R v Jared Deane PATERSON [2010] NSWCCA 233 | Case summary

(ii) That the sentence imposed is manifestly inadequate. Objective Circumstances The First Offence 8 As stated, the first offence was a contravention of s 97 of the Crimes Act. The accused was convicted of robbing Ms Kim Vo of $90 in cash while armed with an offensive weapon, a knife, on 6 June 2009, at Newcastle. 9 Mr Paterson gave evidence in the proceedings on sentence. During examination in chief, he gave evidence that in the late evening of 5 June 2009, he was in an altercation with his neighbours and was "seriously assaulted". He was told by a friend to "take some ice, so you can get revved up and get the people back". Mr Paterson proceeded to smoke ice at approximately 3.00am on 6 June 2009. He did not go to sleep and at 10.30am intended to make his way, by bus, to visit his friend, who was at John Hunter Hospital because he had been injured in the altercation the previous evening. 10 Mr Paterson and a friend, Josh Vanderkroft, were waiting for the bus near the Vo family's bakery, which is located on Hunter Street near the bus stop close to where Mr Paterson was living. Mr Paterson had observed Ms Vo working in the bakery and gave evidence that he "liked her a lot" (Transcript of Proceedings on Sentence, 14 December 2009, p 9). 11 Mr Paterson gave evidence that he had no recollection of what happened next, however, he accepted the account of Kim and Dinh Vo and the statement of facts which formed part of Exhibit A in the proceedings on sentence (Transcript of Proceedings on Sentence, 14 December 2009, p 10). 12 The statement of facts indicates that Mr Paterson entered the bakery and asked to use the toilet. He was told by Ms Vo that the closest public toilets were in a nearby park. Mr Paterson left the bakery but returned shortly afterwards. He walked behind the counter, took out a knife, held it towards Ms Vo and said: "Open the till or I will stab you". Mr Paterson pointed the knife at Ms Vo's throat and chest. She shouted: "Robbery, robbery". Her brother, Dinh Vo, ran into the shop area from out the back and, when confronted by Mr Paterson wielding the knife towards him, yelled at his sister to open the cash register. 13 Ms Vo opened the register and Mr Paterson removed $90 and fled the scene. He was chased by Mr Vo and two witnesses, who had been standing near the shop. Mr Paterson was identified by witnesses and the victim in photo identification parades, and was captured on CCTV cameras fleeing the scene (p 1 of the Statement of Facts, part of Exhibit A in the proceedings below). 14 As already outlined, Mr Paterson had no recollection of these events. However, he was able to recall, later in the afternoon, being at his girlfriend's house. 15 During submissions by the Crown in this appeal, it was noted that the robbery occurred in circumstances where Mr Paterson would be easily identifiable and that it involved minimal planning (Transcript, 5 May 2010, p 1). The Second Offence 16 The second offence was, as already stated, a contravention of s 98 of the Crimes Act. It occurred on 22 June 2009, at Cooks Hill. The accused was convicted of assaulting Carl Butcher with intent to rob him, while armed with an offensive weapon, a knife, with which he wounded Mr Butcher. This offence therefore occurred two weeks after the first. 17 According to the statement of facts tendered at the proceedings on sentence, and accepted by the Respondent, at or about 8.00pm on 22 June 2009, Mr Paterson called Newcastle Taxis and ordered a taxi to pick him up at the Caltex service station on Newcastle Road, Lambton. He gave evidence, during cross-examination, that he had again been smoking ice that evening (Transcript of Proceedings on Sentence, 14 December 2009, p 18). 18 Mr Butcher was a taxi driver with Newcastle Taxis and he was despatched to the collection point nominated by Mr Paterson. Upon Mr Butcher's arrival, Mr Paterson entered the front seat of the taxi and was driven to the scene of the subsequent robbery, which is outside the house of the Respondent's brother. 19 Mr Paterson attempted to pay for the fare using the taxi's EFTPOS machine, but there were insufficient funds. During the proceedings on sentence, Mr Paterson was perplexed by this particular aspect of what transpired, as he maintained he had money to pay the fare: "I'm dumbfounded. I don't - like, I had - I know I had money, because the next morning when I woke, I had money, and I just - I just don't see - like, I know I have done it, but I just don't see why I would." (Transcript of Proceedings on Sentence, 14 December 2009, p 11.) 20 Mr Paterson then took out a knife he was carrying in his pocket and said to Mr Butcher: "Give me all your money or I will stab you in the neck". Mr Butcher grabbed Mr Paterson's arm in an effort to prevent the robbery. A struggle ensued and the victim received a 2cm wound to his right arm, although, in her Honour's view ascertained by reference to a photograph, the wound appeared to be larger than 2cm (Remarks on Sentence, pp 2-3). Mr Paterson then fled the scene and Mr Butcher was taken to John Hunter Hospital for surgery on his arm (p 2 of the Statement of Facts in the proceedings below). The Form 1 Matter 21 The Form 1 matter, which the sentencing judge took into account in sentencing for the second offence, preceded the first offence by a short time, and, in the Respondent's submission, was part of a course of conduct resulting from personal troubles Mr Paterson was experiencing at that time. 22 On 30 May 2009, Mr Paterson was with friends and had been consuming alcohol. When their alcohol ran out, Mr Paterson decided to drive to a bottle shop at a local shopping centre to steal more. Upon arriving in the car park, he removed a wheel brace from his car boot, smashed the window of the shop, entered the shop and stole six 700mL bottles of bourbon and rum. 23 On the morning of 23 June 2009, directly following the second offence, Mr Paterson was arrested at the premises of his girlfriend's parents. He subsequently participated in an ERISP at Newcastle Police Station, in which he made full admissions in relation to the Form 1 offence and the Count 2 offence, and partial admissions to the robbery of the Vo bakery. 24 Mr Paterson pleaded guilty to Counts 1 and 2 of the indictment at the Local Court and was committed from that Court on 14 October 2009. The Proceedings on Sentence in the District Court 25 The proceedings on sentence came before Murrell SC DCJ on 14 December 2009. Subjective Circumstances 26 Mr Paterson gave evidence of the circumstances leading up to his conduct in May and June 2009 (Transcript of Proceedings on Sentence, 14 December 2009, pp 4-22). 27 Mr Paterson had left school by year eight because he was in constant trouble with Juvenile Justice. This trouble is evident in Mr Paterson's criminal history set out below. 28 Mr Paterson is the eldest of five boys born to his mother. His younger brothers, aged 19, 14, 13 and 11, were born to his two stepfathers, whom he knew to be violent at home. In May 2009, Mr Paterson's mother was no longer caring for the boys, and Mr Paterson's two youngest brothers had instead been living with him for a year and a half at rented premises in Newcastle. 29 Before the offences, Mr Paterson was completing a community service order and working as an apprentice bricklayer, finishing a job at Wyong Hospital, a job that he thoroughly enjoyed and wishes to return to following his term in gaol. He had been a member of the Army Reserve for seven months, which, he said, had given him a feeling of great pride (he has now been discharged as a result of the commission of these offences). He was in a serious, long-term relationship. 30 Mr Paterson did not know his father until the age of 13, when Juvenile Justice arranged contact between them, and they began to have more contact over the years. Mr Paterson's father died (from a stroke) in January 2009, but the Respondent had only been advised of this in April. He received $14,000 from his father's estate. 31 From April 2009 onwards, according to Mr Paterson's evidence, he had "gone off the rails". He began to start abusing drugs and alcohol again, spending a substantial amount of the money his father had bequeathed to him on that substance abuse. He gave evidence that his father's death devastated him and he felt he "had nothing else to live for" (Transcript of Proceedings on Sentence, 14 December 2009, p 12). 32 The Respondent tendered a letter that he had written to the sentencing judge, which was admitted in the proceedings on sentence as Exhibit 1. That letter described in more detail the impact of Mr Paterson's father's death. It also expressed insights into the potential impact of his criminal conduct on the Vo and Butcher families, a personal reflection on the nature of his conduct (at one point, he described himself as "a piece of drug-crazed filth"), and a desire to make amends for his conduct. 33 Mr Paterson gave evidence of his wish to partake, apparently unprompted, in a restorative justice program, and to participate in drug and alcohol rehabilitation programs whilst in prison. Since being in prison, Mr Paterson gave evidence that his urine samples had been clean and that he had been taking methadone. He had also been using Zyprexa, as he suffers auditory hallucinations and anxiety. Criminal History 34 The juvenile record of Mr Paterson from 2003 to 2005 is lengthy, containing a high number of break and enter, and break, enter and steal convictions, two shoplifting convictions, two driving conveyance without consent convictions and a larceny conviction. Mr Paterson also has convictions for: an offence of break, enter and steal in 2006, which resulted in a 6 month prison sentence; a common assault committed in 2006, which resulted in a community service order of 20 hours; and a dangerous driving offence committed in February 2007, which resulted in a 2 month prison sentence. Remarks on Sentence 35 In her remarks, Murrell SC DCJ referred to the charges, the applicable statutory maximums for each of the offences, the facts of the offences (including the Form 1 matter), Mr Paterson's criminal history, personal background, feelings of remorse, prospects of rehabilitation, the objective seriousness of the offences, and aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. 36 As her Honour correctly noted, the maximum penalty for the Count 1 offence under s 97 of the Crimes Act is 20 years' imprisonment. The maximum penalty for the Count 2 offence under s 98 of the Crimes Act is 25 years' imprisonment, with a standard non-parole period of 7 years' imprisonment under Division 1A of the Crimes (Sentencing Procedure) Act. 37 Having considered the facts of each of the offences which are, relevantly, detailed above, her Honour considered Mr Paterson's background insofar as it was relevant to sentencing. She noted that he had come from a dysfunctional background, that his parents had separated when he was a baby, that each of his stepfathers had been violent towards him and his brothers, that his mother was an alcoholic now suffering from liver cancer, and that Mr Paterson had been caring for two of his younger brothers. 38 The sentencing judge noted Mr Paterson's "significant juvenile record, primarily in relation to offences of dishonesty", as well as the offence of break, enter and steal in 2006, the common assault in 2006, and the dangerous driving offence committed in February 2007 (Remarks on Sentence, pp 3-5). 39 Her Honour considered the objective seriousness of the offences. In relation to the first offence, her Honour noted the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, and considered that most of the factors mentioned by the Court in that judgment were relevant to Mr Paterson's offence. Her Honour held, as was agreed by the Crown in this appeal, that the armed robbery involved very limited planning, and any plan was formulated at a point in time after Mr Paterson arrived at the bus stop, and just before or after he entered the bakery (Remarks on Sentence, p 6). 40 The sentencing judge found that, unlike in R v Henry, supra, the victim, Ms Vo, was "not in a particularly vulnerable position". The victim was working during normal daylight shopping hours, and was always in the company of another worker in the bakery (Remarks on Sentence, p 7). 41 The sentencing judge considered that, unlike in R v Henry, supra, Mr Paterson's criminal record was substantial for his age in relation to matters of dishonesty, although her Honour noted that there was only one minor instance of violence. She therefore concluded that "the matter is not dissimilar to the Henry guideline judgment situation" (Remarks on Sentence, p 7). 42 In relation to the second offence, which was a contravention of s 98 of the Crimes Act, the sentencing judge noted the standard non-parole period of 7 years applicable to offences in the mid range of objective seriousness. Her Honour again, for this offence, considered the guideline judgment in R v Henry, supra, but noted that it had limited direct application to offences under s 98, due to the higher maximum penalty under s 98. 43 The sentencing judge considered that the victim, a taxi driver driving at night, effectively entrapped in the enclosed environment of the vehicle, was in a vulnerable position. However, it was an offence involving no planning, was completely impulsive, and arose only after the EFTPOS card was rejected. Mr Butcher was wounded, but it was "not a matter of grievous bodily harm", the injury to his arm "was in the calendar of injuries that might apply to s98 matters very much at the lower end of the spectrum" and caused only temporary disability. It occurred during a struggle which the victim "initiated" and was therefore "accidental" (Remarks on Sentence, pp 8-9). She concluded that the offence was at the "lower end of the mid range of objective seriousness" (Remarks on Sentence, p 9). 44 Her Honour took into account, as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act, Mr Butcher's vulnerability, the fact that Mr Paterson was on conditional liberty due to the community service order, and, to a limited degree, his criminal history. 45 Mitigating factors taken into account under s 21A(3) of the Crimes (Sentencing Procedure) Act were the minimal planning of the offences, the offender's prospects of rehabilitation, and his genuine demonstrations of remorse (Remarks on Sentence, pp 9-10). 46 The sentencing judge went on to find that special circumstances existed within s 44(2) of the Crimes (Sentencing Procedure) Act due to Mr Paterson's youth, his prospects of rehabilitation after lengthy drug and alcohol programs, his mental health issues, his deprived background and the issues of grief at the time of the offences (Remarks on Sentence, pp 10-11). Ground 1: Concurrency of non-parole period 47 Under the first ground of appeal, the Crown submitted that the structure of the non-parole periods for the two sentences meant that the least mandatory period of imprisonment for the two offences was the same. That is, in setting a non-parole period of 3 years for the first offence to commence on 23 June 2009 and expiring on 22 June 2012, and a non-parole period of 2 years for the second offence to commence on 23 June 2010 and also expiring on 22 June 2012, the 2 year non-parole period for the second offence was totally subsumed within the 3 year non-parole period for the first offence. In the Crown's submissions, this lack of accumulation meant that the total effective sentence imposed did not adequately reflect the totality of Mr Paterson's criminal conduct. 48 In submissions, the Crown focused particularly on the structure of the non-parole periods for both offences. The Crown submitted that the setting of a non-parole period for the second offence that was two-thirds the length of the non-parole period for the first offence was indicative of error, given the greater maximum penalty of the second offence under s 98 and the applicable standard non-parole period of 7 years. In this regard, the Crown sought to rely on the Court's decision in R v Henry [2007] NSWCCA 90 (which, if referred to hereinafter will be cited as "R v H", to distinguish it from R v Henry, supra), where the Court (his Honour Justice Howie, with whom Simpson and Hislop JJ agreed) stated that: "[I]f a court imposed a sentence for a s 98 offence that was less than that proposed in the Henry guideline, that fact alone should cause the court to consider whether such a sentence could be justified in light of the increased seriousness of the offence as evidenced by the increased maximum penalty. Where all other factors are equal, it is axiomatic that a person charged with a s 98 offence should receive a heavier sentence than a similar offender charged with a s 97 offence." (At [34].) 49 The foregoing rationale is even more apposite, when, as here, the sentence in relation to the second offence took into account the significant Form 1 matter. The sentencing judge was required to take into account the Form 1 matter "with a view to increasing the penalty that would otherwise be appropriate for the particular offence". (Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42] per Spigelman CJ (with whom Wood CJ at CL, and Grove, Sully and James JJ agreed.) 50 Moreover, and still relevant to the structure of the sentences, it was submitted that by imposing a non-parole period well below the standard non-parole period of 7 years, her Honour must have failed to have regard to it as a reference point as she was required to do, and that any reference to it was akin to "mere lip service": R v Tory [2006] NSWCCA 18, [42] (per Latham J, with whom Hunt AJA agreed). 51 In the Crown's submission, this structure was inconsistent with the High Court's approach in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 and Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. In Pearce v The Queen, supra, McHugh, Hayne and Callinan JJ said (at 624): "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 52 There is some force in the Crown's submissions about the structuring of the sentences. There was no additional period of mandatory incarceration imposed for the second offence. The second offence fell within s 98, which carried a higher maximum sentence than the s 97 offence, being 25 years, and a non-parole period of 7 years' imprisonment. The standard non-parole period did not apply because of the plea of guilty. Her Honour did not specify the amount by which the sentence was reduced for that plea, but expressly took the plea into account. Her Honour's approach is a little surprising given her Honour's findings in respect of the facts of each offence detailed above, particularly the finding of Mr Butcher's vulnerability and the obvious significance of the wounding of Mr Butcher (although it was, her Honour found, at the lower scale of injury falling within the scope of s 98, and unplanned), and the Form 1 matter. 53 Notwithstanding these apparent anomalies, the Court is to determine whether her Honour's approach constitutes an appealable error. The joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen, supra, does not mandate an approach which requires the accumulation of both the non-parole periods and head sentences. Such an approach would be inconsistent with the approach of the High Court in Mill v The Queen, supra, where the majority (Wilson, Deane, Dawson, Toohey and Gaudron JJ) held, at [28], that: "Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred." 54 The effect of the High Court's decisions in Mill v the Queen, supra, and Pearce v The Queen, supra, is an approach requiring a sentencing judge to consider, first, the appropriate sentence for each offence discretely and then, second, and as a consequence of the sentences for the discrete offences, issues of accumulation and concurrence, which may result in wholly or partially concurrent sentences, or, if the less orthodox approach were taken, lower individual sentences. 55 An analysis of her Honour's remarks on sentence, as detailed above, indicate that her Honour did consider, separately, the objective gravity of each offence and the appropriate sentence to be imposed for each of Mr Paterson's offences (Remarks on Sentence, pp 6-8, 11). Her Honour then went on to decide that the sentence should be partially accumulated by 12 months, such that the total effective head sentence was, by the imposition of the sentence for the second offence, increased by 12 months to 6 years' imprisonment (Remarks on Sentence, p 11). No additional mandatory term of imprisonment was occasioned by that sentence. 56 Her Honour made a finding that special circumstances existed for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act due to Mr Paterson's youth, prospects of rehabilitation, mental health issues, deprived background, issues of grief at the time of the offences and the accumulation of the sentences (Remarks on Sentence, pp 10-11). Aside from a general submission that too much weight was given to subjective factors by the sentencing judge in assessing the total sentence and criminality (Transcript, 5 May 2010, pp 6-7), the Crown did not assert that her Honour erred in finding that special circumstances existed, and there is no error in that finding. 57 Her Honour applied the finding of special circumstance only to the s 98 offence and not, it seems, to the s 97 offence. Having determined the objective seriousness of each offence and the sentences which should be fixed for each, her Honour was entitled to adjust the non-parole period for the s 98 offence to take account of Mr Paterson's special circumstances in order to reflect properly the overall criminality due to the cumulative sentences (Clare v The Queen [2008] NSWCCA 30; (2008) 181 A Crim R 450, [38]). I will return to the structure of the overall sentence in the conclusion, because, it seems to me that the two grounds of appeal are related. Ground 2: Manifest inadequacy 58 Under the second ground of appeal, the Crown submitted that the sentence of a non-parole period of 2 years' imprisonment with a balance of term of 3 years was manifestly inadequate. The Crown's submissions in relation to the structuring of the sentences may also be relevant to this ground, insofar as the structure is demonstrative of the inadequacy of the sentence. In particular, the Crown submitted that the structure of the offences was necessarily indicative of the manifest inadequacy of the sentence for the second offence because, if it were determined that the sentence for the first offence under s 97 is adequate on its own, then, necessarily, the sentence for the s 98 offence must be inadequate, given that the non-parole period has not been increased (or, at least, accumulated). 59 The Crown further submitted that inadequacy arose because her Honour failed to give adequate consideration to issues such as general deterrence (Crown Submissions on Crown Appeal of 26 March 2010, p 10), given: there is a maximum penalty of 25 years' imprisonment; a standard non-parole period of 7 years; her Honour's finding that the objective seriousness of the offence was at the lower end of the mid range; there was a serious Form 1 matter to be taken into account; the Respondent had a significant criminal history; and, Mr Paterson was, at the time of the offence, subject to a community service order. Moreover, the Crown made oral submissions that too much weight was given to subjective factors in favour of Mr Paterson, such as his prospects of rehabilitation, to an extent, according to the Crown, that requires appellate intervention (Transcript, 5 May 2010, pp 6-7). 60 The sentence for the second offence of a non-parole period of 2 years' imprisonment with a balance of term of 3 years to expire on 22 June 2015, by itself, in the particular circumstances of this case, was not manifestly inadequate. 61 Her Honour was mindful of the standard non-parole period (Remarks on Sentence, pp 7-8), even though, given the plea, it did not directly apply. A departure from the non-parole period was justified in light of the finding of special circumstances, including the issue of accumulation (Clare v The Queen, supra), the finding as to objective gravity and the subjective circumstances. 62 As detailed above, the sentencing judge found that the offence was at the lower end of the mid range of objective seriousness of offences under s 98. That finding was available. The considerations of Mr Butcher's vulnerability and conditional liberty weighed against the comparatively minor scale and duration of the injury, the lack of planning, and because the wounding occurred during an accidental struggle, albeit caused by Mr Paterson's initial threat. Her Honour took into account Mr Paterson's criminal history in the manner appropriate to sentencing (see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465). Her Honour considered that Mr Paterson's demonstrations of remorse were genuine. Otherwise, the sentencing judge correctly identified the relevant aggravating and mitigating factors in determining the objective seriousness of the offence and fixed a head sentence more severe than the guideline in R v Henry, supra. 63 In light of Mr Paterson's prospects of rehabilitation detailed in the sentencing judge's remarks above, and evidenced in Mr Paterson's affidavit filed for this appeal on 29 April 2010, and the correct identification of the offence within the lower end of the mid range of s 98 offences, the head sentence imposed was, itself, not manifestly inadequate, even if the sentence was less than that which could have been legitimately imposed. Conclusion 64 I have left for consideration the aspect of manifest inadequacy that arises from the overall sentence imposed, and, which aspect is an almost identical issue, the structure of the sentence and the principles in Pearce, supra. This also includes the issue of the ratio between non-parole period and head sentence. 65 I reiterate that sentencing judges must be given as much flexibility as is possible within the statutory regime under which they operate and the necessity to achieve consistency of approach: Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 at [26] per Gummow, Callinan and Heydon JJ. 66 The judgment in R v Henry, supra, does not directly dictate an outcome for two obvious reasons: the offence under s 98 is more serious than an offence under s 97, with which R v Henry, supra, was concerned; and, there is a plea of guilty. Nevertheless, consistency requires some regard to R v Henry, supra. Regard was given, expressly, by the sentencing judge. I would not disturb either of the head sentences imposed, even though I may have arrived at a different result by a different structure of the sentence. A structure consistent with Pearce, supra, should be preferred. 67 However, as structured, the overall sentence imposes no separate mandatory punishment for Count 2, the s 98 offence. The two offences were separate criminal acts, involving quite separate culpability. In my view, while the structure of the sentence does not accord with the preferable orthodox approach described in Pearce, supra, and is also, as a matter of totality, less than I would otherwise impose, I do not consider that it offends the degree of flexibility that should be available, and is available, to a sentencing judge to an extent that warrants interference. In other words, bearing in mind the plea of guilty and the special circumstances arising from the need for longer parole periods and the very strong subjective factors, I consider that a more severe sentence is not warranted: s 6(3) of the Criminal Appeal Act; and any interference with the sentence would be mere tinkering. 68 I propose that the Court make the following order:

R v Jared Deane PATERSON

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