R v Marinos

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0698 FILE NUMBER(S) : LOWER COURT Black DCJ JUDICIAL OFFICER :

• 7 - IN THE COURT OF CRIMINAL APPEAL 60045/03

WOOD CJ at CL SIMPSON J

Wednesday 30 April 2003 Regina v Dennis Marinos Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence of two years and three months with a non-parole period of fifteen months imposed upon him by his Honour Judge Black QC, following his plea of guilty to an offence of robbery. That offence involved a typical bag snatch, the victim being a 56-year-old woman who was innocently walking down the street and who, as a result, was seriously frightened and traumatised by the experience. 2 The amount of cash and personal property taken was small. However, that in no way minimises the seriousness of the offence. 3 His Honour expressly took into account the applicant's attempts to wean himself off an addiction to heroin, which had seen him progress from a period of methadone maintenance, through a Naltrexone program, to a stage where he was taking two medications, Valium and Clonidine, albeit in excess of the prescribed dosages, to ease the withdrawal symptoms which he was suffering following completion of the Naltrexone program. 4 When interviewed by police he admitted the offence, and indicated that he would probably use the proceeds of the robbery to purchase a drug other than heroin, possibly cocaine. 5 The applicant was twenty-two years of age at the time of the offence and had a minor prior record, including four convictions for shoplifting, and one conviction for possession of a knife. He had served a three month periodic detention order, following breach of a community service order, and the sentence imposed by his Honour was therefore the first occasion on which he had received a full time custodial sentence. 6 He had made positive steps towards rehabilitation insofar as he had taken various measures to treat his drug addiction, although obviously without complete success, and in so far as he was seeking employment, and had plans to enrol in an advanced computer course. He also had a supportive father and girlfriend. These matters, along with his youth and the early plea, were taken into account and led his Honour to allow a 25 per cent discount for the plea, and to reduce the non-parole period to one equivalent to 55 per cent of the head sentence. 7 The submission that his Honour fell into an error of law and, as a consequence, passed a sentence which was manifestly excessive depends upon the following passage in the reasons for sentence: "The maximum penalty in relation to this offence is one of fourteen years and it is necessary to refer to observations by superior courts relating to offences such as this, which are that offences of robbery, either armed or unarmed, should be regarded in all circumstances as an offence of the utmost gravity, which must carry a custodial sentence. Fully exceptional and unusual circumstances are required to justify any sentence other than a custodial sentence of some kind. Specific and general deterrence must be provided by sentences for offences of bag snatching against elderly persons and other victims, and there are further observations to a similar effect in a number of cases." 8 There could be no possible quarrel with the concluding observations of his Honour. In that respect, I do not find any support for the proposition which was advanced to the effect that the sentence was excessive for the reason that the victim was not injured, and appeared somewhat younger than her stated age of fifty-six years. 9 It was submitted however, that his Honour had overstated the seriousness of the offence, in particular by reference to those matters but also by coupling it with one of armed robbery, and by taking the view that, it was only where exceptional and unusual circumstances were demonstrated, that a custodial sentence would be inappropriate. 10 In support of that proposition attention was drawn to what was said to be a statement of principle to be drawn from the decision of this Court in Regina v Fraser [1999] NSWCCA 212. That case involved an appeal against a sentence imposed in relation to a charge of robbery, although it did not involve a bag snatching. It was there submitted that the sentencing judge had erred when he said: "The courts in this State have said that the only time that a person who involves himself into crimes such as this can escape a custodial sentence is if there are exceptional circumstances."

11 In considering that submission, Smart AJ, with whom Studdert J agreed, said: " There is no doubt that such a principle applies in cases of armed robbery and robbery with circumstances of aggravation. Generally, the offence of robbery will attract a custodial sentence, as it should do in this case, but the offence, whilst serious, is slightly less grave than armed robbery, or robbery with circumstances of aggravation. In cases where the robbery is at the bottom of the range of robbery offences, and there are compelling subjective features, a full-time custodial sentence may not always be required. The judge has slightly over-stated the position for offences of robbery. "

12 The decision in that case was one of a two judge bench, and it cannot, as a consequence, be regarded as having laid down a statement of principle, let alone to have qualified previous statements of this Court when constituted by three judges. 13 I do however accept that offences of armed robbery are generally more serious than cases of robbery simpliciter, and that the objective seriousness of an offence, whether it be one of armed robbery or robbery, must be considered in the light of its own facts. It would be far too simplistic to categorise these matters as totally equivalent offences, particularly since the offence of robbery can take many forms, or perhaps, more appropriately, can occur in a wide range of circumstances. 14 To that extent, his Honour's observations in this case may have somewhat overstated the position, particularly as the authorities, which his Honour appears to have referred to, expressed the principle in the following terms: "The offences of robbery, whether armed or unarmed, should be regarded in virtually all circumstances as an offence of utmost seriousness which must carry a custodial sentence."

15 The word "virtually" was omitted from his Honour's statement, and it is a qualifying expression which has some importance in this context. 16 The principle has been expressed in those terms consistently in decisions such as Regina v Murray (unreported) NSWCCA 11 September 1986; Regina v Redmond (1990) 47 A Crim R 180 and Regina v Valentini (1989) 46 A Crim R 23. To similar effect, was the observation of Kirby P (as he then was) in Regina v Kingsbeer (Unreported) NSWCCA 29 July 1998, where the President said: "It is important to bear in mind the instruction of this Court, which applies to all, that a robbery, whether with or without arms, is regarded as a very serious offence indeed. In virtually every circumstance, it is to be regarded as an offence of the utmost gravity, which should normally carry a custodial sentence. " 17 In determining whether the sentence in this case was excessive, it is more pertinent to refer to the consistent line of authority which has held that bag snatching/robbery offences are particularly serious. For example, in Regina v Ranse (Unreported) NSWCCA 8 August 1994 Gleeson CJ said: "One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present respondent are not trivial instances of disrespect for private property. They are serous breaches of the peace. They are direct attacks upon the security of person and property which the law exists to protect. "

18 In Regina v Hall (Unreported) NSWCCA 28 September 1995, it was observed: "There are two particularly serious aspects of crimes of this character. The first is that they involve a most serious breach of the peace. The reason why the criminal law exists is so that people can walk along the street without fear of being attacked and robbed. The second is that offences of snatching people's handbags display a callous disregard of rights of property." 19 Similar comments have been made in other cases, for example, see Regina v France NSWCCA 9 July 1992, Regina v Bradley NSWCCA 26 October 1993 and Regina v Otto [1999] NSWCCA 190. In each of these decisions it was made plain that offences of this kind involve cowardly attacks upon people who are entitled to proceed down public streets in safety, and that the community is shocked by this kind of offence, particularly where it is committed against older citizens. They additionally make it clear that there is a need for the Courts to send out a message that bag snatching offences will attract condign punishment. 20 In light of that consistent statement of principle, it was inevitable, in my view, that the offence in this case be regarded as one of considerable gravity and such as to call for a period of full time custody. 21 The decision in Regina v Fraser does need to be understood in the light of these decisions, and also in the light of what was actually said by Smart AJ. His Honour did accept that generally the offence of robbery will attract a custodial sentence, while recognising that where the offence is at the bottom of the range of such offences, and where there are compelling subjective circumstances, some alternative to a full time custodial sentence may be appropriate. 22 As a general proposition, that is quite uncontroversial, since there is always room for the Court to opt for a non-custodial outcome where the circumstances justify that course. The decision in Regina v Griggs [2000] NSWCCA 33 provides such an example. 23 Fraser, it may be observed, did not attract the unqualified approval of another two judge bench in Regina v Sweetman [2000] NSWCCA 228. As Adams J there noted, it may be understood, as dependent upon a "nuance of expression" rather than as an attempt to state a principle of general application. 24 In those circumstances Fraser provides only limited guidance as do the Judicial Commission Sentencing Statistics. Those statistics, it may be noted, would tend to suggest that the present sentence, at least as to the head sentence, fell within the mid-point of the sentencing outcomes. However, those statistics do encompass a wide variety of factual circumstances as well as a wide range of subjective circumstances. 25 Ms Cox in a most comprehensive and helpful submission has carefully drawn to our attention the matters which point to the applicant having made significant progress towards his rehabilitation by the time that he appeared for sentence. He was a relatively young man and he is to be commended for the attempts that he had made. 26 Although I am not persuaded that error has been shown in relation to the head sentence, I have reached the conclusion that the non-parole period was somewhat excessive, and that having regard to his age and to his efforts to overcome his problem, it would be appropriate to reduce the non-parole period so as to encourage his rehabilitation. 27 Having reached the view that there was error in that regard, I have taken the opportunity of carefully examining the affidavit of the applicant, which records his progress while in custody. It shows a substantial continuation of his attempts at rehabilitation, through undertaking various courses, including drug counselling and occupational improvement. He has also indicated that he has woken up to himself, and has realised the folly of abusing drugs. It is to be hoped that he is genuine in that respect. 28 In my view, he should have the opportunity of proving himself. For that purpose I would propose: 1. The application for leave be granted. 2. The non-parole period be reduced to nine months to commence on 30 August 2002 and to expire on 29 May 2003, upon which date he is to be released on parole. 3. Otherwise the appeal be dismissed.

29 SIMPSON J: I agree. 30 WOOD CJ at CL: The order of the Court will be as I propose. **********

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