REGINA v Glen WILSON [2001] NSWCCA 399 | Case summary

Judgment 1 WOOD CJ AT CL: I ask Bell J to deliver the first judgment. 2 BELL J: This is a Crown appeal brought pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence pronounced on the respondent in the Sydney District Court on 1 June 2001. The respondent pleaded guilty to one count of assault with intent to rob whilst armed with an offensive weapon (a syringe filled with a red coloured liquid) contrary to s 97(1) of the Crimes Act 1900 ("the Act") and to one count of attempt to steal from the person contrary to s 94 of the Act 3 He was sentenced in respect of the count charging the offence contrary to s 97(1) of the Act to a term of two years and three months imprisonment to date from 28 April 2001 and to expire on 27 July 2003. A non-parole period of one month and five days was specified. This expired on 1 June 2001. The sentencing judge directed that the respondent be released on parole conditioned on him (i) remaining with the William Booth Bridge program until the completion of that program and (ii) acceptance of the supervision, guidance and directions of the Probation and Parole Service thereafter. 4 In relation to the count charging attempt to steal from the person, the respondent was sentenced to a term of eighteen months imprisonment to date from 28 April 2001 and to expire on 27 October 2001. A non-parole period of one month and five days was also specified in relation to this sentence. A direction that the respondent be released on parole conditioned in like terms to the first order was made. 5 Both offences were said to have been committed within a short interval of one another on the afternoon of Saturday 3 February 2001 in Foveaux Street, Surry Hills. The respondent was arrested at the scene and taken into custody. 6 On 8 March 2001, he was granted bail in this Court conditioned that he be released into the company of an officer of the William Booth Institute and that he enter and remain in the rehabilitation program conducted by that Institute, obeying all reasonable directions of an officer attached to it. 7 The respondent appeared off bail at his sentence hearing on 1 June 2001. His pre-sentence custody amounted to one month and five days. The sentence imposed by the District Court Judge reflected that pre-sentence custody in the specification of the non-parole period. The respondent was released to parole on the date of the sentence, subject to the condition that he complete the course of drug rehabilitation. 8 The respondent pleaded guilty on indictment on 1 June 2001. It is common ground that he entered pleas of guilty to each charge at the earliest opportunity. 9 A statement of facts prepared by Det Sgt Lizdenis dated 23 February 2001, relating to the charge of assault with intent to rob, and a document titled "Facts Sheet" relating to the offence of attempt to steal from the person, together with the statement of an eye witness, David Maxwell, the statement of Rosamond Sayer, the victim of the s 97(1) offence, the statements of investigating police and a transcript of an electronically recorded interview between the police and the respondent were in evidence before the sentencing judge. 10 The facts are conveniently set out in the written submissions prepared by the Crown: "On 3 February 2001 at around 3:30pm, Rosamond Ellen Sayer, a 24 year old woman, had been at an ATM machines in Surry Hills. She withdrew $100 and was about to place this money into her purse when she heard a male voice say from behind, "Sorry to do this to you." She saw a man (the Respondent) standing behind her with a syringe in his hands. He pointed it at her. It was filled with the Respondent's blood. Ms Sayer felt in danger and threatened. (statement page 2, para 5). She told the Respondent to "fuck off" and ran up the street. The Respondent started following her. She hailed a taxi to get away and later had the taxi drop her off at her car. This incident was witnessed by a David Maxwell. He called the police after it had taken place and, from a distance, identified the Respondent (who had remained in the area) to police (statement page 2, para 5). After the offence the subject of count 2 had occurred, David Maxwell subsequently saw the Respondent walking along Elizabeth Street. He witnessed the Respondent grab two bags from an elderly lady's shoulder as she was waiting for a bus. Mr Maxwell approached the Respondent and kicked him in his lower back. This caused the Respondent to pull the lady onto Mr Maxwell's head, and she fell down. The lady was bleeding from a cut to her head, and an ambulance was called. The Respondent, who was crouched in a doorway some metres away, was subsequently arrested by police. Sergeant John O'Reilly questioned the Respondent at the scene about what had happened. The Respondent said that he "was just trying to get some money." On 3rd February 2001 The Respondent was interviewed by way of ERISP. He said he was unemployed. He had grabbed the lady's handbag to "get money" because he "was hangin' out and I've … methadone a month and I was hangin' out from some heroin" (Q&A. 28-29). He said he had been off methadone for a month after eleven years and he had been desperate for a "shot" (Q/A89& 91). There was apparently money in the bank to which his mother would not allow him access. His mother had threatened to stab him before and did not want to see him. He said that he had been desperate for a "shot" and had never done anything like that before nor had he held up anybody using a syringe. (Q/A91). He told police that he had been walking around for about half an hour, looking for "an easier target sort of thing" (Q/A.32-33). He had been carrying around a syringe case at the time because "I was thinking of like, trying to, blood syringe thing, you know, holdin' someone up with the blood syringe thing" (Q/A37). The syringe had been filled with his own blood. (Q/A 64). He had not pulled out a syringe when he approached the lady at the bus stop (Q/A.59). He that (sic) he was not aware that the lady had fallen (Q/A.78-79). At the time he had been in pain from being kicked. He said that he had not taken the lady's bag off her shoulder before he had been kicked (Q/A87). The Respondent also told police that, earlier on, he had pulled out a syringe on a woman at an ATM (A38). He said he had been holding the syringe but had not pointed it at the woman." 11 On the respondent's behalf, it is noted that the eye witness, Mr Maxwell, does not appear to have seen the assault upon Ms Sayer. He became suspicious when he observed Ms Sayer running and the respondent following her. Observations of the respondent's behaviour caused him to telephone the police. The significance of this is that Ms Sayer did not herself make contact with the police until a day or two after the assault upon her. 12 Following his arrest, it is common ground that the respondent volunteered information as to his involvement in the assault with intent to rob offence during the course of a record of interview which was directed to the attempt steal offence. 13 In addition to the discount for his pleas of guilty, reflecting utilitarian considerations, the respondent was entitled, pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999, to a discount reflecting his assistance to the police in connection with the investigation of both offences, but particularly the offence charged under s 97(1) of the Act. 14 The respondent mounted a strong subjective case at the sentence hearing. He was aged thirty-nine years. He had been addicted to prohibited drugs since the age of sixteen. Initially, he was a marijuana user. By 1989, he had commenced heroin use. 15 Notwithstanding his long addiction to prohibited drugs, the respondent's criminal record was rightly characterised by the sentencing judge as insignificant. He had been employed by City Rail for twenty years as a signalman. In 1999, he was medically retired from that employment, apparently as result of his drug addiction. 16 The sentencing judge found that the respondent had funded his drug habit over the years from his earnings. He accepted that the respondent had attempted on a number of occasions to overcome his drug addiction. In this respect, his Honour noted that the respondent had, in the past, attended both residential rehabilitation programs and detoxification. 17 On each occasion the respondent had reverted to the use of heroin or methadone following his discharge. The respondent had been on the methadone program since 1990. 18 The evidence at the sentence hearing included that the respondent was married and the father of two children. At the time of the subject offences he was separated from his wife and family as a result of his drug addiction. A number of favourable references were tendered on his behalf. These included one from his mother-in-law attesting to him as having always been a good father to his children. 19 The sentencing judge found that the respondent's wife and children had been supportive of him following his arrest. His wife attended the sentence hearing. The judge accepted the evidence given by the respondent's mother that he had been a good son and was not of a violent disposition. His Honour noted that this latter opinion received support from a number of the respondent's referees. 20 A report from Mr McPherson, a counsellor with the Salvation Army's rehabilitation program, dated 29 May 2001, was in evidence before his Honour. This was supplementary to a report of 11 April 2001. Together they established that the applicant had been admitted to the William Booth Institute on 13 March 2001. As at 29 May, he had been a resident in the second stage of the three-stage Bridge program since 4 April 2001. Mr McPherson stated: "Since being a resident at this Centre, Glenn has displayed a strong positive resolve to overcoming his substance abuse issues that have been evident for a long period of time. He is participating in all aspects of our program and continues in his attempts to address the issues that have been precursors to his substance abuse." 21 The principles governing appeals brought by the Crown against inadequacy of sentence are set out in the judgment of this Court in Allpass (1994) 72 A Crim R 561 at 562/3; more recently they have been discussed by the High Court in Dinsdale v The Queen [2000] HCA 54; 115 ACrimR 558. 22 The Crown contends that the sentences imposed in respect of both offences are manifestly inadequate, in that neither reflects the objective seriousness of the crimes; R v Rushby (1977) 1 NSWLR 594. In support of this challenge, the Crown relied on the well-known passage in the judgment of Allen J (with whom the Chief Justice and Finlay J concurred) in R v Camilleri (unreported) NSWCCA 8 Feb 1990: "In seeking to determine in any case the sentence appropriate to a particular crime, it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done, the other factors requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances, accord with the general moral sense of the community. It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent a commission of such offences and, whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given the most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment. That is the protection of the public. The fundamental purpose of punishment is the protection of society." 23 In the Crown's submission, his Honour erred by failing to reflect the objective criminality of each offence, not only in the overall sentence but, pointedly, in the way his Honour structured the sentences. In each case, a non-parole period of one month and five days was specified. This was submitted to be wholly inadequate to reflect the criminality of the respondent's conduct involving, as it did, separate offences (albeit being committed within a short interval of time) involving an assault upon a young woman utilising a blood-filled syringe carried out with intent to rob her and the attempted stealing of two bags from the person of an elderly lady. 24 In R v McDonald (unreported) NSWCCA, 12 Oct 1998, the Chief Justice observed that the provisions of the Sentencing Act 1989 did not detract from the purpose of a non-parole period identified by the High Court in Power v The Queen (1973) 131 CLR 623 at 628. The same observation might be thought to apply with respect to sentences imposed under the Crimes (Sentencing Procedure) Act 1999. His Honour in McDonald cited a passage from the judgment of the Court in R v Morrissey NSWCCA, (unreported), 15 July 1994, and went on to observe: "The objective criminality of the offence should be reflected not only in the full term but also in the minimum term." 25 I consider that the Crown has made good its challenge that the structure of the sentence bespeaks error. 26 In support of the challenge mounted to the adequacy of the sentence imposed with respect to the count charging an offence under 97(1) of the Act, the Crown contended that an analysis of the sentencing judge's reasons revealed that he entertained a number of misconceptions concerning the purport and effect of the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346. 27 Allied to this was a complaint that, after noting that in R v Thompson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 419 [161] the Chief Justice said that the guideline in Henry refers to a late plea of guilty, the sentencing judge proceeded to discount by twenty-five percent the sentences he proposed in order to reflect the respondent's early pleas. The vice in this approach in the Crown's submission is that his Honour's starting point was well below the range identified in Henry. This serves merely to reinforce the contention that the sentence is manifestly inadequate. 28 It appears that the sentencing judge did not have the benefit of a copy of the judgment in Henry with him at the time he delivered his reasons for sentence. His remarks indicate that he was aware of the principles set out therein. He correctly referred to the seven characteristics of offences to which the guideline is directed and to the range promulgated. He correctly observed that it was only in exceptional circumstances that a Court might impose a non-custodial sentence in respect of an offence of armed robbery. 29 In the Crown's submission, there are passages in the judgment which convey that the sentencing judge disagreed with the reasoning in Henry and that this view led him to impose a sentence which overall (and by reference to the specification of the non-parole period) was indicative of error. I consider that a reading of the whole of his Honour's remarks lends support to that criticism. 30 At page 8 of his Honour's reasons he observed: "There are a number of matters that apply to this offence and this offender. Of course, the first matter that has to be considered is the guideline judgment of R v Henry. The second matter that has to be considered is the guideline judgment of R v Thompson. The second guideline judgment qualifies the first guideline judgment. In Henry's case, the Court of Criminal Appeal sought to set out a guideline for the imposition of penalty in armed robbery cases because there was a perception - in my view, a wrong perception - that this Court was being unnecessarily lenient on drug offenders who committed armed robberies. One of the problems with the Henry reasoning is that the statistics upon which that sentencing guideline was based were, in my view - although I am bound to follow the decision - statistically of such a small number as to be somewhat imprecise, but, more importantly, because it was only a relatively small number of matters, I would have thought that it would be incumbent before you set a guideline to look carefully at the circumstances of each case in which it was said a lenient sentence had been imposed. Be that as it may, the Court indicated in Henry's case - which I do not have with me - that in certain minimal circumstances where you had a young offender, relatively little in the way of antecedents, little planning in the armed robbery, a person in a vulnerable position, and some other matters, a threat of violence being carried out, that a head sentence should be between four and five years imprisonment. The Court also said that it was only in exceptional circumstances that a Court should impose a non-custodial sentence. In as much as a guideline judgment by the Court of Criminal Appeal is a decision of a superior court that I am bound to follow, the decision of that court in Henry's case is simply that, a guideline laying down general parameters outside of which a particular offence and a particular offender might fall. There are two significant problems, in my view, associated with guideline judgments. The first is they tend to detract from that proper exercise of judicial discretion in sentencing stated most succinctly and impressively by Mahony JA in R v Lattouf. The second is that they unfairly mitigate against unrepresented or poorly represented accused who tend to get caught up with what is in effect a grid approach to sentencing. There is no question that armed robbery and robbery are serious offences. The maximum penalties for armed robbery is twenty to twenty-five years imprisonment, depending upon the offence charged. That penalty is meant obviously to encompass offences ranging from young drug addicts demanding money at knife or syringe point to professional attacks on banks using firearms and disguises. In some respects, the circumstances of offending and offenders for armed robbery is so diverse that it is difficult to understand how the Court of Criminal Appeal was able to reach a guideline just as they were unable to reach a guideline in regard to break, enter and steal offences for similar reasons." 31 Having regard to his Honour's remarks, including the reference to Lattouf, it is appropriate at this juncture to set out some passages from the judgment of the Chief Justice in Henry: "Subject to any relevant statutory requirements, the sentencing task involves the exercise of a broad discretion which, centuries of practical experience strongly indicate, is best conferred on trial judges. The circumstances in which it is appropriate for appellate courts to interfere with discretionary decisions of this character are confined. In the case of Crown appeals against sentence, even more stringent restrictions have been applied. The ineluctable core of the sentencing task is the process of balancing overlapping and contradictory objectives. At the appellate level, that characteristic extends to the balancing of the objectives of consistency and individualisation. The Court must sentence both the offender and the offence. During the course of these proceedings the respondents to the Crown appeals and the appellant in the severity appeal, relied on certain observations of Mahoney A-CJ in R v Lattouf (Court of Criminal Appeal, 12 December 1996, unreported) where his Honour repeated his own remarks in Kable v Director of (1999) 46 NSWLR 346 at 353 Public Prosecutions (1995) 36 NSWLR 374 at 394: "… If justice is not individual, it is nothing." This ringing phrase must not be taken out of context. In R v Lattouf his Honour emphasised the multiple objectives served by the sentencing process. One could equally well say "If justice is not consistent, it is nothing". As his Honour put it in R v Lattouf (at 7): "General sentencing principles must be established, so that the community may know the sentences which will be imposed and so that sentencing judges will know the kind and the order of sentence which it is appropriate that they impose. But, of course, principles are necessarily framed in general terms. General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. For this reason, it is in my opinion important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge … . There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it. … But there are other interests to which the sentencing process must have regard; these are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case." There is no conflict between the system of guideline judgments established by R v Jurisic and the reasoning of Mahoney A-CJ in R v Lattouf." 32 The intent of guideline sentences is to foster consistency in sentencing. This is a principle of sentencing which serves the unrepresented and poorly represented accused well. The sentencing judge's view that guideline judgments unfairly mitigate against accused in this category is unsupported by reasons and contrary to principle. It is by no means clear what, if any, impact this view had on the approach which his Honour adopted in this case. The respondent was represented at the sentence hearing. 33 In noting that the circumstances both of offending and of offences are diverse, and in commenting on the distinction between young drug addicts demanding money at knife or syringe point and professional attacks on banks by offenders using firearms and disguises, his Honour appears to have overlooked the circumstance that the guideline judgment is directed to a category of offenders, those who engage in professional attacks on banks by the use of firearms and disguises might expect to attract sentences of imprisonment well in excess of the range promulgated in the guideline. 34 It is appropriate to refer to the judgment of Wood J, as he then was (with whom Hunt CJ at CL and Smart J agreed) in Maddocks (unreported) NSWCCA 25 Nov 1993: Trial Judges should not merely pay lip service to the expressions of principle which result from considered decisions of this Court concerning this kind of sentencing. I would repeat, although I wonder why it is necessary that I should do so, that it is only in the most exceptional circumstances that anything other than a non custodial sentence should be imposed for armed robbery. Necessarily, there will be cases which constitute an exception but they will be few and far between. I am not satisfied that this was such an exception, particularly having regard to the fact that a pistol, albeit a replica pistol, was used to threaten the manager of the shop." 35 With respect to the offence of attempted stealing from the person, it is sufficient to refer to the observations of the Chief Justice in Ranse (unreported) NSWCCA 8 Aug 1994: "One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present respondent are not trivial instances of disrespect for private property. They are serious breaches of the peace. They are direct attacks upon the security of person and property which the law exists to protect." 36 To return to the challenge to the sentence imposed with respect to the armed robbery offence, in his remarks on sentence his Honour observed: "It is my experience over three years as a judge of this Court, and over nine years as a magistrate, that many, if not most, young people who appear before these Courts are there in regard to drug related offences, and it is almost beyond someone who has never been addicted to a drug like heroin to comprehend the effects of such an addiction on a person's life and livelihood. Whilst it has been stated in Henry's case that drug addiction can be taken into account on a question of a person's ability to resist the compulsion to commit an offence, it is not something that is to be taken into account in mitigation. That, in some respect, I find a difficult concept to come to terms with because the problem with drugs in this community is not a problem from the point of view of the drug user of a criminal nature but really one of a nature involving the Health Care Services. In my view, this case is one that falls outside the guideline." 37 It was open to his Honour to depart from the guideline promulgated in Henry for good reason. His Honour did not set out his reasons in this respect with the clarity which allows of this Court being fully informed in the exercise of its appellate jurisdiction. 38 Thus, the passage to which I have just referred is susceptible of the view that his Honour decided that the guideline was not applicable by reason of his opinion, based upon his lengthy experience in sentencing offenders, that drug addiction is a medical problem and not the proper province of the criminal law. Such an approach would be contrary to principle. 39 The relevance of evidence of drug addiction to the exercise of the sentencing discretion was the subject of detailed analysis in Henry in the judgment of the Chief Justice at [171] to [208]; Wood CJ at CL at [214] to [277] Hulme J at [331] Simpson J at [333] to [356]. 40 After stating his view that this case falls outside the guideline promulgated in Henry, the sentencing judge went on to quote a passage from Lattouf concerning the significance of successful rehabilitation to the sentencing process. His Honour noted that the respondent had been released on bail conditioned upon his undertaking a course of rehabilitation. In his Honour's view, the respondent was at the crossroads and the proper exercise of discretion favoured him remaining in the community, subject to supervision of the Probation Service, with a view to him completing his rehabilitation which was well in hand. 41 Mr Stratton QC who, with Mr Strain, appears on the respondent's behalf, has submitted that, in an appropriate case, evidence of rehabilitation can lead to extreme leniency being shown. In written submissions, he set out a number of features of this case which he contended allowed of the sentencing judge in the proper exercise of discretion treating this as an exceptional case justifying a sentence structured in such a way as to have the effect of being a non-custodial sentence. 42 As I have noted, there were powerful subjective features in this case. Drug addiction is a common characteristic of those who commit armed robbery offences. Unusual in this case is the circumstance that the respondent, over a period of more than twenty years of addiction, had not succumbed to criminal offending. Up until two years ago he had maintained regular employment and earned a reputation as an essentially decent citizen who had been ravaged by his addiction. 43 He has made serious and repeated attempts over the years to overcome his addiction before the machinery of the criminal law provided any incentive for him to do so. 44 After his attempted theft of the property of the elderly lady was thwarted, the respondent remained at the scene passively. He was cooperative with the police and volunteered his guilt of the s 97(1) offence at a time when the victim of it had not reported the matter to police. At the time he stood for sentence, the respondent was responding positively to the drug rehabilitation program offered by the Salvation Army. 45 Notwithstanding the factors, taken in combination, I consider that his Honour has been shown to have erred both in the overall sentences which he imposed and in the way they were structured. The error which I identify is the failure to adequately reflect in both the sentence and the non-parole period the objective gravity of a s 97(1) offence involving the use of a blood filled syringe and the attempted theft from the person of an elderly lady. 46 This is a Crown appeal and this Court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. 47 The Court received a further report from the Salvation Army's Newcastle Rehabilitation Service Centre. It is under the hand of Major Ross, Program Director. Relevantly, that report set out: "During the twenty-four weeks he has been at this Centre, we have seen Glenn move from a physically, emotionally and spiritually sick person to a man who can now see himself for what he was and can see the extent of his addiction and where that led him. Glenn has made good progress.

REGINA v Glen WILSON

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