R v SYDNEY

Court of Criminal Appeal (NSW)|2004-03-22|Before: Beazley JA, O'Keefe J, Bell J, Bell JJ

CITATION : R v SYDNEY [2004] NSWCCA 63 HEARING DATE(S) : 10/02/2004 JUDGMENT DATE : 22 March 2004

JUDGMENT OF : Beazley JA at 1; O'Keefe J at 45; Bell J at 46 DECISION : Appeal dismissed.

CATCHWORDS : CRIMINAL LAW - SENTENCE - Whether sentence imposed by trial judge manifestly inadequate - Objective seriousness of offence - Whether matters on Form 1 properly taken into account - Discount for utilitarian value of plea of guilty - Whether "double discount" allowed. - FORM 1 MATTERS - Offences on a Form 1 constitute an admission of guilt but not a conviction - Offender not to be sentenced for more than principal offence. Crimes Act (NSW) 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act (NSW) 1999 Criminal Appeal Act (NSW) 1912 Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146 R v Bavadra (2002) 115 A Crim R 152 R v Harris (2001) 125 A Crim R 27 CASES CITED : R v Henry (1999) 46 NSWLR 346 Re Rose (unreported CCA, 23 May 1996) R v Simpson (2001) 53 NSWLR 704 R v Thomson (2000) 49 NSWLR 383 PARTIES : R v JAMES GLENDEN SYDNEY FILE NUMBER(S) : CCA 60347/03 COUNSEL : G. Rowling (Appellant/Crown) W.P. Lowe (Respondent SOLICITORS : C.K. Smith (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1067 FILE NUMBER(S) : LOWER COURT Stewart ADCJ JUDICIAL OFFICER :

BEAZLEY JA O'KEEFE J BELL J

FACTS The Crown appealed against a sentence imposed by Stewart ADCJ upon the respondent who had pleaded guilty to one count of aggravated armed robbery under s.97(2) of the Crimes Act (NSW) 1900 , the maximum penalty for which is 25 years imprisonment. There were also five matters to be taken into account on a "Form 1": s.33 of the Crimes (Sentencing Procedure) Act (NSW) 1999. Stewart ADCJ imposed a term of imprisonment of six years. He found special circumstances under s.44(2) of the Act and ordered a non-parole period of three years.

The Crown appealed on the ground that the sentence was manifestly inadequate. It argued that the sentence did not reflect the objective seriousness of the offence and that Stewart ADCJ erred in allowing a discount of 15% for the utilitarian value of the respondent's plea and failed appropriately to take into account the matters on the Form 1.

HELD per Beazley JA (O'Keefe and Bell JJ agreeing):

(i) The sentencing judge did not misunderstand the Court's guideline judgments on the giving of discounts for guilty pleas: R v Thomson (2000) 49 NSWLR 383; R v Henry (1999) 46 NSWLR 346. (ii) Stewart ADCJ considered that the respondent deserved credit for initiating the plea process and that the plea itself indicated the respondent's contrition. (iii) A discount of 15% for the utilitarian value of the plea was open to his Honour.

(iv) His Honour did not allow an effective discount of 25% by allowing a discount over and above the discount inherent in the guideline sentence in Henry .

(v) It is not necessary for the sentencing judge to specify the extent to which the Form 1 matters are taken into account.

(vi) In this case, the question whether appropriate regard had been had to the Form 1 matters involved a consideration of the overall adequacy of the sentence.

(vii) In determining the adequacy of the sentence imposed, regard must be had to the principle of double jeopardy, so that the Court must consider what was the least sentence that could have been imposed by the sentencing judge: see Re Rose (unreported CCA, 23 May 1996; R v Bavadra (2002) 115 A Crim R 27.

(v) A sentence of about 7 years discounted by about 15% to 6 years, although lenient, was not manifestly inadequate given: the offender's youth, that this was his first custodial sentence, the attempts he made at personal rehabilitation without any family support and the valuable assistance he gave to police.

1 Appeal dismissed. IN THE COURT OF CRIMINAL APPAL CCA 60347/03

BEAZLEY JA O'KEEFE J BELL J

22 March 2004 R. v. SYDNEY Judgment 1 BEAZLEY JA: This is a Crown appeal against a sentence imposed on 4 August 2003 by his Honour, Acting Judge Stewart, in the District Court upon the respondent James Glenden Sydney (the respondent): s. 5D of the Criminal Appeal Act (NSW) 1912. 2 The respondent pleaded guilty to one count of aggravated armed robbery under s.97(2) of the Crimes Act (NSW) 1900. The maximum penalty for this charge is twenty-five years imprisonment. On sentence, he requested that a further five matters be taken into account on a "Form 1" pursuant to the provisions of s.33 of the Crimes (Sentencing Procedure) Act (NSW) 1999. The sentencing judge imposed a term of imprisonment of six years to date from 8 July 2003 and specified a non-parole period of three years commencing from the same date. In imposing that sentence his Honour found special circumstances: see s.44(2) of the Crimes (Sentencing Procedure) Act. That aspect of the sentence is not challenged. 3 The Crown appeals on the basis that the sentence is manifestly inadequate. It was submitted that the sentence imposed did not reflect the objective seriousness of the offence, or the need for general deterrence: R v. Simpson (2001) 53 NSWLR 704 at para. 65 per Spigelman CJ, nor did it meet the fundamental purpose of punishment namely, the protection of society. The Crown further submitted that the trial judge failed to impose a sentence which appropriately took into account the matters on the Form 1.

Facts 4 As Stewart ADCJ comprehensively dealt with the background of the offence as well as with the matters on the Form 1, it is sufficient to refer to the facts briefly. 5 The offence under s.97(2) to which the respondent pleaded guilty involved a charge that on 13 May 2001 at Fairfield, being armed with a dangerous weapon, namely a shotgun, he robbed one Vikram Gujral of a large quantity of mobile phones and mobile phone accessories being the property of Mayne Nickless Limited. 6 The robbery occurred in the early hours of the morning. The victim, Vikram Gujral, was the security guard at the Mayne Logistics warehouse at Fairfield. He was approached by the respondent and another co-offender, Richard Murchie who was holding a shotgun, and was told not to press the alarm button. Mr. Gujral pressed the alarm button and the respondent and Murchie forced him to lie on the ground. He was kicked in the stomach and his hands and legs were tied together with duct tape. Mr. Gujral then heard the snapping of a chain and two vehicles being driven through the gate of the warehouse. The padlocks on these gates were later found to have been cut with bolt cutters. Mr. Gujral caught a glimpse of the number plate of one of those vehicles, which he thought was AJ-12A. Mr. Gujral heard the roller door to the main warehouse open up and heard a number of voices. He also heard the sound of boxes being moved around. A while later, one of the males came back to him and took his wallet from his back pocket stating "Don't tell the description to the police" and told him that he knew Mr. Gujral's identity. The thieves then left the warehouse premises. 7 Prior to the robbery, there had been police telephone surveillance of the mobile phone of one of the co-offenders. That co-offender, Joseph Kazzi, has also been charged in relation to the theft but has pleaded not guilty. The telephone intercepts revealed that there had been a significant degree of planning for the robbery. This included arranging to get bolt cutters, a ladder and a radio scanner that facilitated access to the police radio network. 8 The mobile phone surveillance revealed that from 1.24 a.m. until 2.59 a.m. on 13 May 2001 all calls made and received by Kazzi's mobile phone were relayed from a cell site covering the area where the Mayne Logistics warehouse is located. About an hour before the robbery, Kazzi rang the respondent telling him to "take the duct tape with you and the shottie with bullets in it". In this conversation the respondent told Kazzi where he was going to park "the rexy". The evidence revealed that that was a reference to a stolen Subaru WRX, registration number AJP 13A which is the subject of one of the matters on the Form 1 and undoubtedly the motor vehicle the number plate of which Mr. Gujral thought was AJ-12A. It is apparent from the intercepted telephone conversations that Kazzi and another co-offender, Mark Williams, climbed onto the roof of an adjoining building with an extension ladder and this gave them access across the rooftop to the Mayne Logistics warehouse. It is also apparent from the intercepts that it was at this stage of the robbery that the respondent and Murchie were watching Vikram Gujral, that the respondent then moved the two vehicles to a position outside the gates of the warehouse and having tied up Mr. Gujral used bolt cutters to cut the locks of the gates. The respondent drove both vehicles into the warehouse compound. Meanwhile, Kazzi and Williams had cut open the roof of the warehouse and used a knotted rope to enter it. They opened the roller doors and boxes of mobile phones and accessories were loaded into the vehicles. 9 The respondent was arrested on 17 May 2001 at the Ansett Terminal at Sydney Airport. One of the other co-offenders, Mark Williams, was with him. At the time of his arrest the respondent had in his possession a mobile phone, as well as a Subaru ignition barrel and engine immobiliser control unit that could be used to start a Subaru WRX. In a record of interview, the respondent admitted that his mobile phone had been used during the commission of the offences. The mobile phone was registered to Mark Wilson. 10 After his arrest, the police executed a search warrant at the respondent's residence at 22 Broughton Street, Glebe. There, they located a scanner on which a number of channels were programmed into various police stations, including Blacktown, Fairfield, Cabramatta and Horsley Park, all of which are the vicinity of the warehouse. They also found a length of white rope. 11 The respondent took police to an underground car park at Unit 49A/55 Garland Road, Willoughby. The respondent used a key that he had in his possession at the time of arrest to open the parking area and inside the police located a Subaru WRX registration number AJP 13A. This vehicle had been reported stolen some days previously. A number of items were found inside the Subaru which were consistent with the modus operandi of the robbery, including a screwdriver, bolt cutters, tin snips, pliers, a torch and gloves. 12 The total value of the property stolen was approximately $161,000.00.

The Form 1 matters: 13 The matters on the Form 1 were:

(1) Conspiracy to commit an indictable offence, namely, stealing. This is a common law offence and related to a proposed robbery to break and enter the UTS Logistics warehouse at St. Peters the previous day. That robbery was ultimately called off by Kazzi. Kazzi, Williams and Murchie were convicted of this offence before Robison DCJ and a jury on 9 September 2003. Kazzi was sentenced to imprisonment for a term of 3 years with a non-parole period of 1 year and Williams was sentenced to a term of imprisonment for 2 years with a non-parole period of 409 days. Murchie was killed prior to the sentence.

(2) A charge under s.117 of the Crimes Act for stealing a motor vehicle, namely, the Subaru WRX, registration number AJP 13A.

The maximum penalty for this offence is imprisonment for 5 years.

(3) A further charge under s.117 and s.154A of the Crimes Act, again being stealing of a motor vehicle, namely, a Ford Econovan on 13 May 2001. This van was also used in the robbery. The respondent admitted he had driven this vehicle (hence the charge under s.154A of the Crimes Act ). There was a ladder in the vehicle which was consistent with the information passing between the respondent and Kazzi in relation to the principal charge of aggravated armed robbery.

The maximum penalty under ss.117/154(A) is imprisonment for 5 years.

(4) Possessing an implement capable of being used to drive a conveyance: s.114(1)(b) of the Crimes Act . This related to the respondent's possession of the ignition barrel and engine immobiliser control unit found on him at the time of his arrest.

The penalty under s.114(1)(b) is imprisonment for 14 years.

(5) Having in possession a false instrument, namely a Learner Drivers Licence, contrary to s.302 of the Crimes Act . The respondent had obtained the false permit on 9 May 2001.

The maximum penalty under s.302 is imprisonment for 10 years.

Issues on the Appeal 14 The Crown submitted that three specific errors could be discerned in his Honour's remarks on sentence: first, the sentence imposed failed to reflect the objective seriousness of the offence; secondly, his Honour erred in allowing a discount of 15% for the utilitarian value of the respondent's plea; and, thirdly, his Honour failed appropriately to take into account the matters on the Form 1. It was submitted that the overall effect of these errors was that the sentence imposed was manifestly inadequate. 15 As the Crown submitted that the second of these matters revealed patent error it is convenient to deal with that first. 15% discount for utilitarian value of the plea 16 The Crown submitted that his Honour erred in applying a 15% discount for the utilitarian value of the plea. It was submitted that this was a patent error in his Honour's judgment. The effect of the Crown submission was this: the plea was a late plea, having been entered on 18 July 2003, a little over 2 weeks prior to the intended commencement of the trial. As such, it should only have attracted a 10% discount: see R v. Thomson (2000) 49 NSWLR 383 at para. 161. However, as his Honour was bound to have regard to the principles in the guideline judgment of R v. Henry (1999) 46 NSWLR 346, the effect of allowing a discount of 15% was to allow an additional 15% to the 10% discount inherent in the range of sentences referred to in Henry. That is, his Honour allowed an overall discount of 25%. 17 This requires a fuller and perhaps more direct explanation. The guideline judgment of Henry dealt relevantly with the offence of aggravated robbery under s.97(2), being the charge involved here. Thomson was also a guideline judgment and dealt with the principles to be applied where a plea of guilty is entered. It is convenient to deal with Henry first. 18 In Henry, Spigelman CJ at para. 162 identified the category of case upon which the guideline was based. That category involved the following features: "(i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case." 19 The Chief Justice identified at para. 165 a range of sentences for such a case of 4 to 5 years for the full term. 20 His Honour expanded upon this at paras. 169-170: "169. Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point. 170. In addition to factors which may arise in any case, for example, youth, offender's criminal record, co-operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include: (i) nature of the weapon; (ii) vulnerability of the victim; (iii) position on a scale of impulsiveness/planning; (iv) intensity of threat, or actual use, of force; (v) number of offenders; (vi) amount taken; (vii) effect on victim(s)." 21 In Thomson, the Chief Justice determined at para. 160 that "[t]he utilitarian value of a plea … should generally be assessed in the range of 10-25 per cent discount on sentence". The Chief Justice held that the primary consideration in determining the utilitarian value was the timing of the plea. His Honour added "What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge". 22 The Chief Justice then dealt with the matter that has formed the basis of the Crown submission in this case. He said at para. 161: "161. The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of R v Jurisic and R v Henry included a plea of guilty. … In each of R v Jurisic (at 231) and R v Henry (at 380 [162]), the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons." 23 Thus the 4 to 5 year term referred to in Henry incorporated a discount of about 10%. That is the matter that was made clear by the Chief Justice in the passage in Thomson to which I have referred. 24 There is nothing in the Remarks on Sentence which indicate that his Honour misunderstood this or that he applied an effective discount of 25% as submitted by the Crown. Rather, his Honour recognised both the guideline nature of the judgment in Henry and the factors that differentiated this case from the type of case profiled in Henry. As his Honour said (Remarks on Sentence 16-17): "The case goes above and beyond the category of case contemplated in Henry ." 25 It would have been an error for his Honour not to consider whether it was appropriate to give a discount for the plea. 26 The Crown did not submit that if its primary contention was wrong that the discount of 15% was erroneously generous. But should it have intended its submission to be so understood, I reject it. The sentencing judge clearly set out the circumstances in which the plea came to be made and why the apparent lateness was really due to inaction within the office of the DPP (Remarks on Sentence 11). His Honour's finding on this is not challenged. His Honour considered that the respondent (and his legal advisers) deserved credit for seeking out the Crown and initiating the plea process. His Honour also considered that the plea itself indicated the respondent's contrition and he appears to have taken this into account in the discount. A 15% discount was clearly available to his Honour and there was no error, in my opinion, in allowing a discount of that order.

Proper approach to the Form 1 matters 27 The procedure referred to in the sentencing process as "Form 1 matters" has its statutory embodiment in Div. 3 of Pt 3 of the Crimes (Sentencing Procedure) Act. It is sufficient for the purposes of this Judgment to refer to s.32(1) and s.33(3). Those sections provide: "32 Prosecutor may file list of additional charges (1) In any proceedings for an offence (the principal offence ) , the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence. ……… 33 Outstanding charges may be taken into account … (3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account." 28 The offences so taken into account are listed on a prescribed document (the Form 1). 29 Section 35(4) provides that an offence taken into account on a Form 1 is not thereby to be regarded as an offence for which the offender has been convicted. 30 The proper approach to sentencing where Form 1 matters are taken into account is the subject of a guideline judgment: Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146 (the Guideline Judgment). In that judgment, Spigelman CJ observed at para. 23 that the statutory scheme operates in the context of the common law principle that "no-one should be punished for an offence of which he or she has not been convicted". His Honour pointed out that "The offences on a Form 1 constitute an admission of guilt, but there is no conviction". 31 The Chief Justice concluded at para. 42: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s.33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 32 At the point in his Remarks on Sentence where he imposed the sentence the sentencing judge, having referred to the detail of each of the Form 1 matters and the maximum penalty attaching to each offence, stated that he took "the Form 1 matters into account". 33 The Crown complains that the sentence imposed by his Honour does not demonstrate that he did so. The effect of the submission was that the sentence imposed was so inadequate that his Honour could not have taken the Form 1 matters into account. 34 There is certainly no indication of how, or to what extent his Honour took the Form 1 matters into account when imposing the sentence on the principal offence, although that, of course, is not necessary. Indeed, to engage in that process risks sentencing for more than the principal offence. That is not the statutory intention behind the procedure. However, given the perfunctory reference to the Form 1 matters in his Remarks on Sentence, it is necessary to consider whether the sentence imposed was such that it must be concluded that the Form 1 matters were not taken into account having regard, inter alia, to the gravity of those offences: see R v. Bavadra (2002) 115 A Crim R 152; R. v. Harris (2001) 125 A Crim R 27 (at 23); Attorney-General's Application at 29. The determination of that question involves a consideration of the ultimate question on this appeal, namely whether the sentence imposed is manifestly inadequate.

Sentence manifestly inadequate 35 In determining whether the sentence of imprisonment of 6 years imposed upon the respondent is manifestly inadequate, the starting point is the recognition that without the 15% discount, the notional sentence was a term of imprisonment of about 7 years. 36 The principal offence of aggravated armed robbery is, of course, a most serious one. In this case, there were a number of aggravating features in addition to the matter of aggravation pleaded in the indictment: a loaded shotgun was used in the robbery; there was considerable planning involved, including the theft of 2 vehicles; implements were procured to assist or use in the robbery; the offence was committed at night against a security guard; a number of offenders were involved; the victim was kicked and in effect threatened with reprisals if he identified the offenders to the police.

37 A further significant matter of aggravation was that on 11 August 2000 the respondent had entered into a recognisance to be of good behaviour for a period of 12 months. The recognisance was still current as at the date of this offence. The respondent has a criminal record dating back to early 1999 and it appears that he offended on another occasion in 2001 whilst on the same recognisance. 38 In addition, his Honour was required to impose a sentence in respect of the principal offence having regard to the fact that there were 5 matters on the Form 1 of which account had to be taken. I have already referred to the principles that had to be applied by the sentencing judge in doing so. 39 The Crown submitted that these factors pointed to the need to impose a sentence of some severity. 40 Counsel for the respondent submitted however that there were significant factors that counterbalanced the matters of aggravation upon which the Crown relied, so as to make it apparent that there was no error in the sentence in fact imposed. In particular, it was submitted that there were substantial mitigating circumstances including assistance to the police in disclosing matters about which they otherwise would not have known, provision of information that resulted in the recovery of the stolen Subaru WRX and threats of violence against the respondent because of the perceived assistance that he had given to the police in relation to the other co-offenders. With respect to the latter, the respondent submitted that it was important to note that his co-offender, Murchie, was gunned down after being found guilty by a jury but before sentence had been given. 41 Other mitigating circumstances included the youth of the respondent and his personal circumstances. The respondent has a longstanding drug problem which was exacerbated in the months leading up to the commission of this offence. Such exacerbation appears to have been triggered by the news that his mother, who was his only effective parent, was seriously ill with cancer. The offence itself occurred at about the time his mother was finally hospitalised due to her illness. She died in July 2001. His Honour accepted that the respondent was seriously affected by his mother's illness. In addition, the respondent has made attempts at personal rehabilitation with results that appear promising. 42 It is against this background of competing aggravating and mitigating circumstances, including that proper account had to be taken of the matters on the Form 1, that the adequacy of the sentence imposed by his Honour falls to be considered. In determining that question, regard must also be had to the principle of double jeopardy that applies at this stage of the sentencing process, so that the Court has to consider what was the least sentence that could have been imposed by the sentencing judge; see Re Rose (unreported CCA, 23 May 1996; R v. Bavadra. Further, this Court is only required to determine whether the full term of 6 years was manifestly inadequate, as there is no challenge to the finding of special circumstances, nor to his Honour's allowance of a ratio of one half between the full term and the non-parole period. 43 In my opinion, the sentence is certainly lenient. Its leniency appears to be underscored by the non-parole period of 3 years. As I have already explained that is to be put to one side for present purposes because there is no challenge to the ratio applied by his Honour in respect of the non-parole period. Notwithstanding the leniency of the sentence, I have come to the conclusion that a sentence of about 7 years discounted by about 15% to 6 years was not, in the circumstances of this offence and the background of this offender and given the application of the principle of double jeopardy, manifestly inadequate. The matters that particularly persuade me of this are the offender's youth, the fact that this is his first custodial sentence, the attempts he has made at personal rehabilitation in circumstances where he is without any family support and the valuable assistance he has given to police. 44 Accordingly, I would dismiss the appeal. 45 O'KEEFE J: I agree with Beazley JA. 46 BELL J: I agree with Beazley JA. **********

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