R v Blow [2010] NSWCCA 294 | Case summary

R v Blow [2010] NSWCCA 294 | Case summary | Zoe

[41]

Count 5 25 On Wednesday 31 December 2008, Mr Venkata Katneni was working with Mr Bahendra Yarlagadda at the United Service Station. 26 Just before 9:00 pm, Mr Katneni and Mr Yarlagadda were preparing to close the business for the day when the respondent again returned to the service station apparently accompanied by one male accomplice. 27 The respondent and the accomplice entered the store; both were wearing dark clothing with shirts covering their faces. Each carried a knife. 28 The respondent pushed past Mr Yarlagadda who was at the chip counter and went to the Coca-Cola refrigerator. The second male approached Mr Katneni (who was standing behind the console) and directed him to move away. Afraid of being hurt, Mr Katneni moved away from the cash till and that male removed $175 from the till. 29 The respondent took hold of Mr Yarlagadda by the collar of his shirt and dragged him to the console area where the other male and Mr Katneni were. Mr Yarlagadda sat down as directed. 30 The other male asked Mr Katneni where the safe was and ordered him to open it. Mr Katneni said he did not know the combination and the male made a stabbing motion with his left hand towards Mr Katneni's stomach area. Mr Katneni thought he had been punched, but felt extreme pain and realised that he had been stabbed. He saw the other male holding what appeared to be a ten centimetre kitchen knife in his hand. He bled heavily from the wound to his stomach. 31 The respondent took a milk crate from the office and placed it on the counter. He was holding a knife in his right hand and said to Mr Katneni, "Open the safe mother-fucker or else I'm going to kill your friend". Mr Katneni told the respondent that he did not know the combination. The respondent rummaged through the drawer next to the safe and again demanded Mr Katneni open the safe. The respondent then stabbed Mr Katneni to the right side of his chest. Mr Katneni felt immediate pain and began to bleed. The other male loaded nine cartons of cigarettes into the milk crate. The respondent said to Mr Katneni, "I'm going to kill you if you don't open the safe". Mr Katneni begged not to be harmed and repeatedly said that he did not know the combination. 32 The respondent demanded that Mr Katneni produce his wallet, but was unable to find any money in it. The respondent demanded that Mr Yarlagadda produce his wallet, but both victims told the respondent that he did not have a wallet. 33 The respondent then pointed his knife Mr Yarlagadda's head and said, "I'll kill him if you don't open the safe". He then placed his knife at Mr Katneni's neck and said, "Open the safe, mother-fucker". Mr Katneni then attempted to open the safe, but the blood on his hands caused his fingers to slip. The respondent yelled at him, "Open it mother-fucker, or I'm going to kill him". Mr Katneni got the safe open and the other male removed $6,300 in cash. The respondent and the other male then ran from the service station with the milk crate and cigarettes, the $6,300 cash from the safe and a bottle of Coca-Cola. 34 The alarm was raised and Mr Katneni was taken to the Manning Base Hospital for treatment. His chest wound required stitches and the wound in his chest and the wound to his stomach was bandaged and allowed to drain. He later received for the treatment for both wounds. 35 In the early hours of the morning, the respondent was observed distributing cigarettes to young people in Cabariti Avenue, Forster. He was also observed with another male as they were burning clothes and shoes in a fire in the backyard of the premises at 5 Cabariti Avenue.

[45]

The sentencing judge's remarks 39 The sentencing judge observed that the respondent was to be sentenced in relation to 6 counts on the indictment together with 4 charges on the Form 1. His Honour accepted that the various offences were serious and identified the fact that count 4, count 5 and charge 2 on the Form 1 were all offences which had been perpetrated on the same victim. His Honour appropriately identified the maximum penalty for each offence. 40 His Honour noted in particular that count 5 was a very serious offence attracting a maximum penalty of 25 years. He stated that the series of offences was clearly disturbing and that count 5 was particularly brutal. His Honour accepted that many of the offences would have been terrifying for the victims. His Honour also accepted that count 3 was aggravated by the fact that it occurred in the home of the victim Ms Kityanyong. 41 The sentencing judge accepted that the pleas of guilty were not entered at the earliest opportunity but acknowledged the Crown's concession that the respondent was nevertheless entitled to a 20% discount for the utilitarian value of the plea. Observing that the respondent had pleaded guilty, his Honour correctly identified the fact that the standard non-parole periods were not directly relevant but remained relevant as a "guide post". He accepted an obligation to make a finding in relation to the relative objective seriousness of each of the offences. In this respect his Honour said that count 1 was "towards the bottom of the range for offences of its type." He said that in relation to counts 2 and 6 they were "about the middle of the range, perhaps a little lower." In respect of count 5 his Honour found that that count was "above the middle of the range for offences of its type, but not by much, given that those offences always are serious." His Honour noted that the particular features of count 5 were: "i. the persistent nature of the attacks on the victims; ii. the nature and extent of the stabbings, although noting wounding is an element of the offence; and iii. the vulnerability of the victims by reason of their occupation as service station attendants (s 21A(2)(1) of the Crimes (Sentencing Procedure) Act 1999." 42 The sentencing judge found that the respondent is a relatively young man and at the time of sentencing had only just turned 20 years of age. His Honour determined that he had a dysfunctional upbringing notwithstanding the substantial efforts of an aunt to neutralise the effects on him of an "environment which was characterised by violence, alcoholism and drugs" which had been "the prevailing theme of the respondent's life to date." It is apparent that the respondent has received little formal education, having been expelled from school. He does have artistic talent which the judge described as "works of significance and his ability is obvious." 43 The sentencing judge concluded that the background of the respondent disclosed a history that is "all too familiar for young Aboriginal men on the mid-north coast of New South Wales and in other parts of rural New South Wales." His Honour referred to the principles described by Wood CJ at CL in R v Fernando (1992) 76 A Crim R 58 concerning the sentencing of persons with a particularly disadvantaged and deprived background, such as many indigenous offenders. The sentencing judge indicated that he would bear these principles in mind when sentencing the respondent. 44 His Honour was conscious of the fact that there was a need for general deterrence, indicating however that he shared "the scepticism of many that general deterrence might not be the great forensic weapon that others in other sections of the community believe it is." He also acknowledged that in sentencing young people, general deterrence may play a lesser role than the possibility of an offender's rehabilitation. 45 The sentencing judge recognised that the task before him was difficult. He identified that "clear and stark tension between the subjective features of the case and … the brutal reality of the objective seriousness of the crimes." 46 The sentencing judge also recognised that the decision of this Court in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 was important and said he would bear it in mind. His Honour found the circumstances of the offences involving robbery, that is counts 3, 4 and 5, were more serious than those identified in the guideline judgment, observing that: "… almost all of the features that are identified in Henry appear here, or at least in some of the offences. There are features that are well beyond Henry such as the amounts of money taken (which) could never be characterised as a small amount, so that, to an extent, Henry is of limited assistance." 47 His Honour also said that he would have regard to the matters relevant to the offence of break and entering referred to by this Court in R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327. 48 The sentencing judge also recognised that counts 5 and 6 were offences committed when the respondent was at large on a bond. His Honour correctly identified this as an aggravating feature on these counts. 49 His Honour concluded that: "… what all these crimes represent is the conduct of a young man out of control, ignoring the rights of others and oblivious to a person's rightful understanding that they are entitled to go about their affairs without being assaulted and attacked and injured, seriously injured." 50 The sentencing judge found that there were special circumstances because of the fact that he committed the offences, the respondent had only just turned 18. His Honour found that there were some prospects of rehabilitation and furthermore being required to impose a separate sentence for each offence (Pearce v R [1998] HCA 57; (1998) 194 CLR 610) recognised the need to adjust the sentences to reflect an appropriate sentence for the overall criminality involved.

[57]

Ground 11: the sentences imposed on counts 2, 3, 4, 5, 6 and the aggregate sentence are each manifestly inadequate. 52 By contrast with the Crown's submissions the respondent's submissions were relatively brief. Reliance was placed on the respondent's age and as a consequence it was submitted he was entitled to leniency. It was submitted that having regard to both his age and his dysfunctional upbringing the sentences imposed were within the sentencing judge's discretion. It was further submitted that it was open to his Honour to lower the individual sentences in order to ensure that the total sentence was appropriate (Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 63). 53 The circumstances of count 5 are, to my mind, particularly serious. His Honour recognised this fact by finding that the offence was above the middle of the range for offences of this type although "not by much." His Honour recognised that the offence constituted a persistent attack upon the victims who, as service station workers, were vulnerable to violent crime. The appellant submitted that when it was recognised that his Honour was required to increase the sentence for count 5 because of the Form 1 matters (see Re: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146) and that the offence was aggravated because it was committed when the respondent was on a bond, a 3 year non-parole period was not open in all the circumstances. 54 It was submitted by the Crown that although the respondent had had a difficult upbringing, he was not entitled to any significant discount because of the principles identified by Wood CJ at CL in R v Fernando at 62-63. The offender had been raised by his aunt and was, by reason of his previous offending, knowledgeable of the criminal justice system and his obligations to comply with the law: Fernando at 64-70; R v Ah-See [2004] NSWCCA 202 at [21]; R v Newman [2004] NSWCCA 102 at [61]. 55 I am in no doubt that the appellant's submission must be accepted. When regard is had to the non-parole period and the matters on the Form 1, the sentence imposed for this offence is so inadequate that error must have occurred. I acknowledge that the respondent has had a difficult upbringing, no doubt contributed to by the circumstances of his living in an Aboriginal community. However, this was a violent offence of a seriousness that justified the finding by the sentencing judge that it was above the middle range for offences of its type. Although the circumstances of his upbringing were relevant, they could not justify any significant amelioration of his sentence. The respondent had been previously involved with the criminal law. His record includes offences of larceny, illegal entry of a building and affray together with a number of driving offences. He was on a bond for the affray at the time he committed the relevant offences. His behaviour has been characterised by repeated and serious breaches of the law, often committed without any regard to the harm occasioned to the victim. 56 The appellant also submitted that the sentence imposed in relation to count 3 was manifestly inadequate. I agree. The victim, who had retired to bed, was put into fear for her life when a knife was held to her throat. The maximum penalty for the offence is 20 years imprisonment. The sentence of a total term of 2 years provided by his Honour was wholly inadequate. 57 The appellant also submitted that error had occurred with respect to the sentences imposed in relation to each of the other counts and that the overall sentence was so inadequate that this Court should resentence. I accept that the sentences for those counts apart from counts 3 and 5 may be inadequate but in the circumstances have decided it is unnecessary to consider them further. I propose to resentence in relation to counts 3 and 5 and make appropriate adjustments to the overall sentences to reflect totality. In this manner, the problems which I have identified can be adequately addressed.

[58]

Resentencing 58 The sentencing judge found that the objective seriousness of count 5 lay above the middle of the range "but not by much." His Honour correctly observed that robbery with wounding would be rarely other than a serious offence. This, of course, is reflected in the fact that the legislature has provided a maximum sentence for the offence of 25 years imprisonment with a standard non-parole period of 7 years. Given his Honour's finding with respect to the objective seriousness, a non-parole period of 3 years and a total sentence of 7 years imprisonment could not be justified. It must not be forgotten that there were four charges, each an offence of aggravated break enter and steal which were included on a Form 1 which were required to be taken into account when sentencing for count 5. Each of those charges was a breach of s 112(2) of the Crimes Act (charge 3 being of aiding and abetting) for which a penalty of 20 years and a standard non-parole period of 5 years is provided. 59 In relation to count 3, his Honour found the objective seriousness to be about the middle of the range. Being an offence contrary to s 97(1) of the Crimes Act, Parliament has not provided a standard non-parole period and as expressed his Honour's finding was inappropriate. However, the victim had retired to bed when at 2 am the respondent and the others forced their way into her bedroom and put a knife to her throat and made demands for her money. It would have been a grossly traumatic experience for the victim, who reported that she had feared for her life. 60 The respondent is a young person. However, his previous encounters with the law should have ensured that he understood that he could not set about an escapade of violent crime without expecting serious punishment when apprehended. There could be no doubt that he appreciated that his crimes were serious. Counts 5 and 6 were committed at a time when the respondent was subject to a bond. In these circumstances, although it was appropriate for his Honour to emphasise the need to encourage the respondent's rehabilitation, considerations of specific deterrence were of particular significance. The community expects that persons who set about robbing people in their homes armed with weapons and endangering the life of the occupants will be dealt with severely. 61 Although the respondent had a difficult childhood there is no suggestion that he had lived in a community isolated from general society. The sentence must recognise his background but I can discern no reason to significantly reduce the sentence because of the matters referred to by Wood CJ at CL in Fernando. 62 The sentencing judge acknowledged the relevance of the decisions in Henry and Ponfield. His Honour accepted that counts 3, 4 and 5 were more serious offences than the type of offence considered in Henry. In particular, significantly larger amounts of money were involved. Although the reasons of the Chief Justice in Henry are relevant, the sentencing judge was correct when concluding that these were more serious offences. 63 A discount of 20% for the respondent's plea and the finding of special circumstances was appropriate. Having concluded that the sentences for counts 3 and 5 were so low as to be manifestly inadequate, I have determined, after considering matters of totality, that the Crown appeal should be upheld and that the respondent should be resentenced. 64 The orders I propose are:

[60]

The aggregate non-parole period is 8 years with a total term of 11 years imprisonment. 65 R S HULME J: I agree with the orders proposed by McClellan CJ at CL and with his Honour's reasons. I would however add the following remarks. 66 The sentencing of the respondent by Toner DCJ in this case wholly failed. In at least five of the six counts he had to consider his Honour imposed sentences which had fixed terms or non-parole periods of approximately half of the length they should have been, and this in the face of clear guidance in the form of standard non-parole periods and the decision of this Court in R v Henry (1999) 46 NSWLR 346. The effective total non-parole period that was the result of his Honour's sentences suffered from the same deficiency. 67 It is all very well to be sympathetic to those whose backgrounds, whether due to their Aboriginality or otherwise, are deprived or disadvantageous. However, even in those environments it is difficult to believe that it is thought acceptable to stab people or to hold objects to the throats of others, and threaten them with death. 68 Prior to the first of the offences dealt with by Toner DCJ the respondent was sentenced by Courts on five separate occasions for a variety of offences. At least four of these offences involved stealing or otherwise appropriating the property of others. Whatever difficulties he may have experienced in his upbringing, the magistrates, Children's Case Workers, Probation and Parole Officers and lawyers involved on these occasions must have made it clear to the respondent that such interference with the rights and property of others was not acceptable and that the Courts were likely to inflict serious consequences on the respondent if he continued to offend. The effective non-parole period of 8 years which will be the result of this appeal is a substantial interference with the life of someone aged 20 as the respondent now is. However, the nature and frequency of his offending argues for his incarceration being longer. 69 DAVIES J: I agree with McClellan CJ at CL. **********

R v Blow

At a glance

Court

Decision date

Before

Source

Judgment (61 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (12)