R v Hansen [2002] NSWCCA 321 | Case summary

Wednesday, 14 AUGUST 2002 R v Euon Arne HANSEN Judgment 1 Dunford J: This is an application for leave to appeal against the sentences imposed by the late Acting Judge Ford QC in the District Court at Campbelltown on 6 April 2000, following the Applicant's pleas of guilty before the Magistrate and committal for sentence pursuant to s 51A of the Justices Act 1902. 2 The charges were two counts of robbery in company contrary to s 97(1) of the Crimes Act 1900 which carries a maximum sentence of imprisonment for 20 years, one count of robbery contrary to s 94 of the Crimes Act which carries a maximum sentence of imprisonment for 14 years, and one count of use offensive weapon to prevent lawful apprehension contrary to s 33B(a) of the Crimes Act which carries a maximum penalty of 12 years. There was also a matter on the Form 1 of resisting a police officer in the execution of his duty. 3 The two robberies in company were committed on 27 April and 25 May 1999, both at the Caltex Service Station at Minto. The robbery was at the Five Star Supermarket at Bradbury on 18 July 1999 and the use of the offensive weapon to prevent lawful apprehension occurred later that same day when the Applicant was chased and caught following the robbery. 4 The facts of various matters were as follows. On Tuesday 27 April 1999 at about 12.10 am the console operator at Minto Caltex Service Station saw three males walking towards the store, one of whom was the Applicant. They entered the store and after a time the console operator walked over to serve the Applicant and the other male, and when he did so he found that the third male had climbed under the counter and was holding a knife approximately 15cm in length in his right hand. He waved the knife in front of the console operator and ordered him to open the till draw. The console operator did so, whereupon the Applicant jumped up onto the counter on his knees and removed the cash from the register. The amount was estimated at $520. The Applicant and the other two males then ran from the store. 5 On 25 May 1999 at about 5.15 am the same console operator was working in the same service station when he saw the Applicant and another male enter the service station. He was requested to call a taxi and walked over to the phone within the service area and attempted to do so. While doing so he had his back turned to the Applicant and the other male when he heard the buttons to the cash register being pushed. He turned around to see the Applicant kneeling on the counter on his knees with a knife approximately 15cm in length in his right hand. He put the phone down and walked toward the Applicant who pointed the knife towards him whereupon he retreated. The Applicant opened the cash register and removed the cash notes from inside, taking an estimated $470. The other male was standing next to the Applicant on the other side of the counter and ordered the console operator to hand over his wallet. He had $10 in his wallet which he handed over to the other male. Both of them then left the store. The console operator was able to identify the Applicant as the person who had committed the robbery one month earlier, and he was later identified from video footage in relation to these robberies. 6 On 3 August after being arrested for the other matters, the Applicant viewed the surveillance video footage of these robberies and identified himself to police as the person depicted making full admissions. He stated that the offences had been committed to support his drug addiction. 7 On Sunday, 18 July 1999 at about 2.50pm the Applicant went to the Five Star Supermarket at Bradbury at the shopping centre and when passing over payment for a packet of chewing gum he reached over the counter, pushed the check-out operator away, reached into the till and took $220 in cash from the cash register. He then ran from the store. The check-out operator raised the alarm, the store owner gave chase and after some time was joined in the pursuit by another member of the public. The Applicant turned around and confronted the two pursuers saying "I have a blood filled needle and Hep C and I'll stab you if you come near me". 8 The Applicant then ran down the road continuing to be pursued by the storeowner and the other person. At about this time another male joined in the chase and gave assistance. The three of them managed to apprehend the Applicant, a struggle ensued and at this stage the Applicant produced a hypodermic syringe which he held in his right hand and said, "I have a needle I have Hep C I'll stab you with it I've got a broken arm let me go". He continued to make threats towards his captors whilst they waited for the police to arrive. 9 When police did arrive they saw the Applicant holding a syringe in his right hand. They directed the Applicant to release the syringe on a number of occasions which he refused to do. Police joined in the struggle and eventually the syringe was prised free from the Applicant's grasp. The Applicant was arrested and participated in an electronically recorded interview admitting the robbery and again stated that the reason for committing the offence was to support his heroin addiction and that he had been addicted to heroin for 7 years, using every other day. 10 The Applicant was born on 14 December 1975, he was therefore aged 23½ years at the time of the offences and 24½ years at the time of sentencing. According to the Pre-Sentence Report he was the eldest of four children from a close and supportive family. However, on reaching adolescence he began associating with a delinquent peer group, leading to anti-social behaviour and eventual entry into Boys Town as a boarder at the age of 14. The family remained supportive but frustrated with his continuing drug problem. He was educated to Year 10 and he and his partner of 6 years, who also remains supportive, have three children who were at the time of sentencing aged 6, 4 and 1 respectively. The Applicant has not worked since 1997. 11 He has an extensive criminal record dating back to 1992 when he was aged 16. His convictions include larceny, break enter and steal, obtain benefit by deception, robbery, malicious damage, possess prohibited drug and drive in a manner dangerous. Following successful appeals to the District Court he was on 29 May 1998 effectively sentenced to a minimum term of 3 months to date from 24 March 1998 with an additional term of 5 months. According to the Pre-sentence Report he was released on parole on 24 June 1998 with his parole order due to expire 23 November 1998. Due to his failure to abide by his parole conditions and drug abuse his parole was revoked as from 11 July 1998, but he was re-paroled on 13 October 1998 with a further parole condition to enter the Odyssey House Drug Rehabilitation Program. He failed to do so, his parole was again revoked on 23 October 1988, he was returned to custody on 1 November 1998 and served the remainder of his term and also a further sentence of 2 months to date from 31 October 1998 for shoplifting and enter enclosed land. He was finally released from custody on 24 January 1999 and the first of these offences were committed approximately 3 months later. 12 It appears that he began using cannabis at about age 13 and at age 18 he began experimenting with heroin. Following a motor vehicle accident in 1995 his use of this substance increased dramatically due to his inability to work and boredom. He was briefly admitted to a Methadone Program in 1996 but discharged after 3 weeks. He has also been using Rohypnol since age 11. He stated that prior to his incarceration he was using up to 3 grams of heroin a day as well as taking 20 tablets of Rohypnol. Since his incarceration he has been admitted to the Methadone Program admittedly on 120 milligrams a day and at the time of sentencing was withdrawing from methadone and was in receipt of 90 milligrams a day. He told Dr Westmore the heroin might cost him up to $600 a day. 13 Dr Westmore was of the opinion that he had a significant and long term substance abuse problem and probably in addition some personality difficulties with possibly anxious and dependent traits, but he did not consider that he had a anti-social personality disorder. He considered that he required an extended period of rehabilitation from a psychiatric perspective and it would be best if some or all of this were in a community-based situation. Dr Westmore considered his prognosis very uncertain as he had not had any extended rehabilitation in the past and his drug misuse history was quite chronic. 14 His Honour took all these matters into account and then imposed sentences expressed as follows: 1. for the robberies in company at the service station on 27 April and 25 May 1999, imprisonment for 3 years, the sentences to be served concurrently. 2. for the robbery at the supermarket in Bradbury on 18 July 1999, imprisonment for 2 years to be served concurrently with the other sentences already imposed. 3. for using the offensive weapon to prevent lawful apprehension a consecutive or cumulative term of 2 years. His Honour went on saying: "And in your case the non-parole period will be, having regard to the cumulative sentence, a period of 5 years." 15 His Honour backdated the commencement of the 5 years to 18 July 1999, the date on which the Applicant had been taken into custody. He found "special circumstances" in the need for a protracted period of supervision for rehabilitation and went on: "the period to be served after the non-parole periods a term of 3 years and the whole of the term of the sentence will expire on 17 July 2007". 16 His Honour therefore clearly had in mind that the Applicant should serve a total of 5 years in gaol before being eligible for parole and that thereafter there be a further period of 3 years during which he would be eligible for parole. 17 An initial problem arises because of the manner in which the sentences were expressed. Under the Sentencing Act 1989 s 5, the Judge was required to first set a minimum term of imprisonment that the person was required to serve for the offence and secondly to set an additional term during which the person could be released on parole. Although s 6 permitted the setting of fixed terms in specified circumstances, one of which was because of other sentences imposed on the offender, when he did so the Court was required to state the reason for its decision to set a fixed term. 18 That Act had however been repealed and replaced by the Crimes (Sentencing Procedure) Act 1999 as from 3 April 2000, 3 days before the Applicant was sentenced. That Act requires that when sentencing an offender to imprisonment the Court is required; firstly, to set the total term of the sentence and then, to set a non-parole period (i.e. the minimum period for which the offender must be kept in detention in relation to the offence): s 44, R v Carrion [2000] NSWCCA 191, 49 NSWLR 149 at para [15]. 19 Section 45 authorises a Court to decline to set a non-parole period in various circumstances including because of any other penalty previously imposed on the offender, for any other reason that the Court considers sufficient. Subsection (2) provides that if the Court declines to set a non-parole period it must make a record of its reasons for doing so but subs (4) further provides that the failure to do so does not invalidate the sentence. In my opinion it is apparent that his Honour's reason for not fixing non-parole periods in respect of the three robbery offences was that his Honour was intending to allow for the Applicant's release on parole by fixing a non-parole period in respect of the other matter. It would have been more appropriate and more correct to have fixed the sentence with the non-parole period first so that the omission to fix non-parole periods for the other sentences could be brought under s 45(1)(b) rather than s 45(1)(c) but subs(4) prevents the sentence being invalid in that regard. 20 But his Honour clearly failed to comply with s 44(1) by fixing a non-parole period first and then a further period, described as the "parole period", to make up the whole of the sentence. There is no such thing in the Crimes (Sentencing Procedure) Act as a "parole period" as there was an "additional term" in the Sentencing Act, although for the sake of convenience, that expression is often used. 21 His Honour quite clearly intended that the robbery offences between them should carry concurrent sentences of 3 and 2 years respectively without any non-parole periods and that the offence of using an offensive weapon to avoid lawful apprehension should carry a further sentence, cumulative on the robbery sentences, of 5 years with a non-parole period of 2 years giving rise to an effective overall sentence of 8 years with a non-parole period of 5 years. As I say, his Honour failed to comply with s 44(1) of the Crimes (Sentencing Procedure) Act by fixing the non-parole period first, but in my opinion this Court has ample power to readjust the sentences pursuant to s 43 of the Crimes (Sentencing Procedure) Act and/or s 6(3) of the Criminal Appeal Act 1912 to rectify any errors in the manner the sentences were expressed; and the real question for this Court is whether a total sentence of 8 years with a non-parole period of 3 years is outside the range of a proper sentencing discretion for the offences to which the Applicant pleaded guilty. 22 The charges of robbery in company and armed robbery are both offences contrary to s 97(1) and both carry a maximum penalty of 20 years; therefore, although not strictly applicable, R v Henry [1999] NSWCCA 111, 46 NSWLR 346 provides a useful guide. That case takes account of pleas of guilty, although an early plea, as was the case here, will justify a larger discount: R v Thomson [2000] NSWCCA 309, 49 NSWLR 383. On the other hand here there were not only the two robberies in company, quite separate offences committed 4 weeks apart, but another robbery some 8 weeks later, followed by the use of the offensive weapon to prevent lawful apprehension. These two latter offences were committed on the same day and one followed the other, but they were in fact separate and discrete offences of a different nature; and so each of those four offences justified a cumulative sentence. It was of course necessary to have regard to the principle of totality but by the Judge making all the robbery sentences concurrent, the Applicant received a substantial benefit. 23 In addition to that, the Applicant had a bad criminal record, including previous convictions for robbery and break, enter and steal. Some factors of the offence were matters of aggravation such as the fact that the service station was robbed at night when the console operator was particularly vulnerable, and the threat of the HIV virus was of particular apprehension to a number of people: see R v Stone (1995) 85 A Crim R 436 at 439 where Sully J said: "I think that it has to be understood that, whether rightly or wrongly, many, many people of good sense and good will, who are normally able to exercise reasonable, sensible, discriminating judgments have a deeply rooted, absolutely convinced, and almost boundless, terror of AIDS and of the HIV virus. It is not to the point, it seems to me, to debate, in a detailed kind of way, whether it is logical for such people to entertain such fears. The nature of the disease, its apparent incurability, the appalling consequences that it has to the lives of people who are infected with it, all have produced among decent, upright, law-abiding citizens a genuine terror of, and indeed revulsion towards, the disease. That environment creates, as this case itself demonstrates, an opportunity for those who are disposed to take advantage of it, to exploit those terrors and apprehensions of their fellow citizens in the commission of crimes of one kind or another. It simply cannot be permitted to continue; and if, in order to stamp it out, condign sentences have to be imposed at the primary sentencing level, and upheld on appeal, then, whether fashionable or not, that is what will have to be done." 24 Reference was made to the Applicant's drug addiction and we were referred to the principles relating to the effect of drug addiction in relation to charges such as the present contained in the judgment of Wood CJ at CL in R v Henry [1999] NSWCCA 111, 46 NSWR 346 at para [273]. Reference was made to the Applicant's drug addiction, this is not an excuse or a mitigating factor of itself although it can be, and in this case is, a subjective factor which tends to explain the Applicant's reason for committing the offences, their impulsiveness and, particularly in relation to the Bradbury matter, the lack of pre-planning. It is also relevant in considering his prospects of rehabilitation, which in view of his past history, are not particularly encouraging. It was also necessary in considering the sentences to be imposed for his Honour to make some allowance for the additional matter he was taking into account in the Form 1, see R v Morgan (1993) 78 A Crim R 368 at 371-2, Hunt CJ at CL, R v Barton [2001] NSWCCA 63 at paras [54]-[64] per Carruthers AJ and cases there cited. 25 Taking all these matters into account I am of the opinion that the total sentences imposed in the present case were not outside the proper range of a valid sentencing discretion; but because his Honour failed to have regard to the provisions of the new Act it is necessary to re-sentence the Applicant. In doing so the Court can have regard to matters that have occurred since the original sentence was imposed. Generally these are matters relating to the Applicant's conduct and attempts at rehabilitation whilst in gaol, but in the present case there are subsequent convictions, namely escape from lawful custody, and shoplifting; and it is conceded that the Court can have regard to these matters. 26 Notwithstanding that, I would not increase the effective sentences but our attention has been drawn to the fact that the Applicant was at liberty for 49 days following his escape. In the normal course, if the appeal was simply dismissed, this period of 49 days (street time) would be added onto the end of his current sentence, but there appears to be considerable doubt as to whether it would be added on if we simply backdated the sentences to the original commencing date and it is conceded that it would not be inappropriate to advance the commencement date of the sentences by 49 days and make it clear that in doing so we have taken account of the time the Applicant has been at liberty since the original sentences were imposed. 27 I therefore propose the following orders: Grant leave to appeal, allow the appeal, quash the sentences imposed and re-sentence the Applicant as follows: In respect of each of the robberies in company imprisonment for 3 years, the sentences to be concurrent and be deemed to have commenced on 2 September 1999. In respect of the robbery at Bradbury and taking into account the matter on the Form 1 and in respect of the use of an offensive weapon to prevent apprehension, imprisonment for 5 years to commence on 2 September 2002, such sentences to be concurrent with each other but cumulative to the sentences imposed in respect of the service station robberies. In respect of these last mentioned offences I would fix a non-parole period of 2 years so that the earliest date on which the Applicant would be eligible for release on parole would be 1 September 2004. I would have it noted "street time" of 49 days following the Applicant's escape from lawful custody has been taken into account in fixing the commencement dates of the sentences for the robberies as 2 September 1999 rather than 18 July 1999, the date on which the Applicant was taken into custody. 28 Carruthers AJ: I agree with Dunford J. **********

R v Hansen

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