REGINA v. COSIER [2001] NSWCCA 513

JUDGMENT 1 GREG JAMES, J: This is an application for leave to appeal against sentences imposed in the District Court of New South Wales for various offences, four charged on indictment and some eight offences, included in a Form 1 and taken into consideration by the trial judge. 2 The offences charged on the indictment included conspiracy to commit robbery when armed with a dangerous weapon, a common law misdemeanour. The substantive offence of armed robbery, the object of the conspiracy, is an offence punishable by imprisonment for 25 years. There were, in addition, two counts for offences of robbery whilst armed with a dangerous weapon. Those are offences under s.97(2) of the Crimes Act 1900 and are punishable by a maximum penalty of 25 years imprisonment. 3 In addition to those three counts, there was a fourth count of harbour escapee, an offence punishable by a maximum of three years imprisonment. The offences on the Form 1 were six offences of robbery whilst armed with a dangerous weapon, and two of larceny of a motor vehicle. 4 The learned trial judge imposed sentences on counts one and two for a fixed term of six years, commencing on 23 April 2001, with a non-parole period of three years and six months, expiring on 22 October 2004. On count three, taking into account the matters on the Form 1, his Honour imposed a sentence of seven years and six months, commencing on 23 April 2003, and expiring on 22 October 2010, with a non-parole period of four years and six months, expiring on 22 October 2007. On count four, his Honour passed a sentence of imprisonment for a fixed term of seventeen months, commencing on 29 May 2000 and expiring on 28 October 2001. 5 This complex of sentencing produced an overall sentence, as expressed in the Crown's written submissions, of an effective total term of 10 years and five months, with a period of some seven years and five months actually to be served. 6 In an extensive and detailed review of all relevant considerations, the trial judge set out the facts of each of the offences charged on the indictment, and those taken into account on the Form 1. 7 Referring here in short compass to the trial judge's observations, his Honour referred to the conspiracy as being a plan devised between the applicant and a number of co-offenders to abduct the manager of the Katoomba Sky Way at gunpoint from his residence, to force that manager, on attending that complex, to give access to the Sky Way's business safe and detaining the manager's family at gunpoint until the robbery had been completed. The scheme was frustrated when the actions of the family dog caused two co-offenders, who had secreted themselves in bushland next to Mr. Hammond's residence, with a shortened shotgun, to conclude that they might be detected. 8 The other offences included the robbery of the Stone Cottage Restaurant Conference Centre at Leura, where the applicant attended, armed with a shortened lever action .22 calibre rifle, whilst disguised. That offence involved the menacing of staff with firearms. The staff members were not only menaced and detained but were bound with tape by the applicant. A motor vehicle was demanded from the staff and a male staff member coerced into providing the keys. There were also later attempts to access a number of the staff members' bank accounts via ATM machines, utilising what had been taken from the staff members during the robbery. These robberies each had been carefully planned. There had been reconnaissance done by the applicant of the premises. 9 The Blackheath Golf Club was also robbed. The applicant and the co-offender had attended on the evening of Anzac Day, the applicant possessing a Winchester shortened lever action .22 calibre rifle, the co-offender being armed with a shortened pump action shotgun. The rifle had a mag light torch attached to the front sights. The offenders were disguised. Staff again were threatened with the weapons and ordered to lie on the floor. The co-offender struck one of the members of the staff, causing that member of staff to bleed heavily. The co-offender rounded up the patrons then present, some being elderly persons. 10 The applicant forced the bar manager at gunpoint to open the safe. It was the applicant who left the club to retrieve the bar manager's vehicle, whilst the co-offender remained guarding the patrons. It was the applicant who transported the co-offender, the arms and the proceeds to the applicant's premises and later to bushland at Leura. It was at the applicant's premises where the proceeds were distributed. 11 Within days of the commission of that robbery, the applicant and the co-offender attended at the bushland spot in Glenbrook National Park, where the weapons, clothing and ammunition associated with the robberies were buried. 12 The co-offender, Alan Cohen, had escaped from the Kirkconnell Correction Camp at Yetholme, where he had been serving a sentence for armed robbery. He had made his way to the applicant's premises and sought refuge. He was related to the applicant's wife. He was permitted to remain, and up until the applicant's arrest at Manly on 28 April 2000, the applicant and his wife had harboured him by providing both food and shelter for him. The applicant also took the co-offender in his truck on various work-related activities. Those matters constituted the offence charged in the fourth count in the indictment. 13 In respect of the robberies on the Form 1, there were a number of other co-offenders. His Honour referred to those co-offenders and the necessity, in the particular circumstances involved for each of those persons to be sentenced separately. 14 It has been submitted that the additional robbery offences referred to in the Form 1 should be considered as sufficiently related to those robberies charged in the indictment, they being charges which turned upon the identity of individual victims, that additional culpability as is reflected in them should not have been the case in any materially greater increase in the sentence as would have been reflected had they been entirely separate and disparate robberies. I will return to that submission later. 15 The trial judge gave particular attention, when considering those facts to which I have referred, to the account given by the applicant in his interview with police. In that account it is fair to say the applicant offered substantial information to the authorities concerning his own guilt and that of others. He set out in some detail precisely what his own involvement was. He contended, in relation to the conspiracy to rob the manager of the Sky Way that at the time of the commission of that offence the weapons were not loaded. 16 In his account to the police concerning the robbery of the Stone Cottage Restaurant, he confessed that he had suggested the idea to the co-offender. He contended that the use of the weapon by him on that occasion was by means of pointing it, most of the time at least, at the ground. 17 In relation to the robbery of the Golf Club, he made full admissions in his interview as to his part in the offence, and again contended that his weapon was not loaded. He contended that he regretted having been involved in the criminality and that he had been involved as "led by persuasion". He said, "I mean, armed robbery isn't something that I'd give a lot of thought to normally". He contended that it was the persuasion of his co-offender which had caused him to go ahead and do it, but accepted that he had not been threatened, nor had anyone close to him been threatened, with physical harm to induce him to participate. 18 Although the applicant contended that at this robbery the rifle was not loaded, police had recovered a bag left by the applicant and the co-offender by mistake at the Golf Club, which contained a pair of King Gee overalls, a portion of camouflage cloth and a quantity of .22 calibre ammunition. Such finding does not suggest that the weapon was loaded, but it does suggest that the offenders had brought with them ammunition capable of being used. 19 In relation to the offence of harbour escapee, the applicant made full and frank admissions of the involvement with his co-offender. 20 It is apparent that this was a spate of very grave criminality but it is apparent also that the applicant was, the trial judge having accepted the matters I have referred to that the applicant had disclosed both as to himself and others, entitled in the sentencing complex to substantial consideration for his contrition, his co-operation and his revealing of matters that might not otherwise been able to have been effectively detected by the police. 21 The trial judge gave credit for all of those matters, he said in his remarks on sentence, and to a substantial extent. In his reasons he referred to the necessity to pass a sentence which reflected the objective seriousness of these grave crimes and the proportionality of the sentence. He made reference to Regina v. Henry & Ors (1999) 46 NSWLR 346. He made reference to a number of matters, including those of the applicant's prior record, for the purpose of ascertaining what leniency might be extended to him. 22 He concluded, when reviewing a number of factors which he set out in his remarks on sentence, that the criminality was grave, that the applicant's role in the criminality was at a high level, though perhaps not so high as that of the co-offender, and that the persons who had been the subject of the robberies were persons who had been peculiarly vulnerable to the serious threats imposed by the use towards them of weapons of the kind used. 23 His Honour concluded, in relation to the pleas and the disclosures as I have said, that a substantial allowance should be made on sentence to the applicant's advantage for what he had done. He also had regard to what the applicant might do in the future and specifically the danger that might expose the applicant to and the danger that it might expose his family to. His Honour referred to the principle in Regina v. Cartwright (1989) 17 NSWLR 243. He referred to Regina v. Ellis (1986) 6 NSWLR 603 and the Crown's concession that the principles therein set out should be applied to the applicant's sentences for all offences for which he was there to be dealt with. The utilitarian discount for early plea was also applied. 24 His Honour had careful regard to what had been said in the psychologist's report of Ms. Elizabeth Kusch and in that regard, however, tempered what had been said concerning the applicant not knowing Cohen well, by having regard to the admissions the applicant had made that nonetheless he knew Cohen was an escapee. 25 His Honour examined a number of factors that were said to be aggravating factors and concluded that, having regard to the personal factors, which his Honour set out, in particular extracted from what was contained in the psychologist's report, particularly the appalling circumstances under which the applicant grew up, that the applicant was a person of whom there were prospects found in his subjective material of potential rehabilitation. 26 His Honour particularly adverted to Regina v. Rushby (1977) 1 NSWLR 594 at 597-598, concerning the importance of personal rehabilitation, but in the context of the necessity to observe the requirement for public deterrence. His Honour adverted to various other decisions in which that principle has been espoused. 27 His Honour concluded that a substantial full time custodial sentence was appropriate for each offence in all the circumstances and sought to structure his sentence to accord with the principles laid down by the High Court in Pearce v. The Queen (1998) 194 CLR 610. His Honour had proposed on count three, taking into account the eight matters on the Form 1 schedule, to impose a sentence of 15 years imprisonment; but, taking into account the various matters of discount, passed the sentence to which I have already referred, giving in effect, a sentence of just on 50% of that which his Honour would otherwise have imposed. 28 His Honour found special circumstances, which he set out in detail in his judgment. His Honour concluded that the non-parole period to which I have referred should be imposed and ordered that on release the applicant be released to supervised parole at the expiration of the non-parole period. He nominated conditions which were to be included in a parole order. 29 On appeal, it is not contended that his Honour fell into any express error. It is contended that both the sentence and the non-parole period were manifestly excessive. It was contended that his Honour must have commenced at a starting point for his calculation of sentence that was, when one has regard to the sentence passed, too high. 30 Such a submission, of course, does not pay regard to the task imposed on this court under the Criminal Appeal Act 1912. It is necessary for this court to consider, having regard to whether there is a flaw in the discretionary process below, whether some other sentence is warranted in law and should have been passed. 31 In Regina v. Pont [2000] NSWCCA 419, I set out the various considerations the court must have in mind on a prisoner's appeal or on a Crown appeal. Sentencing is a discretionary exercise. It is not for this court to re-weigh individual components of a sentence to see how they might fit together in the synthesis of which the final sentence will be the outcome. It is the end point, not the starting point, to which we should have regard. Indeed there are indications recently from the High Court that the process of sentencing by way of adopting a starting point, to which is applied reductions, may on occasion amount to such a staged process as is in error. 32 As I have said, it is to the finished product to which we must have regard. Where that finished product is a sentence which, having regard to the culpability of the various offences, and the circumstances of the offender, is so markedly different from that which it is thought by an appellate bench should have been imposed, then the court may, in accordance with the principles in House v. The King (1936) 55 CLR 299 intervene, on the basis that that sentence is tainted by some unexpressed error of principle. In such a case the court has power under the Criminal Appeal Act 1912 to re-sentence. Otherwise it does not have that power. It is not a court of review, but a court of appeal for error. 33 Thus, for a sentence to be such a sentence as the court might set aside absent express error, the sentence must clearly, on its face show (ie., it is manifest) that the sentence so far exceeds that which is appropriate as to be beyond the bounds of the exercise of a permissible discretion. Unless the court is affirmatively persuaded of that, then the ground which is sometimes referred to as "manifestly excessive" is not made out. 34 In this regard it has been argued here that we should have regard to three other decisions as illustrating why the sentence in the particular case exceeds in that sense what is appropriate. In particular, our attention has been drawn to Regina v. Lemene [2001] NSWCCA 5; Regina v. Jolley [2000] NSWCCA 69 Regina v. Fleming [1999] NSWCCA 142. The submission is not so unsophisticated as to refer to those cases as precisely comparable. The submission is designed to illustrate those aspects of sentencing which might suggest, having regard to the sort of sentences imposed in those cases on other persons in other circumstances, that these sentences could be seen to be such as carrying that badge of inconsistency to which the Chief Justice referred in Lowe v. The Queen (1984) 154 CLR 606. 35 I am, however, unpersuaded of the error asserted. These are very substantial sentences. But these were exceedingly grave crimes. No doubt the applicant has co-operated, assisted and repented, but nonetheless the purposes and principles of sentencing have been properly taken into account by the learned trial judge, and the sentence is, in my view, not subject to attack as being entirely outside the range of a permissible exercise of discretion. I say that, not only in relation to the head sentence, but also in relation to the non-parole period. 36 It was also submitted that it would be, in the event that the court were minded to find error, appropriate to vary the proportion between the non-parole period and the head sentence. It was also suggested that even if no error of law might be found in what the trial judge had done in selection of the relevant proportion, nonetheless that were the court to make a finding of error in the overall sentences, the appropriate course would be to vary that proportion. But it is not necessary, in the view I have taken, for the principal matter argued on the appeal, to consider that matter further. 37 In my view, the application for leave to appeal should be granted but the appeal dismissed. 38 WHEALY, J: I agree. 39 GREG JAMES, J: The orders will be as I have proposed. ***********

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