R v Doorey

DECISION : Leave to appeal granted; Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60630/99 WOOD CJ at CL WHEALY J Friday, 27 October 2000

REGINA V PETER JAMES CHRISTIAN DOOREY JUDGMENT

1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence of four years' penal servitude comprising a minimum term of two years and an additional term of two years imposed on him by his Honour Judge Coolahan on 13 October 1999. This followed his plea of guilty to one count of attempt armed robbery. The offence, which was charged under S 97(1) of the Crimes Act, carries a maximum penalty of 20 years' imprisonment.

2 The facts, as found by his Honour, were follows: 3 During the afternoon of Saturday, 17 May 1997, the applicant attended a backyard party at premises at Tanilba Bay. These premises were approximately 50 metres from the Ampol Service Station. The applicant began to drink Bourbon on his arrival at the party and then moved on to Rum, before drinking beer in the early hours of the evening. 4 About 8.30pm the applicant, wearing a borrowed jumper and a black beanie with some holes cut in it, walked from the party to the service station. He was carrying a black handled pocket knife which was partly concealed up the right hand sleeve of his jumper with a narrow blade protruding. This blade, was described by the service station attendant, who was the victim of the attempted robbery, as appearing to be about four inches long. 5 Once the appellant reached the service station he spoke to the attendant and demanded that she open the drawer of the cash register. She refused and reached for the telephone to dial 000. He then leant across the counter, took hold of the telephone cord, and cut it with a pocket knife. The attendant said that she saw the knife both before and when that act occurred. Not surprisingly she ran from the service station. 6 The applicant attempted to open the cash register by forcing the till "open" button, but this failed. He then walked from the service station and returned to the party. 7 He was spoken to by police later that evening and participated in a record of interview, the following day, in which he freely admitted the commission of the offence. In that record of interview he gave an account which included an admission that when he saw the look on the face of the attendant and observed her leave the premises, he realised what he was doing; that he decided he could not go through with it, and then abandoned the attempt. 8 Elsewhere in the record of interview he indicated that he assumed that he had carried out the offence to support one of his various habits, although he did not know which one. He accepted that his conduct was "pretty stupid" as he did not need the money for any such purpose. 9 Aggravating features of the offences, as his Honour appropriately found, were that it was committed at night; that it was directed at a service station attendant who was alone and therefore in a vulnerable position; and that the applicant carried and used a knife. There was no doubt in his Honour's mind, nor could there have reasonably been a doubt, that the attendant must have been significantly frightened by this incident despite her obvious courage in dealing with it. The production of a knife and the cutting of a telephone line were appropriately recorded as a manifestation of the applicant's seriousness in his endeavour to rob the service station. 10 While the offence may properly be regarded as impulsive, the taking of a knife to the premises and the borrowing of a jumper which was used to conceal it, did indicate some degree of premeditation. It may be accepted, as the applicant explained, having seen the obvious distress on the part of the attendant, that he was unable to bring himself to hurt her and that it was for this reason that he walked off. I would add, however, not before endeavouring, without success, to open the till. No doubt had he been successful in that regard, its contents or portion of them would have been removed. 11 His Honour accepted that the applicant did not intend to harm the attendant, however, as he noted, it is he often the case in offences of this type that there is no intention to do more than frighten the victim. That circumstance does not, to my mind, significantly detract from the objective seriousness of the offence. 12 Following the record of interview, the applicant was charged and was due to appear at Raymond Terrace Local Court on 13 January 1998. On that date he failed to appear and he was subsequently arrested on a bench warrant. He eventually appeared at the Local Court on 1 March 1999 when he was committed for trial. Thereafter he made numerous appearances in the District Court before offering a plea of guilty upon his arraignment on 22 July 1999. 13 He was aged 25 years when he appeared for sentence. He had a criminal history going back to 1991 which included offences of receiving, break enter and steal, common assault, assault occasioning actual bodily harm, stealing, supply prohibited drug and making false representation. There were some other minor offences on his record but no entry for an offence of the serious kind before the Court. 14 He explained that his plea of guilty was entered late because his legal advisers had raised with him the possibility of relying upon intoxication as a defence and because they needed time to investigate that possibility. The applicant also explained that he had failed to appear at the Raymond Terrace Local Court because he was in hospital at the time. He said, in effect, that he had not understood why he committed the attempted robbery and he wanted to gain that understanding. He added that he had a long standing problem with alcohol and drugs, but since his arrest in relation to this offence, he had undergone some periods of rehabilitation with the consequence that his condition had become controllable. 15 The explanations which I have mentioned were accepted by his Honour, but neither of them materially alters the fact that his plea was late, and offered in circumstances where a conviction was inevitable. He was entitled to the benefit of the utilitarian value that attaches to that plea for the reasons explained in Thomson and Houlten 2000 NSWCCA 309. He was also entitled to the benefit of the remorse which he displayed. Neither matter was overlooked by his Honour who clearly was cognisant of the fact of the plea and of the explanation offered for its lateness. 16 After noting the subjective circumstances and after making reference to the guideline judgment of this Court in Henry (1999) 46 NSWLR 346, his Honour observed: "The sentence which I would normally have imposed is one of five years, but it seems to me in this case that a full term of four years is appropriate".

That term his Honour then divided equally between the minimum and additional terms. 17 In reducing the sentence and in finding special circumstances justifying a departure from the normal ratio, it would seem that his Honour gave regard to the circumstances that the applicant suffered from a personality disorder with prominent borderline traits and from a vulnerability to depression. Additionally, it would appear from the reasons for sentence, that his Honour took into account that the applicant had a history of self-harm, of alcohol and drug abuse, and also faced difficulty within the prison system. This latter circumstance was related to the fact that the applicant's father had apparently been a somewhat disliked former prison officer, who had attracted some opprobrium in relation to his period of service at Bathurst Gaol. 18 Whether that opprobrium and judgment of his father had any basis, in fact, is not of present relevance. His Honour accepted that this was the view held of him by other prison inmates. Clearly it was a circumstance which potentially exposed the applicant to the risk of assault by other prison inmates and possibly by prison officers, by reason of the lingering resentment which was said to exist. 19 There had been at least one occasion, in 1995, on which the applicant had been stabbed whilst in custody. This, it was said, led him to carry a knife for self protection, and brought about the condition of post traumatic stress disorder which Doctor Wilcox noted in her report. It also led to his life becoming somewhat more chaotic than it had previously been.

20 It was first submitted that the sentence was manifestly excessive, and that the present case was distinguishable from that discussed in the guideline judgment of this Court in Henry, so far as there was no use of a knife in a way directly threatening violence, and in so far as there was said to be a link between the commission of the offence, and the prison stabbing in 1995, which had left the applicant with the untreated psychological problems previously mentioned. It was additionally put that, on the occasion of this offence, he was suffering from depression, and that this and the other matters which I have identified, interfered with his judgment. 21 In Henry it was said by the Court that: "Where a defence of armed robbery is characterised by the following features:

(i) young offender with no or little 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 a vulnerable position such as shopkeeper or taxi driver; (vi) small amount taken; (vii) plea of guilty, the significance of which is limited by a strong Crown case; the sentence imposed should fall within the range of four to five years imprisonment".

22 The Court also stated that a range and not a fixed starting point is appropriate given that some of the features are inherently variable and the identified factors will not comprise all the factors relevant to the sentencing process. 23 The present was a case in which items (ii), (iii), (iv), (v) and (vii) were each present. Item (vi) would have been satisfied but for the inability of the applicant to open the till. The applicant did fall, in my view, to be considered somewhat more harshly, however, in relation to item (i), since he had a prior criminal history of some significance, for the offences previously mentioned. He was also subject to recognisance to be of good behaviour for three years for an offence of steal from the person - a circumstance of aggravation for the reasons mentioned in Daridis NSWCCA 18 December 1986 per Street J. 24 Moreover, as was made clear in Thwaites NSWCCA 6 October 1993, deterrent sentences must be expected where crimes of the kind before the Court are directed towards service station attendants, and similar persons, whose occupation leaves them particularly vulnerable to robbery. That has an even greater significance concerning offences carried out under cover of darkness, and out of busy trading hours. 25 The matters I have identified were circumstances of seriousness placing this case above, or at least within the upper range noted in Henry, even allowing for the fact of impulsivity and for the extent to which the applicant's judgment might have been impaired for the reasons identified by Doctor Wilcox. 26 So far as it was suggested that the knife used in the present case was only a small pocket knife, and as such not a "large or more lethal weapon calculated to instil additional fear", I would reject that proposition as groundless. History unfortunately shows that pocket knives are capable of inflicting serious, even fatal injuries. The carriage and use of a knife, of any kind, in the course of an offence is regarded by the community with abhorrence. That is not to elevate a crime of armed robbery to any greater significance because of the use or presence of a knife, since proof that the offence was carried out under arms is one of the circumstances which is required for a conviction. However, the abhorrence which the community has in relation to knives has been stated with crystal clarity by this Court on many occasions; see, for example, Underhill NSWCCA 9 May 1996, Rothapfel NSWCCA 26 March 1992 and Randall NSWCCA 19 April 1994. 27 I would firmly reject any notion that the use of a knife is to be regarded as having a degree of seriousness that is proportionate to its size. Such a proposition is, to my mind, lacking in logic. 28 It is the fact, in the present case, that the knife was not used in a way which directly threatened actual harm to the victim, for example, as might have been the case had it been held at her throat. However, it was held in the applicant's hand, and it was observed by the victim who was quite unable to know what might follow if she offered active resistance. Her immediate response to it, and her flight from the premises, provide ample testimony of the fear with which she regarded this aspect of the applicant's conduct. 29 So far as it was suggested that the matter lacked objective seriousness being only an attempt, I would similarly reject that proposition. It is the case that an attempt attracts the same potential maximum penalty as the performance of the substantive crime. Every case has to be treated and assessed upon its merits. In some cases an attempt may constitute an offence of lesser seriousness, if there was a withdrawal or a failure to carry the matter through from a very early stage. In the present case, however, it was only the inability of the applicant to open the till, which meant that the substantive offence was not implemented. In the circumstances of this case I would regard the attempt as still constituting a matter of particular seriousness. 30 So far as the applicant's state of intoxication or need to feed a habit are concerned, I would merely refer to the observations which were passed by me in the decision of Henry at page 397-398. Intoxication and a need to acquire funds to support a habit - whether it be drugs or alcohol - had a relevance in the respects there identified, but they do not provide any excuse for the criminality involved. None of these factors seems to me to require an assessment of the present offence, as one occupying a degree of seriousness less than that attributed to it by the learned sentencing judge. 31 It was next submitted that the applicant's subjective circumstances were exceptional. I am, however, persuaded that they were all given appropriate and sufficient weight. As I have observed, the applicant's history of drug and alcohol abuse provided no excuse. His psychological state and his possible difficulty within the prison system were of relevance and of weight. However to my mind, they were sympathetically and appropriately dealt with by his Honour by way of the reduction of a sentence that he said that he would otherwise have imposed. Moreover, they were allowed for in the finding of special circumstances which led to a significant adjustment in the ratio between the minimum and the additional terms. 32 Any sentence other than that imposed would have failed, in my view, to reflect the criminality involved and would have offended against the principles noted in Rushby (1977) 1 NSWLR 594. So far as it was submitted there should have been a further adjustment in the ratio between the minimum and additional terms, that, to my mind, would have offended against the principle in Morrissey NSWCCA 15 July 1994 where this Court observed that: "A decision to vary the statutory proportion requires consideration not only of the desirability of increasing the additional term, but also the appropriateness of reducing the minimum term which must nevertheless remain such as appropriately reflects the criminality involved."

Any further reduction would have produced a minimum term which simply did not reflect the criminality involved. 33 In those circumstances I would grant leave to appeal but I would dismiss the appeal. 34 WHEALY J: I agree. 35 WOOD CJ: The order of the Court will be accordingly as I have proposed. **********

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