R v Lomas

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/1106 FILE NUMBER(S) : LOWER COURT Blackmore DCJ JUDICIAL OFFICER :

• 7 - IN THE COURT OF CRIMINAL APPEAL 60427/03

JAMES J BUDDIN J

Thursday 5 February 2004 REGINA v DANIEL ANATH LOMAS Judgment 1 JAMES J : Daniel Anath Lomas has applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Blackmore on 2 May 2003, after the applicant had pleaded guilty to one offence of robbery in company committed on 16 April 2002.

2 His Honour imposed a sentence of imprisonment for seven years to commence on 23 April 2002, the date on which the applicant had been arrested and from which he had remained in custody, with a non-parole period of five years. In sentencing the applicant his Honour took into account another offence of robbery in company committed on 10 September 1998. Robbery in company is an offence under s 97(1) of the Crimes Act , for which the maximum penalty is imprisonment for twenty years.

3 The facts of the principal offence of robbery in company committed on 16 April 2002 were stated by his Honour in his remarks on sentence in a way which has not been the subject of any criticism on the hearing of this application. His Honour had taken his statement of the facts of the offence from a statement of facts which had been admitted without objection in the proceedings on sentence.

4 In his remarks on sentence his Honour said: "On 16 April 2002 shortly after 3.00pm at the Commonwealth Bank at Martin Place in Sydney that bank was robbed. Five males were observed by staff and customers to be inside the bank and to be involved in the robbery. All of the offenders were described as being of Islander appearance.

The Commonwealth Bank branch at Martin Place is an old building. It has granite counters with old fashioned metal grilles between the teller and the customers. The counter is about 1.2 metres off the ground and the metal grilles go up another 1.2 metres. The top edge of the metal grille barrier between the teller and the customer is approximately 2.4 metres off the ground.

Two of the robbers entered the teller side of the bank. One was observed to climb over the top of the counter and the metal grilles at about the position of teller number 4. Those two men took the money out of the cash drawers. The total amount of money taken in the robbery was $20,932. The other three offenders remained on the customer side of the counter ensuring that the customers remained on the ground and keeping watch.

One of the bank employees, Mr John Kennedy, heard the commotion and walked from the employee section into the customer area of the bank. When he arrived there everyone was face down on the floor except for the offenders. An Islander man approached him and pushed him to the ground. The offenders eventually left the bank onto Elizabeth Street. They there separated into two groups and got into cabs and escaped." 5 The applicant was one of the five men who committed the robbery and he was the man who climbed over the counter. Fingerprints left on the cover above the screen that separated the tellers' counter from the customers of the bank were developed and found to match the fingerprints of the applicant. The applicant was arrested on 23 April 2002 at a home unit. Inside the home unit police found a large amount of cash.

6 The facts of the offence of robbery in company committed on 10 September 1998, being the offence which was taken into account in sentencing the applicant, were stated by his Honour in his remarks on sentence as follows:

"On 10 September 1998 the National Australia Bank at St Leonard's was robbed. At about 3.50 pm men entered the bank. One man climbed the counter closest to the door. He stood on top of teller's counters nearest the door. He jumped down from the counter to the floor on the staff side of the counters. That man said words to the effect of, "Get down. Get down or I'll kill you." He then moved to the staff door and let at least one other man into the staff area.

As a result of that robbery $34,000 in cash was stolen. A fingerprint expert was called again to that particular location. Ultimately, this offender's prints were identified as being associated with that robbery.

7 Although the robbery at the St Leonard's branch of the National Australia Bank had been committed as long before as 10 September 1998, the applicant had not been charged with that robbery until shortly before he was sentenced by his Honour. In his remarks on sentence his Honour accepted that, if the applicant had been dealt with earlier for the robbery in company on 10 September 1998, he might have been dealt with at the same time as he was sentenced for other offences, and if this had happened, any sentence for the robbery in company would almost certainly have been made concurrent with other sentences which were imposed on the applicant.

8 In his remarks on sentence Judge Blackmore referred to R v Henry (1999) 46 NSWLR 346, the guideline judgment on sentencing for offences of armed robbery, which has been treated by this court as affording some guidance in sentencing for the related offence of robbery in company. His Honour commented that the principal offence was much worse than the type of offence of armed robbery having the characteristics described in par 162 of the Chief Justice's judgment in Henry , which the Chief Justice said should generally attract a sentence of four to five years. His Honour considered that the present offence was towards the top of the range for offences of robbery in company.

9 One respect in which the present offence of robbery in company was worse than the type of case of armed robbery described by the Chief Justice in para 162 of his Honour's judgment in Henry was that the applicant was not an offender with little or no criminal history. The applicant, although only twenty-three years old at the time he was sentenced, had a criminal history which included convictions for stealing and robbery. In particular, on 3 December 1999, the applicant had been sentenced for an offence of robbery in company to concurrent terms of imprisonment of five and one half years with a minimum term of three years three months commencing on 30 December 1998. 10 The applicant, having served the minimum terms of those sentences, had been released on parole on 29 March 2002, that is only two to three weeks before he committed the offence on 16 April 2002. His Honour regarded the fact that the offence of robbery in company of 16 April 2002 had been committed while the applicant was on parole and so soon after he had been released on parole, as amounting to "extreme aggravation" of the offence. 11 In sentencing the applicant the sentencing judge allowed a discount of fifteen per cent for the applicant's plea of guilty; the plea of guilty had not been entered at the earliest reasonable opportunity. 12 In his remarks on sentence his Honour dealt with some of the subjective circumstances of the applicant. As already stated, the applicant was twenty-three years old at the time he was sentenced. He was born in New Zealand. When he was about eight years old his family moved to Australia. When he was about nine years old he had been sent from his parents' home to live for a period with certain relatives. After he had returned to his parents' home the applicant ran away from home a number of times and was placed in a juvenile institution. The applicant had begun using cannabis at the age of thirteen and had later begun using heroin. 13 His Honour referred in his remarks on sentence to reports which had been admitted in the proceedings on sentence by a psychologist, Mr John Taylor, and by a drug and alcohol counsellor. His Honour noted a suggestion made in one of the reports that the applicant attend a residential rehabilitation programme at Odyssey House.

14 His Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in the applicant's need for "some life skills and education, and that needs to be supervised in some way". His Honour made this finding, notwithstanding that after special circumstances had been found in the applicant's favour when the applicant was sentenced on 3 December 1999, the applicant had abused the trust placed in him by that sentencing court by committing the further offence on 16 April 2002. 15 His Honour recommended that while on parole the applicant be permitted to attend a residential rehabilitation course such as that conducted by Odyssey House. 16 The only ground of appeal against sentence is that "the sentence is manifestly excessive, especially in the light of the custodial history of the applicant and with regard to the non-parole period." 17 In relation to both the total term of the sentence and the division of the total term into a non-parole period and the balance of the term, counsel for the applicant referred to the decision of this court in R v Brown [2000] NSWCCA 423, a decision of a two judge Bench consisting of Hulme and Barr JJ. In that case the applicant for leave to appeal had been sentenced to a term of imprisonment of ten years, consisting of a minimum term of eight years and an additional term of two years, for an offence of robbery whilst armed with a dangerous weapon and in company. 18 The leading judgment in R v Brown was given by Hulme J, with whose judgment Barr J agreed. In para 17 of Hulme J's judgment, his Honour said: "However, although I think the applicant merited a long period of imprisonment and perhaps, in other circumstances, I would not have regarded this one as too long, following as closely as it did the applicant's prior period of incarceration, the view I have formed is that in the sentence imposed his Honour erred. While I appreciate the fact that the subject offence was committed on parole is an aggravating feature and I do not underestimate the weight to be given to the fact the weapon was loaded, eight years' minimum term for this offence, following so closely after a previous four and one half years of incarceration might, I think, fairly be described as crushing and manifestly excessive in the particular circumstances, given the overall period of incarceration and notwithstanding the intervention of the short period when the applicant was at large. I think also a period greater than two years should have been imposed by way of additional term when, subject to the views of the parole authorities, the applicant should be admitted to parole." 19 Counsel for the applicant very properly drew the court's attention to the subsequent decision of this court in R v Proud [2002] NSWCCA 219, a decision of a two judge bench consisting of Dowd J and Smart AJ. In R v Proud Smart AJ said that the approach taken by the court in R v Brown , "requires considerable circumspection and is not necessarily one to be universally adopted. One has to be very careful that the result of such an approach does not culminate in inadequate sentences and non-parole periods which do not adequately reflect the criminality with which the court is faced." 20 I will respectfully adopt what Smart AJ said in Proud . 21 In my opinion, the overall sentence of seven years imposed by his Honour was clearly not manifestly excessive. The principal offence of robbery in company on 16 April 2002 was much more objectively serious than the type of offence of armed robbery described by the Chief Justice in R v Henry , which the Chief Justice said should attract a term of imprisonment of four to five years. It was a serious circumstance of aggravation that the offence had been committed soon after the applicant had been released on parole under sentences for the same kind of offence. The sentencing judge would have been entitled to increase the sentence to some extent for the serious offence of robbery in company which was to be taken into account. The applicant's subjective features were not, in my opinion, such as to attract any leniency. 22 I turn to the submission that his Honour erred in not setting a longer period in which the applicant would be eligible for release on parole. His Honour did decide that he should find that there were special circumstances and his Honour imposed a sentence under which the balance of the term of the sentence exceeded one third of the non-parole period, although it is true that the period by which the balance of the term of the sentence exceeded one third of the non-parole period was quite short, being only three months.

23 I take into account that if the time the applicant had spent in prison under the sentences imposed on 3 December 1999 is taken into account, the consequence of the non-parole period set by his Honour would be that the applicant would not be eligible for release on parole until 22 April 2007, by which time the applicant, apart from the brief period he was at liberty between 29 March 2002 and 23 April 2002, would have been continuously in custody between 30 December 1998 and 22 April 2007, a period of about eight years four months, and that, even if he was released on parole immediately he was eligible for release, the parole period would be only two years, which would be less than one third of eight years four months.

24 Nevertheless, I do not consider that this court could find that his Honour erred in setting the non-parole period and the balance of the term which his Honour set. It is apparent from Judge Blackmore's remarks on sentence that his Honour gave careful consideration to whether he should make a finding of special circumstances and that his Honour concluded that he should make the balance of the term of imprisonment he would impose exceed one third of the non-parole period, to the extent provided for in the sentence he imposed. His Honour was clearly mindful of the sentences which had been imposed on 3 December 1999. A finding of special circumstances had been made by the court which sentenced the applicant on 3 December 1999. The applicant had been released on parole as soon as he was eligible for release on parole under those sentences and the applicant had, almost immediately after being released, committed a further serious offence. The parole period provided for in his Honour's sentence would be sufficiently long for the applicant to undertake a residential rehabilitation course at an institution such as Odyssey House, which was recommended by his Honour.

25 I am mindful of the need referred to by Smart AJ in Proud that one has to be very careful that the adoption of an approach such as was taken by the court in Brown does not result in inadequate sentences and non-parole periods which do not adequately reflect the offender's criminality. I do not consider that it can be said that his Honour erred in setting the non-parole period and parole period which he did. In my opinion, leave to appeal should be granted, but the appeal should be dismissed.

26 BUDDIN J : I agree. 27 JAMES J : The orders of the court will be as proposed by me. ********

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