R v Young

The application 7 Ms Francis, for the applicant, challenged the sentencing process on a number of bases. Firstly, she submitted that his Honour appears to have dealt with the applicant on the basis that he is guilty of robbery when, in fact, the offence for which he stood for sentence was stealing from the person. There is some force in this submission. In the passage from the remarks on sentence which I have quoted, his Honour referred to the knife which was in the applicant's possession and to the fact that the victim and his companions were frightened. Later in the remarks, his Honour observed that the applicant "has to receive a punishment which reflects the fact that he robbed a young boy and terrified his friends". 8 The Crown prosecutor before us submitted that his Honour was doing no more than describing the circumstances surrounding the offence, primarily to demonstrate the irrationality of the applicant's behaviour. He argued that his Honour's use of the word "robbed" was colloquial, and did not arise from a misapprehension about the offence with which he was dealing. A similar problem arose in R v Kerr-Bell (CCA, unreported, 13 February 1991). In that case Gleeson CJ, with whom Priestly JA and Mathews J agreed, dealt with the matter in this way: Criticism was addressed to the fact that in his remarks on sentence and in a remark made to the appellant immediately before being sentenced the learned trial judge described the offence as one of robbery rather than stealing from the person. I consider, however, that his Honour was in this respect only using a colloquial expression; both robbery and stealing from the person are offences under s94 of the Crimes Act and attract the same maximum penalty. It is true that elements of the offence of robbery are in certain respects different from the elements of stealing from the person but I do not think it likely that that was something that was overlooked. 9 The Crown prosecutor also relied on the observations of Smart AJ, with whom Wood CJ at CL agreed, in R v Hua [2002] NSWCCA 384. After examining s94 of the Crimes Act, by reference to his own judgment in R v Delk (1999) 46 NSWLR 340, his Honour observed, "Put simply, too much should not be made of the distinction between steal from the person and robbery" (par 17). After noting that putting the victim in fear is an element of robbery, his Honour said of the offence of stealing from the person, "It would not be wrong for the judge to take into account that the offence had the potential for violence or the potential for putting the victim in fear" (par 20). His Honour rejected the proposition than an offence of stealing from the person is necessarily less serious than robbery, pointing out that the gravity of an offender's conduct must be determined by the facts of each case (par 19). 10 Nevertheless, nothing in Smart AJ's judgment in Hua suggests that the distinction between robbery and stealing from the person should not be maintained. To do so, and to be seen to do so, is of particular importance in a case such as the present. No doubt, the applicant offered the plea of guilty to the alternative charge of stealing from the person, and the Crown prosecutor accepted it, in the expectation that he would be dealt with less severely than he might have been if he had faced sentence for robbery. The passages from the remarks on sentence to which I have referred do suggest that his Honour blurred the distinction between the two offences, and give rise to a reasonable apprehension that the sentencing exercise was not focussed upon the elements of the alternative charge to which the applicant had pleaded guilty. 11 Ms Francis also submitted that his Honour had fallen into error by making no reference to the applicant's plea of guilty and to its influence, if any, on his sentencing decision. In my view, this submission also is sound. Although it is most unlikely that the plea was overlooked, "it was necessary for his Honour to have spelt out the way in which it was taken into account or, if discounted, to explain why that was so": R v McCarroll [1999] NSWCCA 237 per Wood CJ at CL at par 14. Of course, quite apart from his expressed remorse, the applicant was entitled to a measure of leniency for the utilitarian value of the plea of guilty, even though it was to a charge which might be seen as less serious than that originally preferred: cf R v Dib [2003] NSWCCA 117 per Hodgson JA at par 3, and my own judgment in R v Cardoso [2003] NSWCCA 15 at par 18. 12 Enough has been said to demonstrate that the sentencing process miscarried, and I find it unnecessary to deal with Ms Francis' final submission that the sentence is, in any event, excessive. I would not dismiss the appeal upon the basis that, notwithstanding the errors identified, no lesser sentence is warranted in law: s6(3) of the Criminal Appeal Act. A head sentence of four years, after an appropriate allowance for the plea of guilty, is high. In so saying, I do not overlook the serious nature of the offence and the applicant's unfavourable criminal record. I would see four years as an appropriate starting point, but I would reduce it by twenty-five per cent in recognition of the plea of guilty and the applicant's remorse, so as to arrive at a head sentence of three years. Ms Francis pointed out that stealing from the person can be dealt with in the Local Court, referring to R v Crombie [1999] NSWCCA 297, per Wood CJ at CL at par 12ff. However, given the facts and the applicant's record, summary disposal would have been entirely inappropriate in this case. 13 More troubling, however, is the question of the appropriate non-parole period. While accepting that there are special circumstances, that period must still be long enough to reflect the applicant's criminality: R v Simpson (2001) 53 NSWLR 704, per Spigelman CJ at par 54 ff. Having given this question anxious consideration, it does not appear to me that the non-parole period could be any less than that specified by his Honour, eighteen months. To set that non-parole period in association with a head sentence of three years would ensure that the applicant is entitled to release on parole upon its expiration: s50(1) of the Crimes (Sentencing Procedure) Act. 14 A practical disadvantage of reducing the head sentence fixed by his Honour is that it leads to a reduction of the period during which the applicant might be subject to the sanction of parole. However, it needs hardly be said that the desirability of subjecting an offender to an extended period of conditional liberty is no justification for passing a head sentence greater than the case merits. In any event, I should record that I have had regard on the question of re-sentence to an affidavit of the applicant sworn on 12 September 2003. From that affidavit it appears that he has made good use of the educational and rehabilitative programs available to him in custody since being sentenced, and that he is motivated to pursue employment opportunities and meet his parental responsibilities upon his release. I believe that much could be done to foster his rehabilitation during an eighteen month period of conditional liberty, under supervision. 15 I would grant leave to appeal and allow the appeal. I would quash the head sentence passed in the District Court and would sentence the applicant to imprisonment for three years, to date from 22 July 2002. I would confirm the non-parole period of eighteen months, expiring on 21 January 2004. I would direct the applicant's release on that day and, pursuant to s51(1A) of the Crimes (Sentencing Procedure) Act, I would order that he be subject to the supervision of the Probation and Parole Service for the whole of the parole period. 16 GREG JAMES J: I agree with Hidden J. 17 SMART AJ: I agree with Hidden J. **********