REGINA v Michael John SARCASMO

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0759 FILE NUMBER(S) : LOWER COURT Shadbolt DCJ JUDICIAL OFFICER :

• 9 - IN THE COURT OF CRIMINAL APPEAL 1793/04

WOOD CJ at CL HULME J BELL J

Tuesday 18 August 2004 REGINA v MICHAEL JOHN SARCASMO

Judgment 1 WOOD CJ at CL: I will ask Bell J to deliver the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by his Honour Judge Shadbolt (the Judge) on 21 November 2003. 3 The applicant adhered to a plea of guilty entered before the Local Court to a charge of robbery in circumstances of aggravation. The offence is provided in s 95(1) of the Crimes Act 1900. The circumstance of aggravation particularised was that the applicant maliciously inflicted actual bodily harm upon the victim. 4 The offence was committed on 17 March 2003. The provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) applied to the sentencing of the applicant. 5 The Judge specified a non parole period of two years to commence on 19 March 2003 and to expire on 18 March 2005. The overall sentence was one of three years' imprisonment. The special circumstance that his Honour identified was the need for the applicant to have a longer than usual period on parole in light of his history of drug addiction. 6 The facts upon which the Judge sentenced the applicant were as follows: "The circumstances of the offence, as set out in the short facts, were that the prisoner approached the victim, walking directly towards her on the footpath of Trafalgar Street in Brighton. When the prisoner drew alongside the woman, Ms Jin Du, 44-years old, he grabbed hold of her handbag and began to pull it from her shoulder. Ms Du became scared by this time and started to pull back against the prisoner, attempting to keep hold of her handbag. As Ms Du tried to keep hold of her handbag, the two moved to a position where they were facing directly towards one another. The action of the prisoner pulling the victim's bag caused her to fall to the concrete pavement while she was still clinging to the bag. She then, of course, let go of it and he ran off in the direction of Bay Street. While this was taking place, police patrolling the Brighton area witnessed the prisoner assault the victim and take her handbag. They followed him as he ran down a laneway towards the Boulevarde, Brighton. The initial police called for assistance and broadcast a description of the prisoner. Police lost sight of him about 50 to 100 metres from his home address, 12/92 Grand Parade, Brighton. More police attended his address and found the front door of his unit locked. No-one answered as they attempted to speak with any occupant. So, the police called on Ms Du's mobile phone, which they knew was inside her bag. Those calls were not answered, although the police could hear ringing from inside the unit. A short time later, the prisoner's girlfriend came out. She refused to allow police to enter and stated that the prisoner was not home, he was at work with his father. She was searched and nothing was located on her. She then left. A further call was made a few minutes later on Ms Du's mobile phone and it was found by that time to have been turned off. Police at the door did not hear any ringing on that second occasion. So, a search warrant was applied for and granted and at 1.10 that afternoon police, in possession of the search warrant, announced who they were and the existence of the warrant before forcing entry into the unit. The prisoner was not there but, upon the execution of that warrant, Ms Du's handbag and a number of documents in her name were located. The mobile phone and a hundred dollars in cash that had been in the bag were not found by police. Also located was a jacket identical to that the police had seen the prisoner wearing as he ran from the scene. They came back on Wednesday, on 19 March 2003, and were allowed entry by his girlfriend on this occasion. This time he was found in the unit and he was arrested and taken to St George Police Station where he was interviewed by way of ERISP. He denied any knowledge of this offence and claimed to have been at work on Monday the 17th. He made a number of conflicting statements in regard to his whereabouts on Monday and Tuesday and denied hiding from the police on Wednesday at the time of his arrest. He claimed to have been at work for a company at Botany, not with his father. Ms Du not only lost her handbag but she also sustained a deep scrape to the right elbow and grazing and bruising to her left arm and a graze to her right palm." 7 The applicant was aged thirty years at the date of sentence. He had a criminal record dating back to a conviction at the age of eighteen years for breaking, entering and stealing. He was dealt with by way of a twelve month recognisance on that occasion. He was convicted of some driving offences during the currency of the recognisance. At the age of twenty years was convicted and fined for the cultivation of a prohibited plant. He was convicted of three counts of goods in custody on two separate occasions when aged in his mid-twenties. He was fined on the first occasion and on the second occasion he was released on an eighteen month recognisance. In January 2001 the applicant was convicted of larceny and placed on a s 9 bond for a period of two years. He was on bail for offences of larceny, possession of a prohibited drug, goods in custody and custody of a knife in a public place at the time of his arrest on the present charge. 8 The applicant gave evidence at the sentence hearing. A report prepared by Doctor Carne, a psychiatrist, was tendered in his case. The Judge referred to the contents of this report in his Remarks on Sentence, observing that the applicant had described his upbringing as strict but that he had denied that he was exposed to violence, abuse or neglect. 9 The applicant had been a successful footballer and had played club football for Botany and with the St George Police Boys Club. He completed year 10 at school and then commenced an apprenticeship in welding. His apprenticeship had been terminated prematurely when the company for which he was working went into liquidation. Thereafter he worked with his father, a fruiterer, at the Flemington Markets. He had been living in a stable relationship over a period of ten years. 10 The Judge noted Doctor Carne's opinion that at the time of the commission of the offence the applicant had been suffering from opiate withdrawal symptoms and that his offence had been an impetuous and thoughtless one. 11 A pre-sentence report recorded the applicant's history of illegal drug use as dating back to his teenage years. The author of the pre-sentence report and Doctor Carne both recorded a history that the applicant's addiction to heroin had commenced in 1997 following the death of a close friend. 12 Doctor Carne considered that the applicant would benefit from attending a residential drug rehabilitation program. The Judge accepted this opinion. He took this factor into account in determining, pursuant to s 44(2) of the Sentencing Procedure Act that there were special circumstances that justified a departure from the statutory proportion between the non-parole period and the balance of the sentence. The allowance made in this respect was a relatively modest one. 13 The Judge referred to the provisions of s 21A of the Sentencing Procedure Act in considering the appropriate sentence for the offence. His Honour noted as aggravating factors: (d) that the applicant had a record of previous convictions; (j) that the offence was committed whilst the applicant was on conditional liberty; and (l) that the victim was vulnerable in that she was a slightly built woman. His Honour noted as mitigating factors: (b) that the offence was not part of a planned or organised criminal activity; (h) that he had good prospects of rehabilitation; (k) that the applicant had pleaded guilty; and (i) that he had shown remorse for his offence. 14 The Judge did not quantify the discount to be given on account of the utilitarian value of the applicant's early plea of guilty. However, his Honour said that he proposed giving "a full discount" for the circumstance. 15 The sentence is challenged upon the ground that it is manifestly excessive. In the way the matter was argued the thrust of counsel's submissions was as to the length of the non-parole period. 16 In written submissions, Mr Toner SC, who appeared on the applicant's behalf, noted that the Judge had not expressed the allowance to be given for any of the mitigating factors to which s 21A(3) refers in percentage terms. He acknowledged that his Honour's remarks were to be taken as indicating that the sentence had been discounted by twenty-five per cent on account of the early plea of guilty. The finding that the applicant had good prospects of rehabilitation was accepted to have been reflected in some degree by the finding of special circumstances. In Mr Toner's submission, the allowance made for factors (b) and (i) was not evident. 17 Mr Toner contended that in sentencing in accordance with s 21A, it is necessary for the judge to make clear the extent to which any of the aggravating factors set out in subs (2) have led to an increase in the sentence that would otherwise have been appropriate and the extent to which the mitigating factors referred to in subs (3) have led to a reduction in the sentence that would otherwise have been appropriate. The need to embark on such an exercise was submitted to flow from a consideration of s 21A(5). I do not agree. Section 21A requires the sentencing judge to take into account the factors set out in subs (2) and (3) in determining the appropriate sentence for the offence. This Court has made it clear that in applying the provisions of s 21A the sentencing judge is not engaged in a mathematical exercise: R v Way [2004] NSWCCA 131 at [151]-[154]; see, too, R v Wickham [2004] NSWCCA 193.

18 There is no complaint that the Judge failed to take into account a relevant mitigating factor contained in subs (3) in this case. To the extent that the applicant complains that it is not clear how the Judge took into account the factors in s 21A(3)(b) and (i) his contention is merely another way of asserting that when proper weight is given to all features of the case the sentence, including the non-parole period, is manifestly excessive. 19 In written submissions counsel also submitted that the offence ought properly be characterised as being at the lower end of the scale for a s 95(1) offence because the injuries sustained by the victim were inflicted recklessly and not intentionally. 20 His Honour approached the assessment of the objective gravity of the offence by taking into account that offences of this type are prevalent and that the offence had been committed with a degree of determination and brutality. In the latter regard, the agreed facts were that the applicant persisted with his assault upon the victim after she had endeavoured to keep hold of her handbag. She was a slightly built woman who fell to the ground in the course of this violent confrontation and who sustained injury thereby. 21 The circumstances that the applicant did not set out to inflict injury upon his victim does not seem to me to necessitate a conclusion that the offence was "very much at the lesser end of the scale" for offences contrary to s 95(1). It was open to the Judge to assess the objective gravity of the offence as he did. 22 In written submissions, counsel drew attention to exchanges between the Judge and the applicant's solicitor and, in particular, to this passage: "GOODRIDGE: It is his first time in custody. HIS HONOUR: That is neither here nor there, that is not in 21." 23 It appears clear that his Honour's reference in this regard was to s 21A of the Sentencing Procedure Act. It is, of course, correct that s 21A does not refer to the circumstance that an offender has not previously been sentenced to a term of imprisonment in the non-exhaustive statement of aggravating and mitigating factors that the court is to take into account in determining the appropriate sentence. This is not to say that the circumstance that a person has not previously been sentenced to serve a term of imprisonment is not relevant to the exercise of the sentencing discretion: Way at [104]. It is a circumstance that may be relevant to the question of whether there are alternatives to a sentence of imprisonment as well as to the length and the structure of any sentence of imprisonment.

24 The Crown acknowledged the exchange to be troubling. However, in its submission it did not evidence error since it was no more than an exchange between the Judge and counsel in the course of submissions: R v Kain [2004] NSWCCA 143 at [56]. His Honour did not refer in his reasons for sentence to the fact that this would be the first time the applicant was to serve a term of imprisonment. This was a relevant matter to be taken into account particularly since the offence called for a sentence of some severity and this was a matter that was capable of bearing on the length of the non-parole period. The introduction of s 21A into the Sentencing Procedure Act in its present form did not operate to make the consideration an irrelevant one.

25 In written submissions the applicant relied on three decisions of this Court: R v Hall (unreported) Court of Criminal Appeal, 28 September 1995; R v Kemsley [2003] NSWCCA 8 August 2003 and R v Maloukis [2002] NSWCCA 155 in support of the contention that the sentence was manifestly excessive. The Crown, in response to those submissions, directed attention to R v Alcazar (unreported), Court of Criminal Appeal, 10 November 1995 and R v Goolagong (unreported), Court of Criminal Appeal, 28 September 1994. 26 Some of the cases to which reference was made related to offences under s 94 of the Crimes Act. Such offences carry a statutory maximum of fourteen years and sentences with respect to them are of limited assistance in determining a challenge that a sentence for an aggravated robbery under s 95(1) is manifestly excessive. Two of the cases on which the applicant relied were Crown appeals and for that reason are of very little assistance in deciding whether the challenged sentence falls outside the range of discretion. 27 The maximum penalty for this offence is imprisonment for a term of twenty years. Against this maximum, the Judge's starting point of four years' imprisonment (prior to the discount for the early plea of guilty) does not to my mind fall outside the upper limit of the exercise of sound discretion.

28 On the hearing of the appeal Mr Toner advanced his challenge by noting that the Judge pronounced sentence by reference to the provisions of the Sentencing Procedure Act as it stood prior to the amendments introduced by the Crimes Legislation Further Amendment Act 2003. His Honour said: "The prisoner is sentenced to be imprisoned for three years as a total sentence and a non-parole period of two years." 29 It does appear that the Judge did not follow the requirements of the Sentencing Procedure Act as it applied at the date the applicant stood for sentence. It was necessary for him, pursuant to s 44(1) to set a non-parole period for the sentence and then to set the balance of the term of the sentence. One relevant consideration to take into account in this respect was the circumstance that this applicant had not previously served a term of imprisonment. Further, having regard to the overall length of the sentence, it was necessary for his Honour to direct the applicant's release on parole. This was not done. The failure to sentence in accordance with the provisions of s 44 of the Act is an error. 30 I am persuaded that the Court should intervene with respect to the determination of the non-parole period. I am of the view that there are special circumstances arising out of the need for the applicant to have a longer than usual period on supervised parole so that he may receive on going counselling and treatment with respect to his addiction to drugs and taking into account that this will be his first term of imprisonment.

31 For these reasons, the orders that I propose are:

2. Quash the sentence imposed in the District Court. In lieu thereof, sentence the applicant to a non-parole period of eighteen months to commence on 19 March 2003 and to expire on 18 September 2004. Specify the balance of the term of the sentence to be eighteen months, thereby making a total sentence of three years' imprisonment that will commence on 19 March 2003 and expire on 18 March 2006.

3. Direct the applicant's release on parole at the expiration of the non-parole period subject to the standard conditions, including that the applicant comply with any reasonable direction of the Probation and Parole Service with respect to drug treatment. 32 WOOD CJ at CL: I agree. 33 HULME J: I also agree. 34 WOOD CJ at CL: The orders of the Court will, therefore, be as proposed by Bell J.

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