses, put his name down for counselling and has matured considerably. The applicant is now prepared to accept his father's support and seek his assistance.

17 The evidence established and the judge accepted that the applicant is of above average intelligence and has the capacity to do well in studies and skilled occupations. He is now motivated in that regard and to deal with his addiction and the underlying problems arising from his inability to come to terms with his mother's death. That latter statement perhaps over-simplifies the matter. It was not just her death but the removal of her support when the father had left the home and the children and resided with another woman. He had not treated the support of the children as paramount; the mother had.

18 The judge correctly concluded that the applicant's prospects of rehabilitation were above average and that this, combined with his relative youth, justified greater weight being given to rehabilitation than deterrence. There is a strong public interest in his rehabilitation. The judge expressly took into account the principle of totality. The judge felt that the number and seriousness of the offences compelled the sentences which he imposed, notwithstanding the strong subjective features. He correctly found special circumstances in the good prospects of rehabilitation and the applicant's youth.

19 The applicant contended that the sentence was manifestly excessive. The number and seriousness of the offences made a lengthy sentence inevitable. The issue is whether the operative sentence is erroneously wrong. Counsel for the applicant undertook a survey of the recent decisions of this Court as to persons convicted of multiple counts of armed robbery. The present case must be distinguished from those where physical harm was inflicted upon the victim or the victims were tied up or made to lie on the floor or were herded into a particular space and those where the accused had an extensive record. None of the cases had the combination of facts present in this case. What the review of the cases and the statistics of the Judicial Commission do show is that for multiple offences of armed robbery with an offensive weapon, a lengthy sentence or sentences must be imposed.

20 Counsel for the applicant submitted, in accordance with R v Thomson & Houlton (1999-2000) 49 NSWLR 383, that the applicant was entitled to a discount of twenty-five per cent at least for his early plea, his assistance and co-operation and their utilitarian value. That submission is correct. This means that the judge's starting point was fourteen years eight months, and that is manifestly excessive. That is a useful way of assessing the sentence. The applicant's remorse and contrition should not be overlooked nor should the judge's findings as to the applicant's drug addiction. There are not many cases where such favourable findings can be and have been made. .

21 Counsel submitted that the judge's findings amounted to the conclusion that this was the exceptional case in which drug addiction could be taken into account by way of mitigation. Counsel relied particularly upon the remarks of Mr Justice Wood, Chief judge at Common Law, in Henry at pp 397 to 398, para 273 and sought to bring the case within subpara (c)(ii) of his Honour's categories. Counsel submitted that the judge was referring to the exceptional case in Henry and that, in the context, there was no point in referring to the general rule. The matters mentioned by the judge picked up what the Chief Judge was referring to. Further, there was no point in the judge making the remarks in question if he was not holding that this was an exceptional case in which drug addiction could be taken into account by way of mitigation.

22 Counsel for the Crown submitted that this was to strain the words that the judge used and that if he had meant to place this case in the exceptional category mentioned he would have expressly said so. Further, the sentence did not reflect such an approach.

23 There is a degree of circularity in the latter argument because counsel for the applicant is relying upon that the sentence not reflecting the exceptional finding. I find it unnecessary to resolve this debate. There were very favourable findings and I think it suffices to leave the matter at that and act upon them. It was also an unusual case.

24 There was no doubt that the offences listed on the Form I have to be taken into account in more than a nominal way. While the criminality was of a high order and deterrence and punishment are of major importance the combination of circumstances earlier mentioned leads to the conclusion that the initial starting point of the judge must have been too high and that greater but not excessive weight should be given to the subjective features.

25 Bearing in mind that all the offences formed part of the one series of criminal events, it is appropriate for there to be a degree of partial concurrency in the sentences imposed. There are special circumstances as found by the judge. I also include the accumulation of the sentences. The sentences were in total manifestly excessive. They do not adequately reflect the principle of totality.

26 On the question of re-sentencing, I have taken into account the affidavit of Mr Antecki of 7 August 2001 and that of Miss Sheehan of 8 August 2001.

27 It is pleasing to see that the applicant is settling down, completing courses and proposes to study for his Higher School Certificate. It is also pleasing to see his progress in relation to his drug addiction.

Dismiss the appeals as to counts 1 to 9 in respect of which the applicant was sentenced to fixed terms of imprisonment of five years commencing on 29 October 1999.

Allow the appeal in part as to count 10. Sentence quashed. In lieu thereof the applicant is sentenced to imprisonment for six years to date from 29 April 2003 with a non-parole period of two years starting that day and ending on 28 April 2005. 29 The overall effect of what I propose is a total head sentence of nine and a half years with a non-parole period of five and a half years.

30 DOWD J: I agree. The orders of the Court will be as proposed by Acting Justice Smart.

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