R v Griffiths

DECISION : Leave to appeal against sentence granted - appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL No 60756/99 JAMES J WHEALEY J Wednesday 14 February 2001 REGINA v DAVID JOHN GRIFFITHS JUDGMENT

1 JAMES J: David John Griffiths has applied for leave to appeal against sentences imposed on him in the District Court on 17 November 1999 by Judge Howie, after he had pleaded guilty to two counts of armed robbery. On the first count Judge Howie imposed a sentence of six and a half years, with a minimum term of four years ten months commencing on 30 May 1999 and an additional term of one year eight months. On the second count Judge Howie imposed a sentence of a fixed term of three years commencing on 30 May 1999 and hence to be served concurrently with part of the minimum term of the sentence imposed on the first count. In sentencing the applicant on the first count his Honour took into account an offence of taking and using a motor vehicle, an offence under s 154A of the Crimes Act. 2 In his remarks on sentence Judge Howie stated the facts of the offences in a way which has not been subjected to any criticism upon the hearing of this appeal. His Honour said: "The facts of each of the offences are very similar. Each of the robberies was committed on the same premises, being a pharmacy in Penrith. The first robbery was committed on 18 April 1999, the second on 26 April - that is eight days later. In relation to the first robbery, the prisoner went to a car park and stole a motor vehicle which he used to convey himself to the pharmacy. The pharmacy, at the time, at around about midday, was staffed by a pharmacist and a young female assistant. The prisoner produced a knife to the assistant and told her that he wanted all the Normison tablets. Normison is a brand of sleeping tablet. The prisoner was directed to a shelf where the tablets were kept and he emptied that shelf into a plastic bag he was carrying. He then asked for a drug called Rohypnol. When the prisoner was told that none of that drug was kept in stock, he became agitated. He was then directed to another brand of drug of a similar nature and the prisoner emptied the shelf of that drug into the plastic bag. The prisoner then asked for cash and was handed or took approximately one thousand dollars. The prisoner then left the pharmacy and drove off in the stolen vehicle which he abandoned a short time later. The second offence, as I have already indicated, was committed on the same pharmacy in the early evening of 26 April. The pharmacy was again staffed by a pharmacist and a female assistant, but they were not the same persons who were the victims of the first robbery. Again, the prisoner presented a knife, although on this occasion, he had taken the precaution of covering his face with a balaclava. Again, he demanded that he be given the drug Rohypnol and again he was told that the drug was not stocked. The prisoner then demanded that he be given Normison tablets and was directed to a shelf containing that drug and again cleared the shelf into the bag that he was carrying. After the prisoner unsuccessfully attempted to open the cash drawer, he left the pharmacy." 3 The female assistant who was a victim of the first robbery attended a police station and successfully identified a photograph of the applicant in a book of photographs, as being a photograph of the person who had committed the first robbery. Information obtained by the police in the course of their investigation into the robbery supported the correctness of the identification. 4 When he was initially interviewed by the police the applicant denied that he had committed any armed robbery but he did make a number of admissions which tended to incriminate him. The applicant was charged with the first robbery. 5 Soon after he had been charged with committing the first robbery, the applicant told police that he wished to be re-interviewed. When interviewed again, the applicant admitted that he had committed the two robberies, although he had a poor recollection of them. He told police that he had committed both offences in order to obtain drugs for his personal use. 6 In his remarks on sentence his Honour commented with regard to the second offence: "It is clear that but for the prisoner's admissions the police had no evidence at all that he had committed the second offence. It may have been that a circumstantial case could have been mounted to prove that he was responsible for that offence, based on its similarities with the first robbery, but such a case could have depended on acceptance of the reliability of the identification of the prisoner in respect of the first robbery. Cases of identification by strangers are notoriously difficult to prove. The prisoner, in my opinion therefore, should not only receive a significant discount for his pleas of guilty, but he must also be rewarded for his confessions to the police and, in particular, for his voluntary revelation that he committed the second armed robbery. These admissions can be seen, in my view, as a sign of contrition and a realisation of the seriousness of his conduct on these two occasions. I think that the prisoner was genuinely surprised and disturbed by the fact that he was prepared to commit such an offence." 7 There was evidence in the proceedings on sentence that the young female victim of the first robbery had been severely traumatised by her experience. His Honour referred to the need for courts to impose salutary sentences to protect persons working in occupations such that they are vulnerable to being robbed. A circumstance of aggravation noted by his Honour was that the applicant had been on parole for offences of dishonesty, at the time of committing the robberies. 8 In his remarks on sentence his Honour noted some of the more salient subjective features of the applicant, including that he was 33 years old, that he had been abusing drugs since the age of 14 and had become a heroin addict; that he had a criminal record dating back to 1981 for offences of dishonesty, although there had been a gap in his criminal history between 1989 and 1994 when he was participating in a methadone programme, was in employment and was living with his parents. 9 His Honour referred to R v Henry (1999) 46 NSWLR 346, the guideline judgment for sentencing for offences of armed robbery. His Honour considered that the present offences were more serious than the type of offence described by the Chief Justice in para (162) of his judgment in Henry, in that the applicant was not a young offender with little or no criminal history and that he was on parole at the time of committing the offences. With regard to the second offence, although his Honour considered that the applicant should receive a considerable discount for revealing his guilt of the second offence, the applicant, nevertheless, had to receive some punishment for the second offence. His Honour declined to find that there were special circumstances within s 5(2) of the Sentencing Act. 10 On the hearing of this application it was not disputed by counsel for the applicant that the sentencing judge had been correct in characterising the offences as worse than the kind of offence described by the Chief Justice in para (162) of his judgment in Henry. However, it was submitted that, if a proper allowance was made for the applicant's pleas of guilty, in accordance with the guideline judgment concerning pleas of guilty (R v Thompson, R v Houlton {2000} NSW CCA 309) and if a proper allowance was made for the applicant's voluntary disclosure of guilt of the second offence, in accordance with the decision of the Court of Criminal Appeal in R v Ellis, (1986) 6 NSWLR 603, then it could be seen that the sentences imposed by his Honour were manifestly excessive, either because his Honour had started at too high a figure before making allowances for the pleas of guilty and the voluntary disclosure of guilt, or, if his Honour had started at an appropriate figure, the allowances his Honour had made for those factors were inadequate. 11 I do not consider that either of these submissions should be upheld. In his judgment in Henry the Chief Justice said that sentences for offences having the characteristics described by him in para (162) of his judgment should generally fall between four and five years for the full term. I have already noted that the two offences committed by the applicant were worse offences than the kind of offence described by the Chief Justice in para (162) of his judgment in Henry. In my opinion, it was open to the sentencing judge to take the view that the offences were significantly worse offences. The applicant was not a young offender and he had a long criminal history, even though he had no previous conviction for armed robbery. The offences were committed while the applicant was on parole. In sentencing the applicant for the first offence the sentencing judge had to take into account the further offence of taking and using a conveyance. The manner of commission of both offences of robbery indicated some degree of planning. As regards the allowance which should have been made for the pleas of guilty, the kind of offence described by the Chief Justice in para (162) of his judgment in Henry incorporates as one of its features a plea of guilty, albeit, as was indicated in R v Thompson, R v Houlton, a late plea of guilty. 12 As regards the second offence, his Honour was correct in holding that, notwithstanding the voluntary disclosure of guilt, some punishment had to be imposed. Hence, his Honour was punishing the applicant, not for one offence, but for two offences of armed robbery. His Honour made the sentence he imposed for the second offence fully concurrent with part of the minimum period of the sentence imposed for the first offence, so that some part of the effective sentence of six and a half years should be regarded as reflecting the criminality in the second offence. 13 In my opinion the sentences imposed by his Honour, even after taking into account the early pleas of guilty and the voluntary disclosure of guilt of the second offence, were not manifestly excessive. 14 Accordingly, I would grant leave to appeal against sentence but I would dismiss the appeal against sentence. 15 WHEALEY J: I agree. 16 JAMES J: The orders of the court will be as proposed by me.

      IN THE COURT
      OF CRIMINAL APPEAL
      No 60756/99

JAMES J WHEALEY J Wednesday 14 February 2001 REGINA v DAVID JOHN GRIFFITHS JUDGMENT

1 JAMES J: David John Griffiths has applied for leave to appeal against sentences imposed on him in the District Court on 17 November 1999 by Judge Howie, after he had pleaded guilty to two counts of armed robbery. On the first count Judge Howie imposed a sentence of six and a half years, with a minimum term of four years ten months commencing on 30 May 1999 and an additional term of one year eight months. On the second count Judge Howie imposed a sentence of a fixed term of three years commencing on 30 May 1999 and hence to be served concurrently with part of the minimum term of the sentence imposed on the first count. In sentencing the applicant on the first count his Honour took into account an offence of taking and using a motor vehicle, an offence under s 154A of the Crimes Act. 2 In his remarks on sentence Judge Howie stated the facts of the offences in a way which has not been subjected to any criticism upon the hearing of this appeal. His Honour said: "The facts of each of the offences are very similar. Each of the robberies was committed on the same premises, being a pharmacy in Penrith. The first robbery was committed on 18 April 1999, the second on 26 April - that is eight days later. In relation to the first robbery, the prisoner went to a car park and stole a motor vehicle which he used to convey himself to the pharmacy. The pharmacy, at the time, at around about midday, was staffed by a pharmacist and a young female assistant. The prisoner produced a knife to the assistant and told her that he wanted all the Normison tablets. Normison is a brand of sleeping tablet. The prisoner was directed to a shelf where the tablets were kept and he emptied that shelf into a plastic bag he was carrying. He then asked for a drug called Rohypnol. When the prisoner was told that none of that drug was kept in stock, he became agitated. He was then directed to another brand of drug of a similar nature and the prisoner emptied the shelf of that drug into the plastic bag. The prisoner then asked for cash and was handed or took approximately one thousand dollars. The prisoner then left the pharmacy and drove off in the stolen vehicle which he abandoned a short time later. The second offence, as I have already indicated, was committed on the same pharmacy in the early evening of 26 April. The pharmacy was again staffed by a pharmacist and a female assistant, but they were not the same persons who were the victims of the first robbery. Again, the prisoner presented a knife, although on this occasion, he had taken the precaution of covering his face with a balaclava. Again, he demanded that he be given the drug Rohypnol and again he was told that the drug was not stocked. The prisoner then demanded that he be given Normison tablets and was directed to a shelf containing that drug and again cleared the shelf into the bag that he was carrying. After the prisoner unsuccessfully attempted to open the cash drawer, he left the pharmacy." 3 The female assistant who was a victim of the first robbery attended a police station and successfully identified a photograph of the applicant in a book of photographs, as being a photograph of the person who had committed the first robbery. Information obtained by the police in the course of their investigation into the robbery supported the correctness of the identification. 4 When he was initially interviewed by the police the applicant denied that he had committed any armed robbery but he did make a number of admissions which tended to incriminate him. The applicant was charged with the first robbery. 5 Soon after he had been charged with committing the first robbery, the applicant told police that he wished to be re-interviewed. When interviewed again, the applicant admitted that he had committed the two robberies, although he had a poor recollection of them. He told police that he had committed both offences in order to obtain drugs for his personal use. 6 In his remarks on sentence his Honour commented with regard to the second offence: "It is clear that but for the prisoner's admissions the police had no evidence at all that he had committed the second offence. It may have been that a circumstantial case could have been mounted to prove that he was responsible for that offence, based on its similarities with the first robbery, but such a case could have depended on acceptance of the reliability of the identification of the prisoner in respect of the first robbery. Cases of identification by strangers are notoriously difficult to prove. The prisoner, in my opinion therefore, should not only receive a significant discount for his pleas of guilty, but he must also be rewarded for his confessions to the police and, in particular, for his voluntary revelation that he committed the second armed robbery. These admissions can be seen, in my view, as a sign of contrition and a realisation of the seriousness of his conduct on these two occasions. I think that the prisoner was genuinely surprised and disturbed by the fact that he was prepared to commit such an offence." 7 There was evidence in the proceedings on sentence that the young female victim of the first robbery had been severely traumatised by her experience. His Honour referred to the need for courts to impose salutary sentences to protect persons working in occupations such that they are vulnerable to being robbed. A circumstance of aggravation noted by his Honour was that the applicant had been on parole for offences of dishonesty, at the time of committing the robberies. 8 In his remarks on sentence his Honour noted some of the more salient subjective features of the applicant, including that he was 33 years old, that he had been abusing drugs since the age of 14 and had become a heroin addict; that he had a criminal record dating back to 1981 for offences of dishonesty, although there had been a gap in his criminal history between 1989 and 1994 when he was participating in a methadone programme, was in employment and was living with his parents. 9 His Honour referred to R v Henry (1999) 46 NSWLR 346, the guideline judgment for sentencing for offences of armed robbery. His Honour considered that the present offences were more serious than the type of offence described by the Chief Justice in para (162) of his judgment in Henry, in that the applicant was not a young offender with little or no criminal history and that he was on parole at the time of committing the offences. With regard to the second offence, although his Honour considered that the applicant should receive a considerable discount for revealing his guilt of the second offence, the applicant, nevertheless, had to receive some punishment for the second offence. His Honour declined to find that there were special circumstances within s 5(2) of the Sentencing Act. 10 On the hearing of this application it was not disputed by counsel for the applicant that the sentencing judge had been correct in characterising the offences as worse than the kind of offence described by the Chief Justice in para (162) of his judgment in Henry. However, it was submitted that, if a proper allowance was made for the applicant's pleas of guilty, in accordance with the guideline judgment concerning pleas of guilty (R v Thompson, R v Houlton {2000} NSW CCA 309) and if a proper allowance was made for the applicant's voluntary disclosure of guilt of the second offence, in accordance with the decision of the Court of Criminal Appeal in R v Ellis, (1986) 6 NSWLR 603, then it could be seen that the sentences imposed by his Honour were manifestly excessive, either because his Honour had started at too high a figure before making allowances for the pleas of guilty and the voluntary disclosure of guilt, or, if his Honour had started at an appropriate figure, the allowances his Honour had made for those factors were inadequate. 11 I do not consider that either of these submissions should be upheld. In his judgment in Henry the Chief Justice said that sentences for offences having the characteristics described by him in para (162) of his judgment should generally fall between four and five years for the full term. I have already noted that the two offences committed by the applicant were worse offences than the kind of offence described by the Chief Justice in para (162) of his judgment in Henry. In my opinion, it was open to the sentencing judge to take the view that the offences were significantly worse offences. The applicant was not a young offender and he had a long criminal history, even though he had no previous conviction for armed robbery. The offences were committed while the applicant was on parole. In sentencing the applicant for the first offence the sentencing judge had to take into account the further offence of taking and using a conveyance. The manner of commission of both offences of robbery indicated some degree of planning. As regards the allowance which should have been made for the pleas of guilty, the kind of offence described by the Chief Justice in para (162) of his judgment in Henry incorporates as one of its features a plea of guilty, albeit, as was indicated in R v Thompson, R v Houlton, a late plea of guilty. 12 As regards the second offence, his Honour was correct in holding that, notwithstanding the voluntary disclosure of guilt, some punishment had to be imposed. Hence, his Honour was punishing the applicant, not for one offence, but for two offences of armed robbery. His Honour made the sentence he imposed for the second offence fully concurrent with part of the minimum period of the sentence imposed for the first offence, so that some part of the effective sentence of six and a half years should be regarded as reflecting the criminality in the second offence. 13 In my opinion the sentences imposed by his Honour, even after taking into account the early pleas of guilty and the voluntary disclosure of guilt of the second offence, were not manifestly excessive. 14 Accordingly, I would grant leave to appeal against sentence but I would dismiss the appeal against sentence. 15 WHEALEY J: I agree. 16 JAMES J: The orders of the court will be as proposed by me.

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