Regina v HOUSE

Application by the Attorney General Under s 37 (Sentencing Procedure) Act by the Attorney General for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303 R v Bloomfield NSWCCA 15 July 1998 R v Broxham NSWCCA 3 April 1986 R v Downie and Dandy [1998] 2 VR 517 R v H (1980) 3 A Crim R 53 R v Hayes (1983) 11 A Crim R 187 CASES CITED: R v Henry [1999] 46 NSWLR 346 R v Perrett [1999] NSWCCA 115 R v Petrinovic NSWCCA 18 September 1990 R v Sharma (2002) 130 A Crim R 238 R v Spiero (1979) 22 SASR 543 R v Stefanovski NSWCCA 9 June 1994 R v Underhill 9 May 1986

J Bennett SC (Crown) COUNSEL: M Ramage QC

S Kavanagh (Crown) SOLICITORS: Voros Lawyers (Applicant)

• 9 - IN THE COURT OF CRIMINAL APPEAL 2004/3221

TOBIAS JA WOOD CJ at CL BUDDIN J

Thursday 17 March 2005 Regina v David Gary HOUSE Judgment 1 WOOD CJ at CL: The Applicant seeks leave to appeal against a sentence which was imposed upon him on 27 May 2004 by his Honour Sorby DCJ in the District Court following his plea of guilty to one count of armed robbery (s 97(1) Crimes Act). That plea was entered on the first day of his trial. 2 The sentence imposed was one of imprisonment for 4 years and 6 months with a non-parole period of 3 years, each backdated to 29 December 2002, that being the day on which he was first taken into custody. A discount of 15 percent was given for the utilitarian value of the plea, and special circumstances were found, referable to the Applicant's need for continuation of his drug rehabilitation, resulting in a non-parole period being set that was two thirds of the head sentence.

FACTS 3 The Applicant and co-offender entered the Cheesecake Shop at Emu Plains during the afternoon of 29 December 2002 armed with a tyre lever and a socket wrench. There were four persons present, Mr and Mrs Horley, Louise Mayley and Emma Harvey. They were initially ordered to go into the chiller area, but on being informed that one of the staff members was pregnant, the offenders relented to the extent of requiring them to go into the cold room instead. That room apparently was an unrefrigerated pantry. Mrs Horley handed over about $877 being the float money. 4 Before leaving the premises the offenders also stole Ms Harvey's wallet containing her personal papers and credit cards. 5 In sentencing the Applicant, his Honour made several observations which, it is now submitted, led him into error: (a) The Prisoner stated that he only got into the car at Blacktown and denied any knowledge of the robbery. When arrested he was found to have in his possession a canvas bag, the money in the canvas bag consisted of twenty-seven $5 notes, six $10 notes and fifty $20 notes. The actual amount stolen was calculated by Mrs Horley as $877. The money that was found on the Prisoner was consistent with the type of money that was stolen from the Cheesecake Shop. (b) Armed robbery is an offence against a person as well as an offence against property. The authorities make it abundantly clear that general deterrence is very important when imposing a sentence for offences such as this, in addition to addressing the other purposes of punishment, namely, rehabilitation, retribution and the protection of the community.

6 In R v Spiro (1979) 22 SASR 543 King CJ, 549, (said) "It must be made clear beyond misunderstanding that when a person engaged in robbery while armed with a weapon he can expect when apprehended and convicted a long period in prison. Armed robbery is a crime which leaves little scope for leniency even when mitigating factors are present". 7 His Honour continued: "Further the community has become tired of robberies of premises or persons, the latter instilling fear in innocence (sic) persons. (c) I have taken into consideration the mitigation and aggravating factors as set out in s 21A of the Crimes (Sentencing Procedure) Act . I note that the robbery was not planned with the Prisoner showing remorse and he has some prospects of rehabilitation. However, there was a weapon involved in the robbery, he was in company and there are multiple victims in the Cheesecake Shop. (d) As I have said the offence is objectively serious and must attract a full-time custodial sentence in addition to that period that he has already spent in gaol. A weapon was used. People were put in fear by his behaviour. The offence of robbery has become far too prevalent in the community and the community expects condign punishment to be metered out to those who offend."

Ground 1: The sentencing judge erred by finding that the possession of a weapon was a factor in aggravation of sentence for the purposes of s 21A of the Crimes (Sentencing Procedure) Act. 8 Since the possession of a weapon was an element of the offence charged, it was not a matter to which additional regard could have been given, as an aggravating circumstance (s 21A(2)), if that led to an increase in the sentence that would otherwise have been passed. 9 Although the Crown sought to justify the reference to the weapon as having been directed to the nature and extent of the weaponry involved, and in particular to the presence of two weapons, I am not persuaded of the correctness of that proposition. 10 The other factors mentioned, namely, that the offence was committed in company and that there were multiple victims involved, were properly aggravating circumstances, as were two other facts not mentioned in this portion of his Honour's reasons. They related to the vulnerability of the victims and to the fact that they were forced into a cool room where they were detained. 11 Although it may well be that his Honour was merely referring to the presence of a weapon in a general way, without using it as a circumstance of aggravation, the mention of it was perhaps unfortunate in the context of a paragraph in which reference had been made to s 21A. Whether the Court should intervene however depends upon a consideration of the remaining grounds and upon an overall assessment as to whether some other sentence was warranted in law.

Ground 2: The sentencing judge erred by finding facts in aggravation of the sentence that were not reasonably open on the evidence. 12 It is submitted that his Honour erred by inflating the number of $20 notes found in the Applicant's possession from 5 to 50. This clearly was a slip of the tongue, it being obvious from his Honour's finding that the sum stolen was $877, that there was no overstatement of the objective seriousness of the offence in this respect. The fact that half of the amount stolen was found in the bag of the co-offender was of no materiality in relation to the assessment of the objective seriousness of the Applicant's role in the offence. 13 Secondly, it is submitted that his Honour did not give sufficient attention to the fact that the offenders required the victims to go into the cool room, rather than the chiller, and to that extent acceded to Mrs Horley's concerns about the wellbeing of one member of staff. 14 I am quite unpersuaded that his Honour overlooked this circumstance, it being perfectly clear from his remarks on sentence that he understood the difference between the two rooms. The confinement of the victims in any portion of the premises, against their will, was objectively a serious aggravating circumstance. On any view the incident must have been one that occasioned the victims very great fear, in which they were threatened by two men wielding implements that were capable of occasioning serious physical harm, and were forcibly detained. 15 This ground is lacking in any merit and it is impossible to find any fault in his Honour's assessment of the objective seriousness of the offence, in so far as he found: "This offence is objectively very serious. A number of persons were put in real fear by the actions of the Prisoner, including two elderly owners of the Cheesecake Shop and a pregnant shop assistant. These persons were shut in a confined space to enable the Prisoner and a co-offender to escape. A considerable amount of money, at least the victims, was taken."

GROUNDS 3 TO 5 Ground 3: The sentencing judge erred by giving weight to community expectations about appropriate sentences for the offences. Ground 4: The sentencing judge erred in giving undue weight to the prevalence of armed robbery offences. Ground 5: The sentencing judge erred by failing to alert the Applicant's counsel that prevalence was to be taken into account so that counsel could address on the issue.

16 The submissions addressed in support of these grounds, in respect of what were entirely unexceptional observations by his Honour, should be dismissed out of hand. 17 As Begg J observed in R v H (1980) 3 A Crim R 53 at 75: "It is the judges' duty to reflect, in sentences passed by them, their beliefs as to the attitude of members of the public to the particular type of crime. They do this from their own experience and knowledge of human life. It is not a matter calling for inquiry on evidence." 18 See also R v Underhill where Street CJ drew upon his understanding of the community's attitude to knives, as being one shared by the courts, and similar observations by this Court in other areas of criminality: Application by the Attorney General Under s 37 Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303 and R v Hayes (1983) 11 A Crim R 187 per Street CJ at 190 and per Lee J at 191. 19 It would be absurd to suggest that the community regarded armed robberies as other than a very serious crime calling for an appropriate measure of punishment. See also R v Petrinovic NSWCCA 18 September 1990 where Hunt J referred to the community expectation as to the imposition of heavy sentences for armed robbery offences, rather than undue leniency because of an "unhappy upbringing or promises of reform". 20 In any event it is obvious that his Honour did not consult the community. To the contrary, he took specific guidance from this Court's decision in R v Henry [1999] 46 NSWLR 346, as follows: "It was submitted to me that this is a case in which Henry is applicable and on further reflection I think that is correct. Other than the Prisoner's age all the factors set out in Henry are present here. I cannot accept that his period in custody to date is sufficient to satisfy community expectations in this type of offence nor would it be consistent with Henry . In Henry a majority of the Court of Criminal Appeal determined that a full-time sentence between four and five years imprisonment was warranted in cases involving seven characteristics, all of which fit the offence with the exception of the age of the Prisoner, who was in his early forties and cannot be considered young." 21 The prevalence submission fares no better. The Applicant's contention that his Honour assumed an increased incidence of armed robberies involves a significant overstatement of his Honour's observation, which did no more than reflect the view which had previously been expressed by Spigelman CJ in R v Sharma (2002) 13 A Crim R 2389 at [74]: "Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender: see Pham (1991) 55 A Crim R 128 at 135; Tran [1999] NSWCCA 109 at [9]-[11]; AEM Senior [2002] NSWCCA 58 at [96]-[102]." 22 Similar observations concerning the prevalence of the offence were made by this Court in R v Broxham NSWCCA 3 April 1986, and R v Stefanovski NSWCCA 9 June 1994. 23 It may be acknowledged that, where a sentencing judge does approach a sentencing exercise upon the basis that the increasing prevalence of a particular crime calls for an increase in the preceding pattern of sentencing, then counsel should be warned so that they can deal with the issue: R v Downie (1988) 2 VR 517 at 522-3. Moreover, before coming to any such finding the judge would need to be satisfied, upon the basis of proper and sufficient evidence, that the factual assumption justifying such an increase is correct. 24 Normally such an exercise is better reserved for this Court by way of a guideline judgement such as R v Henry where that kind of analysis was in fact made. In the present case the Applicant suggested that the criminological research indicated that there was a decrease in the rate of armed robberies. The statistics upon which reliance was placed for this broad submission do not purport to isolate the offence of armed robberies in New South Wales, rather they relate to all categories of robbery throughout all States and Territories. 25 While the Crown has drawn attention to more precise and more recent statistics compiled by the NSW Bureau of Crime Statistics and Research which show a fluctuating trend and differences within regions, any more specific analysis is better reserved for a guideline judgement in which all relevant parties can be heard, should it be thought at some time in the future that R v Henry should be reviewed.

Ground 6: The sentence imposed upon the Applicant was unduly severe and a more lenient sentence is warranted in law.

26 The head sentence fell in the middle of the sentencing range proposed by R v Henry being one in which almost all of the characteristics identified in that case were present. 27 While it may be that it falls somewhat above the median point for this offence, as disclosed in the Judicial Commission statistics, their limited use beyond providing generalised information as to a range of sentences with the aim of encouraging consistency is well established. See R v Perrett [1999] NSWCCA 115 and R v Bloomfield NSWCCA 15 July 1998. The fallacy in the Applicant's submission based upon the median sentence argument was, moreover, correctly addressed by the Crown since, if that was to be regarded as the catalyst for appellate intervention, it would have the effect of bringing about a progressive reduction of the median. 28 The sentence which is to be imposed in an individual case depends substantially on its objective facts and upon the subjective circumstances of the offender. In the present case the objective circumstances were serious. The applicant's subjective circumstances did not provide much by way of assistance in that, while his Honour accepted that he was remorseful and had not committed the crime to support a drug habit, he nevertheless had a history of drug addiction, as well as criminal antecedents for offences of dishonesty, extending over 20 years and had just completed a seven month supervised bond. His professed motive for the robbery, in order to fund a payment for the rental of the storage units which contained the belongings of himself and his fiancée, did not lessen his criminality. His financial need might help to explain why it was that he committed the offence, but it is not an excuse for it. 29 I am not persuaded in the circumstances that any sentence other than that imposed was warranted in law and should have been passed (s 6(3) Criminal Appeal Act 1912). 30 I propose the following orders:

1. Leave to appeal granted. 2. Appeal dismissed. 31 TOBIAS JA: I agree with Wood CJ at CL. 32 BUDDIN J: I also agree. 33 TOBIAS JA: The orders of the Court will be as proposed by WOOD CJ at CL. **********

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