R v Daniel Stephen Lewis

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0520 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1838

GILES JA BUDDIN J SMART AJ

FRIDAY 5 NOVEMBER 2004 REGINA v DANIEL STEPHEN LEWIS Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him for an offence of robbery in company. The applicant was sentenced to a non-parole period of 2 years and 2 months and a total sentence of 3 years and 2 months imprisonment. Both terms were ordered to commence from the date of sentence which was 29 January 2004. The applicant is thus eligible for release to parole on 28 March 2006. The sentencing judge should have structured the sentence by first imposing the head sentence and then the non-parole period because the offence took place before the current form of s 44 of the Crimes (Sentencing Procedure) Act 1999 came into effect. However no point was taken in relation to this aspect of the matter and ultimately nothing turns upon it. The maximum penalty prescribed by the legislature for the offence is 20 years imprisonment. 2 The facts giving rise to the offence occurred at about 1.40 pm on Tuesday 8 October 2002 (which was the day following a long weekend). Having completed counting the weekend's takings from the nightclub at which he worked which is located in Oxford Street, Darlinghurst, the victim placed the money into three deposit bags which in turn were placed into a small backpack. The victim then placed the backpack over his shoulder and arranged for a colleague to accompany him to the Commonwealth Bank at the intersection of Castlereagh and Liverpool Streets in the city where he intended to deposit the takings. Shortly after they had crossed the intersection of Liverpool and Elizabeth streets, the victim felt someone grab his right shoulder from behind and also felt what he thought was a fingertip placed into his right hand rib area. At that stage the applicant said to him "don't turn around - just give me the bag. I know it's insured. I know where you work. I know where you live. I know who your boyfriend is. I have a blood filled syringe. I'm HIV positive." 3 The victim did however turn around because he thought that some someone may have been playing a joke on him. He saw the applicant, whom he did not recognise, standing there. It was at that point that he began to fear for his safety because of the threat which had been made to him. He then saw a second man standing between him and his companion. That person was motioning his companion to move away from him (the victim). That person also had his arms out so as to prevent his companion from approaching the victim. The applicant again said "Just give me the bag, I know it's insured". He repeated this on a number of occasions before the victim finally handed over the backpack containing the money. It was only at that stage that the applicant released his grip upon the victim. 4 The victim then observed the applicant and his co-offender running west along Liverpool Street before turning into Castlereagh Street. The victim and his companion gave chase as the applicant and his co-offender ran into Goulburn Street and then into Pitt Street at which point they lost sight of the two men. A little later the victim and his companion saw the applicant and his co-offender emerging from a hotel. The applicant still had the backpack in his possession but in the mean time had changed his shirt. The applicant said, whilst giving evidence, that he had initially hidden in the toilet of the hotel. He conceded that he had then swapped shirts in order to change his appearance. The police were contacted and were provided with descriptions of the offenders by the victim and his companion. 5 A little later the applicant was observed walking in the Haymarket area by police. He attempted to run away when they pursued him. When apprehended he was still in possession of the backpack. In all $61,764.60 (being the nightclub's weekend takings) had been in the backpack. 6 All but $150 of the money was recovered. The applicant gave evidence that it had been taken by the co-offender. That person has not been brought to justice and the applicant declined to provide any information about him because he said that he feared for his safety were he to do so. The applicant also declined, as was his entitlement, to be interviewed or to participate in a line-up. 7 The applicant was 26 at the time of sentence. It was to his credit that he had no prior convictions of any kind. There was evidence that he came from a supportive background and that he was otherwise of good character. There was also evidence that he had been, for some time preceding the commission of the offence, in a stable relationship with a woman who had two young sons. The applicant acted as "a caring substitute father" to the boys. Although the relationship had temporarily ceased at the time of the offence, it had resumed by the time the applicant stood for sentence. The sentencing judge accepted that the applicant had acquitted himself well in his horticultural studies and that he had achieved some distinction in playing rugby league. 8 The applicant committed these offences against the background of the significant abuse of illicit drugs and alcohol. His dependency upon drugs had led to problems in both his relationship and in a business venture. At the time of sentence he had been employed as a horticulturalist with a local council. The sentencing judge found that the applicant had abstained from taking drugs for an extended period of time and that he had also taken positive steps towards overcoming his dependency upon drugs. His Honour was thus prepared to find that the applicant's prospects for rehabilitation were good and that he was therefore unlikely to re-offend. 9 The sentencing judge had specific regard to this Court's guideline judgment in R v Henry (1999) 46 NSWLR 346. It was there indicated that for the offence of armed robbery a sentence of between 4 and 5 years should be imposed in a typical case which included the following features;

(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:

[e]ach case will depend upon the nature and degree of the impairment, the extent of its contribution to the offence, and whether or not the sentence can be seen, in the particular circumstances, of that case to have a deterrent value, either specifically or generally. An individual assessment is necessary, and a bare invocation of the presence, in an offender, of a low level of intellectual functioning or mental disorder, as a circumstance requiring moderation in sentence, is likely to be both misleading and unhelpful. (at paras 26-27) 26 What his Honour did was simply to consider the question of whether s 21A(3)(j) had any operation in the light of the evidence before him. His Honour was not bound in any event to act solely upon Dr Roberts' opinion. In that context, it is important to recall that Dr Roberts did not have the advantage of hearing the explanation which the applicant advanced in evidence as to the circumstances in which he had committed the offence, an account which as I have said, differed materially from the version with which Dr Roberts had been provided. 27 It may be that in the passage to which I earlier referred that the sentencing judge was somewhat dismissive of Dr Roberts' report, although I am not disposed to conclude that the relevant findings made in respect of it were not open to his Honour. Nevertheless his Honour was prepared to find that the applicant was to some extent "at a low ebb" both in his "physical and emotional resources" at the time of the offence. Moreover his Honour accepted Dr Roberts' opinion that the offence, given the circumstances in which it was committed, "was conceived and acted upon in a manner that suggested irrationality". The sentencing judge also found that the offence, in common with the type of case referred to in Henry, involved limited planning and that the applicant's involvement in it was "relatively spontaneous". 28 Given the findings that the offence had been committed in such a fashion as to suggest irrationality, and that the other findings to which I have just referred are really tantamount to a conclusion that the applicant had acted impulsively, it is apparent that the sentencing judge has, in effect, made the favourable findings for which the applicant contends. 29 I would reject this ground of appeal. 30 The third ground of appeal asserts that the sentencing judge erred "in failing to give sufficient weight to the fact that the applicant had real prospects of rehabilitation, that he was of prior good character and was unlikely to re-offend". 31 It is conceded by the applicant that the sentencing judge made specific reference to each of these features of the case. It is also conceded that the sentencing judge made reference to the admirable efforts which the applicant had made, in the period between the commission of the offence and the sentencing hearing, in ridding himself of his drug dependency. 32 In those circumstances, I am not persuaded that this complaint has been made good. I would reject this Ground of Appeal. 33 The final ground identified in the written submissions, is that the sentence, and in particular the non-parole period, is manifestly excessive given all of the circumstances of the case. In oral argument the complaint was confined to an attack upon the length of the non-parole period. Allied to this was a submission that although his Honour found "special circumstances" his Honour "scarcely" varied the non-parole period which represented nearly 70% of the head sentence. 34 It was also submitted that the sentence, both as to the head sentence and in particular the non-parole period, exceeded sentences which have been imposed in what are said to be comparable cases. This state of affairs, it was submitted, has occasioned in the applicant a "justifiable sense of grievance". In support of this submission, the applicant referred in written submissions to a number of other decisions. Such an approach is, with respect, quite misguided. This Court has said repeatedly that it will not compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the offenders may share similar characteristics and may have committed similar crimes. That approach is adopted because what must be looked at is whether the challenged sentence is within the appropriate range and not how it compares with some other sentence which merely forms part of the applicable range. See R v Morgan (1993) 70 A Crim R 358. Moreover a number of the cases to which reference was made included Crown appeals the disposition of which give rise to quite different considerations and which renders them of little utility for present purposes. 35 The Court was also referred to statistics held by the Judicial Commission in respect of the offence under consideration. Suffice it to say that those statistics, insofar as they provide much assistance in the resolution of the present case, demonstrate, if anything, that the sentence which is subject to challenge was well within the broad discretionary range which was available to the sentencing judge. 36 Even if error had been established, this is a case in my view in which no lesser sentence was warranted. The sentencing judge allowed a discount of 20% for the plea of guilty which was generous given that it was not entered at the earliest opportunity. The guideline in Henry in any event contemplates that some allowance has already been made for the plea of guilty. Furthermore the starting point, before the discount for the plea of guilty, was at the bottom of the range suggested in Henry notwithstanding the fact that a very large quantity of money was taken during the course of this robbery. The sentencing judge extended to the applicant as much leniency as the circumstances permitted because ultimately it was necessary to impose a sentence which appropriately reflected the objective gravity of the offence. In those circumstances it would be inappropriate, in my view, to accede to the submission that the balance of the sentence which the applicant is serving should be converted to one of periodic detention or alternatively that the non-parole period should be reduced. I would reject the final ground of appeal. 37 I propose that leave to appeal should be granted but that the appeal should be dismissed. 38 GILES JA: I agree. 39 SMART AJ: I also agree. 40 GILES JA: That will be the order of the Court. ******

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