REGINA v. McNAMARA [2005] NSWCCA 195

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s.21A Criminal Appeal Act 1912

Wickham [2004] NSWCCA 193 Henry (1999) 46 NSWLR 346 CASES CITED: Way [2004] 60 NSWLR 168 Hemsley [2004] NSWCCA 228

REGINA v. PARTIES: John Frederick McNAMARA

Crown: G. Rowling COUNSEL: App: C.B. Craigie, SC.

Crown: S. Kavanagh SOLICITORS: App: Watsons

IN THE COURT OF CRIMINAL APPEAL 2005/401

SIMPSON, J. BUDDIN, J. HALL, J.

FRIDAY 20 MAY 2005 REGINA v. JOHN FREDERICK McNAMARA

Judgment 1 HALL, J: The applicant, John Frederick McNamara, by application dated 28 February 2005, seeks leave to appeal a sentence imposed on him in the District Court of New South Wales by his Honour Judge Norrish on 25 August 2004. He was jointly sentenced with his co-offender, Cory Dean Franks. He had been committed for trial on an aggravated offence of robbery whilst armed with a dangerous weapon pursuant to s.97(2) of the Crimes Act 1900. He entered a plea of guilty to an alternate count of robbery in company pursuant to s.97(1) of the Crimes Act 1900 on the day appointed for his trial. 2 The applicant was sentenced to imprisonment for a total of eight years with a non-parole period of four and a half years to date from 6 June 2003 and to expire on 5 December 2007. The balance of the sentence of three and a half years was to date from 6 December 2007. 3 The application is for leave to appeal against the sentence on two bases. Firstly, that the sentencing judge erred in the manner in which he took into account certain matters as aggravating features. Secondly, that the sentence is manifestly excessive. 4 The applicant's date of birth is 20 October 1974, he therefore being aged 28 years at the date of the offence and 29 years at the date of sentence.

Facts 5 On the night of 4 June 2003, a Queensland registered motor vehicle was taken from the premises of Riverina Car Hire without consent. 6 Shortly before 9.00 am on 6 June 2003, that vehicle was seen in the carpark of the Riverina Australian Rules Football Club at 188 Fernleigh Road, Wagga Wagga. A little after 9.00 am, two men wearing balaclavas entered the club premises. One was carrying a revolver. Once inside the premises, one of the two men called out words to the effect:- "Everybody on the floor. This is a hold-up. I've got a gun." 7 An employee, Mr. Burdett, was directed by one of the two men to take them to the manager's office. Mr. Jolley and other staff were in attendance. The two men took money from the safe in the Finance Manager's office and pulled the telephone cord from the wall before running off. 8 A member who was in the club was able to telephone police on her mobile phone to advise of the robbery. That person saw the motor vehicle to which I have referred driving off at high speed and gave the registration number to the 000 operator. 9 The vehicle then drove at high speed along Fernleigh Road onto the Olympic Highway towards Kapooka. The vehicle entered the Army Base where one of the residents there noted the car's two occupants leave the vehicle. That person telephoned police. 10 The applicant and his co-offender entered upon a property owned by Mr. Kidd. Mr. Kidd had a number of tradesmen working on his property. He saw the co-offender, Franks, and called out to him, pointing out that he and the applicant were on private property and would have to go back from where they had come. It was at about that point that the co-offender, Franks, produced what Mr. Kidd described as a black, shiny revolver and pointed it at Mr. Kidd's head with his finger on the trigger and said, "Fuck off". 11 Franks, at this point, moved towards a utility owned by one of the tradesmen. He entered the vehicle and started the engine. A police vehicle approached and stopped near the utility. Three police officers rushed towards the utility which was reversing and which collided with the front of the police vehicle. 12 A struggle involving police, with the co-offender Franks resisting, then took place. The police managed to disarm him and removed him from the vehicle. He was handcuffed and taken into police custody. A search of the interior of the utility revealed a .357 calibre Ruger brand revolver. The revolver had three rounds in the cylinder. 13 Amongst other property belonging to the offenders was an amount of money found totalling $67,088 which was the money that had been stolen from the Riverina Australian Rules Football Club Limited. 14 The applicant had, after the robbery, taken off in a different direction and was soon afterwards apprehended lying in scrub. At the scene and later at Wagga Wagga Police Station, apart from initially providing false name to police, he declined to be interviewed. 15 The co-offender, Franks, pleaded guilty to an offence of robbery whilst armed with a dangerous weapon (s.97(2), Crimes Act 1900) and a number of related offences. He was sentenced to nine years for the principal offence with a non-parole period of four and a half years. That sentence was accumulated by 18 months upon the other sentences. 16 I should observe at this point in time that in accepting the applicant's plea, the Crown conceded that it could not establish that the applicant knew that his co-offender had a dangerous weapon as distinct from an offensive weapon or instrument (remarks on sentence, p.3). 17 The sentencing judge allowed a discount for the applicant's plea of guilty of "approximately 15%" and the sentencing judge stated that the appropriate sentence he considered to be nine and a half years (the offence of robbery in company under s.97(1), Crimes Act 1900 carries a maximum penalty of 20 years imprisonment). 18 The remarks on sentence set out the subjective features. The applicant's criminal history commenced at the age of 10 for relatively minor matters and his first custodial penalty was a 28 week control order for break, enter and steal at the age of 17. He was imprisoned between 1993 and 2001 for offences of using motor vehicles (six offences), driving whilst disqualified (11 offences), dangerous driving (one offence), break, enter and steal (one offence committed in 1993) and escape lawful custody (one month imprisonment in 2001). In the applicant's written submissions, it is observed that the custodial sentences have comprised fixed terms ranging from two weeks to six months, except for an occasion in 1999 when he received a total sentence of 16 months with a non-parole period of 12 months. 19 The applicant's past history included alcohol abuse and his upbringing was one which lacked structure and direction. Whilst he developed opiate dependence from the age of 22, the history includes a positive aspect of fairly regular employment over a period of some eight years until the onset of the opiate dependence. He has had a relationship of 11 years that has survived prison sentences. 20 Prior to the commission of the offence in question, the applicant had been out of custody for the best part of two years. He has two children of his relationship, as at the date of sentence, one aged 10 years and the other, at that time, one year. 21 The sentencing judge took into account written apologies, which the applicant had sent to the victims of the offence in which he was involved and accepted his expression of regret as sincere. His Honour also took into account that the applicant has sought to address various problems that he had previously struggled with and has expressed the desire to undertake a programme to address problems associated with drug dependence and other lifestyle matters. 22 I turn to consider the issues raised in the application before this court.

Ground 1: Error in taking into account certain matters as aggravating features 23 This ground asserts that a number of aggravating features were erroneously applied in determining sentence, these arise in the context of s.21A of the Crimes (Sentencing Procedure) Act 1999. 24 The specific aggravating features identified by the sentencing judge were as follows:-

• Reference to the offence as a planned activity. 25 Section 21A(1) requires, in determining the appropriate sentence for an offence, the court to take into account the aggravating factors referred to in s.21A(2) that are relevant and known to the court, the mitigating factors referred to in s.21A(3) and any other objective or subjective factor that effects the relative seriousness of the offences. 26 Against this statutory background, I turn to each of the aggravating factors under challenge.

(i) The threatened use of violence . 27 In the remarks on sentence, the sentencing judge, after referring to the provisions of s.21A, observed:- "… in relation to each offender, notwithstanding the offence to which the offender, Mr. McNamara, pleaded guilty to in respect of the offence of robbery common to both men was different, the offence involving both men involved the threatened use of violence. Each offender, relevantly, has a record of previous convictions. Although I note in that regard that neither has a conviction of this type." 28 After the introductory statement, his Honour then turned to consider other specific matters identified as aggravating factors in s.21A(2). 29 The remarks on sentence record his Honour's consideration of the aggravating factors at pp.31-32. Of the 14 specific aggravating factors identified in s.21A(2), the sentencing judge specifically referred to eight matters which he apparently considered of relevance to the circumstances of the offence for which he was determining sentence. However, it is to be observed that in some instances (for example, the reference to threatened use of violence and to the previous record of convictions) there is neither no comment or very little comment following each reference. In other cases (eg., offence committed in company, loss caused by the offence, offence committed without regard to public safety, offence as part of a planned criminal activity) his Honour discussed them in relation to the facts of the case to either apply or reject them as relevant. 30 It is against this background that I separately consider the aggravating features, the subject of challenge under ground one:- Threatened use of violence and record of previous convictions 31 The reference to the fact that the offences by both men involved the threatened use of violence appears is confined to an observation to that effect. It is always difficult when there to be reference to a factor identified in s.21A(2) without an indication as to whether the sentencing judge has or has not brought it into account. Whilst his Honour did not indicate that he had brought it into account I am of the opinion that his Honour did contrary to s.21A(2) Crimes (Sentencing Procedure) Act 1999 have some regard to the threatened use of violence even though it was inherent in the offence itself.

(ii) Record of previous convictions 32 Here again, his Honour merely made reference to the fact that each offender had a record of previous convictions. His Honour does not state the relevance of it or whether he does or does not bring it into account. I consider that it is reasonable to conclude that his Honour did have some regard to the matter as an aggravating factor, although his Honour added: "… I note in that regard that neither has a conviction of this type". Accordingly, absent express statement about its significance, I am of the opinion that his Honour incorrectly treated, at least to some extent, the prior record as an aggravating factor: Regina v. Wickham [2004] NSWCCA 193.

(iii) Without regard to public safety 33 It is difficult to understand his Honour's reference to this factor for there is no discussion of its possible significance. It is immediately followed by a discussion as to whether the principal victim was vulnerable, that being a quite separate aggravating factor identified in s.21A(2)(l). The submissions made by Mr Craigie, SC., counsel for the applicant, is that armed robberies generally involve something of a disregard for public safety and there was no greater degree of disregard for public safety in this case and that his Honour did not explain how he saw it as an aggravating feature. There is some force in that submission. Again it is unfortunate that his Honour made reference to the public safety factor without any discussion as to whether he did or did not bring it into account. On one view his Honour has raised the point but has not given it any consideration and has moved immediately on to the next issue. 34 It is, however, to be borne in mind that employees of the Club were not the only persons present at the club premises. It is clear from the facts that one or more members of the Club were present on the occasion in question. I do not consider that his Honour's reference to public safety would be said to be erroneous, although on the facts it must be conceded that it was not a matter of any marked significance.

(iv) The offence was a planned activity 35 The applicant submits that the planning of the offence could hardly operate as an aggravating factor given that it would be an unusual case of robbery if it did not have at least the minimal forethought that went into the offence in question. It was further submitted that there was nothing about planning in the case that was exceptional which would warrant a finding that it was an aggravating feature. 36 The reference in question, once again, can be seen to be a more in the nature of an observation by the sentencing judge that the offence was a planned activity for there is no discussion of that factor in its application to the facts of the matter at all and again there is no indication of what, if any, weight his Honour gave to it. 37 The reference by a sentencing judge to an aggravating factor arising under s.21A(2) unaccompanied by any discussion as to its general or specific relevance to the determination of sentencing in a particular case, gives rise to uncertainly. The mere reference of an aggravating factor does tend to suggest that it has been an influencing factor in the ultimate determination of the sentence. Accordingly, it is desirable for a sentencing judge to express whether he or she has in fact taken into account, as the statute specifies, one or more specific factors in determining the appropriate sentence for an offence. 38 I have taken into account in the present matter that in the fairly lengthy remarks on sentence, the sentencing judge did, in some detail, identify those particular facts that established the objective seriousness of the offence and his Honour's analysis of those facts form the substratum for his sentence determination. I have not overlooked in this context that, when determining an appropriate discount for the applicant's plea of guilty at p.21 of the remarks on sentence that his Honour and before his Honour turned to consider the s.21A factors at p.31 of the remarks on sentence, expressly stated that he considered that the appropriate sentences to be imposed in the case of the application was nine and a half years, discounting that sentence to eight years for the utilitarian benefit of the plea. However, that said, I am of the view that the factors his Honour identified as aggravating factors played a role in what must be said to be a very substantial sentence on the facts of the case. I, however, would not determine this application on that basis alone, for it should be considered in the broader context of the matters that fall for consideration in relation to ground two to which I now turn.

Ground 2: The sentence is manifestly excessive 39 In support of the applicant's contention that the sentence imposed on the applicant is manifestly excessive, the written submissions of the applicant proceed upon the basis that the offence was a serious example of its type. However, it is contended that it was not so serious as to warrant a sentence of the magnitude imposed in this case of eight years incorporating a non-parole period of four and a half years. In this respect, sentencing statistics published by the Judicial Commission as at January 2005 are relied upon as indicating that for the 83% of offenders (359 people) who received a full-time custodial imposition for armed robbery or robbery in company in the period July 2002 to June 2004 (excluding sentences to be served consecutively upon other sentences), only three percent (10 people) received a sentence of eight years or more. 40 The submission made in relation to ground one is that the sentencing judge inappropriately used the guideline judgment in Regina v. Henry (1999) 46 NSWLR 346 and that in consequence, a manifestly excessive sentencing determination resulted. The submission accepts that the Henry guideline judgment could be employed as a sounding board, this argument, concluding with the submission that a sentence not far removed from the four to five year guideline was appropriate in the case. 41 The sentencing judge in his remarks on sentence stated:-

• In assessing the sentences for the robbery offences before him he had regard to the guideline judgment of Henry (supra).

• The starting point was taken to be between four and five years (remarks on sentence, p.22).

• That the guideline judgment had some relevance to the sentencing of the applicant, particularly when regard was had to the factual basis upon which the Crown case was presented against him.

• The Crown, in this respect, conceded that at trial it might not have been able to establish, to the requisite degree, that the applicant knew that his co-offender, Franks, had a dangerous weapon, as distinct from an offensive weapon or instrument up to the time of the actual robbery so as to make him liable on the basis of joint criminal enterprise on the primary count (this was of particular significance given that the weapon was a loaded handgun). 42 Whilst the sentencing judge examined discrete matters arising under the guideline judgment in relation to the co-offender, Franks, his Honour did not undertake a similar exercise in respect of the applicant other than saying that the guideline judgment has "some relevance in the sentencing of Mr. McNamara, particularly when one considers the factual basis upon which the Crown case is presented against him …". 43 The submission made on behalf of the applicant, in essence, as I understand it is that an excessively high sentence resulted from an attempt to simply apply the guideline judgment, in particular by using it as a starting point. I note in this respect that it is said that a better approach would have been to regard the guideline as a "reference point or benchmark or a sounding board, or guide post" as described by this Court in Regina v. Way (2004) 60 NSWLR 168 at [122], [131]. Reliance is also placed upon the dicta of Grove, J. in Regina v. Hemsley [2004] NSWCCA 228 in which his Honour there stated:- "Ground 4 asserted that his Honour erred in finding that a more severe punishment than the range suggested in R v Henry (1999) 46 NSWLR 346 was appropriate. His Honour said;- 'It seems to me that this case requires a more severe punishment than the range suggested in Henry .' That approach utilizes the authority as a standard rather than as a guideline. I consider that a principled approach to sentencing requires the assessment of all the objective and subjective factors applicable in a particular case. The guideline judgment is then available to observe whether the sentence thus assessed is within established patterns of sentencing. It is not, in my opinion, a correct approach to commence with a range articulated in the guideline judgment and then conduct an exercise determining whether a particular case falls below, upon or above the guideline range. That appears to have been the approach taken by his Honour." 44 On reflection, I do not believe that the applicant's submission which I have recorded in the previous paragraph is one which assists in determining whether or not the sentence imposed was manifestly excessive, as claimed. On the facts of this case, I am of the opinion that his Honour was correct in adopting the approach of regarding the Henry guideline judgment as both a starting point and as a guide in assessing the sentence. It is true that not all of the identified seven characteristics referred to in the category of case to which Henry belonged exist in the present case (see p.380 of the Henry (supra) judgment). Whilst the applicant was not the young offender with no or little criminal history referred to in characteristic (i) in Henry, he was a relatively young offender with a limited criminal history. Whilst the sentencing judge did not consider the victim to be in a vulnerable position, the absence of that factor in this case, to some extent at least, diminished the gravity of the case, whilst characteristic (vi) small amount taken is to be taken, in light of the comments of Spigelman, CJ. at 381 that appropriate adjustment is to be made for the circumstances of a case within the category including the amount taken and thus account should be taken of the considerable amount taken in this robbery offence. 45 In this way, I consider the Henry guideline judgment does provide a relevant range and thus a starting point against which the objective and subjective factors may be properly assessed. Having regard to the applicant's criminal history, the amount taken in the robbery and the other identified characteristics for this category of case, it is, in my view, plain that the circumstances of it justified a sentence above the sentencing range in Henry of four to five years for the full term. Given, however, the way in which the Crown case was presented, I find difficulty in accepting that circumstances would take the case so far beyond that range that it required a total sentence of eight years. I am of the opinion that, having regard to the applicant's age, his limited criminal record, the concession by the Crown that it could not establish that the applicant knew that his co-offender had a "dangerous weapon" as distinct from an offensive weapon or instrument, the amount of money taken in the robbery and the comparatively less dominant role played by the applicant compared with his co-offender, Franks, that an appropriate total sentence was six years with a non-parole period of three and a half years, which period should date from 6 June 2003 and expire on 5 December 2006. 46 I am, accordingly, of the opinion that a less severe sentence is warranted in law and should have been passed: Criminal Appeal Act 1912, s.6(3) and that, accordingly, the applicant should be re-sentenced. Accordingly, the sentence imposed by the sentencing judge should be quashed and a sentence as set out below should be substituted therefor. 47 Accordingly, the orders I propose are:- 1. Leave to appeal granted. 2. Appeal granted. 3. The sentence of eight and a half years quashed. 4. In lieu thereof the applicant be sentenced to a term of six years to commence on 6 June 2003 and to expire on 5 June 2009, with a non-parole period of three and a half years to commence on 6 June 2003 and to expire on 5 December 2006. 48 SIMPSON, J: I agree 49 BUDDIN, J: I also agree. 50 SIMPSON, J: The orders of the Court will be as proposed by Hall, J. **********

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