REGINA v JENKINS

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/61/0001 LOWER COURT JUDICIAL OFFICER : Cantrill ADCJ

COUNSEL : T L Buddin SC (Jenkins) P G Berman (Crown) SOLICITORS : T A Murphy (Jenkins) R Gray (Crown) CATCHWORDS : CRIMINAL LAW; sentencing; assault with intent to rob whilst armed, s97(1) Crimes Act 1900; appropriate sentence; direction of release on parole at certain date DECISION : Leave to appeal granted; Appeal allowed; sentence quashed; Substitution of sentence of penal servitude of twenty-four months

SPIGELMAN CJ WOOD CJ at CL NEWMAN J HULME J SIMPSON J

1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Simpson J in draft. I gratefully adopt her Honour's statement of the relevant facts and issues in the appeal. Her Honour found that the trial Judge committed three relevant errors: (1) His Honour erred in identifying the maximum sentence for the offence. (2) His Honour proceeded on a wrong basis in relation to the Applicant's change of clothing. (3) The sentence was manifestly excessive. 2 I agree with the reasoning of Simpson J with respect to the first and second matters. I am not however persuaded that the sentence was manifestly excessive in the sense that, if there were no other error in his Honour's reasons on sentence, this Court would be entitled to intervene. Nevertheless, by reason of the first and second matters, with respect to which the trial Judge erred, the discretion of this Court is enlivened. 3 For the reasons given by Simpson J the appropriate approach in the present case is to determine a fixed term. The objective gravity of the offence is such, however, that I am not able to agree with her Honour as to the fixed term she proposes. 4 I take into account the circumstances of the crime, the age of the Appellant and the nature of his life. Nevertheless, the objective criminality of the offence is high. He produced a knife which his Honour found to be a "boning knife" and which his Honour described in the following way: "When she looked up she saw he was holding a knife to her ribcage and that knife is before me. It is, I must say, a nasty looking weapon. She complied with the demand of the accused at a fear for her own safety and went to the till." 5 The nature of the weapon is of considerable significance in terms of the objective gravity of the offence. In his record of interview with the Police he said that he used this knife for the purposes of fishing. Counsel for the Appellant described it as a "fishing knife". This was an oversimplification. 6 The Appellant indicated that he had obtained the knife from a friend of his who worked in an abattoir. A knife of that character would answer the description which his Honour gave: "a nasty looking weapon". 7 In view of these considerations in my opinion the appropriate sentence is a fixed term of two years.

No. 60511/98 SPIGELMAN CJ WOOD CJ at CL NEWMAN J HULME J SIMPSON J Wednesday 12 May 1999

8 WOOD CJ at CL: I have read the judgments of Spigelman CJ and Simpson J in draft. I agree with the observations of Spigelman CJ in relation to the gravity of the offence, and with the sentence he has proposed. Otherwise I agree with the reasons of Simpson J.

60511/98 SPIGELMAN CJ WOOD CJ at CL NEWMAN J HULME J SIMPSON J

9 NEWMAN J: I have had the advantage of reading, in draft, the reasons and orders proposed by the Chief Justice and I agree with them.

IN THE COURT OF CRIMINAL APPEAL No 60511 of 1998 SPIGELMAN CJ WOOD CJ AT CL NEWMAN J HULME J SIMPSON J Wednesday 12 May 1999 REGINA -v- John David JENKINS JUDGMENT

10. HULME J: In this matter, I agree with the orders proposed by the Chief Justice and with His Honour's Reasons.

SPIGELMAN CJ WOOD CJ at CL NEWMAN J HULME J SIMPSON J Wednesday 12 May 1999

SIMPSON J : 11 The applicant seeks leave to appeal against the severity of a sentence imposed on him by Cantrill ADCJ in the District Court at Dubbo on 4 September 1998 following the applicant's plea of guilty to a single charge of assault with intent to rob whilst armed, a charge brought under s 97(1) of the Crimes Act 1900. Cantrill ADCJ sentenced the applicant to a total term of penal servitude for four years made up of minimum and additional terms in accordance with the statutory proportions provided by the Sentencing Act 1989, that is, a minimum term of three years and an additional term of one year. He specified that the minimum term was to commence on 30 December 1997, the day the applicant was taken into custody. 12 His Honour then ordered that the applicant was to be released on parole on 29 December 2000, the date of the expiration of the minimum term; and that the parole be subject to terms and conditions which were, in essence, that the applicant accept the supervision, guidance and direction of the Probation and Parole Service, and accept any medical, psychological or psychiatric treatment recommended by his Probation and Parole officer. He recommended that during the applicant's imprisonment he receive such medical, psychological or psychiatric treatment as was considered necessary or reasonable by appropriate medical officers. 13 In my opinion the direction that the applicant be released on parole on a specified date, and the imposition of the conditions, were beyond the power of the judge. By s 24(1) of the Sentencing Act, a judge who imposes a sentence of imprisonment of three years or less is required to make an order directing release on parole at the end of the minimum term. The section is concerned with the total sentence, not the minimum term. There is no such provision in relation to sentences in excess of three years. Since the judge did not have power to order that the applicant be released on parole, he did not have power to impose conditions upon his release. 14 The judge accurately described the offence as inept. It was committed on 30 December 1997. The applicant was a stranger in Dubbo, having arrived two days earlier. He had intended to leave the day before the offence but had delayed his departure. He had accommodation in a room in a local hotel. Late in the afternoon, having consumed a quantity of beer, he took a fishing knife concealed in a spectacles case and went to a nearby store. He was wearing a distinctive white shirt with the word "Optus" printed across its back. He watched the sole shop assistant who was tidying up and preparing to close the store. The applicant approached her from behind as she crouched to lock the doors, placed his hand on her shoulder, held a knife pointing at but not touching her ribs, and demanded to be shown the till and be given money. The assistant told him she could not open the till and he persisted. Eventually he asked for $20. Electronic alarms on the till were activated and the noise attracted a supervisor of the store, who also told him that she could not open the till. The applicant then asked the shop assistant to walk with him to the door but she refused. He slowly walked from the shop and into the street. 15 Two police officers investigating the incident went to the applicant's hotel. The door to his room was open but he was not present. Hanging over a chair police could see a shirt which matched the description they had been given of the shirt worn by the offender. They found the applicant, wearing a different shirt, smoking a cigarette on a balcony of the hotel. They asked if he had a knife and he produced the knife used in the assault. He immediately admitted his guilt explaining it only by saying that he had run out of money. He described how he had committed the offence so far as he could recall it. Police asked what he had been wearing at the time and he identified the white shirt and otherwise the clothes he was still wearing. When asked about the shirt he was then wearing he replied: "Yeah cos that's dirty and this is clean I suppose." 16 He agreed that he "purposely" changed shirts, but was not asked, and did not identify what the purpose was. 17 A little later the applicant took part in an electronically recorded interview in which he made full admissions. He was unable to explain what he had done other than to say that he was a bit short of money. He insisted that he would not have harmed the shop assistant. He added: "I just thought it was an easy way out, all these other fellows seem to get away with it." 18 He said this was a reference to bank robbers and others. 19 He was again asked about his change of clothes. The following questions and answers appear in the transcript of the interview: "Q. …so you were wearing that shirt when you actually walked into the Spotlight store? A. Yes. Q. And then you've gone back to the hotel? A. Ah. Hmm. Q. And what, did you change, did you? A. Yeah, well, that's, well, as you can see, it's filthy dirty. Q. Right. A. I just put this on. Q. So you changed? A. Yeah, because it's cooler. Q. Right." 20 The applicant was born on 2 October 1935. He was sixty-two when he committed the offence. Two entries appear on his criminal history, one of street betting in 1963 and one of goods in custody in 1964. The judge rightly treated him as a first offender. The applicant gave evidence. He expressed deep regret at what he had done and a determination never to be incarcerated again. At the time of sentencing he had been in custody for more than eight months. He agreed that he had been something of a "loner" all his life. He had been an interstate truck driver but had retired. He was divorced and had little contact with any members of his family. Two of his four children had died in 1994 and 1995, and his father died in 1997. He said that he had previously been a reasonably heavy drinker, but that had not been the case over the two years or so preceding the offence. 21 Before his Honour were reports of Dr McClure, a psychiatrist, dated 10 July 1998, and a psychologist, Mr Marson (who had seen the applicant on six occasions), dated 11 August 1998. 22 Dr McLure thought the applicant was possibly depressed at the time of his retirement from work. Mr Marson reported that the applicant remained in his cell most of the day and did not mix with other inmates. As at August 1998 he had had no visitors in gaol. The Sentence 23 In the applicant's favour the judge took into account his prior good record and the unlikelihood that he would re-offend. He adverted to what he described as the unfortunate factors in the applicant's life and background. Nevertheless, he regarded the offence as serious. In this he was plainly correct. In particular he had regard to the use of the knife which he described as "a nasty looking weapon". He declared himself "inclined to the view" that the applicant had changed his shirt in an inept attempt to disguise his appearance. 24 He considered (again correctly) that general deterrence was a significant factor in the sentencing decision. 25 The judge stated that the maximum sentence applicable to the offence was penal servitude for twenty-five years. This was wrong. The maximum sentence is penal servitude for twenty years. 26 The judge made no reference to special circumstances under s 5(2) of the Sentencing Act, and simply proceeded to impose a sentence in accordance with the statutory formula. The Application for Leave to Appeal 27 Counsel for the applicant pointed to what he identified as three clear errors in the approach taken by the sentencing judge. The first of these was his misapprehension as to the maximum sentence provided by s.97(1). Of this there can be no dispute. His Honour did approach the sentencing exercise on a false basis in this respect. 28 Secondly, it was argued that his Honour proceeded on a wrong basis in relation to his view about the applicant's change of clothing. For this argument to succeed it is necessary for the applicant to establish two premises. The first of these is that his Honour did use his conclusion as a factor adverse to the applicant in the sentencing process. The second is that it was not open to him to be satisfied beyond reasonable doubt of the fact. 29 What his Honour said when reciting the facts of the offence, was: "Police subsequently made inquiries and attended a local hotel where the accused was located. It would appear that he had taken off the shirt that he had been wearing during the attempted robbery and he is not able to say now whether he did that as an attempt to disguise himself or because the shirt was dirty. I am inclined to believe that it was, although an, inept, attempt as the robbery attempt itself was inept, to disguise his appearance to some extent." 30 I have referred to the questions asked and the answers given when the applicant was asked about his clothing when first interviewed. On the first occasion it was put to him that he had, in fact, changed his shirt. He replied that that was because the white shirt was dirty and the shirt he had changed into was clean. When asked if he had purposely changed shirts he agreed that he supposed that he had, but he was not specifically asked for what purpose he had done so. 31 In the electronically recorded interview he gave the answers I have extracted above. 32 When the applicant gave oral evidence he was not asked about why he had changed his shirt. It was therefore not correct for his Honour to say, as he did, that the applicant was not able to say now whether he changed his shirt as an attempt to disguise himself or because the shirt was dirty. 33 I accept the submission that, on the evidence, it was not open to the sentencing judge to conclude beyond reasonable doubt that the applicant had changed his shirt for the purpose of disguising his appearance. In fact, the evidence generally points in the opposite direction. When police went to the applicant's room, the shirt was draped over a chair in full view from the open doorway. The applicant had made no attempt to dispose of the shirt, nor to hide it, nor even to close the door. As soon as he was spoken to he acknowledged that the room in which it was found was his, that the shirt was his, and that he had been involved in the offence. He produced the knife. It was never put to him, either by police, or in the sentencing proceedings, that he had taken the course of changing his clothes in order to disguise his appearance, and, in these circumstances, the conclusion drawn by his Honour was not available. 34 The remaining question is whether his Honour used that conclusion as a factor unfavourable to the applicant. I think he did, although it is not possible to say what weight he gave to it. It does not appear to have been a significant factor in the ultimate sentencing decision. 35 There is another matter of concern. His Honour paid considerable attention to the applicant's lifestyle as "a loner". He appears to have used this adversely to the applicant. What he said was this: "So far as the prisoner himself is concerned it certainly seems to me that he is unlikely to offend again. However, it also seems to me that a great part of the problem that brings him here today is of his own making, in the sense that according to the reports before me he is a man who virtually the whole of his life has been a loner with little either opportunity or desire to develop a social network of close friends for support and comfort in times of need and similarly for perhaps reasons as much as his own personality as anything else, unable to relate to members of his family at a close level." 36 This reflects the questioning directed to the applicant by his Honour. There is more than a hint in the passage quoted above that the applicant was somehow more blameworthy because of his "loner" lifestyle. The conditions of parole his Honour purported to impose were expressly directed to providing assistance to the applicant in "coming out of that self imposed shell he has built around himself." 37 On behalf of the applicant it was argued that this was an exceptional case that did not call for a sentence of full time imprisonment, particularly having in mind that the applicant had served more than eight months in custody whilst on remand. I cannot accept this proposition. It is true that the circumstances were unusual, but they were not so unusual as to warrant departure from the general principle that offences in which knives are used will almost invariably be met with sentences of full time imprisonment. 38 However, I do accept that, having regard to all the circumstances, the sentence was manifestly excessive. The applicant was entitled to greater recognition of his sixty-two years of crime-free life. His Honour rightly considered general deterrence to be an important factor in the sentencing decision but, in my view, he allowed that single factor to override, to an impermissible degree, the applicant's favourable subjective circumstances, and particularly the finding that he was unlikely to re-offend. 39 The third error contended for on behalf of the applicant concerned the structure of the sentence and the omission in the remarks on sentence of any reference to the existence or otherwise of special circumstances within s 5(2) of the Sentencing Act. This court has previously drawn attention to the need for sentencing judges to advert expressly to the question of special circumstances in order to obviate the inference that it has been overlooked: R v Bo Too, unreported, CCA, 16 July 1992; R v Fisher, unreported, CCA, 18 September 1998; R v Brindley (1993) 66 A Crim R 204. On this occasion I think the inference is plainly available that the question of special circumstances was overlooked. I do not, however, accept (as was argued on the applicant's behalf) that, had he given consideration to the question, the judge must inevitably have made a finding of special circumstances. Such a finding is usually made where the evidence shows that the offender will require a post-release period of supervision that is longer than one quarter of the total sentence: R v Morrissey, unreported, CCA, 15 July 1994; R v McDonald, unreported, CCA, 12 October 1998. Supervision on parole is generally, if not exclusively, directed towards ensuring that the offender does not re-offend, and providing the necessary assistance and guidance to that end. The Probation and Parole Service exists specifically for that purpose. 40 In this case the sentencing judge twice expressed himself persuaded that the applicant was unlikely to offend again. The consequence of that finding is that supervision, for the purpose of ensuring the progress of rehabilitation, is unnecessary. In the light of that conclusion, this was a suitable case for consideration to be given to the imposition of a fixed term of imprisonment in preference to a sentence made up of minimum and additional terms: see R v Farroukh, unreported, CCA, 29 March 1996. 41 It seems to me that his Honour was directing his concern, not towards the applicant's need for supervision for the purposes of rehabilitation, but towards what he perceived as the applicant's social or emotional maladjustment. His Honour obviously felt a good deal of sympathy for the applicant. He was concerned about what he had been told about the applicant's lonely life. That concern prompted him to structure the sentence in a way that would ensure that the applicant received counselling on his release. However, that counselling was not directed towards the legitimate purposes of a parole order, but to his Honour's wider concern about the applicant's emotional well-being. While, no doubt, that was prompted by the most laudable motives, it was not relevant to the sentencing decision. Release on parole does not provide an avenue for bringing pressure to bear on individuals to change legitimate lifestyles unless those lifestyles are likely to lead them into further crime. It would be wrong to subject the applicant to the rigours and inconvenience of supervision for a purpose ulterior to that for which supervision is made available. Moreover, the demands upon the Probation and Parole Service are such that it would be wrong to cast upon that Service a burden unrelated to the purpose for which it exists. 42 Counsel for the applicant described the applicant as "a sad and lonely man". That may be so, and, if so, it is relevant to the overall sentence to be imposed. Without more (the likelihood that that condition will lead him into further crime) it is not relevant to the s 5(2) considerations, nor to an order for supervision by the Probation and Parole Service. 43 Error has been demonstrated in the sentencing process in three respects: the judge's misapprehension as to the maximum penalty provided for by the legislature; the finding of fact concerning the applicant's motive in changing his shirt, and in the manner in which the sentence was structured. The error has resulted in a sentence that was manifestly excessive. The applicant must be re-sentenced. 44 In my opinion the applicant's criminality would adequately be punished by the imposition of a fixed term of penal servitude for fifteen months. 45 I propose the following orders:

1. leave to appeal granted; 2. appeal allowed, sentence quashed; 3. in lieu thereof the applicant be sentenced to a fixed term of penal servitude for fifteen months to commence on 30 December 1997 and expire on 29 March 1999. ******

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