Regina v Maxfield

D. Frearson SC (Crown) COUNSEL: P.M. Winch (Applicant)

S. Kavanagh (DPP) SOLICITORS: S.E. O'Connor (Applicant)

IN THE COURT OF CRIMINAL APPEAL 2004/2905

GROVE J HOWIE J HALL J

Wednesday 30 March 2005 REGINA v ROBERT PAUL MAXFIELD Judgment

1 GROVE J: The applicant seeks leave to appeal against severity of sentence imposed upon him by Delaney DCJ in Parramatta District Court. Following pleas of guilty the applicant was sentenced upon seven counts of armed robbery with an offensive weapon. He asked to be taken into account pursuant to a Form 1, three further offences of armed robbery with an offensive weapon and two offences of assault with intent to rob with an offensive weapon. 2 Sentences were imposed on 20 May 2004. The applicant was in custody serving a balance of parole in respect of a previous conviction, that balance expiring shortly thereafter on 28 May 2004. 3 His Honour constructed sentences in the following fashion. On two of the counts the applicant was sentenced to imprisonment for a fixed term of four years commencing on 20 May 2004 and expiring on 19 May 2008, to be served concurrently. On two further counts, to fixed terms of four years commencing on 12 November 2004 and expiring on 11 November 2008, to be served concurrently. On a further count to imprisonment for a fixed term of four years commencing on 20 May 2005 and expiring on 19 May 2009. On a further count, to imprisonment for a fixed term of five years commencing on 20 May 2005 and expiring on 19 May 2010. On the final count, taking into account the matters on Form 1, to imprisonment for seven years and six months commencing on 20 August 2005, with a non-parole period of five years and six months commencing on that date and expiring on 19 May 2010. 4 Thus, taking the earliest date of custody referable to these offences, it can be stated that the impositions involved an effective total term of eight years nine months, with a non-parole period of six years and nine months. 5 The applicant relies upon a single ground, asserting that his Honour erred with regard to the relationship between the length of the aggregate head sentence and the aggregate non-parole period. "Aggregate" is a reference to the effective sentence just mentioned. 6 The argument of the applicant is focussed upon s 44 of the Crimes (Sentencing Procedure) Act 1999 which provides that the balance of a term of sentence must not exceed one third of the non-parole period unless the court determines that there are special circumstances for departing from that proportion. Counsel for the applicant points out that the aggregate non-parole period is 77 per cent of the aggregate head sentence. This, it is contended, is incompatible with a finding by his Honour that special circumstances, in the sense of the use of that phrase in s 44, existed, and were to be taken into account. 7 Attention is drawn to relevant remarks by the learned sentencing Judge. His initial reference was in these terms: "I state at this stage, although I will refer to it again, that on the basis of the report from the Probation and Parole Service, the report from Dr Westmore and the evidence which has been given by the offender I have reached the conclusion that this will be a case in which the application of special circumstances will be appropriate to vary the usual ratio of 75 per cent - 25 per cent between the full time sentence and non-parole period in this case, for such sentences which are not fixed term." 8 Of course, fixed terms do not involve the setting of a non-parole period at all, but it can be observed that, in this case, there was only one sentence in which a non-parole period was fixed. His Honour made no reference to aggregate but it can be observed that he spoke in the plural of "sentences which are not fixed term", despite the fact that there was only one of these. 9 However, his Honour's later remarks make it clear that he had in mind the single sentence when he said: "In my opinion pursuant to s 44 of the Sentencing Procedure Act there is evidence before the Court which would justify the Court reaching the view that there should be a finding of special circumstances in respect of the offence for which a non-parole period is to be set, thereby justifying the Court from (sic) altering the statutory ratio." (Emphasis added.)

Again, when imposing the various sentences, he stated: "In respect of count 6 I take into account the matters on the Form 1 and I find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act."

The relevant count (numbered 6) involved imposition of a total sentence of imprisonment of seven years and six months. An application of the statutory proportion would, as a matter of arithmetic result in a non-parole period of five years and seven and a half months. Thus there was, as his Honour stated that he intended, a reduction, although it must be conceded, the reduction was very small indeed. Nevertheless, at no point did his Honour state that he intended that his finding of special circumstances would be applied in relation to the overall period of custody including the impositions of fixed terms.

It is submitted that it can be concluded that his Honour overlooked the effect of accumulation but, with respect to that submission, it is plain that his Honour did not. He followed a course of inviting counsel to check the impositions which he proposed with specific reference to commencement and expiry dates and it was expressly acknowledged by counsel appearing at trial that the specified dates appeared to be correct.

As I have mentioned, as at the date of sentence for these matters, the applicant was nearing the expiry of the service of a balance of parole. This service was in connection with sentences for offences including robbery using corporal violence imposed at Liverpool District Court in March 1998. The applicant's record was such as to disentitle him to leniency which he might otherwise seek.

No challenge was made to the short summary of facts by the learned sentencing Judge, which was in these terms: "The first two offences occurred on 9 December 2001 at Yagoona when the offender used a knife to rob the IGA Supermarket. When he entered the supermarket he produced a large kitchen knife and demanded money from a cashier. The cashier emptied the register and the handed the money to him. He then made a further demand to another cashier for cash and was also given money by that cashier, after which he ran from the store. The second and third offences (sic - third and fourth) occurred on 14 February 2002 when he entered a Roselands Day and Night Chemist at Roselands. He produced a kitchen knife and demanded money from the cash register and safe. The cash register was open, the offender removed $290 and then threatened a shop assistance requiring her to hand over her handbag and removed $800 from it being allegedly pay and rent money. He then left the store. The fifth offence occurred on 17 February 2002 at Roselands. The offender entered the store being the same chemist shop, Roselands Day and Night Chemist. He produced a silver replica pistol. He demanded the cash register and safe be open to remove cash from the register but did not take any money from the safe. The next offence was on 14 February 2002. He stole a mobile phone and cash from Joseph Saleh whilst armed with a meat cleaver. He robbed Mr Saleh at the Boian Night Chemist, Beverley Hills. He threatened, with a co-offender, the persons in the store and stole bags belonging to them. Four of the matters on the Form 1 relate to thefts he committed on those premises. The seventh matter was an armed robbery using a replica pistol at Liverpool on 18 February 2002. On that date at about 1.50 p.m. he entered the Black and White Pharmacy, Hume Highway, Liverpool, and produced a silver replica pistol making demands to the staff to hand over money and property. He took $160 in cash leaving the scene of the robbery in a red coloured Commodore sedan owned by his de facto wife."

On 19 February 2002 he was arrested by police, and at the time was in possession of a silver coloured replica pistol. He made full admissions in respect of the robberies when taken to the police station. All offences were committed whilst the applicant was on parole. 10 Whilst, as previously indicated, I am of opinion that the ground of appeal relied upon by the applicant is not made out, I have made reference to the facts briefly in order to provide some elaboration for my further view that no lesser sentence than that imposed by the sentencing Judge was warranted, and the power of this court to intervene should not be invoked. 11 I would grant leave to appeal, but dismiss the appeal. 12 HOWIE J: I agree. 13 HALL J: I agree. 14 GROVE J: The orders of the court therefore will be as I have proposed.

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