Regina v Corey Styman

IN THE COURT OF CRIMINAL APPEAL 2004/3291

McCOLL JA BARR J JOHNSON J

11 April 2005 REGINA v COREY STYMAN Judgment 1 McCOLL JA: I agree with Barr J. 2 BARR J: This is an application for leave to appeal against a sentence imposed in the District Court. On 27 November 2003 the applicant pleaded guilty to the offence of being an accessory before the fact of an armed robbery. Delaney DCJ sentenced him to a non-parole period of one year and six months, commencing on 5 May 2003, and a balance of sentence of one year and six months, expiring on 4 May 2006. His Honour directed the release of the applicant on parole on 4 November 2004. 3 On 9 May 2003 the applicant supplied a blood-filled syringe to another person to enable her to rob a twelve-year-old schoolgirl of a mobile telephone while she was on the train travelling home from school. The co-offender sat beside the complainant on the train and asked whether she had a telephone. The complainant said that she did not. The co-offender persisted, taking out the syringe and placing it between her leg and the complainant's leg. She said that she would give the complainant hepatitis if she did not hand over her mobile telephone. The complainant was terrified and parted with her telephone. The robber left the train at a railway station and the applicant, who had remained nearby, followed her. Later on, police stopped the two of them and spoke to them. In a bum bag carried by the co-offender was the complainant's mobile telephone. The applicant's SIM card was found installed in the telephone. The applicant was charged with the robbery and pleaded not guilty. He was committed to the District Court for trial. On the day I have mentioned the Crown, which had charged him in the alternative with being an accessory before the fact of the robbery, indicated for the first time that it was prepared to accept a plea of guilty to that charge in discharge of the indictment. So the matter was disposed of. 4 The first ground of appeal asserts that his Honour erred in increasing the parole period from six months to eighteen months as a result of finding special circumstances. Of course, extension of the parole period of a sentence is not of itself erroneous. The complaint is that in extending the period of parole his Honour imposed a longer overall sentence than he otherwise would have imposed. 5 The applicant was called up for sentence not long after s44 Crimes (Sentencing Procedure) Act was amended and there was some debate about how his Honour ought to give effect to the amended section. Before his Honour pronounced sentence there was this exchange between his Honour and the solicitor for the applicant - HIS HONOUR: It is necessary, because of the date of the offence, the Court set a non-parole period first in the sentencing procedure. VERTIGAN: That is correct. HIS HONOUR: What is the effect, you say, briefly of the amendments to section 44 as to the manner in which the Court should go about the sentencing process, and is there any change in that process as a result of those amendments other than nominating the non-parole period beforehand rather than stating a head sentence first, and then the non-parole period. This is a matter of some debate I understand. VERTIGAN: Yes it is, and hopefully we will get a decision at some stage that sorts it out one way or the other. Your Honour I think the position must be, particularly when one takes into account the concept of special circumstances, that the effective manner of sentencing is unchanged. If it was that, in fact, one -- HIS HONOUR: It has been argued by some that indeed now those who appear on behalf of accused persons will be seeking that there be no special circumstances -- VERTIGAN: Indeed. HIS HONOUR: --found, and indeed the Crown will be arguing the special circumstances. VERTIGAN: Well that would be the case if the section were to be read that, in fact, it's a non-parole period imposed first. That would result in a ludicrous situation, that where the court found special circumstances, persons who were in need of that supervision will be subject to the risk of a longer sentence than the persons who don't. HIS HONOUR: Absolutely correct, and that is indeed the debate which I understand has been certainly aired before me, and has been mentioned in some documents circulating amongst the profession. VERTIGAN: Well it seems difficult to imagine that Parliament ever intended that that be the effect of the section. HIS HONOUR: I haven't had a look at the second reading speech about this, but it certainly is a worrying matter which I try to raise with all those who were appearing for persons who are charged with the offences occurring on the date after the commencement of that Legislation, to make sure that at least the issue is discussed in a way that it could not be said it was overlooked should it be necessary that the matter go to the Court of Criminal Appeal for any reason. VERTIGAN: Certainly. It seems, I mean this is a case where I would say special circumstances do exist. HIS HONOUR: I might be tempted to agree with you. VERTIGAN: But it seems an extraordinary proposition that if your Honour sentences in the usual way, that the Crown could argue because of the section, there was - an inadequacy appeal could be lodged, and the reverse would be if the accused was given a greater head sentence as a result, he would be seeking to have that corrected. HIS HONOUR: Well I don't know the answer. VERTIGAN: Your Honour in my submission what the section would seem to be intended to ensure was that, particularly in circumstances of special circumstance, that the court focus on the non-parole period with a view to ensuring it doesn't attract a non-parole period that is less than the objective seriousness of the offence. I think that was arguably what the intention was, not to change the manner in which sentences were imposed, but to ensure that the non-parole period was never reduced to that which could be said to be inadequate. 6 During his remarks on sentence his Honour said this - I indicate that I propose that there should be a non-parole period of 18 months to commence on 5 May 2003. I propose there being special circumstances found to (sic) in lieu of the statutory period of one-third of the non-parole period to direct that there be an additional period of 18 months to allow for his rehabilitation whilst on parole. 7 In pronouncing sentence his Honour said this - I sentence you to a non-parole period of 18 months to commence on 5 May 2003 and expire on 4 November 2004. I specify an additional period in excess of the statutory period to commence on 5 November 2004 and to expire on 4 May 2006.

8 A little later this exchange took place between the solicitor for the defence and his Honour - VERTIGAN: Do I take it that your Honour has imposed the non-parole period in accordance with Section 44 but extended the parole period accordingly? HIS HONOUR: Yes. If I did not make that clear Mr Vertigan that is precisely what I intended to do. VERTIGAN: Your Honour did indicate that in lieu of the usual one-third, which would be six months, your honour had imposed - I just wanted to clarify that, thank you. HIS HONOUR: Yes. I am glad that you did raise that matter Mr Vertigan and I confirm that is what I have done. It is necessary that those matters be made as clear as possible and there should be no doubt about them in the remarks on sentence, especially as it is known that there are a number of matters pending in the Court of Criminal Appeal to enable the Courts to have better understanding of the precise way in which those matters should be expressed. 9 The requirement to set a non-parole period and a balance of the term of a sentence lay in s44 Crimes (Sentencing Procedure) Act, which, relevantly, provided as follows - 44 Court to set non-parole period (1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (3) The failure of a court to comply with subsection (2) does not invalidate the sentence. … 10 The section was re-enacted in its present form on 1 February 2003 when standard non-parole periods were introduced for certain offences: see Part 4 Division 1A of the Act. So amended, the section is very like the former s5 Sentencing Act 1989. That section ran as follows - 5 Minimum and additional terms (1) When sentencing a person to imprisonment for an offence, a court is required - (a) firstly, to set a minimum term of imprisonment that the person must serve for the offence; and (b) secondly, to set an additional term during which the person may be released on parole. (2) The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances. (3) If a court sets an additional term that exceeds one-third of the minimum term, the court is required to state the reason for that decision. (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.

11 The construction of s5 was explained in R v Moffitt (1990) 20 NSWLR 114 and R v GDR (1994) 35 NSWLR 376. In R v Way (2004) 60 NSWLR 168, an appeal dealing with standard non-parole periods, this Court said that those cases would provide guidance about the construction of s44 as amended. 12 Under s5 Sentencing Act the prima facie ratio between the lengths of the non-parole and parole components of a sentence was 3:1. Although the terminology is different, the relationship is the same under s44. In R v Moffitt the Court held that although s5 governed the order in which the minimum and additional terms were to be imposed, it did not require the reasoning of the sentencing court to be confined first to the first step and then to the second. The relevant steps could be taken simultaneously. 13 Badgery-Parker J observed at 134 that the additional term had a punitive as well as a rehabilitative purpose and that prisoners were not automatically released on parole as soon as they became eligible. That depended on a decision of the Parole Board. Consequently, if the additional term were extended without a corresponding reduction in the minimum term, the result might be an unintentionally severe sentence. That, it was submitted, is what happened in the present case. It was submitted that the whole of what his Honour said before, during and after giving sentence leads to the conclusion that as a result of finding special circumstances justifying a longer period of eligibility for parole, his Honour increased the head sentence. Whereas he would have imposed a total sentence of two years he increased it to three years to accommodate the extended period of parole. The very length of the sentence was said also to support that construction. 14 Looking at the words themselves, nothing his Honour said before passing sentence suggests that he was contemplating starting with one sentence and, by increasing the amount of time the applicant might have on parole, finishing with another. His Honour's reference to special circumstances suggests that he had not yet made up his mind whether to extend the parole period. Nothing about what was said suggests that his Honour felt constrained to impose a sentence longer than he would ordinarily choose. 15 The words of the sentence itself are apt to describe a sentence of three years, the components of which have been adjusted so that the balance of the term of the sentence (which his Honour called "the additional period") has been increased to eighteen months, whereas the non-parole period has been reduced to eighteen months. The fact that his Honour referred to a balance of the term of the sentence "in excess of the statutory period" but not to any reduction in the non-parole period is explained by the terminology of the section itself. Not dissimilar things used to be said by judges passing sentence under s5 Sentencing Act. Nowhere did his Honour say that he was imposing an effective head sentence which was longer than it would otherwise have been. Nowhere did his Honour say that he had adopted a sequential approach or had begun with one sentence in mind and ended with another. 16 His Honour's answer to the solicitor's post-sentence interrogatories does not dispel my impression. As his Honour said, he had imposed a non-parole period in accordance with s44 but had extended the parole period. That was what the section required. 17 I do not think that what his Honour said shows that he increased the head sentence because of any increase in the period of eligibility for parole. Neither, for reasons which I shall explain in dealing with the second ground of appeal, does the length of the sentence itself support such a construction. In my opinion this ground of appeal has not been made good. 18 The second ground of appeal is that the sentence is manifestly excessive. Other than that asserted in the first ground no particular error is asserted. The contention is that the very length of the sentence bespeaks error. 19 I have summarised the facts of the case. The victim was a vulnerable young schoolgirl and the offence was committed without regard for public safety. These features aggravated the applicant's criminality: see Crimes (Sentencing Procedure) Act s21A(2)(l), (i). A further serious aggravating feature was the applicant's history of offences of personal violence. He was born on 18 March 1984. By the time he came before his Honour he had been in court many times. In May 1998 he was arrested and charged with larceny and kindred offences and with assaulting a police officer. He was dealt with leniently in the Children's Court. In June 2000 he was arrested for assault and given the benefit of a control order. In December of the same year he was put on probation for larceny and possessing housebreaking implements. In December 2001 he was arrested for aggravated robbery. A seven-month control order was made. In July 2002 he was arrested on two counts of assault and was imprisoned for seven days. In December 2002 he was charged with intimidating a police officer. In the same month he was charged with a number of other offences, including assault, and was fined. About five weeks before the offence with which this appeal is concerned he behaved offensively on a train and committed three assaults, two of them on officers in the execution of their duty. He was given the benefit of two bonds, one to run for twelve months and the other for six months. Both bonds were in force when he supplied the syringe to his co-offender. 20 The applicant's history of misbehaving and assaulting people on trains, of stealing and robbing and of standing over people deprived him of any entitlement to leniency. The existence of the bonds seriously aggravated his criminality. 21 Apart from the age of the applicant - he was nineteen years and two months of age at the time of the offence - counsel for the applicant drew attention to further matters which, it was submitted, showed excess in sentencing. The applicant's co-offender was a young person who was dealt with in the Children's Court under the regime provided by the Children (Criminal Proceedings) Act and given the benefit of a twelve-month conditional bond. His Honour was so informed. There was a discussion about the comparison of sentences imposed on co-offenders some of whom are dealt with according to law and others in the Children's Court. Reference was made to the judgment of this Court in R v Colgan [1999] NSWCCA 292. 22 His Honour assessed the degree of the applicant's involvement as substantially less than that of his co-offender but observed that the applicant's criminal history and the fact that he was on conditional liberty at the time of the offence must also be brought into account. His Honour said that he would in determining sentence give consideration to the decision of the Children's Court in the co-offender's case. 23 In my opinion his Honour would have erred if he had given any substantial weight to the decision of the Children's Court because, as this Court has been informed, the factual bases on which the two offenders were sentenced were different. Whereas his Honour was bound to regard the co-offender as the principal offender, the Children's Court, which dealt with the co-offender first, regarded the applicant, who was no doubt then awaiting trial for robbery, as the ringleader. In my opinion the differential assessments of criminality made it impossible for his Honour to take as any guide the sentence imposed on the co-offender. 24 The final submission was that the applicant's level of intellectual functioning was so low that it was inappropriate to pass on him a sentence calculated to deter others from committing such an offence. Reference was made to the principle explained in R v Scognamiglio (1991) 56 A Crim R 81 and R v Letteri NSWCCA, unreported, 18 March 1992.

25 Reports of Dr Nielssen, psychiatrist, and Dr Lennings, psychologist, were put before his Honour. Dr Nielssen interviewed the applicant and reported that according to the applicant he had been diagnosed as an adolescent as suffering Attention Deficit Hyperactivity Disorder but not treated. Dr Lennings reported the applicant as saying that when he was about ten years old he had been diagnosed as having Attention Deficit Hyperactivity Disorder and being treated with Ritalin. Dr Nielssen thought that the applicant probably had a disabling degree of attention deficit and hyperactivity that was probably due to an underlying neurological disorder. Dr Lennings was not sure that the applicant had Attention Deficit Hyperactivity Disorder. He tested and examined the applicant on standard adult intelligence scales and concluded that his overall cognitive ability was quite low. His level of ability fell into what Dr Lennings called the borderline mentally retarded range, or better than the bottom four per cent of the population. 26 Both experts commented on the applicant's misbehaviour at school and otherwise and his use of illicit drugs. Both thought that he had severe behavioural deficits and would need professional support in the future. Dr Nielssen thought that treatments that could assist the symptoms of the disorder included counselling, aimed at developing awareness in behaviour and deficits and improving organisational skills, and vocational assessment and training in a suitable occupation. A full routine in a structured environment could also help the symptoms, he thought. 27 Not surprisingly, his Honour stopped short of finding that the applicant had Attention Deficit Hyperactivity Disorder. His Honour carefully reviewed the evidence of the two expert witnesses and accepted their prognoses and implied recommendations. His Honour did not form the view that the applicant's intellectual deficit was of such an order as to make him an unsuitable medium for a generally deterrent sentence. In my view his Honour was not bound to come to such a view. 28 His Honour dealt with this subject matter at length and took the view that its principal value in sentencing was to prove the special circumstances necessary to justify an extended period on parole. That was a view which I think his Honour was entitled to take. 29 The offence committed by the applicant was a very serious one, the latest in a series of such offences. It called for a substantial non-parole period. The non-parole period of eighteen months has not been shown to be outside the proper range of his Honour's sentencing discretion. There was a strong case for an extended period of time on parole and in my opinion neither the head sentence of three years nor the parole period of eighteen months has been shown to be outside the proper range of his Honour's sentencing discretion. In my opinion the second ground of appeal has not been made good. 30 I would grant leave to appeal but would dismiss the appeal. 31 JOHNSON J: I agree with Barr J. ************

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