R v Ferrada

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0945 FILE NUMBER(S) : LOWER COURT Solomon DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60316/03

BARR J KIRBY J

Thursday, 18 December 2003 R v Fernando FERRADA Judgment 1 BARR J: This is an application for leave to appeal against sentences imposed in the District Court. On 25 march 2002 the applicant, Fernando Ferrada, pleaded guilty in the Local Court to three offences, namely that on 21 March 2002 he broke and entered a building and committed a serious indictable offence, that on 24 April 2002 he robbed a certain credit union of the sum of $5012 and that on 29 April 2002 he robbed another credit union of the sum of $39,000 while armed with an offensive weapon, namely a kitchen knife. He was committed to the District Court for sentence and on 21 February 2003 Solomon DCJ sentenced him on the first count to a fixed term of imprisonment of four years, on the second to a fixed term of six years and on the third to a term of imprisonment of eleven years with a non-parole period of seven years. All sentences were ordered to run concurrently. The total effective sentence was therefore one of eleven years' imprisonment with a non-parole period of seven years. 2 In imposing sentence his Honour took into account under the provisions of s32 Crimes (Sentencing Procedure) Act the malicious destruction of a motor vehicle by fire and obtaining meals and drinks by false representation. 3 On 21 March 2002 the applicant reversed a station wagon into the front doors of a produce store in South Grafton and stole cattle drench worth more than twenty thousand dollars. Possibly accompanied by a woman, he drove to another part of the town and tried to unload the stolen goods. He was seen and realised that he had been seen. He drove off a second time and set fire to the station wagon in an attempt to distance himself from the offence. When spoken to by the police he denied any knowledge of it and said that he had hitch hiked to Grafton. Not all the stolen goods were recovered. The owner of the stock lost more than $12,000. 4 The deliberate destruction by fire of the motor vehicle was one of the matters taken into account by his Honour. 5 The applicant was charged with the offence but allowed bail. The remaining offences were committed during the currency of bail. 6 On 24 April 2002 the applicant entered the offices of Big River Credit Union in Coffs Harbour. He was wearing a jacket and had a black stocking over his head. He was unarmed. He asked for cash and warned staff not to press the alarm. He took some money and insisted on being handed more. He got away with $4050. Police were given a description of the robber and spoke to the applicant because he matched it. He made no admissions and was not charged. 7 On 29 April 2002 the applicant entered the offices of Banana Coast Credit Union in Coffs Harbour. Again he had a black stocking over his head but this time he had armed himself with a kitchen knife. He told everybody to get onto the floor, jumped onto the counter and threatened the staff. He opened a number of cash drawers and demanded money. Altogether he took more than $39,000. A client of the Credit Union followed him and the applicant threatened to kill him if he did not leave him alone. The client told two security guards and the three chased the applicant. Police arrived and recognised him. He was found in possession of the money. He showed police where he had hidden the knife. 8 He told the police that he had carried out the robbery because people to whom he owed money had put pressure on him. He said that he had a heavy drug habit and needed about two to four thousand dollars for himself and his girlfriend. 9 The applicant was caught red-handed and could scarcely deny his commission of the offence. However, he volunteered to the police that a week earlier he had robbed the Big River Credit Union. That was a matter of some consequence because without that voluntary statement the police would not have had a case against him. 10 The second matter taken into account by the sentencing judge concerned an occasion when the applicant and his girlfriend obtained meals and drinks by false representation. They went to a restaurant, ordered and ate dinner and drank beverages. When they had finished they ran away without paying. 11 The applicant was born on 9 March 1963 and is now forty years of age. He immigrated to Australia from Chile with his family early in the 1970s. He began using illicit drugs in his early teenage years and seems to have been seriously concerned with them ever since. Between 1980 and 1988 he was regularly before the courts, principally for offences of dishonesty and dealing in and using illegal drugs. In 1988 he was sentenced in the Supreme Court of Western Australia to cumulative terms of six years and one year for robbery while armed and breaking and entering a dwelling with intent, together with a concurrent sentence of nine months for false pretences. The non-parole period was not recorded on the documents put before this Court. However, by October 1991 the applicant was in the Magistrate's Court in Cairns, Queensland to be dealt with for offences of obscene language, resisting police and two counts of wilfully and unlawfully destroying property. He was before the courts in the same city on three occasions during the following year for a number of drug offences as well as three counts of false pretences and three of stealing. 12 In June 1993, still in Cairns, he was sentenced for stealing with actual violence while armed with a dangerous weapon as well as for drug offences. He was imprisoned for nine years. There were intervening offences during the same and the following year and in 1996 he was imprisoned for four months for escaping from lawful custody. Thus a combination of convictions, principally the one of stealing with actual violence whilst armed with a dangerous weapon, seem to have produced the result that the applicant was in custody continuously, apart from the period of escape, between January 1993 and 22 September 2000. 13 A report was before his Honour from an officer of the Probation and Parole Service. It stated that following his release from prison in 2000 the applicant had moved into a house next to his parents' house. His continuing drug use and misbehaviour, some of which resulted in damage to the house, and possibly involving an illicit business endeavour, led to his and his partner's being thrown out. The applicant had no employment prospects, being on a disability pension because of hepatitis C, bone fractures in the hand and a bad back. His major problem related to his use of heroin. His girlfriend appeared to be addicted to the use of heroin. 14 Counsel for the applicant put before the Court statistics published by the Judicial Commission of sentences imposed by the higher courts for robbery armed with an offensive weapon, robbery and breaking, entering and stealing. The third count was the most serious and attracted a maximum sentence of twenty-five years' imprisonment. Statistics show that between May 1999 and September 2002 nine hundred and thirty four offenders dealt with in the higher courts received head sentences of up to twelve years, but only one percent had head sentences so long and only three percent had head sentences of eight years or longer. Sixty-two percent had head sentences of four years or less. Non-parole periods were correspondingly less. The statistics for the other two offences, which were less serious, show correspondingly lower sentences. 15 The Court has warned on a number of occasions about the caution with which such statistical figures ought to be approached. One of the difficulties with them is that it is impossible to tell from them what the criminal histories of the offenders were, whether and to what extent offences were committed on bail, as these were, and whether offences were multiple, as these were. More importantly, what is here attacked is the total effective sentence, a head sentence of eleven years with a non-parole period of seven years. The two internal concurrent fixed terms cannot be ignored for these purposes. His Honour stated that he intended to impose an effective sentence to reflect the totality of the applicant's criminality, that is the criminality contemplated by all three offences and the two matters taken into account. 16 In my opinion the statistical figures do not demonstrate error on part of the sentencing judge. 17 The next ground pf appeal complained that his Honour erred in failing to identify the length of sentences taken as a starting point or the proportionate discount allowed. Reliance was placed on a decision of this Court in R v PPB [1999] NSWCCA 360. Whatever may be said about the desirability of nominating discounts in any particular case, there is no rule that a sentencing judge must do so or that the failure to do so will be held erroneous. See the judgment of Spigelman CJ in R v Thomson and Houlton (2000) 49 NSWLR 383 at para 160. There is no substance in this ground.

18 The next submission was that his Honour erred in failing adequately to discount the sentences. It was pointed out first that the pleas of guilty had been entered in the Local Court at the earliest opportunity, entitling the applicant to a substantial discount for their utilitarian value. That submission may be accepted. In addition, as his Honour found, the pleas were evidence of contrition. While that conclusion might have been surprising in the case of a forty year old well-experienced robber, the facts of this case were unusual. His volunteering that he had committed the robbery at Big River Credit Union was extraordinary. The police had no case against him and he had no reason to believe that they had. He told the police that he was sorry for what he had done. The sentencing judge accepted that he was.

19 There was evidence before the sentencing judge that the applicant had given assistance to the authorities. This Court has been made privy to details of what the applicant did and what resulted. He gave police information about somebody he had encountered in custody. The police took the information seriously but the Director of Public Prosecutions declined to register the applicant as a witness. That could not have surprised anybody in view of the applicant's demonstrated constitutional dishonesty. However, as a result of his actions the applicant was kept on protection. His Honour held, contrary to a submission by the Crown, that the applicant was entitled to an allowance in the circumstances, though his Honour did not quantify it. The Crown did not submit in this Court that his Honour was wrong. 20 The author of the Probation and Parole report stated that the applicant's alcohol and other drug worker had commented that he "was taking the first steps in relation to addressing issues surrounding his drug use". The meaning of that statement is not plain but was, I take it, slight indication that there were prospects of rehabilitation. 21 The thrust of the applicant's complaint in this Court was that the head sentence and the non-parole period on the third count, and consequently the total effective head sentence and non-parole period, were excessive. It was submitted that given the substantial discount his Honour had undertaken to afford the applicant for pleading guilty at the earliest opportunity, for his accepted remorse and for the consequences of his offer to assist the authorities his Honour must, in order to arrive at a head sentence of eleven years, have commenced with a head sentence very close to the top of the twenty-five year range. Without wishing to play down the seriousness of the robbery, it was not of a kind that ought to attract a sentence of that magnitude. 22 I think that there may be substance in the submission. Although his Honour had to fashion a series of sentences which gave effect to the totality of criminality he was obliged also to impose for each count a sentence appropriate to that count and no other. The sentencing process required that to be done first and for totality then to be taken into account by whatever degrees of concurrency of accumulation were appropriate: Pearce v The Queen (1998) 194 CLR 610. 23 It seems to me, however, that the practical question for this Court is, whether or not the individual sentences complied with the requirement of Pearce v The Queen, the overall sentence was appropriate to reflect the objective and subjective features of the totality of the applicant's criminality. To put it another way, would a conclusion of error on the third count produce at once the need to reduce the sentence on that count but, in order to reflect the totality of criminality, to make partly cumulative sentences previously made wholly concurrent? 24 It seems to me that notwithstanding the substantial discounts which the applicant had earned for the utilitarian value of his pleas of guilty, his contrition, his assistance and the special discount he was entitled to by making the Crown case on the second count, the total effective sentence was not outside the range of his Honour's proper sentencing discretion. The applicant was a mature man, seriously concerned with drugs for many years, still a heroin addict and still in need of personal deterrence from repeating these serious crimes. The sentences carried a strong need for general deterrence. The fact that the offences were carried out to fund a drug habit was not a mitigating feature. The fact, if true, that they were carried out to satisfy the urgent demands of others was not a mitigating feature. His Honour was not sentencing the applicant again for the serious offences of like kind carried out in Western Australia and Queensland, but he was bound to take them into account as seriously aggravating his criminality. 25 I do not think that the attack on the overall sentence has been made good. I would grant leave to appeal but would dismiss the appeal. 26 KIRBY J: I agree with Barr J.

27 BARR J: The orders therefore are as I have proposed.

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