R v Tobar; R v JAN

[2004] NSWCCA 391

Court of Criminal Appeal (NSW)|2004-11-08|Before: Dunford J, Simpson J, Hidden J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2004-11-08

Before

Dunford J, Simpson J, Hidden J

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

CITATION : R v Tobar; R v JAN [2004] NSWCCA 391 HEARING DATE(S) : 8 November 2004 JUDGMENT DATE : 19 November 2004

[2]

JUDGMENT OF : Dunford J at 1; Simpson J at 2; Hidden J at 66 DECISION : Tobar: 1. Application for leave to appeal granted; 2. Appeal allowed; 3. Each sentence imposed in the District Court be quashed and in lieu thereof, Tobar be sentenced as follows: (i) armed robbery with wounding: imprisonment with a non-parole period of three years, to commence on 3 November 2003, and expire on 2 November 2006, with a balance of term of three years and three months, to expire on 2 February 2010; (ii) on each other charge: imprisonment with a non-parole period of two and a half years to commence on 3 November 2003, and expire on 2 May 2006, with a balance of term of two and a half years, to expire on 2 November 2008 ; JAN: 1. Application for leave to appeal granted; 2. Appeal allowed; 3. Each sentence imposed in the District Court be quashed and in lieu thereof, JAN be sentenced as follows: (i) armed robbery with wounding: imprisonment with a non-parole period of three years, to commence on 27 March 2003, and expire on 26 March 2006, with a balance of term of three years and three months, to expire on 26 June 2009; (ii) on each other charge: imprisonment with a non-parole period of two and a half years to commence on 27 March 2003, and expire on 26 September 2005, with a balance of term of two and a half years, to expire on 26 March 2008; 4. Each sentence to be served in a detention centre until the applicant attains the age of 21 years or until such date as he is released on parole, whichever is the earlier.

[7]

Friday 19 November 2004 REGINA v Gerardo TOBAR REGINA v JAN Judgment 1 DUNFORD J: I agree with Simpson J. 2 SIMPSON J: Each applicant seeks leave to appeal against sentences imposed upon him in the District Court on 27 February 2004 by Judge Urquhart, following his pleas of guilty to one charge of armed robbery, one of armed robbery with wounding and one of assault with intent to rob whilst armed. In addition, in each case, his Honour took into account three offences of armed robbery listed on a Form 1 pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). All offences were committed on 27 March 2003. Accordingly, the new regime of sentencing introduced into the Sentencing Procedure Act by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 applied to all sentences. 3 On the charge of armed robbery with wounding, and taking into account the Form 1 offences, his Honour sentenced Tobar to imprisonment with a non-parole period of five years, to date from 3 November 2003, and a balance of term of five years, expiring on 2 November 2013. On each of the remaining counts he sentenced him to imprisonment with a non-parole period of three years, and balance of term of three years, these sentences to be served concurrently with each other and with the sentence earlier imposed. 4 Urquhart DCJ sentenced JAN, on the armed robbery with wounding charge, to imprisonment with a non-parole period of five years and six months, dating from 27 March 2003, and balance of term of five years, again taking into account the Form 1 offences. On the remaining counts he sentenced JAN to imprisonment with a non-parole period of three years and balance of term of three years, and specified that all sentences were to be served concurrently. 5 In each case, in structuring the sentences as he did, his Honour purported to give effect to an express finding that special circumstances pursuant to s44(2) of the Sentencing Procedure Act existed, warranting departure from the ratio between the non-parole period and the head sentence there specified.

[8]

facts 6 All offences were committed in the evening of 27 March 2003, by the applicants in company with one another and with another person, CP. CP was sentenced by Judge Urquhart at the same time as the applicants. An application by him for leave to appeal against the severity of the sentence was successful on two grounds, and his sentence was reduced by this Court: see R v P [2004] NSWCCA 218. 7 The first offence in time, the armed robbery with wounding, was committed by the three offenders in Darling Street, Balmain. At about 8.20 pm on that evening the three offenders approached three men in the street. CP was armed with a stainless steel meat cleaver, JAN with a wooden baseball bat. Tobar was unarmed. CP approached one of the three victims and put his head in a headlock, pushed the meat cleaver into his throat and demanded his wallet. The victim complied, handing over a wallet which contained $300.00 in cash, credit cards, and other personal items. Tobar approached another of the victims and ordered him to turn out his pockets. The victim did so, and gave Tobar $10.00, and his wallet, which contained a credit card and other items. Tobar pushed the third victim into a telephone booth and demanded his wallet. This victim also complied, handing over a wallet containing $100.00, credit cards and personal items. Tobar ordered the victims to stand against a fence and not move. They did so, with their faces to the fence. JAN patted them down and then ran off. CP struck the first victim with the meat cleaver, causing a deep laceration which eventually required sixteen stitches to repair, and a very deep laceration in the right wrist. 8 Less than half an hour later the three offenders accosted another two men, this time in Oatley Road, Paddington. JAN attracted their attention by asking them the time. He was still in possession of the wooden baseball bat. He demanded the watch of one of the victims, pushing him with the baseball bat into a parked car. He ordered the victim to hand over "what you have got", threatening to hit him. CP produced the stainless steel meat cleaver and held it to the throat of the victim, threatening to "cut" him. The victim handed over his wrist watch. JAN reached into the victim's pocket and extracted a $5.00 note. Still holding the meat cleaver to his throat, CP reached into the victim's back pocket and took his wallet, which contained credit and ATM cards and other items. The victim's companion told them to leave the victim alone. CP walked towards him, brandishing the meat cleaver. JAN swung the baseball bat at the head of the first man, causing a deep laceration that later required four stitches, and knocking the man unconscious. This gave rise to the charge of armed robbery, the second count on the indictment. The three offenders chased the man along the street, but he escaped. The three offenders left the scene in a motor vehicle. 9 At about 9.15 on the same evening the three offenders accosted two security guards who were patrolling a school in Ocean Street, Woollahra. JAN was still armed with the baseball bat. He raised it above his head, and either Tobar or CP produced a knife and lunged at one of the security guards. The guard blocked the knife with his hand, suffering a small graze. The other guard drew his gun and pointed it at Tobar and CP and told them to stop what they were doing. They ran away. The guard pointed the gun at JAN, who dropped the bat and was apprehended by the security guard. This incident gave rise to the third charge on the indictment, of assault with intent to rob whilst armed. Police were called and arrested JAN. 10 En route to this scene police observed the motor vehicle in which the three men had left the scene of the second offence. CP was occupying the front passenger seat. Police searched the vehicle and found the stainless steel meat cleaver with blood on it, a pocket knife, and items that had been stolen in the two earlier offences. Inquiries revealed that the vehicle was registered in the name of Tobar. It appears, however, that he was not present at the time CP was located and arrested. 11 Tobar told his father of what he had done, and, acting on his father's advice, he presented himself voluntarily at the Paddington Police Station on 10 April. He was then arrested. 12 CP, for some reason that is unexplained, faced only the charge of armed robbery with wounding, and armed robbery. He was not, apparently, charged with the assault with intent to rob of the security guards. On the robbery with wounding charge he was sentenced to imprisonment with a non-parole period of six years and balance of term of five years; on the armed robbery charge he was sentenced to imprisonment with a non-parole period of three years and a balance of term of three years. 13 For reasons that will become apparent, it is necessary that the Court re-sentence each applicant. It is convenient here to review the evidence of subjective circumstances, as they were accepted and found by Urquhart DCJ.

[9]

Gerardo Tobar 14 Tobar was born in Chile on 20 February 1984. He was 19 years of age at the time he committed these offences, 20 at sentencing. He had no prior criminal record. 15 His family migrated to Australia when he was about three years of age. Until his mother became ill, and eventually died on 31 December 1998, the family was a close and supportive one and the applicant functioned normally and in a law-abiding manner. When the applicant was about 12 years of age his mother became ill. Her illness was protracted and caused a significant impact on the family. Her illness and death precipitated depression in the applicant's father and in himself. A psychological report shows that the applicant has never resolved the issues which arose as a result of his mother's death. His school behaviour deteriorated and he was ultimately expelled. He began using marijuana and consuming alcohol to excess. He was intoxicated at the time of the offence. A relationship with a girlfriend had broken up about one month prior to the offences. He was, at the time, depressed and worried. 16 Psychological testing revealed "quite stable personality functioning", but in the context of a "rather depressive and self defeating personality adjustment". He was said to have a poor self concept and to be self abasing and to have symptoms of a dysthymic disorder. These were identified as feelings of discouragement, guilt, lack of initiative, behavioural apathy and low self esteem with social withdrawal, fatigue and poor concentration. He was said to be "quite a passive person". 17 The psychologist concluded that, based on the results of psychological testing, it was unlikely that the applicant would re-offend. 18 Urquhart DCJ accepted that Tobar's expressed contrition was genuine. This finding is supported, if by nothing else, by his voluntarily surrendering himself to police. 19 Additional evidence was put before this Court for the purpose of re-sentencing. Tobar affirmed an affidavit on 3 November 2004. He wrote of his regret and horror at what he had done, and of his attempt at obtaining education whilst in prison. He acknowledged the circumstances, including his emotional condition, which had existed in his life immediately prior to the offence. He, and others, also wrote of the support he has received from friends and family whilst in prison. All of this reinforces the conclusion that he has strong prospects of rehabilitation.

[10]

JAN 20 Before the sentencing judge were two background reports, the latter with an addendum, from a counsellor employed by the Department of Juvenile Justice. These were dated, respectively, 18 November 2003 and 21 January 2004. His Honour also had the benefit of a psychological assessment report dated 7 November 2003. 21 From these, his Honour was told that the applicant was born in Argentina on 13 August 1986, of Chilean parents. The family migrated to Australia when the applicant was three years of age in order to secure better opportunities for the family. The applicant was 16 ½ years of age at the time of commission of the offences, 17 ½ at sentencing. He was arrested on the day of the offences, and remained in custody thereafter. The applicant is the second youngest of five children. The applicant's parents separated amicably in about 1998. 22 The applicant had been well behaved during his early school days, but the reports suggest that his behaviour deteriorated markedly at high school. He was asked to leave two schools. 23 Initially, after separating from his father, the applicant's mother returned to Chile, leaving the applicant and his siblings in the care of their father. She made a number of visits to Australia during that time. Subsequently the applicant's father established another relationship, and this had the effect of reducing to a minimum the contact between the applicant and his father. This was particularly disturbing to the applicant as he had previously enjoyed a very close relationship with his father. 24 At about 15 the applicant began using alcohol and became a binge drinker. He also began using cannabis and did so daily for a time but ceased this because of its psychological effects upon him. For a short time before his arrest he used heroin about twice weekly. 25 The applicant has no criminal history. He had been in a relationship with a girlfriend but she terminated this on the evening prior to the commission of these offences. The applicant had been drinking heavily with his co-offenders during the day of the offences and was intoxicated at the time of their commission. 26 He continues to have the support of his mother although his father has demonstrated little commitment to his rehabilitation. 27 The initial Juvenile Justice Report offered little encouragement as to his cooperation or rehabilitation. His behaviour in custody was described as "erratic and unsettled" and disrespectful. He declined to cooperate in any meaningful way with the counsellor providing the report on a number of occasions. Notwithstanding this, the sentencing judge expressly accepted that the applicant was contrite. 28 The second report offers more hope. The applicant is described as showing greater signs of positive behaviour. Nevertheless, the counsellor remained guarded in relation to his motivation to pursue his education. Urquhart DCJ expressly accepted that there was potential for rehabilitation. That finding has not been challenged. 29 JAN has also provided an affidavit for the purposes of re-sentencing, sworn on 4 November. He said that in early 2004 he had participated in a full-time course in cabinet making which he enjoyed and that he intended, on his release, to attend TAFE to pursue this as a career. He has been seeing a drug and alcohol counsellor and has also been counselled in relation to anger management. * * * 30 Pursuant to s98 of the Crimes Act 1900, the offence of armed robbery with wounding carries a maximum penalty of imprisonment for 25 years; pursuant to s97(1) of the same Act, each of the offences of armed robbery and of assault with intent to rob whilst armed carries a maximum penalty of imprisonment for 20 years. Pursuant to Part 4, Division 1A of the Sentencing Procedure Act, the offence of armed robbery with wounding is subject to a standard non-parole period of 7 years. That Division, which applies to offences committed on or after 1 February 2003, has been the subject of detailed analysis by this Court in R v Way [2004] NSWCCA 131; unreported, 11 May 2004, a decision that was published after Judge Urquhart sentenced the applicants. For present purposes, it is only necessary to note that, inter alia, it was decided in Way that the standard non-parole period provided for in the Table to Division 1A was intended to apply to sentences imposed after conviction following trial, and not to sentences imposed where a plea of guilty has been entered. In sentencing the applicants, and in the absence of the guidance subsequently given by Way, Judge Urquhart held to the contrary. This circumstance gives rise to the first ground of appeal pleaded on behalf of each applicant. It involves only the offence of robbery with wounding, as the only one of the offences to which Division 1A applies. An identical ground was successfully raised on behalf of CP. The Crown has conceded that, in each case, this ground has been made good, that each applicant should be granted leave to appeal, and that each appeal should, accordingly, be allowed. 31 A second ground of appeal in each case, again following the decision in P, was also the subject of concession on behalf of the Crown. This ground, too, concerns only the sentences on the charges of robbery with wounding. This ground concerned the manner in which, on the charge of armed robbery with wounding, the judge sought to give effect to his finding of special circumstances. The ground is framed as follows: "His Honour did not take into account the finding of special circumstances in determining the non-parole period." 32 S44 of the Sentencing Procedure Act is as follows: "44 Court to set non-parole period

[17]

(4) The minimum and additional terms set for an offence together comprise, for the purposes of any law, the term of the sentence of the court for the offence." 35 In R v Moffitt (1990) 20 NSWLR 114, this Court held that, on its proper interpretation, s5 did not require a sequential approach to the determination of a sentence, beginning with the determination of what was then called the minimum term, followed by the determination of what was then called the additional term. The focus of sentencing remained upon the determination of the total term of the sentence, which, by s5(4), was the total of the minimum and additional terms. 36 The effect of the decision in Moffitt was that, where a judge found special circumstances under s5(2) of the Sentencing Act, effect was given to that finding by a reduction in the minimum term and not by an extension of the additional term. 37 In Way it was held that the same principle applies in the construction of s44(2) of the Sentencing Procedure Act. Accordingly, the focus should still be upon the total of the sentence imposed, which should, as was said in Moffitt, not exceed: "... but must bear a proper relation to the maximum prescribed by the Crimes Act in respect of the particular offence." (pp 134-135, per Badgery-Parker J) 38 Although s5 required and s44 requires the minimum term (non-parole period) first to be specified, or pronounced, in neither case is or was it required that that term be the first determined. 39 As the court in P concluded, I conclude that, in relation to each of the present applicants, the sentencing judge first determined the non-parole period. Had he not found special circumstances, that would not have been productive of error: he would have imposed a balance of term of one third of the non-parole period. Error crept in as a result of the finding of special circumstances. Having found special circumstances, and having first determined the non-parole period, he extended, erroneously, the balance of term. As the Crown concedes, I am satisfied that error has been demonstrated. 40 For the reasons given by Hulme J in P, each applicant is also entitled to succeed on this ground of appeal. 41 The third ground of appeal argued on behalf of each applicant is that the sentences imposed were manifestly excessive. These grounds require different approaches in relation to the Division 1A sentences, and those to which that Division does not apply.

[25]

(5) The failure of a court to comply with this section does not invalidate the sentence." 43 S21A (see s54B(3)) which is not contained in Division 1A, was amended by the same Act as introduced Division 1A. It sets out a catalogue of aggravating and mitigating features a court is obliged to take into account in determining the appropriate sentences for an offence. 44 Armed robbery with wounding, an offence against s98 of the Crimes Act, is an offence identified in the Table to Division 1A (see s54A). The standard non-parole period fixed by the Table for that offence is seven years. When fixing the sentences applicable to Tobar, Judge Urquhart made an express finding that the offence against s98 was in the middle of the range of objective seriousness for offences of its type. While he does not appear to have made an express finding to similar effect in relation to JAN, it is clear that he took the same approach. In each case, pursuant to s54B(2), he determined that there were reasons for setting a non-parole period that was shorter than the specified standard non-parole period. 45 In each case he also held that the pleas of guilty and remorse gave rise to a discount of 30% on each sentence, although, in relation to the robbery with wounding offences, this cannot be reconciled with his erroneous conclusion that the standard non-parole period applied to sentences imposed following a plea of guilty. Although his Honour's reasons for determining that the non-parole period should be shorter than the statutory seven years are not explicitly stated, it is, in my view, to be inferred that they include in Tobar's case circumstances such as his relative youth, his prior good record, and his progress towards rehabilitation. Similar considerations must have motivated the judge in JAN's case. His Honour in this context mentioned also the pleas of guilty but, since he had already held that the standard non-parole period was intended to apply to sentencing after a plea of guilty, that cannot have been a reason for the determination to reduce the standard non-parole period. In Tobar's case, a 30% reduction on the standard non-parole period to reflect the discount which the judge intended to give by reason of his plea of guilty would have brought the non-parole period imposed down to a fraction under the five years that was in fact imposed. This makes no allowance for the other circumstances which justified a reduction of the standard non-parole period. The sentences imposed did not, as it happened, reflect his Honour's intention. 46 Approaching the matter another way, as was done by Hulme J in P, the allowance of 30% for the plea of guilty, resulting in a non-parole period of five years, implies a starting point of six years and six months non-parole period. The addition to that of one third by way of balance of term (excluding special circumstances) would have resulted in a head sentence of almost eight and a half years. In my opinion, that would have been manifestly excessive. In JAN's case, the factoring in of the 30% to the non-parole period gives a notional starting point of a little over 7 years, and a head sentence of almost nine and a half years. That also would, in my opinion, have been manifestly excessive. 47 Taking the same approach in P, Hulme J concluded that the starting point for the sentence on the armed robbery with wounding charge must have been 15 ½ or 16 years, or about two thirds of the maximum penalty provided. His Honour concluded that this was manifestly excessive. 48 In relation to the armed robbery offence, CP was sentenced identically to the present two applicants. To this, Hulme J factored in the discount of 30% and reached a starting point of nine years. Having regard to the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, he held this sentence was also manifestly excessive. I would agree with this conclusion. It follows that the sentence imposed on each applicant in relation to the offence of armed robbery must be set aside as manifestly excessive. I would take the same view in relation to the third offence charged against each of the applicants and not charged against CP. This Court re-sentenced CP, on the charge of armed robbery with wounding, to imprisonment with a non-parole period of three and a half years and a balance of term of three years; and on the charge of armed robbery, to imprisonment with a non-parole period of two and a half years, and a balance of term of two and a half years, the sentences to be served concurrently. 49 The fourth ground of appeal raises questions of parity with CP. It is necessary to consider the question of the proportion between his criminality and that of each of the applicants. The sentencing judge, by the way he sentenced, demonstrated that he considered CP to be the most serious of the three offenders. This was principally because of his use of the meat cleaver. Unlike the two applicants, CP also had some criminal history. I would agree with his Honour's assessment. His Honour also found that JAN was the second most serious of the offenders, and this was because of his use of the baseball bat. I would, on those facts, agree with the assessment. However, on behalf of JAN, it was argued in this Court that his relative youth counter-balanced that assessment so far as parity with Tobar is concerned. At the time of the offences Tobar was 19 years of age and JAN was 16 ½ years of age. Neither had any criminal record. 50 Although it is necessary that this Court undertake a re-sentencing exercise, it is nevertheless appropriate to do so on the basis of the findings of fact made by Urquhart DCJ. These include, significantly, the findings of contrition and remorse, and prospects of rehabilitation.

[26]

re-sentencing 51 Earlier in these reasons I have set out the provisions of ss 44, 54A and 54B of the Sentencing Procedure Act. They may relevantly be encapsulated as follows. 52 By s44(2), the non-parole period fixed for an offence must not be less than three quarters of the term of the sentence, unless the court decides there are special circumstances for it being less (which reasons must be specified). The offence of armed robbery with wounding is an offence within Part 4, Division 1A of the Sentencing Procedure Act. By s54A(1) and the Table to the Division, a standard non-parole period for the offence is fixed at seven years. By s54A(2), the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for such an offence. 53 By s54B(2), when determining the sentence for an offence, the court is to set the standard non-parole period unless it determines that there are reasons for setting a non-parole period that is longer or shorter than that specified in the Table. But by s54B(3) the court may set a longer or shorter non-parole period than that specified in the Table only for one or more of the reasons referred to in s21A (that is, the catalogue of aggravating and mitigating factors a court is required to take into account). By s54B(4) the court must make a record of its reasons for increasing or reducing the standard non-parole period. 54 S21A is relevant, not only to the offence of armed robbery with wounding, but also to the remaining offences. 55 In relation to the offence of armed robbery with wounding, the provisions of Division 1A must be taken to have excluded, or at least significantly reduced, the application of the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. That guideline, however, remains applicable to the second and third offences (with some additional limitation in the case of JAN because he was a juvenile at the time of their commission). 56 In my opinion, the relativities established by the sentencing judge between CP and Tobar should be maintained. This was not contested by either party. I would accept the submission advanced on behalf of JAN that, although his conduct in the offences was more serious than that of Tobar, and, objectively speaking, warranted more severe punishment, that is balanced by his relative youth. In my opinion, it would be appropriate to treat both of these applicants equally. 57 The submission was advanced on behalf of the applicants, and not contested by the Crown, that each applicant should be re-sentenced by reductions in their sentences approximately proportionate to the reductions granted to CP. The principles of parity support that approach. 58 This Court sentenced CP, on the armed robbery with wounding charge, to a non-parole period of three and a half years with a balance of term of three and a quarter years. This represented a reduction in the non-parole period of about 42% and in the balance of term of about 35%. Applying approximately the same proportionate reduction to the sentence imposed on Tobar in respect of this offence would result in a non-parole period of just under three years and a balance of term of three years and three months. I propose that, on these charges, each applicant be sentenced to a non-parole period of three years with a balance of term of three years and three months. 59 The sentences imposed in relation to the armed robbery on CP in the first instance were the same as those imposed on these two applicants. The sentence imposed on CP was reduced to one of a non-parole period of two and a half years with a balance of term of two and a half years. I would propose the same sentence be imposed on each of these applicants in relation to each of the later offences. 60 There remains, in relation to JAN, one last matter to consider. He was a juvenile at the time of the offences, and was dealt with under the Children (Criminal Proceedings) Act 1987. S19 of that Act provides as follows: " 19 Court may direct imprisonment to be served in a detention centre

[32]

(Ms Gowans was an officer of the Department of Juvenile Justice who had prepared a report in relation to CP, and who gave oral evidence. Her report was not available to this Court. She gave some brief oral evidence about courses and programmes available in Juvenile Justice institutions.) 62 This appears to be the extent of the reasons stated by his Honour for this decision. He reached a similar conclusion in relation to CP, who was 17 years and 10 months of age at the time of the offences, almost 19 at sentencing. In his case his Honour ruled that his sentence should be served in a detention centre until the age of 19 and two months. 63 This Court quashed that order and ordered that CP serve his sentence in a detention centre until attaining the age of 21 years. 64 JAN was born on 13 August 1986. He attained the age of 18 on 13 August 2004. His longest non-parole period will expire on 26 March 2006 and his total sentence on 26 June 2009. He will have his 21st birthday on 13 August 2007. He will not necessarily still be in custody when he attains the age of 21. (It is to be hoped that he is not.) However, if he is not released at the expiration of his non-parole period, it is my opinion that he should continue to serve his sentence in a Juvenile Justice facility rather than an adult gaol. I would adopt the finding of the sentencing judge that there are special circumstances justifying JAN's detention in a detention centre beyond the age of 18 years. The reports to which I have made brief reference above demonstrate conclusively, to my mind, that JAN's progress towards rehabilitation will be slow and marked with difficulties. He is in need of the maximum care, counselling and attention if he is to overcome the social adjustment problems he has demonstrated. I propose that an order be made under s19(2) that he serve his sentence in a detention centre until he attains the age of 21 years if he has not been earlier released on parole. 65 I propose the following orders: