(I) young offender with little or no criminal history;
(ii) weapon like a knife capable of killing or inflicting serious injury;
(iii) limited degree of planning;
(iv) limited, if any, actual violence but a real threat thereof;
(v) victim in vulnerable position such as a shopkeeper or taxi driver;
(vi) small amount taken;
(vii) plea of guilty, the significance of which is limited by a strong Crown case.
10 In R v Murchie (1999) 108 A Crim R 482 this Court held that the Henry guideline was equally applicable to the offence of robbery in company for which the same maximum penalty is prescribed. The sentencing judge found that the present case fitted the profile identified in Henry but for the matters enunciated in paragraphs (ii) and (vi). As to paragraph (ii) it might be observed that although there was no evidence of any weapon, the gravamen of the present offence was that it was committed in company.
11 The sentencing judge indicated that the starting point for the sentence was 4 years imprisonment. His Honour then allowed a discount of 20% for the applicant's plea of guilty, which he rounded out to 10 months, to arrive at an overall sentence of 3 years 2 months or 38 months. The sentencing judge also found that the applicant was remorseful. His Honour then found "special circumstances" by reason of the applicant's need for drug rehabilitation whilst under supervision on parole and "the likely resumption of cohabitation in a family relationship where a parental role has been exercised by the prisoner".
12 The first ground of appeal asserts that the sentencing judge erred in failing to have regard to the fact that the applicant committed the offence whilst under duress. The fact that an offender is acting under duress is a matter which may, pursuant to s 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999, operate to mitigate a sentence. In order to assess this submission, it is necessary to have regard to some of the evidence which the applicant gave during the course of the sentence proceedings. He said that on the evening before the robbery he had consumed "10 to 20 ecstasy tablets and a fair bit of amphetamines and just a lot of alcohol". He said that he had accumulated a debt of about $2500 for drugs which he had acquired in various nightclubs. He said that he had been informed by his drug supplier that there was a way in which he could repay his debt. He said that he had seen him on the evening before the offence at which time they had arranged to meet again at midday the following day, that is shortly before the incident, in Hyde Park. His drug supplier was there at the appointed hour together with another person whom he did not know. He gave evidence that the victim was then pointed out to him. He said he was then instructed to go and grab the bag from him. The applicant said that he did not know the victim although he was told that the victim and his companion "were gay". He was unable to satisfactorily explain why he had used the words which the victim had attributed to him, although he maintained that he did not have a syringe with him. His instructions, he said, were to meet up with the person to whom he owed the debt in Hyde Park some two hours after the offence had been carried out. He was then to hand over to him the bag which he knew would contain money.
13 The sentencing judge expressed considerable reservations about the applicant's evidence. His Honour made reference to the fact that part of his evidence which concerned his motivation for having involved himself in the offence, was significantly at odds with what he had told his psychiatrist, Dr Roberts. In his report, Dr Roberts observed that he had asked the applicant what he would have done with the money if "he had been successful in the robbery attempt" and noted that the applicant had replied "I would have blown it". The sentencing judge was unimpressed with the applicant's endeavours to explain the apparent inconsistency. Moreover, the sentencing judge found it difficult to accept that the plan, said to have been organised by the applicant's drug supplier, involved the applicant (an unreliable drug user) taking and retaining possession of the bag which was known to contain a large sum of money, in preference to the drug supplier's colleague doing so.
14 Notwithstanding those misgivings, the sentencing judge was nevertheless prepared to accept that the applicant became "involved in this matter because of an offer made to him to be able to clear his drug debt." A little later his Honour observed:
His explanation for his complying with the request is that there were threats made, and he feared for the safety of his companion and her children. When the Crown asked him what were the threats that were made, the answer given by Mr Lewis was "it was time to fix his obligations". I heard no evidence of any threat of physical harm, or violence actually being made to him. However, Mr Lewis has said that this drug dealer was a friend of other good friends of his, and would have access to information as to where he lived, and with whom he lived.
I made the comment early in the piece to Mr McClintock that the Court does have experience of people involving themselves in drug purchases, getting into trouble and then being placed under threat. That is something that I can accept.
15 Although the sentencing judge did not make any specific finding as to whether the applicant acted under duress, and nor did he refer in terms to s 21A(3)(d), it was nevertheless contended on the applicant's behalf that in the passage to which I have just referred the sentencing judge appears to have made a finding that the applicant had operated, to some extent at least, in response to a threat. Although it is not clear that his Honour did so find, it is convenient to proceed upon the basis for which the applicant contends. The complaint which is advanced, in essence, is that his Honour failed to make proper allowance for that aspect of the matter.
16 In my view, this submission should be rejected. The evidence upon this issue was in a very narrow compass and only really emerged in the cross-examination of the applicant by the Crown Prosecutor. Moreover the applicant conceded that he was unable to give precise details of what had been said that day because he was still well affected by drugs. It is also conceded on his behalf that there had been no actual threat made to him but only what was described as an implied threat. The causal link which needed to be established between the threat or threats, however they may be characterised, and the commission of the offence was, in the circumstances, somewhat tenuous. To the extent that this issue warranted any consideration in the sentencing exercise, the sentencing judge took it into account.
17 A complaint that insufficient weight has been given to a particular matter must ultimately be evaluated in the light of the ultimate sentence which is imposed, a matter to which I shall return in due course.
18 There was also reference to, and criticism of, observations which the sentencing judge had made in the course of submissions. His Honour said that the pressure which was placed upon the applicant to get involved in this offence was "cancelled out by the fact that he had not assisted the police in the slightest form". His Honour went on to explain what he meant by those observations. However they did not ultimately form any part of the Remarks on Sentence. In those circumstances it is apposite to recall what Spigelman CJ, with whom Grove J and Smart AJ agreed, said in R v Howard [2004] NSWCCA 348. His Honour observed:
A trial judge is entitled to put propositions during the course of argument and to modify those propositions, either as a result of submissions or in the light of further consideration of the relevant matter. (at para 47)
19 I would reject this ground of appeal.
20 The second ground of appeal asserts that the sentencing judge "erred in failing to have regard to [the fact that] the applicant [was] suffering from brain damage and drug addiction and their effect in causing impaired judgment, impulsivity and irrationality".
21 The applicant relied upon Dr Roberts' report to support the proposition that he was suffering at the time from the combined effects of a brain injury and significant substance abuse and was thus entitled to some moderation of the otherwise appropriate sentence. The following passages appear in that report:
There was a peculiar manner present namely the manner in which Mr Lewis related his planning for the offences for which he is now before the court that gave the impression that the plan was conceived and acted upon in a manner that suggested irrationality. The attempted robbery was undertaken in broad daylight in an area of town, not far from the Downing Centre, in which there are numerous police.
The manner in which Mr Lewis related his planning of the robbery and the manner in which he described how he attempted to carry it out suggested a substantial degree of impaired cognitive function.
I arranged for an MRI of the brain - I considered that on grounds of probability the plan conceived by Mr Lewis was of such idiocy and of such unlikely potential to succeed that it was highly likely that some abnormality would be found.
I note the MRI report of 4 December 2002 makes reference to mild prominence of the sub frontal subarachnoid space.
I reviewed the films and discussed the films with Dr Michael Houang and asked him to review the films again since I considered on viewing the films that the frontal lobes and subarachnoid spaces appeared mildly prominent on both sides and commented that the implication from such films was that there is some mild form of frontal atrophy. The presence of such frontal lobe atrophy is in my view important.
Frontal lobe lesions are associated with impaired impulse control rather than presenting primarily with cognitive deficit although such may also be present.
In persons with frontal lobe injuries they tend to act on impulse without giving consideration to the consequences of their actions.
In Mr Lewis' case this would inevitably been (sic) compounded by his substance use. I am of the view that his impulsive stupid ill-planned acts would have been able to have been accounted for on the basis of substance use alone but the effect of such substance use namely to cause a person to act on in the manner described was undoubtedly compounded by the frontal lobe damage that exists.
Whether the cause of such frontal lobe damage is the head injury sustained when he was an infant and/or compounded by substance use would be impossible to establish. Its presence however is a matter to consider in relation to the behaviour in which Mr Lewis was involved.
…
[The applicant] gives an account of very substantial substance use. He describes extreme substance use in the days prior to the committing of the offences for which he is now before the court.
There is a history of unknown severity of a head injury as an infant. Even in the absence of the findings of the MRI scan the substances ingested by Mr Lewis would have had the potential to profoundly impair judgment and such impairment of judgment would have been inevitably compounded by the presence of the underlying lesion.
This statement of impaired judgment does not imply that at the time of the committal (sic) of the offence that Mr Lewis was unaware as to what he was doing nor was he unaware that what he was doing was wrong.
The impaired judgment to which I have referred is a state of mind in which a person would by virtue of the combination of underlying brain damage and massive substance ingestion act in a manner that was without consideration to the consequences of his actions both to himself and others, that he would be simply focussed on the gratification of a desire and being in a state of mind where he would be unable to exercise consideration and restraint, that a person who was not effected (sic) by drugs or did not have an underlying predisposition to poor impulse control by virtue of organic disease could exercise.
22 This material potentially bore upon the question, inter alia, of whether, pursuant to s 21A(3)(j) of the Crimes (Sentencing Procedure) Act, "the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability" and thus entitled to some amelioration of the otherwise appropriate penalty.
23 The sentencing judge addressed that question and found that:
[t]here is a suggestion in Dr Roberts' report touching upon the concept of irrationality, that Mr Lewis may be suffering from some frontal lobe dysfunction arising out of a fractured skull sustained when he was a young child, but really it seems that that does not have anything to do with the story when one looks at it in the light that has been shed upon it in the evidence today. Mr Lewis appreciated what he was doing. Mr Lewis realised that this was the way he was going to satisfy his drug debt, and demonstrated his consciousness of his involvement by taking his shirt off, and emerging from the hotel in a blue T-shirt, thus making an effort to alter his appearance.
24 It was submitted that his Honour fell into error in that he overlooked the significance of Dr Roberts' evidence.
25 It is unnecessary for present purposes to review the well-established principles concerning the sentencing of offenders who have either a mental disorder or defects in intellectual functioning and/or a dependency upon illicit drugs. An evaluation of these factors and their significance in the sentencing exercise depends on the facts of the particular case. As Wood CJ at CL said in R v Matthews [2004] NSW CCA 112: