THURSDAY 26 FEBRUARY 2004
REGINA v RONAL PENALOSA-MUNOZ
Judgment
1 BUDDIN J: This is a Crown appeal brought pursuant to s 5D of the Criminal Appeal Act 1912 in respect of a sentence imposed upon the respondent in the District Court following his plea of guilty to a single count of robbery. The offence attracts a maximum penalty of imprisonment for 14 years.
2 On 8 September 2003 the respondent was sentenced to a term of imprisonment of 18 months to date from 8 August 2003 which was the date upon which he went into custody. A non-parole period of 1 month was fixed, the effect of which was that the respondent was released from custody on the day upon which he was sentenced.
3 Subject to one matter, the facts which give rise to the offence are not in dispute. They may be shortly stated. At about 3.30 am on 23 January 2003 the victim left his residence and walked to a nearby automatic teller machine located in Bourke Street, Surry Hills. The victim intended to obtain some cash so that he could purchase some medication for his partner who was ill. As the victim approached the machine he noticed a group of about five men crossing the road about ten metres away. As a precaution he paused to allow the men to pass. The victim commenced operating the machine in order to make a cash withdrawal.
4 Before the money had been issued by the machine, the respondent put his arm around the victim's neck from behind and said, "Have you got any money mate?" The victim replied that he did not at which stage he felt his head being moved backwards. The victim attempted to move around, hoping that an image of his assailant might be captured in any security camera that may have been operating at the time. There was in fact no such camera in operation. Two $20 notes were issued from the machine and the respondent took them. As the respondent walked away the victim said, "I'll get you for this", by which he meant that he intended calling the police.
5 The victim went straight home and telephoned the police. They arrived at his premises a short time later. The respondent and two other male companions were apprehended a short distance away. The respondent was interviewed by police but denied any involvement in the robbery. The respondent was then released without being charged. Although the victim was able to say from photographs shown to him by the police that the respondent was similar in appearance to the person who had robbed him, he was unable to make a positive identification of him.
6 The one factual matter which was in dispute was the victim's assertion that the respondent had said to him during the course of the incident "If you go to the police I'll kill you, you poofter cunt". The sentencing judge found beyond reasonable doubt that the respondent had threatened to kill the victim if he went to the police, but his Honour was not satisfied that he had used the alleged offensive language in the process of making this threat.
7 The sentencing judge made the following observations which aptly describe the objective gravity of the offence:
It has been submitted by Mr Healy that the facts of this matter should be seen as falling well towards the bottom of the scale of seriousness for a charge of robbery. I give only qualified acceptance to this submission. Whilst I accept that no lasting physical harm was done to the victim and that no weapon was produced or threatened to be produced, I am satisfied beyond reasonable doubt that the victim was terrorised at the time. He was, in my view, in a vulnerable position. As far as I am aware, the courts of this state have only specifically mentioned vulnerability of shop assistants, taxidrivers and the like in this context, but to my mind a citizen facing an ATM machine, with his or her back to the world at large is in an exquisitely vulnerable situation. In addition, this victim was clearly of the opinion that his attacker was one of a group of five men, whereas he was alone. That having been said, I accept that this crime was committed by the offender on his own account, and that it was not a robbery in company. I also accept that in all probability it was a spur of the moment offence, unpremeditated and lacking any sophisticated planning or preparation.
8 The respondent gave evidence at the sentence hearing. He was not challenged about the history which he gave and his Honour appeared to accept it without reservation. He gave evidence of a turbulent childhood growing up in Bogota, Colombia where he was born on 18 January 1978. His father was a union organiser who was politically active from an early stage of the respondent's life. His father was originally a member of a guerrilla organisation which fought the government. Later he joined a political party which was opposed to the government. Membership of that party was fraught with danger and over the years a very large number of its members (including a number of friends of the respondent's family) were murdered apparently on account of their political activities.
9 The respondent's father's life was also threatened which eventually forced him into exile in the mountains of Colombia well away from the family who lived in the capital. The family itself also had to move frequently for fear of reprisals from the authorities. This was very disruptive both for the family and for the respondent's education.
10 The respondent became involved in his father's political party's youth group. It too was targeted and on one occasion he and his friends were fired upon in a public street. Although the respondent survived the attack, five of his friends were killed. The respondent nevertheless continued his political activities whilst at university. As a result he was on one occasion taken into custody by police. He was held there for a day or two during which time he was stripped naked and beaten with large sticks. Whilst being interrogated he was asked to reveal the names of the party's organisers and their meeting places.
11 This cycle of violence culminated in his father's death in January 1998. The respondent went to the morgue to identify his father's body. He had apparently been tortured. The following year the respondent was with his family at a festival when members of the army started shooting indiscriminately. His brother was shot in the leg. It was at that point in time that the respondent resolved to flee from his country of origin. He arrived in Australia in December 1999 on a tourist visa. He was granted refugee status in April 2000 and obtained citizenship in March 2003. His decision to leave Colombia has meant that he now has no contact with his family (other than intermittent phone calls to his aunt) and indeed he does not know where they are.
12 Since his arrival in Australia, the respondent has learnt English and has undertaken a commercial cookery course at TAFE. He has worked productively in that capacity in various parts of the hospitality industry.
13 The respondent also gave evidence that he was gay. He said that it was very difficult to maintain such a lifestyle in Colombia which he described as being a "very anti-gay society".
14 During the course of being screened for immigration purposes, the respondent returned a test result which revealed that he was HIV positive. By and large he has remained asymptomatic but he did spend two days in Royal North Shore Hospital in December 2002 for a lung infection which he had contracted. There was evidence which the sentencing judge accepted concerning the impact that imprisonment can have upon a person who has the HIV virus. The evidence revealed that a prisoner's status as an HIV sufferer is impossible to keep confidential within the prison system. Once such a person's status is known, he or she is likely to be subjected to harassment from other prisoners. Furthermore imprisonment inevitably creates considerable stress for inmates. Stress in turn can significantly compromise the body's immune system and its capacity to resist the spread of the illness. It is these and related considerations which have led the courts to recognise that imprisonment for a person who has the HIV virus will often be more burdensome than would otherwise be the case. See R v Smith (1987) 27 A Crim R 315 and the cases which have followed it.
15 There were other features of the case which the respondent was able to rely upon in mitigation of the otherwise appropriate penalty. First, he had an entirely clear criminal record. Secondly, there was, as the sentencing judge put it, "an abundance of respectable evidence of his very good character and commitment to lawful employment and self-improvement". Thirdly, he was, as the sentencing judge found, unlikely ever to re-offend. Fourthly, the evidence suggested that his prospects for rehabilitation were excellent. The respondent had been, on his own admission, drinking heavily at the time of this offence. He also revealed that he had a history of drinking to excess on occasions. Since the commission of the offence, the respondent had desisted from alcohol or drug use and had attended Langton Clinic for counselling in relation to his alcohol and drug problems. He had embarked upon a welfare course at the Blue Mountains TAFE and had become involved in a meditation retreat run by a Buddhist organisation. Fifthly, he had pleaded guilty at the earliest opportunity. Sixthly, he had expressed contrition for his offence which the sentencing judge accepted to be genuine.
16 In addition to the matters I have just enumerated there was another aspect of the case which assumed some significance in the sentencing process. The sentencing judge observed that:
[d]espite his and his father's exposure to and harassment by the authorities in Colombia, which caused him to leave his family and flee to this country, and despite the fact of him not being charged on the night of this offence, he voluntarily surrendered himself six days later to the police and confessed his guilt for this offence.
This last feature is, to my mind, the most compelling aspect of the whole range of subjective features, which have emerged in this case. To me, it demonstrates the genuineness of his contrition as well as being a clear sign that the rehabilitation factor in the sentencing exercise has already been fully achieved. In addition, the fact of him having given himself up to the police and fully confessed his guilt is as clear an indication as could ever be sought that he is not likely to offend again. There can have been very few other cases in which a person, having been arrested following on a complaint and later released from custody without being charged, has, a short time later, voluntarily surrendered himself to police and confessed his guilt. In over 40 years in the law I have not previously encountered one.
17 The respondent gave evidence that he was not initially truthful with police because he had a real fear, arising from his experiences in Colombia, of going to gaol. In the days following his initial arrest however he said that he had wrestled with his conscience and after speaking with a friend, had decided to make a full confession. Although the evidence on this point is not entirely clear it may well be that he attended the police station after police had made further contact with him. Be that as it may, it is quite clear that his confession made his conviction inevitable in circumstances in which the prosecution would not otherwise have been able to establish its case against him.
18 The sentencing judge concluded that "the seriousness of the crime would merit a sentence of 7½ years imprisonment". From that starting point, his Honour then allowed a discount of 30% on account of the utilitarian value of the early plea of guilty. His Honour then said:
In addition to this, he should be rewarded by a further discount of 50% to take account of him having gone back to the police and confessed to the crime at a time when they seem to have concluded that they had no chance of obtaining a conviction against him.
19 In doing so, his Honour was seeking to apply the principles enunciated by this Court in R v Ellis (1986) 6 NSWLR 603. In that case Street CJ, with whom Hunt and Allen JJ agreed, said:
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.