R v Reynolds

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0419 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60355/03 60037/04

LEVINE J SIMPSON J BARR J

Friday 12 March 2004 REGINA v Wayne Bradley REYNOLDS Judgment 1 LEVINE J: I agree with Simpson J. 2 SIMPSON J: This is a Crown appeal against the asserted manifest inadequacy of a sentence imposed upon the respondent in the District Court on 13 June 2003, following his plea of guilty to a charge of robbery being armed with an offensive weapon. The charge was brought pursuant to s97 of the Crimes Act 1901 which prescribes a maximum penalty of imprisonment for twenty years. Also taken into account pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") was an offence of larceny. The respondent was sentenced to imprisonment for four years with a non-parole period of two years, commencing on 4 December 2002. 3 An application by the respondent for leave to appeal against the severity of the sentence was abandoned.

facts 4 The robbery offence was committed on 20 June 2002, at the Windale Post Office. At about 10.20 am on that morning the respondent entered the Post Office, where a Mr Neil Somaiya was working. The respondent handed Mr Somaiya some coins, which he asked to have exchanged for a fifty cent piece. As Mr Somaiya sought to comply, he opened the cash drawer, whereupon the respondent rushed behind the counter, producing a knife. He pushed Mr Somaiya and then struck him on the shoulder, using his right hand in which he held the knife. He removed money from the cash drawer and fled, dropping the knife. The amount of money taken was $536.00. 5 Later that day, police attended at the respondent's last known address, which appeared by then to have been abandoned. They searched the premises. Among other things they found a piece of paper which contained a list of business addresses. Included on these was the Windale Post Office. Symbols against some of the addresses (not including Windale Post Office) were stated to indicate "Good ones" or "Maybes". 6 The larceny offence was committed two days later, on 30 June. With a female companion, during the course of the morning, the respondent entered a jewellery store and looked at jewellery on display and left. Later in the day the respondent returned alone and asked the shop assistant to show him some gold bracelets. The assistant showed him some bracelets, one at a time. The respondent then distracted the assistant, and reached in front of her and took a roll of gold bracelets from the cabinet. He fled from the store. The jewellery he took was valued at almost $10,000.00. The following day he sold one of the bracelets for the sum of $150.00. 7 The respondent was arrested and interviewed by police on 4 July 2003 in relation to both matters. He denied any involvement in either offence. He was, nevertheless, charged. Subsequently both Mr Somaiya and the jewellery store assistant identified the respondent as the perpetrator of the offences.

the plea of guilty 8 The respondent's plea of guilty was entered on 24 April 2003, more than eight months after his arrest. Until then he had maintained his intention to plead not guilty. The reason for the late entry of a plea of guilty was said to be the late acceptance by the Crown of a proposal that the rest of the jewellery be dealt with under Part 3 Division 3 of the Sentencing Procedure Act, rather than by way of separate charge. A letter signifying accepting the proposal written by the Solicitor for Public Prosecutions to the respondent's legal representatives was produced in evidence. It was dated 16 April 2003. It will be necessary to consider the implications of the timing of the plea when dealing with the submissions advanced on behalf of the parties.

subjective circumstances 9 The respondent was born on 15 August 1979. He was a few weeks short of twenty-three years of age at the time he committed the offences. He had a criminal record which, significantly, included two convictions for robbery from the person, in relation to which the respondent was sentenced in August 1998, under s94 of the Crimes Act (which section prescribes a maximum penalty of imprisonment for fourteen years). He was sentenced, under the sentencing regime which then applied (Sentencing Act 1989), to concurrent minimum terms of penal servitude for two years and additional terms of two years - sentences effectively identical to that the subject of the present appeal. An application for leave to appeal against the severity of those sentences was dismissed on (R v Reynolds [1999] NSWCCA 238, unreported, 16 August 1999). Both of those offences were committed in shops in the Newcastle region, against shopkeepers, each of whom struggled with the respondent. One victim sustained an injury to her back and arm when resisting the respondent's efforts to remove a cash register. The other victim was punched in the face. These two robberies yielded a total sum of $800.00 and the cash register. They were committed as a result of the respondent's drug addiction. 10 The respondent was released on parole on 17 August 2000 and was still subject to the conditions of the parole order at the time of these offences. 11 His arrest on 4 July 2002 resulted in the revocation of his parole and he served the balance of the previous sentences until 4 December 2002. 12 The respondent came from a seriously dysfunctional family background, detailed in a psychological report that was placed before the sentencing judge. He and his mother had been exposed to violence from two men in his mother's life; his mother's disciplinary methods also included violence and abuse. The respondent began to exhibit serious behavioural problems at about age twelve, which resulted in his referral to an adolescent residential unit conducted by health authorities, where he was given a combination of therapies; his behaviour subsequently resulted in his incarceration both as a juvenile and as an adult. 13 At fourteen he refused to return to school and took on employment with an uncle, but this ended with the suicide of his uncle. The respondent began to use drugs at about the age of fourteen, beginning with cannabis, and moving to amphetamines and heroin. It was the need for drugs which, he said, motivated the robbery of the post office, and, no doubt, also the theft at the jewellery store. 14 He has a number of half siblings, all of whom have had trouble with the law, and some of whom have spent periods of time in prison. The respondent himself has spent most of his relatively short adult life in prison. His longest period out of custody as an adult has been three and a half months.

the sentencing proceedings 15 A psychological report was put before the sentencing judge. (It is from this that much of the foregoing account of the respondent's subjective circumstances is drawn.) Also before the sentencing judge was a three and a half page letter handwritten by the respondent in which he referred to some of the history already mentioned and expressed his regret for his crimes, which he repeatedly described as "foolish", and to his desire to undertake a rehabilitation program. A letter from his grandmother described him, when not using drugs, as "a kind, thoughtful and generous person … polite, helpful and a pleasure to spend time with". 16 The respondent gave oral evidence in which, again, he expressed regret for his actions, and his wish for rehabilitation. He said that he had served his sentence (the balance of parole) in maximum security and had been in protective custody. He said that the maximum security custody was because he had previously escaped and was consequently given an appropriate classification; and that the protective custody arose as a result of "dramas back in 1999 with a couple of inmates" and was likely to continue. He has undertaken a drug and rehabilitation course.

the remarks on sentence 17 The sentencing judge recounted the facts of the two offences and noted that they were committed about two months before the end of the parole period previously specified. He observed that the respondent, between 4 July 2002 and 4 December 2002, was serving the balance of parole. For this reason he fixed the commencement date of the sentence at 4 December 2002. He noted the plea of guilty and the circumstances in which it was entered when it was. He recorded the subjective case of which evidence had been given. He referred to the decision of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 and said: "The Court of Criminal Appeal in Henry's case and other cases has made reference to the relationship of drug addiction to offending. It said, inaccurately in my view, that people who become drug addicts do so on a voluntary basis. When one looks at the background that Mr Reynolds has had, I can well understand why he would have turned to drugs at an early age. Now it may well be the case that other people in a similar situation do not turn to drugs, but that is no answer because the fact of life is that everyone is different, and that obviously some people are better able to resist such things than others, even despite coming from backgrounds as difficult as Mr Reynolds' has been." 18 He then made a finding (based upon the evidence of the respondent) that the respondent would probably be kept in protection during the course of his imprisonment, and that this meant that the term of imprisonment would be harder than would otherwise have been the case, and would mean that the respondent would have less access to educational programs and rehabilitative programs. 19 His Honour referred to s21A of the Crimes (Sentencing Procedure) Act, subs(2) of which sets out aggravating factors which a sentencing court is obliged to take into account in determining an appropriate sentence for an offence. He identified those which were relevant. He then made the following observation: "I accept in that sense that offence was committed out of need rather than greed. He was not an armed robber in the classic understanding of that expression, and that his ability to resist temptation was affected by the fact of his addiction." 20 He made this finding because he was satisfied that the offences were committed in order to feed a drug addiction. Finally, in order to arrive at the division of the sentence that he did, he found, pursuant to s44 of the Crimes (Sentencing Procedure) Act, that special circumstances existed warranting departure from the proportion of the parole and non-parole periods. 21 He identified the reasons for his findings as: (i) the length of time the respondent would spend in gaol in respect of the present offences, and the time he had previously spent in gaol, together with the respondent's age; (ii) that the respondent would serve his term on protection and therefore in a harsher environment than would otherwise be the case; (iii) the need for appropriate supervision on release.

the Crown appeal 22 The Crown appeal is brought pursuant to s5D of the Criminal Appeal Act 1912, subs(1) which is in the following terms: "(1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper."

S5D was inserted into the Criminal Appeal Act in 1924. 23 It has long been established that a Crown appeal will be upheld only if the sentence imposed is manifestly inadequate. Manifest inadequacy may be demonstrated merely by reference to the length of the sentence itself: R v Whittaker (1928) 41 CLR 230; R v Cranssen (1936) 55 CLR 509 at 519-20. The task of the Court of Criminal Appeal in exercising power under s5D is to determine whether error has been made in the sentencing process: Dinsdale v R [2000] HCA 54; 202 CLR 321. This is an application of the principles stated in House v R (1936) 55 CLR 499 at 505. Error of the House variety may, as has been stated, be demonstrated by reference to the sentence itself, or by reference to the judge's stated reasoning process which may expose the application of a wrong principle, the taking into account of extraneous or irrelevant matters, the omission of some material consideration, or a misapprehension of the facts: Dinsdale [3]. 24 I mention these matters, and have extracted s5D(1), because of a submission made on behalf of the respondent. That submission was that the only ground of appeal against the claimed inadequacy of a sentence available to the Crown is the ground that the sentence is manifestly inadequate. It is not, the argument ran, open to the Crown to point to some error of fact or law or procedure, and claim that that error would itself open the way to this Court to re-sentence. If I understand the submission correctly, it was to the effect that specific alleged errors to which the Crown pointed, even if established, will not bring about the success of the Crown appeal unless the Crown also establishes that the end result - the sentence imposed - was manifestly inadequate. The logical conclusion of that argument is that specific error is irrelevant in a Crown appeal. 25 The submission does not sit easily with the terms of s5D(1), and sits even less easily with the judgment of Gleeson CJ and Hayne J in Dinsdale. Their Honours wrote: "The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused …" (at [3])

Their Honours explained "error" by quoting the well-known passage from House , and held that those principles apply both to Crown appeals based upon alleged inadequacy, and to appeals by offenders based upon alleged excessiveness (at [4]). Gaudron and Gummow JJ, in a second joint judgment (at [21]) and Kirby J separately (at [58]) all took a similar view.

( Dinsdale was on appeal from the Supreme Court of Western Australia, but the section there under consideration was not materially different from s5D(1).) 26 I am satisfied, however, that counsel for the respondent is correct in his contention that the ultimate question is whether the sentence has been shown to be manifestly inadequate. That does not exclude the identification of specific error, where it can be shown, that may explain how manifest inadequacy came about. Identification of specific error alone is not sufficient to warrant upholding a Crown appeal; the Crown must go further and show that (possibly in the light of, or as a result of, the error) a manifestly inadequate sentence was imposed. 27 In the present case, the Crown has sought to identify a number of discrete specific errors which, it contends, warrant the conclusion that the sentence was manifestly inadequate. It will be necessary to deal with each in turn.

(i) protective custody 28 The Crown contends that: "His Honour erred in automatically granting a reduction of the otherwise appropriate sentence simply because he assumed the respondent would be on protection during the course of his sentence." 29 The Crown has taken issue with the conclusion drawn by the sentencing judge. It is not clear whether the challenge is to the judge's finding of fact, based upon the evidence of the respondent, that the respondent will probably serve the whole of his sentence in protective custody, or to his acceptance, reflected in the sentence, and apparent from the sentencing remarks, that this should result in a reduction of the sentence that otherwise would have been imposed. 30 The Crown referred to R v Durocher-Yvon [2003] NSWCCA 299. In that case Howie J, with whom Sheller JA and Sully J agreed, wrote: "[23] What this application does illustrate is that, although the fact that the offender may be required to serve his sentence in protective custody is a relevant matter in determining the sentence to be imposed, a sentencing court should not automatically grant a reduction of the otherwise appropriate sentence simply because the offender has been, or will be, on protection during the course of the sentence. In some cases such as prison informants or prisoners giving assistance to the authorities, the court may confidently assume that the offender will spend most, if not all, of the sentence in some form of strict protection which will carry with it severe physical and mental hardships over and above the normal prison experience. In other cases, such as child sex offenders, the court should recognise that to a degree the range of sentences imposed already has an element of leniency built into it because sentences for such offences are normally reduced to take this factor into account. [24] But in other cases, especially where the offender has sought protection, there may have to be closer scrutiny given to just what effect that factor should have on the sentence to be imposed having regard to the seriousness of the offence, the purposes of punishment and the nature and conditions of custody which the offender may have to bear by reason of his or her protected status. There are undoubtedly other cases like the present where there might be good reason to doubt that a significant discount would be justified." 31 The Crown pointed to the rather scanty nature of the evidence concerning the nature of the respondent's custody and the reasons therefor and argued that there had been no close scrutiny of the likely continuation of the "dramas of 1999" or indeed whether they had continued to the time of sentencing. The Crown then sought to place information before this Court concerning the operation of protective custody, in particular at one prison at which it was said the respondent was hopeful of being incarcerated. 32 If this material is tendered as fresh evidence, I would reject it. The respondent has not had any, or any adequate, opportunity to consider it or contest it. It is not fresh evidence in the conventional sense. 33 The evidence that the respondent would be likely to continue to serve his sentence in protective custody was given without objection and was not subject to cross-examination. In these circumstances it was not inappropriate for the judge to accept the respondent's own assessment. It is true that the evidence was left in a somewhat unsatisfactory state. It is also true that on previous occasions this Court, differently constituted, has remarked on the difficulties involved in taking protective custody into account, given the frequently flimsy nature of the evidence available and the different protective custody regimes: R v Totten [2003] NSWCCA 207; R v Scott [2003] NSWCCA 28. 34 It is clear enough that the fact of the protective custody weighed quite heavily in the sentencing determination. It was mentioned by the sentencing judge both in relation to the length of the sentence imposed, and in relation to the determination of s44 special circumstances. However, the sentence contains no indication of the extent to which it was permitted to reduce the sentence that might otherwise have been imposed. It was merely one of the factors taken into account in the overall assessment. I am not satisfied that error has, in this respect, been established. 35 Still on the subject of protective custody, the Crown argued that the respondent twice obtained the benefit of a reduction attributable to the circumstances of his custody. As I have noted above, the judge mentioned it in the process of reasoning towards selecting the sentence imposed, and again in the determination, that special circumstances existed. 36 There is, in my view, no necessary error in the taking into account of the same factor both in relation to the length of a sentence, and again when considering whether special circumstances exist enabling the extension of the parole period at the expense of the non-parole period. In saying this, I would add that in all cases caution should be exercised to ensure that excessive benefit is not given to an offender where the same circumstance is taken into account on two issues. I am not satisfied that error has been demonstrated in this respect.

(ii) planning as an aggravating factor 37 Pursuant to s21A(2)(n) a sentencing judge is required to take into account, as an aggravating factor, the circumstance that the offence was part of a planned or organised criminal activity. The sentencing judge expressly accepted that, in relation to the robbery offence, "that there was no degree of planning …". He added that the respondent made no attempt to disguise himself in any way. If I understand the remarks on sentence correctly, this latter was offered as support for the finding of fact that there had been no degree of planning of the robbery. 38 In reaching this conclusion his Honour appears to have overlooked several aspects of the evidence, and the Crown argued that, in the light of that evidence, the finding was not open. The Crown pointed to the fact that the respondent went to the post office armed with a knife; that the ruse used to have coins changed suggested some degree of forethought (although, in my opinion, this may have been very limited indeed); and, most importantly, to the list of business locations found by police in the respondent's apartment, including the Windale Post Office, which the Crown contended was only consistent with a degree of planning. 39 In this respect I am of the opinion that the Crown is on solid ground. It may be that, had he considered the evidence in detail, his Honour would nevertheless have reached a factual finding similar to that which he did. The error lies in his failing to make reference to evidence pointing to a contrary conclusion. In particular, the list of businesses was, in my view, quite strong evidence of a degree of planning. The absence of a disguise is only one factor pointing in the other direction, or pointing to poor, rather than no, planning. 40 Having said that, it is necessary to add that such evidence as there was did not indicate any sophisticated or elaborate plan; it merely indicated that the offence was not, as described by the respondent to the psychologist, entirely "spontaneous". 41 In reaching this view I have borne in mind the submission advanced on behalf of the respondent that the offence bore the hallmarks of crimes committed by drug addicts to feed their addiction - "brief, open, easily sheeted home to the offender, desperate". 42 A similar submission was made in relation to the planning of the larceny offence. The sentencing remarks are not entirely clear in this respect. His Honour outlined only briefly the facts of the larceny offence, but he did describe it as "somewhat similar" to the robbery offence. He followed this by saying: "I accept that there was no degree of planning …"

It is not entirely clear that that relates to both offences. In my view, a conclusion that the larceny was not the subject of some planning would be difficult to sustain given that the respondent had, earlier in the day, entered the jewellery store in company with a female. Again, in my opinion, the evidence of planning was very limited but it did exist and had more significance than it appears to have been given. I am satisfied that error in this respect has been established. Whether it resulted in, or contributed to, a manifestly inadequate sentence, is a different question.

(iii) need not greed as the motivating factor 43 I have already referred to the remarks on sentence concerning the respondent's motivation in committing the offence. The Crown's written submissions include the following: "33. The Crown does not submit there was not material available justifying the conclusion that his addiction to drugs occurred at a very young age and could properly be taken into account as subjective circumstance. However, it is submitted that his Honour crossed the threshold and treated drug addiction generally as a mitigating factor. In support of this submission the Crown highlights the following passages from his Honour's remarks. He said: ' I accept that people in his situation's (sic) judgment is clouded by the necessity to obtain funds for drugs, and regrettably, people whose incomes are either social security or non-existent in the main.' 34. It is clear that his Honour was not speaking here about circumstances peculiar to the respondent whose addiction occurred at a very young age and not as a matter of personal choice …" 44 The Crown pointed to other references indicating that his Honour was making general observations rather than observations specific to the respondent. 45 However, having regard to the concession in the opening sentence of paragraph 33 of the written submissions, even if the proposition is made out (as, in my view, it probably is), I do not see that it has given rise to appellable error in this case. It would, of course, be different if the Crown's contention were that the respondent's drug addiction could not be treated as a factor for which he did not bear entire responsibility. Given the finding, which is not challenged, that the respondent fell into a category of drug users who do not bear full responsibility for the addictions, the general comments were quite extraneous. They cannot have affected the sentence imposed. It was the respondent's own circumstances that were relevant, and they were taken into account.

(iv) R v Henry : the guideline judgment 46 The sentencing judge made more than one reference to Henry, although he did not specifically say either that the present offence came within the guideline, nor that he intended to apply the guideline. Nevertheless, when he came to select the sentence he selected one at the lowest end of the range promulgated. It must, in my view, be inferred that his Honour did regard the guideline sentences promulgated as relevant and appropriate. 47 The Crown has urged upon the court the proposition that the sentencing judge erred in his application of the guideline judgment in Henry in a number of respects. These included an asserted failure to give sufficient weight to the respondent's prior criminal history; to the fact that the offences were committed whilst the respondent was on parole; and that he made inadequate allowance for the Form 1 offence. All these, the Crown argued, culminate in the proposition that the sentence was manifestly inadequate. 48 In Henry, Spigelman CJ provided a profile of the class of persons to be sentenced for armed robbery to whom the guideline was designed to apply ([162]). The Chief Justice, with the concurrence of the other members of the Court, promulgated a sentence of a full term of between four and five years. In many respects the respondent fits neatly into the profile. But in other respects he does not. He could not, for example, be said to have "little or no criminal history", and two other factors had to be added into the equation: that the offences were committed while the respondent was at liberty on parole; and that he admitted his guilt of the larceny in which a significant sum of money was stolen, and that was to be taken into account in sentence. 49 This ground is properly characterised as a ground that the sentence was manifestly inadequate, and the specific matters mentioned are put forward as reasons why the sentence should have been more severe. The Crown pointed out that, in respect of the two previous offences of robbery to which s94 of the Crimes Act applied (carrying a maximum penalty of fourteen years), the respondent had been sentenced to concurrent minimum and additional terms equivalent to the sentence imposed in respect of the present offence, which was committed whilst he was on parole for those earlier, similar offences (though less serious, the respondent being unarmed on those occasions), and in relation to which he was charged with an offence carrying a maximum penalty of twenty years' imprisonment. The fact that he was on conditional liberty for similar offences is of considerable significance. The fact that four year sentences imposed for more serious offences had failed to deter the respondent was a factor calling for consideration (at least) of a more severe sentence. 50 These were circumstances which demanded a more critical approach to the relationship between the Henry profile, the guideline sentence, and features of the respondent's case. Not to take them into account denotes error. Again, whether the error resulted in or contributed to a manifestly inadequate sentence is a different question.

(v) special circumstances 51 The Crown challenges the finding of special circumstances, arguing: "It is impossible to positively conclude that a period longer than the appropriate parole period would benefit his rehabilitation: by the time the non-parole period commences the respondent will already have had plenty of opportunity to address his addiction." 52 The sentencing judge identified the reasons for his finding as: · the length of time he will spend in custody and that he has spent in custody already, having regard to his age; · his acceptance of the fact that sentence will be served in protective custody; · the need for "appropriate supervision" on release. 53 It is true that not every sentencing judge would have made a finding of special circumstances on the facts of this case. However, I am not prepared to agree that the finding was not open to the sentencing judge. I would not disturb it.

(vi) the plea of guilty 54 The Crown has not identified specific error concerning the benefit given to the respondent by reason of the plea of guilty. This is because the judge did not quantify the reduction he allowed. But the Crown has argued that, having regard to the timing of the plea, the respondent was not entitled to a discount of 25% (the maximum of the range promulgated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383), but that it should be inferred from the sentence that that was what was given.

delay 55 The Crown frankly acknowledged a period of some considerable delay in the bringing of the appeal. The respondent was sentenced on 13 June 2003. This Court was told that on 20 June 2003 a letter was sent to him by the Crown notifying him that consideration was being given to the lodging of an appeal. The notice of appeal was not, however, signed until 4 September and was not served on the respondent until 10 September. It was therefore twelve weeks before the date of the notice of appeal, and almost thirteen weeks before its service. 56 It may be accepted as a general principle that, the shorter a sentence, the more pressure must be imposed upon the Crown to give to an offender notice of its appeal. In the present case, the respondent having received notice of the appeal on 10 September 2003 against the expiration of the non-parole period on 3 December 2004, it could probably not be said that the respondent was lulled into any false sense of security by reason of the silence of the Crown. However, there is an unfairness in delays of this magnitude and the unfairness is specifically relevant to the exercise of the discretion which undoubtedly lies in this Court to dismiss a Crown appeal which would otherwise have been successful. 57 I am inclined to the view that, bearing in mind the respondent's previous criminal history, and particularly that he was on parole for similar offences at the time of the commission of the offence in question, the sentence did fall short of the minimum of the range that would have been appropriate. It was not, however, below the range by a great deal, and that creates a complication. If this Court is to re-sentence after a successful Crown appeal, it is obliged to impose the minimum sentence properly available. I have come to the view that that would have been a head sentence of 4½ years, bearing in mind the finding of special circumstances, which I would not disturb, and, applying the proportions selected by the sentencing judge, that would result in an increase of three months on the non-parole period, six months on the head sentence. While I do not minimise the significance of those periods, they are not of enormous moment. When the Crown's delay in bringing the appeal is factored in, I conclude that, in the exercise of its residual discretion, this Court should dismiss the appeal. I propose that the order of the Court be that the Crown appeal is dismissed. 58 BARR J: I agree with Simpson J.

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