1 SHELLER JA: I have had the benefit of reading in draft the reasons for judgment prepared by Grove J. The respondent was charged with a serious indictable offence for which the maximum penalty is twenty years imprisonment. The events and circumstances which Grove J has described, taking account of those factors relied upon by the respondent in mitigation of sentence, leave me in no doubt that the sentence imposed of four and a half years imprisonment with a non-parole period of three years is manifestly inadequate. I find it difficult, if not impossible, to understand how it could have been arrived at. Grove J has observed that the sentence he has proposed is considerably less than he would regard as appropriate at first instance. My view is the same.
2 A significant factor in re-sentencing is the sentence imposed upon the co-offender against which the Crown has not appealed. I say no more than that it strikes me as having been surprisingly light. I would emphasise that Courts have a duty to ensure that sentences reflect the seriousness of the crime as well as properly taking account of matters in mitigation of sentence. Manifestly inadequate sentences, such as that imposed in this case, understandably attract criticism of the administration of the criminal justice system.
3 GROVE J: This is a Crown appeal pursuant to s5D of the Criminal Appeal Act alleging inadequacy of sentence. The respondent pleaded guilty in the Local Court to a count of specially aggravated breaking and entering with intent to commit a serious indictable offence, namely stealing and was sentenced by Coolahan DCJ at Newcastle District Court to four and half years imprisonment with a non parole period of three years. At the time of sentence there were taken into account two offences on a Form 1, both of possessing a firearm without authorization, in each case a .762 self loading assault rifle of Chinese manufacture. The special circumstance of aggravation was the respondent's being armed at the time of offence with a .357 calibre magnum pistol. The respondent had a considerable prior record including multiple offences against firearms laws.
4 By early February 2001 police had become suspicious of the activities of the respondent and a co-offender O'Shea. Such activity included surveillance by them of shopping or business centres equipped with automatic teller machines. Inter alia, warrants were obtained and telephone calls participated in by the offenders were intercepted.
5 On 28 January 2001 the offenders acquired a Ford F250 tabletop utility which they modified to fit a cable and winch to the rear section and they added specifically designed and manufactured aluminium rear ramps. As events turned out, the obvious purpose of these modifications was to enable the forcible extraction and removal of an automatic teller machine and its contents.
6 In the early hours of the morning of Saturday 10 February 2001 the respondent and his co-offender arrived outside the office of the Greater Newcastle Building Society, Morisset and reversed the utility in front of a teller machine. Each of them was wearing dark clothing and gloves and had disguised his face with a balaclava. However, police were in position as a result of their investigative and surveillance efforts and specialist police, a tactical operations unit of the State Protection Group, were present.
7 The respondent commenced to smash the glass near the teller machine and O'Shea then brought a hook at the end of a cable towards it. The machine contained over $90,000 at the time.
8 Police made their presence known and called upon them to surrender. The respondent returned to the vehicle and attempted to drive away. He was prevented from effecting such an escape by the firing of two shots of chemical reagent into the windscreen of the vehicle. This broke the windscreen and otherwise obscured it.
9 The respondent resisted arrest and a violent struggle took place. He was observed trying to remove something from inside of his trousers. After he was subdued search revealed the magnum pistol in his waistband and as well he had an additional amount of loose ammunition for it in his pockets. The assault weapons located in the cabin of the vehicle were fitted with magazines loaded with live ammunition, in one thirty cartridges and the other, twenty nine. An additional four "spare" loaded magazines were also found there.
10 O'Shea pleaded guilty to similar charges and was dealt with by Coolahan DCJ prior to his dealing with the respondent. O'Shea was sentenced to imprisonment for two years and nine months with a non parole period of twelve months. At the time O'Shea appeared for sentence he was twenty years of age and had no prior convictions. The respondent was twenty seven years of age. The learned sentencing judge adverted to this matter and expressed a conclusion, "That no real issues of parity arise between the two".
11 There is no doubt that, as a subjective matter the respondent had a grossly disadvantaged background. He was a victim of sexual and other assaults by a violent father. An attempt to escape this violence from both his father and stepmother by fleeing to his mother was thwarted by intervention on the part of authorities and return to the custody of his father. He attempted to avoid this by jumping from a height and at least causing himself harm if not a more drastic consequence. However, his fall was cushioned by landing in lantana. Be that as it may, given his age at the time of this offence the respondent was well clear of any further interference from his father. The respondent was not the only victim of his depradations and there was information before the District Court that the father had been sentenced to imprisonment for offences of sexual assault.
12 The learned sentencing judge recited at length material from two psychiatrists Dr White and Dr Delaforce and a psychologist Mr Andeasen. It should be noted that the reports of Dr Delaforce and Mr Andeasen were prepared in 1994. It is not necessary to recite again the content of those reports. It is disturbing to note however that as long ago as 1994 Dr Delaforce had reported "Unfortunately he seems to be more than just a collector of guns and may well have used firearms to intimidate people". And further, "The indications are that he has been violent and generally speaking dangerous. Consequently the risk of future dangerousness persists."
13 In November 1994 at Lismore District Court the respondent was placed on recognizance to be of good behaviour on fourteen counts of possessing unlicensed firearms. In October 1996 at Sydney District Court he was sentenced to concurrent two years imprisonment (minimum term twelve months) on charges of possessing an offensive weapon with intent to commit an indictable offence, possessing a prohibited weapon, using a prohibited weapon, possessing an unlicensed firearm (two counts), possessing a shortened firearm (two counts) and using a firearm without licence.
14 His Honour stated that he was discounting the sentence to be imposed by 20 percent in the context of a reference to it being entered in the face of an overwhelmingly strong Crown case but the avoidance of a lengthy trial. Whilst such an amelioration of sentence probably needs now to be viewed in terms of the willingness of the offender to facilitate the course of justice in distinction from the pragmatic and objective ground that the plea has saved the community the expense of a trial: Cameron v The Queen [2002] HCA 6 I would not find that it was erroneous for his Honour to conclude that discount was appropriate. The Crown submitted however that the quantification at 20 percent of sentence was excessive in the circumstances.
15 The primary question is whether the jurisdiction of this Court to intervene has been enlivened. In my view it has. The maximum penalty specified by Parliament for this offence is twenty years imprisonment. A sentence of less than a quarter of that maximum for an offender with a substantial prior record and for an offence in which the special aggravation relates to dangerous and loaded weaponry fails to reflect the objective criminality of the offence by such a margin as requires it to be categorized as manifestly inadequate. It is a coordinate conclusion that his Honour must have given too great weight to subjective matters affecting the respondent. Acknowledging the appropriateness of reference to the respondent's background it is difficult to place into context his Honour's observation that the respondent and his co-offender "could have been killed" bearing in mind, as his Honour had observed, that it was they who had instituted an extremely dangerous and volatile situation by bringing into the situation a small arsenal of loaded weapons. A reference to an emphasis by the respondent when speaking to Dr White that he planned the robbery to occur at a time when no one was around and that he was robbing a machine which would have been insured is difficult to reconcile with the carrying of that extravagant armament. Neither of the matters adverted to were in my opinion capable of contributing towards mitigation in favour of the respondent. I agree, however, with his Honour's observation that the fact that no money was obtained did not attract mitigation of punishment for this offence.
16 The offence was one which involved considerable planning, reconnaissance as well as the vehicle modification and these amount to attributes of major criminal activity. In addition, a scanner was acquired for the purpose of monitoring police transmissions. There was no spur of the moment decision to lapse into offending. This planned and organized crime necessitated the inclusion of a manifest element of general deterrence in the assessment of appropriate sentence.
17 In my view a proper starting point for consideration of appropriate sentence is in the order of at least half of the maximum specified by Parliament.
18 There are however considerations which lead me to propose some restraint. There is the issue of double jeopardy, as it is frequently referred to, when sentences are imposed in this Court following a successful Crown appeal. Second, there are the subjective factors operating in the respondent's background which were recited by the learned sentencing judge and I need not repeat. Third, I am of a view that the respondent's plea of guilty before the magistrate, being prompt, should be assessed as evidence of a willingness on his part to facilitate the course of justice. Fourth, there is the sentence imposed upon the co-offender O'Shea. His Honour found that their participation in the offence was equal and that is a finding which I would endorse. I have already referred to his remark concerning the absence of issues of parity and I would further endorse the correctness of his finding that it was the respondent who was the motivating force behind the decision to commit the offence and its planning and execution and as well the notation that O'Shea was a much younger man with no prior criminal history. Nevertheless the equivalence of their participation in the offence cannot wholly be ignored and given that we have been informed that the Crown has not appealed against the apparently remarkably light sentence received by O'Shea, although there must be some disparity between the sentences received there is, as I have said, some cause for restraint.
19 Finally, there is a particular issue raised by counsel on behalf of the respondent. At the sentence hearing at first instance a series of photographs taken shortly after arrest were tendered. In respect of them his Honour commented:
"These show that he was injured and had two black eyes, however the extent of the injuries could not be ascertained from the photographs and there was no other material tendered in relation to them. I am not sure as to the relevance of the photographs. If the injuries were sustained during the course of his arrest, no complaint had been raised by the offender in this regard, at least so far as this Court is concerned. In any event, bearing in mind the information that the police had from the previous telephone intercepts, it is obvious that they had to act swiftly in performing the arrest of the offender and it would in my view not be surprising that some degree of force was required and justified. Accordingly, I do not regard the photographs tendered as having any relevance in any way in this sentencing exercise."
20 It was submitted that his Honour apparently did not appreciate the purpose of the tender which was to demonstrate that the respondent's injuries were beyond those which would be expected in the circumstances surrounding his arrest. The photographs were said to show that the respondent had been subjected to a severe beating.
21 The respondent was arrested at about 2.40 am. At 6.20 am he was interviewed by Detectives Taylor and Rogan and this interview was video recorded. A transcript was tendered in the District Court proceedings and included was this exchange:
"Constable Taylor (after referring to the arrest and remarking that the respondent was 'obviously in a bit of pain'): Would you like to tell me about that matter?
Respondent: On legal advice I got nothing to say regarding anything like that. What I do wanna do is present myself as I am, smashed to pieces after I was handcuffed, laid on the ground, had my head caved in. Mate, as you can see my wrists have been cut, my face has been trampled on. Mate, I believe I've got concussion, probably a cracked, a cracked skull. Mate, I thought I had a broken jaw before. Mate ….. mate, inhumane is not, not the word, you know, like in handcuffs and I had the shit kicked out of me by several, several of your Police officers. Uhmm mate, as one can see, mate, I've still not been to a hospital to get X-rays taken, my head I think was cracked. I've been taken all my clothes off me. ………"
22 On the basis that it may be used if this Court came to resentence, the Crown did not object and we have viewed the video and listened to its sound track. In addition, and on the same basis, we have received into evidence a copy discharge letter and CT report from the John Hunter Hospital to which the respondent was taken by police. He arrived there at 10.40 am.
23 As I understood the submission by counsel, it was that his client had already been subjected to some form of punishment at the hands of arresting police (by subjecting him to excessive violence) and that this should be taken into consideration as a mitigating factor in the assessment of any resentence. No authority was cited for the proposition that inflicted extra-judicial punishment should be reflected in that fashion in judicial determination of sentence. However, if any such circumstances were shown it would not seem repugnant to principle to conclude, for example, that the need for an element for personal deterrence in sentence assessment had to some extent already been fulfilled.
24 Neither did counsel for the Crown advert to any authority on this topic as it was his submission that there was no evidence that the respondent was injured other than in the course of arrest and there was no evidence of application by the police of excessive force.
25 The respondent gave no evidence in either proceedings and was content to rely upon the material which I have described, his complaint being articulated in the interview with the detectives. This complaint was obviously focussed upon the tactical operations unit police rather than the detectives.
26 It is true that the respondent appears battered and bruised in the photographs and in the video. The statements tendered in the proceedings did not disguise the circumstance that the arrest was effected in the course of a very violent struggle. I have already mentioned that the respondent was armed with a loaded pistol concealed in his clothing, to which he was clearly seeking access when police sought to detain him. It is a reasonable inference that the removal of his clothing was to obviate the risk of the presence of any other concealed weapon.
27 The documents from the John Hunter Hospital do not corroborate the extent of injury claimed by the respondent. Diagnosis was recorded as simply "facial injury - soft tissue". The CT scan excluded fractures of any facial or skull bones, indeed no fracture of any sort was reported. The respondent had complained of a possibly broken jaw at the scene but an ambulance officer's examination, correctly as it turned out, was negative. It is of passing interest that the CT revealed nothing of recent origin other than soft tissue swelling over the scalp but it did report:
"There is evidence of metallic particles in the left mandible. The appearance of these particles suggest previous gunshot injury."
28 The Crown material tendered in the sentence proceedings made mention that the police had taken a video recording of the actual arrest. Neither there nor in this Court was that video sought to be shown. Bearing in mind that the arrest was at 2.40 am, it may be that the quality of any picture is low but whatever it is capable of showing remains speculative.
29 The hospital reports do not suggest any presentation of the respondent with injuries beyond what might be expected to result from an arrest taking place in the circumstances described. Nor in my opinion is this Court in a position to diagnose that the respondent was a victim of excessive force simply from his complaints and the still and video photography.
30 I would reject the respondent's submission that penalty should be mitigated because he had been punished in some way by the arresting police.
31 I would assess a resentence of eight years imprisonment, taking into account the matters which I have mentioned save the reflection of the plea of guilty for which reason I would reduce that term to six years and six months.
32 The sentencing judge found that there were special circumstances justifying a departure from the proportion of non parole period to head sentence specified in s44 of the Crimes (Sentencing Procedure) Act and the basis for this was expressed in the absence in the past of any provision in a significant way of counselling psychological or psychiatric advice and treatment to the respondent. With some hesitation I would make a similar finding, although I would not apply the same proportion.
33 I would emphasize that the sentence which I propose is considerably less than I would regard as appropriate at first instance but is mitigated for the reasons of restraint that I have mentioned in resentence after a successful Crown appeal.
34 I propose the following orders: