R v Perrett [1999] NSWCCA 115 | Case summary

Facts 2 The materially uncontested facts were conveniently set out by the trial judge in his remarks on sentence: "at about ten to nine [pm] on 17 January 1998 the victim, an employee of Oak Hill Pizza Café, attended 27 Daphne Place, Cherrybrook to deliver an order. At the driveway to the premises he was met by the [respondent] and co-offender, who had entered from an adjoining reserve. The co-offender demanded the victim hand over the bag containing one hundred and twenty dollars cash. The co-offender has then forced the victim to the ground, pushing his right shoulder. The prisoner stood approximately 5 metres from the victim whilst in possession of a cricket bat and wearing a balaclava. However, the distance of 5 metres is disputed for the prisoner and a concession by the [Crown] that the distance could have been 10 metres, which I find to be the case. The prisoner and co-offender then de-camped into the adjoining reserve. On Monday 23 February 1998 the prisoner attended Eastwood Police Station, where he participated in an electronically recorded interview (ERISP). He readily admitted to attending Daphne Place and robbing the victim whilst in possession of the cricket bat and to wearing a balaclava. He admitted to taking fifty dollars of the money that had been obtained from the robbery. The prisoner was co-operative with police when arrested and appeared remorseful regarding his actions." 3 The Crown submits that his Honour's sentence was manifestly inadequate for the following reasons: (i) robbery is regarded as a particularly serious offence: R v Murray (unreported, New South Wales Court of Criminal Appeal, 11 September 1986); (ii) robbery is an offence which, in all but the most exceptional circumstances, should attract a custodial sentence: R v Roberts & Ors (1994) 73 ACrimR 306; R v Kingsbeer (unreported, New South Wales Court of Criminal Appeal, 29 July 1988); (iii) the robbery of a person whose occupation renders them vulnerable ought to attract a particularly deterrent sentence: R v Thwaites (unreported, New South Wales Court of Criminal Appeal, 6 October 1993); R v Elliot (1983) ACrimR 238; R v Iskander (unreported, New South Wales Court of Criminal Appeal, 22 July 1996); R v DRL (unreported, New South Wales Court of Criminal Appeal, 16 May 1997); (iv) the ameliorating effect of the respondent's youth upon the requirement for a deterrent sentence is reduced because of the seriousness and prevalence of the offence: R v Pham (1991) 55 ACrimR 128; and (v) the trial judge either failed to recognise that the starting point in the usual case for a crime of this nature was a full time custodial sentence, or alternatively, if he recognised that principle gave too much weight to the subjective factors in this case. This led his Honour to impose a sentence which fails to reflect the objective gravity of the offence: R v Dodd (1991) 57 ACrimR 349. Factors considered in sentencing 4 The principle that in the usual case the starting point for offences of this nature is a custodial sentence has been enunciated in a number of cases, including R v Kingsbeer and R v Roberts. 5 Kingsbeer involved a bank robbery in which the respondent (falsely) told the bank teller that he had a gun in order to execute his robbery of $3,075. The respondent pleaded guilty and the trial judge imposed a fine of $4000 and placed him on a good behaviour bond for 5 years. However, Kingsbeer had prior criminal convictions and carried out the robbery to fund his heroin addiction. Notwithstanding that the Court of Criminal Appeal considered the sentence was lenient, it did not interfere because the Crown had not established that the sentence imposed "was not open to the sentencing judge": see R v Murray per Lee J. 6 Murray's case is worthy of consideration. That was a case in which the respondent had pleaded guilty to two counts of robbery, one count of armed robbery and one count of being armed and assaulting with intent to rob. The trial judge had found that despite his drug addiction, Murray was a man of good character. On appeal Lee J noted the principle that: "robbery… [is] regarded, in virtually all circumstances as an offence of the utmost gravity, which must carry a custodial sentence". 7 Nonetheless, Lee J acknowledged the trial judge's wide discretion in sentencing and declined to intervene with the non-custodial sentence imposed by the trial judge. Lee J appears to have been impressed by affidavit evidence tendered on the appeal as to the particularly successful rehabilitation of the respondent under the non-custodial sentence imposed by the trial judge, commenting that: "[t]o confine the respondent to prison and thus interrupt the continuance of the present desirable state of affairs merely for the sake of satisfying the policy of the law that a custodial sentence should have been imposed is not something that commends itself to me." 8 Another case relevant here is R v Roberts. In that case three respondents, two of whom had prior criminal records, had committed an armed robbery of a food store, involving threats and acts of violence against store employees. The trial judge described the crime as being "amongst the gravest levels of criminality in the range of armed robbery charges" and the Court of Criminal Appeal accepted that the crime was "at the gravest level of criminality" (at 308). The trial judge had imposed fixed terms of three years imprisonment to be served by way of periodic detention. The Court of Criminal Appeal was of the view that "armed robbery is to be regarded as an offence of the utmost gravity which, except in the most exceptional circumstances, must carry a full-time custodial sentence". In contrast to Kingsbeer, the Court in Roberts decided that despite the overriding discretion of the trial judge and the element of double jeopardy inherent in Crown appeals, the sentences applied at first instance were so inadequate as to justify intervention. 9 Here, the trial judge recognised the seriousness of the offence in his remarks on sentence. In my opinion, he also acknowledged the principle that the offence of robbery, in the ordinary case, attracts a custodial sentence. This is apparent from his remarks at page 5 of the transcript. His Honour considered, however, that a custodial sentence was not appropriate in this case. 10 In coming to this conclusion, his Honour did not use the oft quoted phrase "exceptional circumstances" and, it follows, he did not identify any particular matters as coming within that notion. However, the sentencing principles relevant to this offence were fully canvassed in argument during the Crown's address on sentence. It is clear from his Honour's remarks on sentence that he considered the mitigating factors in the respondent's case as being the matters which favoured the imposition of a non-custodial sentence. Whether those factors were sufficient to constitute "exceptional circumstances" is a different question to which I shall return shortly. 11 The Crown also submits that the robbery of persons in vulnerable occupations ought to attract a particularly deterrent sentence: see R v Thwaites (armed robbery of a service station); R v Iskander (robbery of taxi drivers). That principle is well established and is a factor relevant to the sentencing process. It should be noted in passing however, that in both Thwaites and Iskander the court did not, on the appeal, interfere with the trial judge's discretion. 12 The Crown next submits that the ameliorating effect of the respondent's youth upon the requirement of a deterrent sentence is reduced because of the seriousness and prevalence of offences of this nature. The Crown relies upon the decision of this court in R v Pham in support of this submission. In Pham, the Court stated that: "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes." 13 Pham, however, was a very different case to this. At the time of the offence, Pham was on bail for robbery and his co-offender had a prior conviction. The offence involved a home invasion, with at least one of the accused being armed with a sawn off rifle and another with a knife. The residents of the home were tied up and threatened. The amount involved in the robbery was substantial. 14 Finally, the Crown submitted that the apparent over emphasis by his Honour on the subjective circumstances of the respondent led him into error by imposing a sentence which fails to reflect the objective gravity of the offence: see R v Dodd. 15 It must be established that the sentencing judge fell into a material error of law before this Court can intervene. See generally, R v Moffitt (1990) 20 NSWLR 114 at 121. Here, the material error alleged is that the sentence was manifestly inadequate. I do not agree. However, the sentencing judge has a substantial discretion. In my opinion, the Crown has failed to establish error in the exercise of the sentencing judge's discretion. Full acknowledgment has to be given to the seriousness of this offence, notwithstanding that it did not involve a huge amount of money. The personal security of the pizza delivery boy was attacked and compromised. He has been left, understandably, considerably affected by the attack. The attack itself, whilst not objectively vicious, was cowardly in the extreme. The offenders wore balaclavas. There were two offenders against one victim and the respondent armed himself with a cricket bat. The respondent said that he did not intend to use it, but had it merely to frighten. That may be so, but the victim was not to know that. 16 There were however, strong subjective factors in the respondent's favour which left it open to the judge to impose a non-custodial sentence. This was a first offence and the respondent pleaded guilty at the earliest possible time. He expressed remorse at an early time and paid compensation by repaying the whole of the moneys which were taken, notwithstanding that he had only received $50 from the proceeds of the robbery. There was evidence of his good character which was not challenged. He supports himself in paid employment. These factors, in my opinion, were sufficient to constitute exceptional circumstances so as to make a non-custodial sentence appropriate and the sentence imposed within an appropriate discretionary range. It must also be remembered that the objective criminality of the respondent's crime in this case was significantly less than the objective criminality of the offenders in Murray, Roberts or Kingsbeer, where the principles in relation to sentencing for this offence were discussed. Care must be taken when applying sentencing principles, established and enunciated in cases where the crime was of a very grave nature to cases of far less seriousness. At all times such principles have to be applied with due regard to the facts of the particular case. 17 In addition, the respondent has not re-offended. Presumably and hopefully, his arrest and sentence in this matter has had a significant salutary effect on him and he has the threat of a custodial sentence hanging over his head if he breaches his recognisance. When the principle of double jeopardy is added to the considerations which this Court must take into account, I am of the opinion that the appeal should be dismissed. 18 Finally, mention should be made of sentencing statistics. The respondent's counsel provided the court with sentencing statistics for robbery offences in the case of an offender under 21 without a prior conviction, that being the respondent's profile. Those statistics reveal that in one third of the cases, a non-custodial sentence was imposed. This Court has repeatedly emphasised the limited use to which such statistics may be put, whilst at the same time recognising that they provide useful but generalised information to the court as to range of sentences imposed in respect of a particular offence. For the purposes of this case, they demonstrate that the sentence imposed by the trial judge is not outside the range of sentences imposed for this offence in the case of a young first offender. 19 I am of the opinion that the appeal should be dismissed. 20 SIMPSON J: I agree. 21 BELL J: I agree. 22 BEAZLEY JA: The order of the Court is that the appeal is dismissed.

R v Perrett

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