R v Jones

LOWER COURT District Court JURISDICTION : LOWER COURT 04/21/3020 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2247

TOBIAS JA SULLY J HOEBEN J

Friday 10 December 2004 REGINA v DEREK LOUIS JONES Judgment 1 TOBIAS JA: On 18 November 2003, the respondent was charged with one count of robbery whilst armed with an offensive weapon pursuant to s 97(1) of the Crimes Act 1900 and committed by him on 22 July 2001 when on parole (the subject offence). On 21 January 2004, he entered a plea of guilty to this charge at the Local Court. The respondent adhered to this plea when he came before his Honour Judge Maguire in the Campbelltown District Court for sentence on 13 May 2004. 2 On 5 August 2004 his Honour sentenced the respondent to a term of imprisonment of 6 months backdated to commence 29 November 2001 and which he made wholly concurrent with sentences separately imposed upon the respondent on 17 February 2003 in Campbelltown District Court and on 14 March 2003 in Liverpool Local Court. Due to the length of those other sentences, his Honour effectively did not impose any additional penalty upon the respondent for the subject offence. As is obvious, the sentence had already expired when it was imposed. 3 The Director of Public Prosecutions appeals against the sentence imposed by his Honour pursuant to s 5D(1) of the Criminal Appeal Act 1912.

The nature of the offence 4 The circumstances giving rise to the subject offence are not in dispute. For present purposes, it is sufficient to adopt the facts as set out in the Crown's written submissions with some additional material taken from the victim's tendered statement. 5 The victim of the offence, Srecko Parlic, had been shopping with his wife at Liverpool on Sunday 22 July 2001. When they had finished shopping, he returned to their car in the car park with her handbag while she went to the toilet. He sat in the driver's seat waiting for her and placed her handbag on the passenger seat. The respondent approached the car, opened the driver's door and threatened him with what appeared to be an empty syringe with an exposed needle. The respondent reached across and grasped the handbag, but as he was about to decamp, the victim grabbed hold of his hair and a struggle ensued. The struggle lasted for several minutes during which the respondent punched and kicked the victim to the face, body and legs. Eventually, the respondent escaped to a waiting get-away car with a purse that had fallen from the handbag containing personal items and $420. He was not identified or captured at that time. However, he lost a clump of hair during the struggle and this was DNA tested later in 2003 and found to contain DNA consistent with his DNA sample. As a result of the struggle, the victim suffered scratches and bruising to his face, a cut hand and grazed leg. Needless to say, the victim said that he was terrified of being stabbed with the syringe and was concerned that in the ensuing struggle he might have been.

The respondent's previous convictions 6 The respondent's criminal history commenced when he was 13 years of age and has continued until his latest incarceration. However, relevantly for present purposes, on 23 August 1996 he was sentenced in Liverpool District Court for a number of break, enter and steal offences in respect of one of which he was sentenced to a minimum term of 2 years 6 months to commence on 24 November 1998 and conclude on 23 May 2001 with an additional term of 3 years commencing on 24 May 2001 and concluding on 23 May 2004. 7 The respondent was duly paroled on 23 May 2001. Whilst on this parol he committed the subject offence on 22 July 2001 and two offences of robbery on 7 October 2001 and 11 November 2001 respectively. 8 On 17 February 2003 the respondent was sentenced by Acting Judge Andrew in Campbelltown District Court in respect of the robbery offences for each of which he received a term of imprisonment of 3 years 6 months commencing on 29 November 2001 and concluding on 28 May 2005 with a non-parole period of 18 months concluding on 28 May 2003. A number of stealing, assault and malicious damage offences committed between October and November 2001 were also taken into account on a Form 1. All the offences for which he was sentenced on 17 February 2003 were thus committed over a five week period. 9 On 14 March 2003 the respondent was sentenced in Liverpool Local Court in respect of some seven offences, including larceny, goods in custody and forging and uttering a false prescription. He was sentenced to seven concurrent terms of imprisonment of 6 months, also to commence on 29 November 2001. 10 In his remarks on sentence of 17 February 2003, Acting Judge Andrew considered that the respondent was at a cross-roads in his life and that, accordingly, the case was one in which it was appropriate to deal leniently with him upon the basis that leniency might at this stage of his life lead to reform. At that time the respondent had been assessed as suitable for the Salvation Army Bridge Program in relation to his drug problems as a consequence whereof his Honour imposed a condition on his parole that he be released to the Salvation Army Recovery Services Command under the Bridge Program at Surry Hills and that he undertake that program for 12 months or until release at the discretion of the Director of the Recovery Services Command of the Salvation Army. His Honour noted that he found special circumstances in that firstly, there were prospects of rehabilitation and, secondly, that the respondent was intellectually limited.

The sentencing judge's reasons 11 Having noted that the maximum penalty for the crime of robbery armed with an offensive weapon was 20 years, the sentencing judge observed that the respondent had in fact been released on 28 May 2003 as contemplated by Acting Judge Andrew. However he had failed to enter the Bridge Program, an important part of the sentencing regime, which that judge had imposed. Unfortunately, and notwithstanding that the respondent's reasons for not entering the program, which were accepted by the sentencing judge even though he described them as being "complicated, silly and inadequate", the respondent had relapsed into drug use. He was arrested on 24 July 2003 and his parole revoked with the consequence that he will now remain in custody until 9 July 2005. 12 The sentencing judge then noted the circumstances under which the respondent had come to be charged with the subject offence. In particular, he observed that it was not until November 2003 that a forensic procedure was conducted during which a hair sample was obtained from the respondent for cross-matching with the clump of hair which was pulled from the victim's during the struggle at the time of robbery. The DNA match having been obtained, the respondent was duly charged at which time he acknowledged his guilt. 13 The sentencing judge's reasons for the sentence he imposed are encapsulated in the following paragraph of his remarks on sentence in which the references to "his Honour" are references to Acting Judge Andrew: "It is not his fault that his crime was not solved before he appeared for sentence on the subsequent offences. I find that if this matter had been solved before then, either the offender would have pleaded guilty and been dealt with by his Honour or it would have been included in the Form 1 schedule. Having read with care the whole of his Honour's remarks on sentence, I am of the view that had his Honour been dealing also with the matter now at hand, the considerations of totality would have resulted in a sentencing regime no different from that which his Honour in fact imposed." 14 Accordingly, the sentencing judge approached the matter by, in effect, putting himself in the place of Acting Judge Andrew and sentencing the respondent upon the basis that the subject offence was also being dealt with at the time that the judge sentenced the respondent on 17 February 2003.

The respondent's subjective circumstances 15 The respondent was born on 20 July 1970 and is now 34 years of age. The sentencing judge accepted that as he was under the influence of drugs at the time of the subject offence, he had no recall of committing it. There is no doubt that he has had a miserable life having commenced substance abuse at around 10 years of age and graduating to injecting heroin by time he was 18. As a consequence, he has a lengthy criminal history having spent 11 of his adult years in gaol including 7½ of the past 8 years. A pre-sentence report suggested that he was bordering on institutionalisation. 16 As I have noted, upon being released on parole in May 2003, the respondent failed in his attempts to enter the Bridge Program. The sentencing judge accepted that he had attended the Salvation Army Recovery Services Command at Surry Hills on two occasions but had been turned away because he did not have the fee necessary to permit him to enter the program. 17 Since his return to custody in July 2003, the respondent has undergone a number of courses and programs which he has completed including the "Enough is Enough" anti-violence program and an anger management program. He has also received individual counselling in relation to substance abuse issues. His desire remains to enter a full time residential drug rehabilitation program upon release from gaol. Although he has been favourably assessed for admission to a 12 month program at the Westside Mission Residential Drug & Alcohol Centre at Windsor, the pre-sentence report indicates that that is not a program favoured by the Probation & Parole Service for parolees.

Ground of Appeal 1 : the sentence is manifestly inadequate in light of the guideline judgment in R v Henry & Ors and insufficient weight was given to the very serious aggravating feature that the offence was committed whilst on parole. 18 It is not in dispute that the sentencing judge did not refer to this Court's guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346 in his remarks on sentence. In that case, the Chief Justice (at 380 [162] and [165]) stated that for an offence of robbery with an offensive weapon having the following characteristics, namely,

(i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shop keeper or a taxi driver; (vi) small amount taken; (vii) plea of guilty, the significance of which is limited by a strong Crown case,

a term of imprisonment of between 4 and 5 years was generally appropriate. The Chief Justice also recognised that aggravating and mitigating factors would justify a sentence below or above that range. 19 Although the Crown submissions recognised the applicability of overall considerations of totality for the offences for which the respondent was sentenced by Acting Judge Andrew in February 2003, the High Court's decision in R v Pearce (1998) 194 CLR 610 required the sentencing judge in the present matter firstly, to fix an appropriate penalty for the subject offence and, secondly, to then make necessary adjustments to reflect totality. It is clear that his Honour did neither. 20 Furthermore, it was submitted that the sentencing judge erred when he said that in hindsight it was not for him to say that Acting Judge Andrew's optimism that the respondent was at a cross-roads in his life was misplaced by the fact that when he was released in May 2003 he had breached his parole. 21 Finally, it was submitted by the Crown that the sentencing judge clearly failed to take into account the fact that the subject offence was committed in July 2001 when the respondent was on parole for the offences for which he had been sentenced on 23 August 1996. It was submitted, and not contested, that that was a very serious aggravating feature as it amounted to a "betrayal of the opportunity for rehabilitation": R v Tran [1999] NSW CCA 109 at [15] per Wood CJ at CL. In R v Hernando [2002] NSW CCA 28 [42] the Chief Justice, with whom Wood CJ at CL and Kirby J concurred, noted with approval the following passage from the judgment of Lee J, with whom Gleeson CJ and Abadee J agreed, in R v Vranic (NSW CCA 7 May 1991 unreported) where his Honour said: "The commission of offences on parole demonstrates that the expectation of rehabilitation of the prisoner has not been realised and that through his own conduct the substantial mechanism designed for rehabilitation, i.e. parole, has failed to achieve its purpose. The court in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances."

See also R v Cicekdag [2004] NSW CCA 357 at [7], [52]. 22 The respondent quite properly did not put in issue the correctness of the foregoing submissions of the Crown. However, he submitted firstly, that the 4 and 5 year range indicated for a typical case described in Henry was subsequently said in Thompson (2000) 49 NSWLR 383 at [161] to be applicable only where there was a late plea of guilty, whereas in the present case there was an early plea. Secondly, it was submitted that in the present case there had been significant delay and reference was made to the principles conveniently summarised in the recent judgment of McColl JA, with whom Levine and Hidden JJ agreed, in R v Kay [2004] NSWCCA 130 at [23]-[27]. It was submitted that although the present was not a case where delay was caused by intervening State boundaries or delays in the criminal justice system and that the respondent could not claim to have been left in an uncertain state of suspense, nevertheless there was an unexplained delay of almost two and a half years in the investigation, detection and charging of the respondent with the subject offence. Unlike the offender in Kay, the present was not a case where the respondent remained silent hoping that his association with the offence would not be detected. This was because he had no idea that he was responsible for the offence as he was in the throes of a serious drug addiction at the time it was committed. 23 The Crown responded to this submission by contending that the respondent did not suffer any detriment from the delay because he did not remember the offence. The respondent rejoined by submitting that he had suffered from not having the subject offence prosecuted in a timely manner to make it possible for it to have been dealt with in the same sentencing exercise as was undertaken by Acting Judge Andrew in February 2003. Accordingly, it was open to the sentencing judge in the present case to look closely at the sentences imposed by Acting Judge Andrew and to give consideration to the type of sentence that might reasonably have been expected if the subject offence had been dealt with by that judge at that time. 24 In my opinion the Crown submissions should be accepted. Firstly, the subject offence, even if it had been dealt with at the time that Acting Judge Andrew sentenced the respondent in February 2003, was significantly more serious than the offences in respect of which he was then sentenced. Accordingly, it would have been totally inappropriate for that offence to have been merely taken into account on the Form 1. On the contrary, if it had been dealt with at that time, it would have been the primary offence for which the respondent was sentenced. 25 Secondly, the offences for which the respondent was sentenced by Acting Judge Andrew involved a continuous bout of criminality over a limited period of 5 weeks, whereas the subject offence occurred some 3 months prior to the commencement of that period, was quite separate from the offences committed within that period and involved no common victims. Accordingly, in my opinion there was no inevitability that the sentence for the subject offence, had it been imposed by Acting Judge Andrew, would have been made wholly concurrent with the robbery offences for which he was sentenced at the time. 26 Thirdly, in my opinion the sentencing judge erred in approaching the appropriate sentence to be imposed with respect to the subject offence as if the respondent had been sentenced for that offence at the same time that Acting Judge Andrew sentenced him for the robbery offences. As will appear when dealing with Ground of Appeal 2, it should not have been dealt with in the retrospective manner that the sentencing judge adopted. The application of the principle of totality would take account of the necessity to make adjustments to reflect the earlier sentences. 27 Fourthly, I can see no justification for the sentence for the subject offence being other than in accordance with the guideline judgment in Henry. Even if the respondent had been sentenced in February 2003 for this offence, Acting Judge Andrew would have been obliged to apply that guideline. No basis has been advanced by the respondent to justify the failure of the sentencing judge to apply that guideline when he sentenced the respondent in August last. Given the fact that at the time of the offence the respondent was on parole, was not a young offender and had a lengthy and depressing, criminal record, to impose a sentence of 6 months was as offensive to public confidence in the criminal justice system as it was manifestly inadequate. 28 Accordingly, in my opinion, this ground of appeal is made out.

Ground of Appeal 2 : his Honour was in error and his application of the principle of totality both as to the term of the sentence and by backdating it to 29 November 2001. 29 This ground of appeal overlaps with the first ground. Nevertheless, notwithstanding that there will be some repetition of matters already referred to, I will deal with it separately. 30 The Crown submits that the sentencing judge erred in imposing a sentence which he believed would have been imposed by Acting Judge Andrew had the matter been before him in February 2003 having regard to the principle of totality. Alternatively it was submitted that his Honour has imposed a sentence which was apparently designed not to disturb Acting Judge Andrew's sentencing having regard to the principle of totality. 31 The Crown submits that in so approaching the matter, the sentencing judge erred in a number of respects. Firstly, he erred by failing to acknowledge that the subject offence was more serious than those with which Acting Judge Andrew was dealing. As I have already observed, the maximum penalty for the offence of robbery whilst armed with an offensive weapon is 20 years imprisonment whereas the maximum penalty for the offence of robbery is 14 years imprisonment. Furthermore, the subject offence would clearly have been dealt with as the primary offence even if it had been charged at the time of the later 2001 offences and, therefore, according to Pearce, would have required separate consideration. 32 Secondly, the Crown submits that the subject offence was committed three months prior to the group of offences committed over a five-week period with which Acting Judge Andrew was dealing. Accordingly, the principle of totality did not necessarily require that any sentence imposed for the former be made wholly concurrent with those imposed for the latter or, more accurately, that the sentences imposed for the latter be made wholly concurrent with that imposed for the former. The circumstances justified some accumulation of sentences even if the subject offence had been before the judge in February 2003. Furthermore, even if categorised as part of a series of offences or one bout of criminality, the victim of the subject offence was not a victim of the other offences and, therefore, it was necessary for the total sentence to reflect that fact and be sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation: see R v Cotter [2003] NSW CCA 273 at [69] where Hulme J said: "It may fairly be said that the two offences by each offender were but incidents of one bout of criminality but where the offences involved different victims and each of whose lives have been detrimentally affected to significant degree by that criminality, the total sentence should reflect that fact." 33 Again, in R v KM [2004] NSW CCA 65, Miles AJ with whom Santow JA and James J agreed, said: "55 …In particular, whilst the totality principle is familiar enough and applied commonly enough in favour of an offender in order to avoid an excessive or crushing punishment, it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient having regard to the usual principles of deterrents, rehabilitation and denunciation. 56. In particular, when there is a series of offences, some committed on one victim, others committed on another victim, there is special need to ensure that concurrency of sentence does not gloss over that feature, a point made by Hulme J in Cotter ." 34 It was next submitted by the Crown that it was erroneous for the sentencing judge to conclude that the matter should have been before Acting Judge Andrew and, in effect, to attempt to deal with it as if it had been. It was submitted that the proper approach was to deal with the matter as it was presented at the time. The principle of totality would operate to require regard to be had to the fact that the respondent was serving an existing sentence and the overall effect of that custody, together with any additional sentence to be imposed for the subject offence, would need to be considered. 35 Accordingly, it was submitted that the approach adopted by his Honour has had the effect that the respondent has not been penalised at all for what was an objectively serious offence. As Sully J, with whom Carruthers AJ agreed, observed in R v Wheeler [2000] NSW CCA 34 at [34]-[37], there is a need to ensure public confidence in the administration of criminal justice, and that this is a countervailing factor to the principle of totality necessary to ensure that any perception that there is not that much to choose between a person who commits one or two offences and a person who commits six or seven offences is not permitted to take hold. 36 As I read the written submissions of the respondent, and as was frankly acknowledged by Mr Hulme SC in oral argument, he does not seek to meet the Crown's submissions head on. Rather, he submits that on the basis of the principle of totality which the Crown accepts as being a relevant consideration, the appropriate question for this Court to pose for itself is: what is the least amount of additional imprisonment that should have been imposed upon the respondent for the armed robbery offence? A number of scenarios were then posited, all of which involved the imposition of an additional non-parole period that would expire on or about 9 July 2005 when the respondent currently becomes entitled to be released. 37 In my opinion, the Crown's submissions should be accepted as demonstrating that the sentencing judge committed appealable error. It is clear that the sentence of six months backdated to 29 November 2001 was idiosyncratic and manifestly inadequate given the errors that have been exposed. It was, with respect, a token sentence for what was, objectively, a very serious offence. 38 Although I am conscious of the necessity to avoid a result which may be in the nature of double jeopardy and of this Court's residual discretion not to intervene and proceed to re-sentencing even if error be shown, I do not consider that either fairness or justice to the respondent in the particular circumstances require that that discretion be exercised: R v Hernando (2002) 136 A Crim R 451 at 459-460 [18]-[19]. Quite properly the respondent did not contend to the contrary. Accordingly, the sentence below should be quashed and the respondent re-sentenced.

Re-sentencing of the respondent 39 The principles which apply to a Crown appeal are well known and have been recently stated by Hoeben J, with whom Grove and James JJ agreed, in R v Cicekdag [2004] NSW CCA 357 at [33]. In particular, I bear in mind that where the Court substitutes its own sentence for a manifestly inadequate sentence, the former will generally be less than that which should have been imposed and in any event towards the lower end of the available range. 40 In determining an appropriate sentence for the subject offence, I take into consideration the guideline judgment in Henry, as well as the aggravating factors in the present case that firstly, the respondent is not a young offender with little or no criminal history but a mature one with a substantial history and, secondly, that the subject offence was committed whilst the respondent was on parole. On the other hand, the guideline judgment of four to five years assumes a late plea of guilty whereas the respondent's plea of guilty was an early one with consequent greater utilitarian value. Taking these factors into account but selecting a starting point at the lower end of the range, in my opinion an appropriate starting point would be 4 years imprisonment which I would discount by 25% to take into account the utilitarian value of the respondent's plea of guilty as well as the remorse which the respondent has shown, giving a full term sentence of 3 years. 41 Given the subjective circumstances to which reference has been made and taking into account the desire of the respondent to reform himself and to undertake a full time residential drug and alcohol program when released to parole as contemplated in the affidavit of Ms Stella Calomeris sworn 25 November 2004, I would set a non-parole period of 2 years. His attendance at such a program should be a condition of any parole. 42 The more difficult question is: should that non-parole period expire, as the respondent submits, on 9 July 2005 or, as the Crown submits, at some later point of time? In support of his submissions the respondent notes that at present he is serving out the full sentence of 3 years 6 months imposed on him by Acting Judge Andrew due to his breach of the condition of his parole when he was released to parole at the expiry of the 18 month non-parole period on 28 May 2003. This notwithstanding, it would be open to the respondent to apply for parole at any time after the disposition of this appeal and, so he contends, there is no reason to believe that he would not have reasonable prospects of parole being granted given his achievements whilst in custody and manifest desire to reform himself. 43 The respondent therefore submits that he will be deprived of this opportunity if he is now sentenced for the subject offence and a non-parole period expiring on or prior to 9 July 2005 is imposed. Accordingly, he submits that this deprivation would, in the circumstances, be sufficient to mark the public's outrage at the affront which the sentence of 6 months was likely to have engendered notwithstanding the objective seriousness of the offence for which it was imposed 44 In further support of this contention, the respondent pointed to the importance of encouraging his desire to rehabilitate himself and to be released as soon as possible into a full time residential program in order to achieve that objective. 45 I am unable to accept the respondent's submission. Firstly, there is no certainty that if the respondent applied for parole (assuming it was open for him to do so), it would be granted. Secondly, the deprivation of the opportunity to gain parole relied on by the respondent as being sufficient additional punishment for the subject offence involves a subtlety, which most members of the public as well as the victim of the offence would neither recognise nor appreciate. Thirdly, the very question that the respondent posed for this Court in his written submissions, namely, "what is the least amount of imprisonment that should have been imposed upon the respondent for the subject offence?" - expressly and, in my opinion, correctly, contemplates imprisonment in addition to that which he is currently serving. 46 Finally, an additional term of imprisonment extending beyond 5 July 2005 for a period of 6 months is, in my view, the only way that the objective seriousness of the subject offence can be given at least some recognition and the principle of personal and general deterrence and denunciation can be given effect to without offending the principle of encouraging the respondent's desire for rehabilitation.

Conclusion 47 For the foregoing reasons, I would therefore propose the following orders:

(2) Appeal allowed and the sentence imposed by his Honour Judge Maguire on 5 August 2004 quashed.

(3) In lieu thereof, the respondent is sentenced to a term of imprisonment of 3 years which is to be taken to have commenced on 10 January 2004 and which will expire on 9 January 2007 with a non-parole period of 2 years which is to be taken to have commenced on 10 January 2004 and which will expire on 9 January 2006, on which date the respondent shall be released on parole. (4) It shall be a condition of such parole that: (a) the respondent be subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 during the period specified by those regulations, and (b) immediately upon release on parole the respondent is to enter into a full-time drug rehabilitation program approved by his supervising parole officer and to remain in such program for as long as that officer considers it appropriate.

48 SULLY J: I agree with Tobias JA. 49 HOEBEN J: I agree with Tobias JA. **********

Last Modified: 12/15/2004 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.