R v Jennar

Court of Criminal Appeal (NSW)|2014-12-01|Before: Leeming JA, McCallum J, Hulme J, Callum J

Judgment 1LEEMING JA: I agree with R A Hulme J. 2McCALLUM J: I agree with R A Hulme J. 3R A HULME J: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against a sentence imposed in the District Court at Parramatta on 1 May 2014 by his Honour Judge Hanley. 4Ryker Scott Jennar (the respondent) was sentenced for five very serious offences, all contrary to the Crimes Act 1900 (NSW). Their details appear below. Hanley DCJ imposed an aggregate sentence of imprisonment for 16 years with a non-parole period of 12 years with effect from 21 November 2011. 5The Crown has also appealed against the asserted inadequacy of sentence(s) imposed upon a co-offender, Joel Douglas Barton. He was sentenced by the same judge four days after the Registrar fixed the hearing date for the present appeal. The Court was told that the Crown had not taken steps to have the hearings of both matters joined because Mr Barton is pursuing an appeal against conviction. It is obviously desirable that the Crown's assertion of inadequate sentencing in both matters be heard and considered at the same time by the same judges. It would be unfair, however, to delay the present respondent's matter until the other matter was ready to be listed for hearing.

Offences, facts and indicative sentences Robbery whilst armed - Carrington Post Office on 11 June 2010 (s 97(1) - maximum penalty 20 years) 6At about 1.00pm the respondent and another male went to the Carrington Post Office in a car that had been stolen the previous day. The car had different number plates on the front and rear, both being also stolen. The respondent was disguised by heavy clothing, a balaclava and gloves. He was armed with a semi-automatic pistol. 7He entered the post office where the victim was serving an elderly customer. He walked straight up to the victim, pointed the pistol at his head, threw a shopping bag at him and said, "Fill it". 8The victim placed notes from the cash drawer into the bag. The respondent pointed to a second cash drawer and said, "Now this". The victim complied by putting more money from the second drawer into the bag. 9The respondent fled with about $1,500 to the getaway car that was driven away at high speed. It was abandoned about 2 km away where the robbers were then driven away by a third male to Maryville where the respondent was then living. He went to his bedroom and removed the heavy clothing and other items. Shortly thereafter, the men were standing on the street when they were spotted by a patrolling police officer. The respondent fled. Plea of guilty - 15% discount Indicative sentence: 4 years 6 months Robbery whilst armed with a dangerous weapon - Criterion Hotel, Carrington on 22 May 2011 (s 97(2) - maximum penalty 25 years) 10At about 5.55pm the respondent with Joel Barton and Dylan Williams drove to the vicinity of the Criterion Hotel at Carrington. The car was parked directly outside the hotel, the headlights were extinguished and the engine was left running. 11The respondent and Joel Barton, who was carrying a Ruger .223 mini-14 assault rifle fitted with a large ammunition magazine, entered the hotel. The respondent was wearing a hooded jacket, a balaclava and tracksuit pants and he was carrying a cloth bag. 12Upon entering the hotel, Barton walked up to the bar and pointed the rifle at the head of the female attendant. The respondent went behind the bar and said to her, "Get all your fuckin' money out". As she began putting the cash in the bag he was carrying she said, "Please don't kill me". He replied, "You're right, love, I won't kill you". 13Whilst the respondent collected cash, Barton maintained control of the hotel patrons by saying, "Fucking sit down" and by brandishing the rifle. 14After the cash register was emptied, the respondent instructed the attendant to open a second cash drawer and the hotel safe. She told him she could not open the latter. She continued to plead with him not to shoot her. The respondent then told her to open the Keno and Tab cash registers, which she did. 15The respondent and Barton fled the hotel with $10,050. They were driven away by Williams to a nearby street where all three entered a car used by the respondent, a silver BMW. They then went to the house occupied by the respondent in Shortland. Convicted after trial Indicative sentence: 6 years Robbery whilst armed with a dangerous weapon - Water Board Bowling Club, North Lambton on 19 June 2011 (s 97(2) - maximum penalty 25 years) Shoot with intent to murder - North Lambton on 19 June 2011 (s 29 - maximum penalty 25 years - standard non-parole period 10 years) 16At about 5.45pm the respondent, Joel Barton and Dylan Williams drove to the vicinity of the Water Board Bowling Club at North Lambton in a stolen car. Williams parked it directly outside the main entry doors to the club. Inside were approximately 50 patrons participating in raffle draws. 17The respondent wore a hooded jacket and had a cloth tied around his face. He was carrying a cloth bag and a screwdriver. Barton was similarly attired and was carrying the same rifle he had used in the Criterion Hotel robbery, a Ruger .223 mini-assault rifle with a large magazine attached. Both men entered the club. 18Barton lifted the rifle to his shoulder and began to shout at and menace the patrons. The respondent ushered a 13-year-old girl and a 4-year-old girl from near the front entrance into the foyer telling them not to move. 19Barton walked up to the bar and pointed the rifle directly at the female attendant's head. The respondent made his way behind the bar and said to her, "Give us the money". She began to take cash from the register and placed it into the carry bag he held. He then directed her to empty the poker machine register, which she did. 20He then said, "Where is the safe"? She opened a safe and put the money in his bag and he demanded, "Where is the bigger safe"? She was terrified and tried to explain that she did not have access to the main safe. The respondent demanded, "Where's more money"? The attendant placed gold coins in the bag. 21While this was happening, Barton was moving about the club with the rifle raised to his shoulder threatening patrons with it. One patron, Richard McGuigan, approached the respondent and said, "I know you, I recognise you. What the bloody hell are you doing this shit for? Wake up to your bloody self". The respondent replied, "Fuck off, idiot". 22Barton approached Mr McGuigan and whilst pointing the rifle at his head said, "Get back, cunt". Both the robbers began to leave the club. Mr McGuigan began to follow them and in the foyer the respondent said to Barton, "Put one in him". Barton lifted the rifle to his shoulder and from a distance of approximately 4 metres fired at Mr McGuigan, hitting him in the abdomen. 23Both men departed from the club with the respondent carrying the bag that contained $5,236. Dylan Williams drove them to Jesmond where they were seen to abandon the stolen car and enter a silver BMW which was driven to the respondent's home. 24Mr McGuigan was taken by ambulance to John Hunter Hospital in a critical condition. He underwent multiple surgical procedures over many weeks. Convicted of both offences after trial Indicative sentences: 7 years (Robbery whilst armed with a dangerous weapon) and 14 years with a non-parole period of 10 years (Shoot with intent to murder) Robbery whilst armed with a dangerous weapon - Newcastle Permanent Building Society, New Lambton on 15 July 2011 (s 97(2) - maximum penalty 25 years) Form 1: Possess proceeds of crime 25A car was stolen at Islington on 13-14 July 2011 by a co-offender, Matthew Hollebone. 26At about 2.40pm on 15 July 2011 the respondent, Hollebone and another man travelled in the stolen car to the Newcastle Permanent Building Society, New Lambton. The respondent and the other male entered the Building Society where approximately 10 staff and customers were present. The respondent wore a hooded jacket and had a cloth tied around his face. He carried a sawn-off shotgun and a backpack. The other male was similarly dressed and carried a large-handled sledgehammer. 27The other male used the sledgehammer repeatedly to hit a security door to the right of the main entrance in an attempt to gain access to a staff/teller area. The respondent went to the teller windows pointing the sawn-off shotgun at the tellers and shouted, "Give me the money". The staff began to put cash on the counter and the respondent moved along putting the cash into his backpack and demanding the tellers to open their time-delay drop safes shouting, "Hurry up". An elderly female customer became distressed by what she saw and the respondent said, "It's all right, love, I won't hurt you. Just sit down". 28A total of $44,620 was taken. 29The men returned to the stolen car. Hollebone drove them to a nearby location where they transferred to another car and then drove to the respondent's home. The cash was divided. 30On 30 July 2011 the respondent's residence was searched pursuant to a lawfully obtained search warrant. Police found a fully loaded Webley handgun, ammunition and cash. They also found the sledgehammer that had been used in the robbery. Inside a punching bag in the garage police located $10,000 in cash in bundles secured by rubber bands in various denominations consistent with the money stolen from the Building Society (the Form 1 offence). Plea of guilty - 15% discount Indicative sentence: 5 years

The judge's remarks concerning the seriousness of the robbery offences 31The learned sentencing judge made a number of remarks directed to the seriousness of the offences. He referred to the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 but immediately noted that there were a number of features of the present offences that distinguished them from the typical case there described for which it was said that a sentence in the range of 4 to 5 years imprisonment would be appropriate. Later, his Honour said that each offence was objectively more serious than that typical case. 32Other matters relevant to the seriousness of the robbery offences that the judge noted were: "The robberies were not sophisticated but clearly planned". There was a joint criminal enterprise such that each participant was responsible for the acts of the other participants. In each case a motor vehicle was stolen for use as a getaway car. In the Carrington Post Office robbery there were two stolen number plates used. In that, and the Criterion Hotel robbery, a second car was procured to be used after the initial getaway car was abandoned. The robbers wore disguises. A firearm was used in each robbery. In the Building Society robbery, a sledgehammer was used as well. (I note also that in the Water Board robbery the respondent was carrying a screwdriver.) The amounts of money stolen varied but were significant. A firearm was pointed directly at an employee in order to gain compliance. That is, there was actual threatened use of a weapon to vulnerable employees and customers. His Honour specifically noted the grave fear engendered in the bar attendants at the Criterion Hotel and the Water Board Bowling Club and the tellers at the Building Society. (I infer that the Post Office clerk in the first robbery would have been in grave fear as well by having had a pistol pointed at his head; as would the patrons at the Criterion Hotel and the Water Board Bowling Club by having the co-offender threatening them with a rifle.) 33The judge accepted that the motivation for the offending was the respondent's drug habit as outlined in a report by Mr Sam Borenstein, psychologist, and in the evidence given by the respondent in the sentence proceedings. He said that he took this into account in assessing the respondent's capacity to exercise judgment, citing R v Henry at 273 principle. It did not excuse the respondent's behaviour "but does explain it".

The judge's remarks concerning the seriousness of the shoot with intent to murder offence 34In relation to the offence of shoot with intent to murder, the judge held that the respondent was equally liable as the co-offender Barton, noting that it was the respondent who had directed Barton to "put one in him". He had regard to the particularly destructive nature of the type of ammunition used and that the shooting involved "a grave risk of death". He accepted a submission that the respondent's moral culpability was high. 35The judge also had specific regard to the fact that the shooting was unnecessary to achieve the object of the robbery and that it was gratuitously cruel. 36His Honour found that this offence was above the mid-range level of seriousness.

Personal circumstances of the respondent 37The respondent was born and raised in Newcastle by parents who were both heroin addicts. He had little memory of his father who died in 2002 after having been in and out of gaol. His mother had also been imprisoned. He was cared for by an aunt during a period in which they were both in gaol at the same time. 38The judge noted that the respondent had a childhood deprived of parental guidance and suffered emotional neglect. He was largely left to his own devices from a very early age because of his parents' preoccupation with heroin. He left school and home at the age of 15. At about that time he commenced a relationship with his partner and they have a son who, at the time of sentencing, was aged 13. 39The respondent commenced taking drugs at the age of 18, coinciding with his father's death. He soon progressed to using heroin. He had some employment from the age of 16 to 18 but none since. He told Mr Borenstein that he spent upwards of $1000 per day on heroin and that the stolen money was used for that purpose. He was receiving methadone as well. Mr Borenstein described the respondent as having lived the "life script" he had been given, namely drug addiction and criminal activities to fund it. 40The judge observed that the respondent "has an extensive criminal history almost exclusively relating to drug dependency". He said that it denied a significant element of leniency that could otherwise have been extended to the respondent and dictated that the sentence to be imposed required an element of personal deterrence. 41At the age of 20 the respondent committed an offence of supplying a prohibited drug for which he was sentenced in 2007 to 2 years 6 months imprisonment. 42Five days before the Carrington Post Office robbery he was charged with the possession of ammunition and knives for which he later received a total sentence of 3 months imprisonment. A month after that robbery he committed offences of break, enter and steal and possess housebreaking implements and received an 8 month sentence. 43On 11 April 2011 he received a sentence of imprisonment which was suspended upon him entering into a Drug Court program. He was subject to that program at the time of the second to fourth robberies. The suspension of that sentence was revoked on 11 October 2011 and he received a term of 2 years 6 months with a non-parole period of 1 year 10 months 14 days with effect from 2 April 2011. 44It appears to be the case that the first offence was committed whilst the respondent was on bail and the other offences were committed when he was the subject of the Drug Court program. The Crown did not contend below, or in this Court, that these were aggravating features. 45The judge specified that the sentence commence on 21 November 2011 on the basis that he thought that was when the respondent had been in custody solely referrable to the present matter. He was, in fact, subject to the sentence I have just referred to, the non-parole period of which did not expire until 15 February 2013. Understandably, the Crown does not complain about this because it was the product of the judge having been misled (no doubt inadvertently) by the senior counsel for the Crown. 46A 15 per cent discount was allowed to acknowledge the utilitarian benefit of the respondent's pleas of guilty in respect of the Carrington Post Office and Newcastle Permanent Building Society robberies. 47Another matter in the respondent's favour was a finding that he was genuinely remorseful. He had given evidence in which he had demonstrated empathy for the victims of his offences. 48On the subject of rehabilitation, the judge noted the respondent's stated positive intentions in that respect as well as his conversion to the Islamic faith and the positive changes it had brought. His Honour said that he was "prepared to make a very cautious but favourable assessment of his capacity to rehabilitate himself and not reoffend in the future". 49The judge made reference to Mr Borenstein's opinion that the respondent's "life path was largely predetermined, raised in a household where both parents were heroin-dependent". It was the psychologist's opinion that the respondent required assistance in order to understand the impact of his history, in particular his poor attachments and difficulties regulating emotion and mood in respect of which he relied almost exclusively upon heroin. He considered that the respondent required long-term and intensive psychological treatment to learn life skills and strategies to ensure he does not return to the patterns learned early in life that led to heroin addiction. 50His Honour referred to the decision of the High Court of Australia in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. He accepted that the respondent's moral culpability was less than the culpability of an offender whose formative years had not been marred by having been raised in a household in which both parents were heroin dependent and, for significant periods, incarcerated as a result. He accepted that this could be characterised as a background of "profound depravation" and compromised the respondent's capacity to mature and learn from experience.

Other matters taken into account 51In saying that he was imposing an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act, the judge expressly referred to the principle of totality: see, for example, Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 and R v XX [2009] NSWCCA 115; 195 A Crim R 38. He indicated that the indicative sentences for the two offences committed in the course of the Water Board Bowling Club robbery would be substantially concurrent. (The Crown Prosecutor had conceded that they could be completely concurrent.) 52His Honour also indicated that apart from the first offence in 2010, the other offences in 2011 were committed "within a relatively discrete period of time and criminality". He expressly took into account a need not to impose a "crushing sentence".

Ground - the aggregate sentence imposed is manifestly inadequate 53The Crown submitted that the indicative sentences for the Water Board Bowling Club and Newcastle Permanent Building Society robberies and for the Shoot with intent to murder offence, whilst not directly the subject of appeal, were inadequate in reflecting the objective gravity of those offences. It was submitted that this, in part, explains what it asserts is the manifest inadequacy of the aggregate sentence. The other basis suggested for that conclusion was that there must have been an inadequate accumulation of the indicative sentences. 54In seeking to make good the submission about the asserted inadequacy of three of the indicative sentences, counsel for the Crown set out various features of the offences; in effect reciting matters the primary judge had specifically mentioned. 55The Court was invited to view the CCTV footage from the Water Board Bowling Club robbery because of "the Crown's view that you will appreciate even more the serious nature of that offending and the inadequacy of the sentence". The members of the Court did so in chambers on the day of the hearing. I did not glean anything from it about the seriousness or any other aspect of the offence that was not otherwise apparent from the description provided in the statement of agreed facts and the judge's sentencing remarks. Those offences, including the shooting of Mr McGuigan, were clearly offences of very substantial seriousness. 56Upon the hearing of the appeal, counsel for the Crown contended that the judge was wrong to find that the respondent was genuinely remorseful: "anyone can get into the witness box and say 'I'm sorry for what had happened' and Mr Jennar did that" (T9.17). The problem with that submission is that the respondent gave evidence of his remorse; it included acceptance of what he had done and an understanding of the harm caused to the victims. The judge had the benefit of seeing and hearing the evidence and was entitled to accept it, particularly when it was not challenged by the Crown Prosecutor. It ill behoves the Crown to complain now. 57It was submitted orally that the judge should not have relied so much on the report of Mr Borenstein because it was dependent upon what the respondent had told him. The respondent's evidence specifically included that what he had told the psychologist was the truth. Again, there was no challenge to that by the Crown. 58Counsel for the Crown also submitted that the respondent chose the times at which the offences were committed so as to coincide with many people being on the premises: "they are doing it at these times because of the part of the thrill of robbing when a lot of people are there" (T7.12). I take that to be a submission that the offences were more serious because of this. That the robberies were committed, in part, for a "thrill" was not a contention the Crown raised in the District Court and should be disregarded as well. 59The written submissions for the Crown were critical of the judge for having considered that the offending was impulsive when quite clearly there was planning. This arose from a misunderstanding by counsel for the Crown of his Honour's reference to the judgment of Wood CJ at CL in R v Henry at [273] (see above at [33]). The Crown suggested he was referring to (b)(i) in that paragraph, but he was obviously referring to (b)(iii). Wood CJ at CL stated at [273] in part: "In my view the relevant principles are as follows: (a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation; (b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as: (i) the impulsivity of the offence and the extent of any planning for it; ...; (iii) the state of mind or capacity of the offender to exercise judgment, eg if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act; ..." 60All his Honour did by this reference was to conclude that the respondent was not motivated principally by greed. There was no error in this respect. 61In submissions concerned with the second basis for the Crown's contention of manifest inadequacy (inadequate implicit accumulation), it was accepted that no precise analysis is available given that the judge was not required to specify commencement dates for individual sentences: see JM v R [2014] NSWCCA 297 at [40]. At point 12 within that paragraph I said: "Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R at [44],[82]; BJS v R [2013] NSWCCA 123 at [252]-[254]." 62The same can be said about a question of an aggregate sentence being inadequate. I continued: "13. A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41]." 63The Crown accepted that there could be (implicit) concurrency of sentences in relation to the Water Board Bowling Club robbery and the shooting of Mr McGuigan. The Crown was left with little choice about that because of the concession made by senior counsel for the Crown before the primary judge (see above at [51]). 64The Crown's ultimate submission was that the aggregate sentence failed to reflect the totality of criminality "having regard to the seriousness and increasingly dangerous nature of the offences". 65The written submissions concluded with a contention that even if 10 years was an appropriate non-parole period for the shooting offence (which was not conceded), "then two years non-parole for the remaining offences is unreasonable and plainly unjust".

Consideration 66The last mentioned of the Crown's submissions may be despatched immediately. In assessing whether a sentence for multiple offences (whether it be an aggregate sentence or otherwise) is excessive or inadequate, it is quite arbitrary to identify one of the components and then regard the balance as being referrable to all of the other components. It is as illegitimate as arguing that the indicative sentences for the Water Board Bowling Club robbery offence and the shooting offence add up to more than the aggregate sentence and so the respondent must not have received anything for the three other offences. Indeed, counsel for the Crown almost conceded the futility of such an approach four paragraphs earlier in her written submissions. 67I have earlier referred to some of the authorities relating to totality and questions of concurrency and accumulation: see, particularly, the summary of principles provided by Hall J in R v XX at [52]. The sentencing judge, as observed earlier, stated that he had regard to such principles. The question is whether the final result reflects that he correctly applied them. 68I accept that some of the indicative sentences are lenient, particularly by comparison with the R v Henry guideline and the judge's assessment that these offences were objectively more serious than the typical case mentioned there. Some of them (the latter two in particular) were significantly more serious. 69In the end, it seems to me that this was a difficult exercise of a judge's sentencing discretion. On the one hand, there were multiple offences of significant seriousness committed by an offender with a poor criminal history who had not been dissuaded from offending by past experiences of imprisonment. One of the offences involved very serious injuries caused to the respondent's victim. All of them must have caused significant psychological harm. 70On the other hand, however, there was found to be genuine remorse and (at last) a demonstration of emerging insight by the respondent into the connection between his drug abuse and serious criminal behaviour. The judge was right (with respect) to take into account in an understanding way the circumstances of the respondent's upbringing. No criticism is made by the Crown of his Honour's assessment that this operated to reduce the level of his moral culpability. 71The question is not whether the sentence is lenient; reasonable minds may legitimately vary as to this. The question is whether the result is unreasonable and plainly unjust. A sentence of 16 years is a stern measure of criminal punishment but such a measure was called for in all the circumstances. I am not persuaded that it can be said to be manifestly inadequate.

Conclusion 72I propose the following order: Crown appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2014

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