Regina v Donald Conrad SWEETMAN

LEGISLATION CITED : Crimes Act 1901 Regina v Fraser (1999) NSW CCA 212 CASES CITED: Stephen Lorne Astill No. 2 64 A Crim R 289 Regina v Kingsbear (unreported: CCA NSW 29.7.1998) R v Roberts, Lewis & McVeen 73 A Crim R 306 DECISION : Leave to appeal against sentence granted; Appeal against sentence dismissed

1 SULLY J: This is an application by Mr Donald Conrad Sweetman for leave to appeal against a sentence of imprisonment that was passed upon his by his Honour Judge Gibson QC sitting in the Sydney District Court on 2 September 1999. 2 The applicant had pleaded guilty before a magistrate, and had adhered before his Honour to that plea, in respect of an offence of robbery. That offence contravenes s.94 of the Crimes Act 1901, and it attracts upon conviction a statutory maximum penalty of imprisonment for fourteen years. The sentence, in fact, passed upon Mr Sweetman was one of two and a half years, proportioned between a minimum term of twelve months and an additional term of eighteen months. 3 The facts can be shortly stated as follows: at about 9.30pm on Sunday 21 March 1999 the applicant entered a 711 store at Matraville. His entry into the store, and what he then did, were recorded by a video camera then installed upon the premises. There was in consequence little, if indeed any, room for argument about the actual course of the relevant events. That course of events is canvassed in all necessary detail by two statements that were before his Honour. 4 One is a statement from Mr Young Gin Kim who was the owner/manager of the store. The other was from Mr Jae Huang Kim who was at the relevant time working as a cashier in the store. Mr Kim, the owner/manager, describes as follows what happened: "The male has been locked inside the counter area with his right hand under his shirt. I do not remember him saying anything. All I remember was he having his hand under his shirt. The man has pushed me and the staff back and grabbed all the notes from the cash register which was open at the time." 5 Mr Kim, the cashier, puts a slightly more detailed version of what happened. That version is as follows: "At 9.30pm on that day the man coming running behind the counter towards the register. I tried to close the register but he pushed me a little bit and he scratched my hand a little bit. I saw him with his right hand beneath his shirt. I did not know what he had under his shirt. He told us 'Move on'. My boss was on the phone so we did move back. Then the man stole money from the register with his left hand. When he came behind the counter I was scared because I did not know what he had beneath his shirt; he might have had a gun. He was also a very big guy. After he grabbed the money he pointed at us again with his right hand and told us again "Move back'. So we did. He then walked outside." 6 The learned sentencing Judge accepted, correctly, that the incident, as I have described it, was in his Honour's words "probably a spur of the moment situation". His Honour accepted, correctly, that the applicant had been affected by alcohol at the relevant time. His Honour accepted as a fact, and correctly so, that the applicant had not been armed in fact on the occasion in question 7 His Honour observed, as the evidence clearly established, that the applicant, although not in fact, armed, had managed to convey to the people in charge of the shop that he either was armed, or that there was, from their point of view, an unacceptable risk that he was armed, and that he had thereby succeeded in putting them in fear in a real sense. 8 His Honour accepted, correctly, that the applicant had demonstrated, by his plea and by the fact that he had gone to some length to receive alcohol counselling and to make good otherwise and as best he could, that he was remorseful for the consequences of his offence. 9 The remarks on sentence were delivered by his Honour ex tempore. As is normally the case with ex tempore remarks, they are fairly brief and to the point. They contain the following statement upon which the applicant relies in order to demonstrate such an error on the part of the sentencing Judge as would justify intervention at all by this Court. His Honour said: "However, the Court of Criminal Appeal in this State has said on numerous occasions that that is not sufficient to enable a person, who carries out the type of offence that this prisoner has carried out, to escape a custodial sentence. There have to be exceptional circumstances. The fact that it was unplanned and his efforts to rehabilitate do not seem to be sufficient to consider this being a case in which I could find exceptional circumstances in relation to it. That being so, it seems to me that I have got no alternative other than give him a custodial sentence." 10 It is contended that his Honour fell into error by reason of his perception that the only thing that could justify a non-custodial sentence in the present case was a finding by his Honour of "exceptional circumstances". It is contended that this incorrectly overstated the relevant test in the case of an offence of simple robbery as contrasted with an offence of robbery while armed, or some other particular form of aggravated robbery. Support for that contention is found in a decision of a differently constituted Bench of the Court in Regina v Fraser (1999) NSWCCA 212. In that matter, too, the primary sentencing Judge had referred to "exceptional circumstances" in the same way as was done by the primary sentencing Judge in the present case. 11 Of that approach, Smart AJ, delivering the judgment of the Court said this: "Generally the offence of robbery would attract a custodial sentence as it should do in this case but the offence, whilst serious, is slightly less grave than armed robbery or robbery with circumstances of aggravation. In cases where the robbery is at the bottom of the range of robbery offences and there are compelling subjective features, a full-time custodial sentence may not always be required. The judge has slightly overstated the position for offences of robbery."

12 It is, I think, fair to say that the view thereupon taken by that Bench of the Court was that the slight over-statement to which Smart AJ referred did, in fact, constitute an error or law such as to attract, according to proper principle, appellate intervention. 13 Had I been called upon to decide the present case, without any need to take account of the decision in Fraser, I would myself have had no difficulty in holding that what Judge Gibson said in the paragraph earlier quoted, did not manifest error of law. I accept that the principle of comity, properly applied in the present case, entails that the approach explained by Smart AJ in Fraser should be adopted by this Court, and I am content so to proceed. 14 I wish, however, to emphasise that I do so proceed in acknowledgment in what I consider to be the proper requirements of comity rather than because of a view of mine that the suggested error of law has, in fact, been demonstrated in the present case. 15 Upon the assumption that it is appropriate to deal with the present application upon the footing that the requisite preliminary error has been established, it is then necessary to bear carefully in mind the statutory limitations upon the extent to which this Court is entitled to bear upon to interfere. It is, I think, timely to recall from time to time the following observations made by Lee AJ in Stephen Lorne Astill No 2 64 ACrim R 289 at 304: "When an appeal is brought to Court under s.5(1), it may well be that the Court will consider the sentence passed to be 'warranted in law' even though the Court may not be in agreement with the weight assigned by the sentencing judge to particular features or his selection of the substantial matters which guided him to this conclusion. In such a case the appeal fails. Even where the Court concludes that the judge has made a mistake of law the Court may still hold that the sentence is not excessive and should stand. The good illustration of such a case is Oastler (unreported, CCA NSW 7.10.1982)". 16 Speaking for myself, I am wholly unpersuaded that even assuming an error of law opening up the possibility of intervention by this Court, the Court should intervene, in fact. Judge Gibson, in the passage in his Honour's remarks on sentence that follow the passage earlier quoted, expressed some propositions with which I myself am in complete and respectful agreement, and which deserve to be cited in full, in order the more emphatically to place upon them the approval of this Court. His Honour said: "The situation is that people are entitled to be protected as they go about their everyday living and particularly the small storekeepers and the people who run garages and the like. We are in the situation where they are both into this type of action, to robbery and the like. They have to be protected. The citizens of this State are sick and tired of people going in and robbing them in their businesses as they go about their ordinary daily work. It should be made clear to anyone who indulges in this, be it on the spur of the moment, be it because they think they are being smart or not, if they pretend to these people that they are armed, and they take their money, then they will go to gaol. The law is clear here and these courts are here to protect the citizens of this State from this type of action and if people indulge in it, whether they are drunk, affected by alcohol or not, it is not an excuse and, indeed, the law specifically stated in legislation not all that long ago, that alcohol is not an excuse in relation to these types of offences. It might be an explanation but it is not an excuse." 17 Because I have said that I am content, for present purposes, to proceed upon the basis that threshold error has been established, it is appropriate to advert to the additional material that has been provided to the Court against that contingency. Put simply, it is material which, if accepted, - and there is no reason that I can see not to accept it, - demonstrates that the applicant while in his present custody has done all that might be reasonably expected of him in terms of proceeding towards his rehabilitation. 18 There is some psychiatric evidence additional to that placed before the learned sentencing Judge. It is not necessary, I think, to canvass it in fine detail, although it is appropriate to acknowledge that it contains matters apt to attract a proper measure of sympathy. I am content so to regard it. I do not think, however, that when that material is brought to proper account it has been demonstrated in the sense that the law requires, that a sentence less severe than the one imposed is "warranted in law". 19 I say again that, so far as I am concerned, the general remarks made by Judge Gibson as to community expectations and community needs in the manner of protection from robbery of all kinds, simple or aggravated, armed or not armed, is entirely correct and needs to be understood by all concerned as meaning what it says. People who rob in any way at all cannot expect that subjective circumstances will, as it were, simply swamp the objective gravity of what is being done. To take a contrary view is not to vindicate the rule of law, but to undermine it. 20 I will grant leave to appeal but I would dismiss the substantive appeal. 21 ADAMS J: I agree but I would like to add some remarks of my own. Regina v Kingsbear (unreported CCA NSW 29.7.1998) Kirby P said: "It is important to bear in mind the instruction of this Court which applies to all judges, but a robbery, whether with or without arms, is regarded as a very serious offence indeed. In virtually every circumstance, it is to be regarded as an offence of the utmost gravity which should normally carry a custodial sentence." 22 This passage was cited with approval by Hunt CJ at CL in R v Roberts, Lewis and McVeen 73 ACrimR 306 at 309 and has also been approved elsewhere. 23 For myself, I cannot see a substantial difference between saying that it is only in exceptional circumstances that a non-custodial dispensation is appropriate where a robbery has been committed without arms and the second sentence which I have quoted above. Since it is clear that "exceptional" means "where the circumstances are abnormal", which only applies in those situations which are not "virtually every circumstance", it may be that there is a difference in nuance and it is that to which his Honour Smart AJ referred in R v Fraser (1999) NSW CCA 212. I am not certain that his Honour regarded that as being an error of law, although his Honour said that he had "slightly overstated the position". 24 There was a substantial error of law in Fraser's case, having regard to the principle of parity. It may be, and I rather think that it was, simply an observation by his Honour reflecting the nuance which I have mentioned. However, I am content to deal with this matter as proposed by the learned presiding judge. 25 In my view, the learned sentencing judge passed a sentence well and truly at the lower end of the scale for crimes of this seriousness. I do not find myself that the drunken state of the appellant at the time was at all mitigating. I accept though that it was an act done without premeditation and may be said to have contained a substantial element of folly. I agree with what the learned presiding judge has said about the seriousness of these offences and of the necessity to give considerable weight to the policy of the criminal law concerning general deterrence. 26 Accordingly, I consider that there was no error in law in the sentence which was passed below and I would, therefore, join in the orders proposed by the presiding judge. I wish to say, however, that the appellant deserves commendation for his serious actions to rehabilitate himself. I have no doubt that they are genuine. They are in his own interests but also in the public interest. They are substantial and he deserves credit for them. 27 He has something over three months still to serve of his minimum sentence. There is every reason to hope that he will not again offend. This would be good, not only for the community but also for himself. 28 SULLY J: The Court's orders are: 1. Leave to appeal against sentence is granted. 2. The appeal against sentence is dismissed.

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