REGINA v MORGAN PAUL KAIN

Court of Criminal Appeal (NSW)|2004-05-04|Before: McColl JA, Levine J, Hidden J, Coll JA

CITATION : REGINA v MORGAN PAUL KAIN [2004] NSWCCA 143 HEARING DATE(S) : 4 May 2004 JUDGMENT DATE : 12 May 2004

JUDGMENT OF : McColl JA at 1; Levine J at 2; Hidden J at 84 DECISION : 1 Leave to appeal against sentence granted.; 2. Appeal dismissed.

CATCHWORDS : Criminal law - two trials - aggravated armed robbery with dangerous weapon - replica firearm - Sch 1 Weapons Prohibition Act 1998 - protective custody - likelihood thereof - relevant factors LEGISLATION CITED : Sch 1 Weapons Prohibition Act 1998 Erceg v the District Court of New South Wales & Anor; Virgin v the District Court of New South Wales & Anor [2003] NSWCA 379 Neal v The Queen (1982) 149 CLR 305 Regina v Durocher-Yvon [2003] NSWCCA 299 Regina v Hooper, [2004] NSWCCA 10 CASES CITED : Regina v Mostyn [2004] NSWCCA 97 Regina v Qutami (2001) 127 A Crim R 369 Regina v Scott [2003] NSWCCA 28 Regina v Totten [2003] NSWCCA 207 Siganto v The Queen (1998) 194 CLR 656 REGINA (Respondent)

MORGAN PAUL KAIN (Applicant) FILE NUMBER(S) : CCA 60492 of 2003 L Lamprati (Respondent) COUNSEL : M Ramage QC (Applicant) S Kavanagh (Respondent) SOLICITORS : S E O'Connor (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3047 FILE NUMBER(S) : LOWER COURT Latham DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60492 of 2003

McCOLL JA LEVINE J HIDDEN J

Wednesday 12 May 2004 REGINA v MORGAN PAUL KAIN Judgment 1 McCOLL JA: I agree with Levine J. 2 LEVINE J: The applicant seeks leave to appeal against sentences imposed upon him by her Honour Judge Latham in the District Court on 30 May 2003. 3 The applicant stood two trials in late 2002 and was found guilty on all four counts as follows:

(a) Trial 1: Steal motor vehicle at Parramatta (s154A Crimes A ct 1900) and aggravated armed robbery armed with a dangerous weapon, viz a handgun, at Picton (s97(2) Crimes Act 1900) on 21 December 2000; and

(b) Trial 2: Steal motor vehicle at Carlingford (s154A Crimes A ct 1900) on 5 December 2000 and aggravated armed robbery armed with a dangerous weapon, viz a handgun, at Warrawong (s97(2) Crimes Act 1900) on 6 December 2000. 4 Further, the applicant asked her Honour to account on a Form 1 a further matter of aggravated armed robbery armed with a dangerous weapon, viz a handgun, at Kingscliff, on 27 December 2000. 5 Her Honour sentenced the applicant to a total effective term of imprisonment of 12 years with a non-parole period of 8 years. 6 With respect to each of the steal motor vehicle offences the applicant was sentenced to a term of imprisonment of 3 years to commence on 30 May 2001. In respect of the Picton armed robbery in relation to which the matter on the Form 1 was taken into account, the applicant was sentenced to a term of 10 years imprisonment to commence on 30 May 2003 with a non-parole period of 6 years. In relation to the armed robbery at Warrawong the applicant was sentenced to a term of 7 years to commence on 30 May 2001 with a non-parole period of 5 years. The sentences for the motor vehicle offences and the Warrawong armed robbery were made concurrent with one another. The sentence for the Picton armed robbery, which included the Form 1 matter was partially accumulated by 2 years. 7 The applicant was on bail for alleged break enter and steal matters charged on 19 January 2000 when he committed each of the charged offences and the matter on Form 1. 8 The applicant received the benefit of a backdate of the sentences sought to be appealed from to his arrest date of 30 May 2001 despite serving the majority of a 16 month term for the earlier offence of break enter and steal during the time he was on remand for the present matters. The end result is that the applicant received a credit of almost 9 months in custody that were attributable to the non-parole period of the earlier break enter and steal conviction. 9 The facts of the matters concerned in trial 1 are set out in her Honour's remarks on sentence as follows: "On 21 December 2000, a Holden Commodore was stolen from a Parramatta car park shortly after 12.45 pm. At approximately 2.45pm, the [applicant] and Mr McKeon entered the Westpac bank at Picton wearing black balaclavas. McKeon was armed with a hand gun and the prisoner carried a long screwdriver. The [applicant] jumped the counter and removed cash from a number of drawers while McKeon revealed the hand gun to staff saying, "This is a hold-up, I want all your notes." After obtaining the cash both men left the bank and were seen to enter the stolen Holden Commodore which was parked behind the bank. The proceeds of the robbery were $9,965".

The facts of the trial 2 matters are set out in her Honour's remarks on sentence as follows: "…[O]n the morning of 5 December 2000 a Ford Falcon was stolen from a staff car park at Woolworths Carlingford. At approximately 3.30pm on 6 December 2000, the [applicant] in company with his co-offender Glen Peter McKeon entered a shopping centre at Warrawong. The [applicant] remained outside as a lookout whilst the co-offender entered the City Coast Credit Union armed with a hand gun. The co-offender brandished the weapon at the staff saying, "This is a robbery, I have got a gun" and threw a plastic bag on the counter which the tellers filled with available cash. The co-offender and the [applicant] made their escape from the shopping centre in the stolen Ford Falcon. The proceeds of that robbery were $7,639". 10 As to the matter on the Form 1, her Honour summarised the facts as follows: "On 27 December 2000, the [applicant] and his co-offender McKeon entered the Summerland Credit Union at Kingscliff at about 3.30pm. The [applicant] was armed with a long screwdriver and again jumped the counter whilst the co-offender stood at the counter and announced, "This is a robbery, no-one will get hurt, we just [want] the money". The co-offender then referred to a pistol concealed on his person. After the [applicant] had obtained cash from the drawers both men left the bank with the proceeds including a bank bag taken from a bank customer. The total proceeds from that offence being the offence on the form 1 were $5,551". 11 The total proceeds from the robberies was $23,155. 12 As parity has been raised as an issue in the appeal the following matters should be noted. The co-offender Glen Peter McKeon was sentenced by her Honour on 20 June 2003 on a number of aggravated armed robberies in addition to the matters for which the applicant stood trial and the matter on the Form 1. For the aggravated armed robbery at Warrawong on 6 December 2000 he received a term of imprisonment of 8 years to commence on 17 September 2001 and to expire on 16 September 2009, with a non-parole period of 5 years to commence on 17 September 2001 and to expire on 16 September 2006. For the steal motor vehicle offence linked with that armed robbery, he was sentenced to a term of imprisonment of 2 years wholly concurrent, to commence on 17 September 2001. In respect of the aggravated armed robbery at Picton on 21 December 2000, he was sentenced to a term of imprisonment of 10 years to commence on 17 September 2001 and to expire on 16 September 2011 with a non-parole period of 6 years to date from 17 September 2001 and to expire on 16 September 2007. The steal motor vehicle offence associated with that crime received a term of imprisonment of 3 years to date from 17 September 2001 and to expire on 16 September 2004. On the aggravated armed robbery at Kingscliff on 27 December 2000 (the matter on the Form 1 in the applicant's case), he was sentenced to a term of imprisonment of 10 years to date from 17 September 2007 and to expire on 16 September 2017, with a non-parole period of 6 years to date from 17 September 2007 and to expire on 16 September 2013. 13 With the accumulation of other offences, however, the co-offender was sentenced to an effective head sentence of 24 years imprisonment with a non-parole period of 15 years. 14 With respect to the Kingscliff aggravated robbery, Nathan Kain (the applicant's brother) pleaded guilty to the offences and was sentenced by his Honour Judge Ducker on 12 June 2002 to a term of imprisonment of 3 years and 6 months to date from 18 July 2001 and to expire on 17 January 2005, with a non-parole period of 2 years and 3 months to date from 18 July 2001 and to expire on 17 October 2003. It appears that his Honour sentenced Nathan Kain on the same day for another bank robbery to a term of imprisonment of 5 years with a non-parole period of 2 years and 6 months, to commence at the expiry of the non-parole period for the Kingscliff robbery sentences. 15 Seven grounds of appeal have been notified. It is appropriate to deal with the first and second together, namely that the sentence was unduly harsh and severe and secondly, that the sentencing judge erred in failing to sufficiently take into account the objective role of the applicant. 16 In relation to the first ground it is essentially submitted for the applicant that whilst it was appropriate for her Honour partially to accumulate the sentences, she commenced with sentences that were "too high", and failed to make the sentences actually imposed sufficiently concurrent. With respect to the sentences imposed for the motor vehicle offences, the fixed term of 3 years was said to have been excessive in the circumstances and, in turn, "must have influenced the other sentences". The maximum penalty for that offence is 5 years. It is acknowledged that there was no doubt that the motor vehicles were stolen and later used by the applicant and his co-accused to go to and from the scenes of the robberies. There was no evidence, however, of the identity of the person who stole the vehicles. The applicant, so it is submitted, and the co-accused, were each convicted on the basis that they had knowingly travelled in a stolen vehicle and it is thus submitted that it could not be said that the theft of the vehicles "by whom ever it was done" indicated a high level of planning. 17 Whilst I am prepared to acknowledge that a fixed term of 3 years for the offence under s154A of the Crimes Act in relation to the motor vehicle, viewed in isolation, could be characterised as certainly high, I am not persuaded that it was "excessive", and further I am unpersuaded as to it having any influence on the quantum or structure of the sentences ultimately imposed by her Honour. The use by the applicant and the co-offender of the vehicle was a critical component, and indeed an essential component, of the planning: getting to and getting away from the scene of the crime. It was indicative of a substantial level of planning and was properly taken into account by her Honour. 18 As to ground 2, a further relevant consideration is said to be that the whole period of criminality occupied approximately one month. True it is that the relevant offences occurred over a period of one month. I do not see how her Honour ignored or otherwise failed properly to take that matter into account. It was open to her merely to take note that within so short a period three discrete, planned, armed robberies in which the applicant participated, took place. 19 It was suggested, further, that her Honour whilst recognising that the offender was to be sentenced for his actual role in the robberies, rejected as irrelevant, precisely, so it is said, what the evidence indicated that the applicant had, in fact, done. Her Honour should have taken into account in the applicant's favour that at the Picton robbery he did not threaten anyone but used the screwdriver to open a metal box; at the Warrawong robbery he did not enter the Credit Union at any stage; his presence did not intimidate anyone. Further, at the Kingscliff robbery he did not threaten anybody but used the screwdriver to open drawers. 20 Counsel for the applicant provided the Court with the transcript of the testimony given by the eyewitnesses at the Picton robbery. That testimony, as indicated by counsel, disclosed nothing more than this applicant's use of the screwdriver to break open drawers to get to money in an environment, it must be added, where his co-offender made it perfectly clear that he was in control and armed. 21 As to the Kingscliff robbery, the facts statement again indicates that the applicant used the screwdriver to open the drawers. At the Warrawong robbery he was described as no more than acting as the "cocky" or "cockatoo" - the lookout. 22 In her remarks on sentence her Honour said that it was trite to observe that the objective gravity of the offences was of a high order (ROS p 4). Her Honour further said that she regarded the submissions for the prisoner to the effect that he was not the offender brandishing the weapon "as of little moment". Her Honour went on to say, "[t]hese were joint criminal enterprises which were presented by the Crown as such. The prisoner is liable for acts committed by his co-offender in that regard, albeit he stands to be sentenced for his role in those offences". As is clear, the role of each participant for the purposes of the establishment of the joint criminal liability is one thing; the role of each for the purposes of sentencing upon conviction on the basis of joint criminal responsibility is another. It does not follow from that, in my view, in the circumstances of each of the robberies with which her Honour was concerned, that the distinctions which the applicant sought to have drawn would involve any different sentence. These robberies "went according to plan" - save for, of course, the participants ultimately being arrested, charged, convicted and sentenced. None of them represents a situation which "got out of hand" by reason, for example, of one of the participants going on a frolic of violence on his own for which a co-offender might not be liable at law at all, or would certainly be amenable to distinguishing roles for the purposes of sentencing. 23 I am of the view that her Honour's statement set out in the preceding paragraph was appropriate and correct.

24 Another relevant factor to be taken into account in considering the merits of the applicant's submissions in relation to grounds 1 and 2 is of course that the applicant was on bail at the time of the commission of the offences and that the outcome of the structuring of the offences provided him with a windfall. The last mentioned aspect, the "windfall", was constituted by the sentences being backdated to cover the 9-month non-parole period that the applicant was serving for a totally unrelated offence. 25 The applicant did not argue that it was not open to her Honour either to accumulate or partly accumulate the sentences imposed to reflect the total criminality. 26 The maximum sentence available for the robberies was 25 years and the facts her Honour found, in my view, were correctly characterised by her to the effect that each was a very serious breach of the criminal law. 27 I am of the view that the structuring of the sentences with the partial accumulation was appropriate, giving rise to no undue severity, given that the sentences imposed in relation to the motor vehicle offences were concurrent and they themselves were concurrent with the armed robbery offences (save as to the partial accumulation referred to). As I am of the view that her Honour did not incorrectly characterise the role of the applicant I can perceive no error at all in the way her Honour approached the imposition of partly cumulated sentences to reflect the totality of the criminality which represented very serious breaches of the law. 28 Grounds 1 and 2 have not been made out. 29 The third ground is that the sentencing judge erred in determining that the question of whether the pistols used by the co-accused were real or replica was irrelevant. 30 What her Honour said was: "Some submissions were made to the effect that the dangerous weapons involved in the commission of these offences were in fact replica pistols. I do not find it necessary to resolve that issue. In the course of each well planned and efficiently executed robbery, the occupants of a bank and two credit unions, predominantly staffed by women, were terrorised by two men. It is facile to engage in a discourse about the extent of the trauma inflicted on the victims depending on whether the distinction between real and replica pistol was appreciated by them at the time ". (emphasis added) 31 During the course of submissions (T22.25 9/5/03) a concession was made by counsel for the applicant on sentence to the very effect of her Honour's remarks on sentence. 32 The Crown conceded that the weapon used in the Form 1 matter was a replica pistol: for the purposes of this point it seems to me that its outcome would not be affected by a view that in each of the three robberies the pistol was a replica. 33 In any event, a replica pistol by the operation of s4 Crimes Act 1900 and Sch 1 Weapons Prohibition Act 1998 is a dangerous weapon and a prohibited weapon. 34 Her Honour's approach to this component was correct. 35 The third ground of appeal is without merit in my view. 36 The fourth ground of appeal is that the sentencing judge erred in taking into account the conduct of the trial and excluding remorse. 37 It is submitted that in giving evidence the applicant acknowledged his responsibility for the robberies at Warrawong, Picton and Kingscliff. Tendered before her Honour as exhibit 1 was the psychologist's report dated 7 May 2003 prepared by Ms Kathryn Barrier. In that report under the heading "OFFENCES", the following appears: "Morgan stated he did not wish to discuss the offences currently before the Court. He maintains his pleas of not guilty in relation to the Armed Robbery offences of 6/12 and 21/12/2000. As noted above, it is my understanding that he is intending to plead guilty to one count of Armed Robbery which will be dealt with under a schedule".

It is to be noted that this report was prepared following an interview at the MRRC on 26 April 2003, which was before the sentencing proceedings before her Honour. 38 During the course of the sentencing proceedings before Judge Latham the applicant gave the following oral evidence (T 6-7): "Q Mr Kain I've just tendered a psychologist report under the hand of the two psychologists that I read out. In relation to that report there's a couple of matters I wanted to ask you about, and you'll recall that I've spoken to you about them. The offences for which you are being sentenced today are robbery that occurred on 6 December 2000 and a further robbery that occurred on 21 December 2000 that were both matters that went to trial you'll recall last year. A Yep. Q The jury on both occasions returned a verdict of guilty in relation to those two matters, you recall that? A Yes. Q In the report it indicates that the interpretation if I could put it that way of the psychologist was that you were maintaining your innocence as it were in relation to those two matters. Is it the case that in fact that's a misinterpretation of what you said to the psychologists, that in fact you accept responsibility in relation to your actions as found by the jury in relation to both the matters on 2 December 2000 and 12 December 2000? A That's correct. Q Furthermore the other matter that is on the Form 1 at Kingscliff, the robbery that occurred involving Mr McKeon and your brother Nathan Kain, you furthermore accept your responsibility and ask her Honour to take that into account in relation to the sentence proceedings, is that right? A Yep, that's correct".

Further, at T10-11 the applicant gave the following testimony: "Q In relation to the actual offences, in particular the two matters for which you went to trial, is it your understanding or tell her Honour in relation to the weapon that Mr McKeon was holding or had [in] his possession when he went into the bank on both occasions, you've heard me refer to her Honour about whether it was a real gun or a replica pistol. Is it the fact that or tell her Honour what was it that you understood he had? A It was definitely a replica pistol, you couldn't fire - fire anything like that. To me it was a toy that was my interpretation of it. Q But you appreciate no doubt the fear irrespective of whether it was a toy or real gun, the fear that must have placed the bank tellers and any other civilians that were there the fear that must have placed them in as a result of Mr McKeon taking that into the banks. Do you understand that? A Yeah, I understand what you're saying. Q What to you say to her Honour about how do you feel upon reflection about the people who were in the banks on those two or three occasions, what do you say to her Honour about how you feel about what you've done in terms of the anxiety and fear that you've caused them? A I'd probably ask her Honour to have look just at my prior record to see that I never had any violence or any violent nature crimes or I suppose I got mixed up in something that I shouldn't have got mixed up in. Q Just stopping you there momentarily, Morgan, what I'm asking you about is the people in the [bank], not about your self and about your own past, I understand that's relevant factor that we've got to deal with. I'm asking you, you've gone into a bank and there's been innocent people in the those banks, credit unions, that have been put in substantial fear as a result of both yourself and Mr McKeon going in there. What do you say to their families and them? A I probably didn't realise how much of an effect it was and I suppose until the trials were under way but I realise now that doesn't matter what it is I suppose the fear's still there. You can still hurt people no matter what it is. Q Do you feel sorry for what you've caused them? A Of course I do". 39 In her remarks on sentence (p 6) her Honour said: "In the course of his evidence before me, the prisoner indicated, whatever the impression conveyed by the author of that report, that the prisoner does not maintain his innocence in respect of these offences and accepts responsibility for them. However, much of what the report reveals has considerable bearing upon the prisoner's prospect of rehabilitation. I regard those prospects as doubtful, in view of the fact that the prisoner did not impress me, either by his past behaviour or by his evidence in the course of sentencing proceedings, that he entertains a real desire and conviction that he is able to undertake rehabilitation such as to prevent a relapse into offending behaviour..." 40 Later her Honour said (ROS 7): "Whilst the prisoner, as I said, now accepts responsibility for these offences I was unable to detect any real remorse in relation to these offences. Indeed, they were strongly contested at trial, involving the cross-examination of a number of witnesses and victims of these offences. In those circumstances it is difficult to regard the prisoner's remorse as anything but negligible". 41 It is submitted that her Honour erred in taking into account the conduct of the trial (Siganto v The Queen (1998) 194 CLR 656 at [30] per Gaudron J) and in "apparently" reasoning that a plea of not guilty excluded remorse. The Court was referred, in the latter context to Neal v The Queen (1982) 149 CLR 305 and what Murphy J said at 315 in relation to "apology". With respect, little assistance can be gained from his Honour's statement for present purposes. 42 The applicant did not give evidence at his trial. The only issue was identification. 43 I disagree with what is submitted for the applicant as to the characterisation of what her Honour did in the course of sentencing. Her Honour was entitled to form an opinion as to whether the words spoken by the applicant in the sentencing proceedings and his stated remorse were genuine. Her Honour was entitled, as she had observed the applicant in the sentencing proceedings, to form an opinion herself about him for the purpose of sentencing as to the genuineness of the remorse that he asserted in the sentencing proceedings (cf Regina v Hooper, [2004] NSWCCA 10, at paragraph [49]; see also Regina v Qutami (2001) 127 A Crim R 369). It is apparent to me that her Honour was emphasising what she had read about and heard from the applicant in the sentencing hearing. Only then was she able to judge the applicant not least because it was then that he gave evidence. Her reference to the trial must be viewed in that context and does not reflect a Siganto error. 44 I am persuaded that her Honour came to a finding that was open to her and one which she was required to reach in the exercise of her sentencing discretion. In no way was she in error in concluding that remorse was available as a mitigating factor, "negligibly". 45 Ground 4 has not been made out. 46 Ground 5 is that the sentencing Judge erred in rejecting as irrelevant the fact that the applicant had been and was likely to serve his sentence in protective custody. 47 The evidence that the applicant gave on sentence (T12-13, 9/5/2003) was as follows: "Q You are presently, as I understand it, in protective custody in jail, is that right? A Yep. Q How does that affect your time in prison in terms that as I understand it you don't have the same access to exercise yards, welfare people, this type of thing, how long do you spend in a cell per day? A Between 22 and 23 hours per day. Q Right, so you only have one hour to two hours out of your cell - - A Probably two. HER HONOUR: Q Why are you in protective custody, why? A Just within the prison system. Q Yes but what was the reason for putting you in protective custody? A Just couldn't survive in the normal mainstream. Q Was that something that you - - A Do you want to know the actual reason or - - Q Was that something you requested or was that action that was taken independently- - A Just fights with rival like aboriginal gangs, things like that. Q But was that something you requested or was it something that happened independently of anything that you did? Did you go to the authorities and say I need protection or was it something that they did independently? A No they did it. Q They did it? A Yep. Q And was that because you were - - A There was a fight in the yard. Q - -fighting in the general jail population? A Yep. MORRISON: Q Just clarifying that, when you say that her Honour was indicating that you were fighting with the general jail population, what caused it? A I wasn't fighting but I got hit on the back of the head, this was like a fair while ago, it's got nothing to do right now. Q You were attacked is that right? A Yep. Q Is that why you were put in protection? A Yep. I wasn't actually fighting myself but I was just - - HER HONOUR: Q How long ago did that happen? A '95. Q In '95? A Yep. Q And you're still in protection? A Once you've been in there you can't go back out, once they see your face that's it, you have to stay". 48 It is necessary to relate events that have occurred since the imposition of the sentences in the context of this ground. Upon the applicant notifying this ground of appeal, on 12 April 2004, the respondent Crown filed an affidavit of Faith Mary Slatcher, Senior Assistant Superintendent of the Lithgow Correctional Centre. Ms Slatcher deposes to the applicant "throughout his present period in custody since 2001" as having been a "Special Management Area Protection ("SMAP") inmate at his own request". She explains that SMAP status is not the same as "Limited or Non-Association Protection". She gives details as to the Lithgow Correctional Centre SMAP arrangements, referring to a wing allocated to SMAP holding 60 inmates. The applicant is a sweeper and is able to mix with all 60 inmates. She says that all program services at Lithgow Correctional Centre are available to SMAP inmates. The SMAP wing has equal access as the mainstream prisoner units, that is, twice per week, to the oval and they have the same courses available from educational services. Within the wing a room is utilised for education and various groups such as alcohol and other drug counselling, and visiting rights are the same for SMAP inmates as mainstream inmates. The applicant, at the time of swearing the affidavit, is described as being classified as A2 (maximum security). The applicant's SMAP status is said to have no bearing on his ability to progress through the security classification levels, such progression being based solely on behaviour, compliance with routine and the applicant's willingness to complete programs and address their "criminogenic" needs. The records disclose no threats or reports filed from other prisoners against the applicant. The deponent informs as to the applicant having attained requirements for a number of educational courses including computing, occupational health and the like. Ms Slatcher also deposes to the various areas of employment in which the applicant has been engaged in the period covered by her affidavit, a wing sweeper and the unit barber. The applicant is let out at mealtimes to distribute meals to cell doors and also to run some items between cells. When all other inmates are locked out of the unit between 9am and 10.30am the sweepers are left in the unit and have access to their cells, the day room and the telephone. The applicant's security classification is due for review in June 2004 and at present he is eligible for a medium security status. It is to be noted that Ms Slatcher's affidavit is to be understood as covering a period both before and since sentencing. 49 On 30 April 2004 the applicant filed a lengthy affidavit which to some extent corroborates what Ms Slatcher says as to SMAP, but contains a statement by the applicant that he is not aware of any difference between SMAP and protection. He goes on to assert that if he leaves protection he would be threatened and would be in real danger of assault and injuries. He in effect repeats what he said in evidence before her Honour, that once you are in protection it is difficult to get out; you will always be recognised as a person who has been on protection, assumptions are made as to the reason therefor and the risks exist. The applicant goes on to assert his belief that he would still be in danger from the same group who assaulted him in 1995, who are said still to be in jail though there is no indication that they are at Lithgow. He gives a history of having signed himself out of protection but with limited benefit apparently, certainly in 2000 at Silverwater where he was confronted, as I understand what he says, with a group of Aborigines with whom he did not feel he would be safe. 50 He goes on to give his understanding of SMAP, which does not quite coincide with that of Ms Slatcher in terms, for example, of visiting rights. The SMAP section is divided into two, and he says that there is some mixing at the oval, in education and in work, but generally the two halves do not mix. His affidavit goes on to declare as to matters covered by Ms Slatcher's, but in a tone and narrative more advantageous to himself in the sense that the picture he paints is somewhat darker. 51 On 30 April 2004 the applicant's solicitor filed an affidavit to which was annexed material obtained pursuant to the Freedom of Information Act 1989, being a copy of the Department of Corrective Services case file relating to the applicant. The application under the FOI Act was made on 14 August 2003, that is, after the sentences had been imposed. The documents annexed point to an incident which occurred on 15 September 1995 in which, amongst other things, the prisoner (as he then was) had been hit by a bat. The blanks in the FOI document make it uncertain as to whether the result of the incident was that both the applicant and his attacker, or 2 other people, were housed "at risk". What the first document does disclose is that 7 years prior to the incident, namely in 1988, at a boy's home, the applicant had foiled another prisoner's attempt to escape. The suggestion seems to be being made that he felt he was safe on the basis that no-one would remember what happened, but that the 1995 incident proved him wrong. 52 The material obtained pursuant to the request made on 14 August 2003 contains medical information corroborative of the fact of the assault on the applicant. On 11 November 1998 he applied to sign off protection to go to Silverwater. There is a report of an interview on 20 January 2000 by a Mr Fester to the Operations Manager of MRRC Silverwater, which certainly confirms that there exists a "stigma attached to being on protection" in the opinion of Mr Fester, and also the continuing apprehension in the applicant that he is vulnerable in the presence of Aboriginal inmates. As at 22 January 2000 there is an application (which is barely legible) to stay on protection in respect of which, as I understand it, the report of Mr Fester was generated. There is another application that he sign on protection which was approved on 29 September 2000, the application having been made the previous day. 53 On 30 April 2004 the applicant's solicitor affirmed an affidavit in the usual form to which are appended certificates of achievement, participation and attainment in the usual way. This last mentioned affidavit was received on "the usual basis", that if error is found and the Court proposes to intervene and re-sentence, then the material therein is to be taken into account. It, however, in my view, provides material to be juxtaposed to the contents of the other affidavits. 54 It is to be noted that apparently agreement was reached between the Crown and the applicant that neither Ms Slatcher not the applicant would be cross-examined on the affidavit each had sworn or affirmed. 55 As the applicant in his written submissions remarks, there was discussion between her Honour and counsel during the course of submissions on sentence. With respect to that discussion, recorded at pages 26-29, the only point being made by her Honour, it seems to me, was that there was no evidence before her that any sentence would be served in protection. 56 Whether error was made is determined by considering the evidence and the remarks on sentence. There is little practical utility in considering the to-ing and fro-ing between the Bench and counsel during the course of submissions on sentence (cf Erceg v the District Court of New South Wales & Anor; Virgin v the District Court of New South Wales & Anor [2003] NSWCA 379). In any event, it is clear when one reads the material that her Honour was stressing, again and again, that she simply did not have any material pointing to the circumstances in which the sentence she was to impose would be served. In other words, there was no material to persuade her on the probabilities that the mitigating factor of the sentence to be served on protection had been established. 57 I would interpolate that her Honour could be forgiven, taking into account her Honour's extensive experience in the practice of the criminal law and the administration of criminal justice, and indeed taking into account the experience of this Court, for saying (T26 9/5/03): "See I'm beginning to wonder whether there's anyone in the jail population who's not in protective custody… Everybody is miraculously in protective custody…" 58 In her remarks on sentence her Honour said (at 6-7): "The prisoner also indicated in the course of giving evidence before me that he has been in protective custody and that that protective custody has largely if not wholly been the result of past conflict within the general prison population, specifically between the prisoner and Aboriginal prisoners. There was no evidence before me to the effect that he would be serving his sentence in protective custody and I do not regard that as a factor which would warrant the reduction of the non-parole period below that which I intend to impose". 59 The evidence in relation to the issue of protective custody went back to some "fights with rival aboriginal gangs" in 1995, now known to be founded on events in 1988. 60 The question of mitigation of sentence on the basis of protective custody is raised yet again in this appeal by reason of the material to which I have referred. It has become a subject that might be described as "vexing" in the light of frequent and recent authorities dealing with the matter: Regina v Kevin James Scott [2003] NSWCCA 28 (28 February 2003) Bell J; Regina v Totten [2003] NSWCCA 207 (14 August 2003) James J; Regina v Durocher-Yvon [2003] NSWCCA 299 (21 October 2003) Howie J; and most recently Regina v Mostyn [2004] NSWCCA 97 (16 April 2004) Howie J. 61 It is desirable to cite certain pertinent passages from this series of cases. Totten was a case involving a child sexual assault offender. James J, with whom Sheller JA and O'Keefe J agreed, said: "[43] There are difficulties in a sentencing judge taking into account a circumstance that part or all of a sentence of imprisonment is likely to be served in some form of protective custody. Taking such a circumstance into account involves the sentencing judge in making a prediction about how the offender will be dealt with in the Correctional system. The sentencing judge's prediction may not be fulfilled. Furthermore, as Bell J pointed out in her judgment in Scott, there are within the Correctional system not just one form of protective custody with fixed conditions of custody but a number of different kinds of protective custody, the conditions of which vary considerably in the extent to which they depart from the conditions of custody to which prisoners in the general prison population are subject. Not all forms of protective custody involve the serious disadvantages referred to by Hunt J in Burchell , such as being obliged to serve the sentence under heavy protective guard and in isolation, even from other inmates on protection. In some forms of custody which are described as protective custody the prisoner is kept in a Correctional Centre or an area of a Correctional Centre in which the other inmates are prisoners who have been sentenced for similar offences and the prisoner is able to mix freely with those other inmates and to have access to programmes conducted by the Department of Correctional Services. I would agree with what Bell J said in par 34 of her judgment in Scott that:- "It is appropriate for a sentencing court to take into account the circumstance that a sexual offender may spend his custody in conditions subject to some form of 'protection' status. Evidence as to the likely conditions of custody is important if the Court is to make an informed assessment of the extent to which the offender's custody will be more onerous than that of prisoners housed in the general prison population. The concerns of which Hunt J spoke in Burchell would seem to be significantly lessened for sexual offenders who are placed in special facilities such as the MSPC…". [44] Notwithstanding the difficulties in a sentencing judge taking into account, especially without the benefit of evidence, a circumstance that part or all of any sentence of imprisonment imposed is likely to be served in some form of protective custody, I consider that it is a well entrenched principle that it is a circumstance that a sentencing judge should take into account, in favour of the prisoner, both in determining the length of the sentence to be imposed and in determining whether there are special circumstances. That a sentencing judge may not have expressly referred to this circumstance in his or her remarks on sentence should not necessarily give rise to an inference that he or she has failed to take the circumstance into account. What weight the circumstance should be given will depend very much on all the circumstances of the particular case" . 62 In Durocher-Yvon Howie J said: "[18] In my opinion the Court should refuse to intervene to alter the sentence imposed by Judge Nield. This Court does not supervise sentences once they have been imposed and it would be a rare case where it would reduce a sentence because of circumstances arising after the offender commenced to serve the sentence. In particular, the fact that an offender may have to serve a sentence under more onerous conditions than were apparent at the time of sentence will not necessarily require this Court to interfere with a sentence that was otherwise unimpeachable. Although the applicant relied upon the decision of this Court in R v Ingram [2002] NSWCCA 398 there is nothing in that case which offers support to the present application. That was a case in which the Court found error in the exercise of the sentencing judge's discretion. Although the Court would not otherwise have intervened to correct the error, it did so because some other sentence should have been imposed given the evidence then before the Court as to the applicant's custodial situation. It was simply a case where the Court resentenced the applicant based upon material then before it. [19] Further, the fact that an offender is to serve his sentence on protection will not necessarily result in a shorter head sentence or a finding of special circumstances. In R v Wahabzadah [2001] NSWCCA 253, in a case involving protective custody for a first time offender, with the concurrence of Wood CJ at CL, I stated:

Although the fact that the applicant had placed himself into protective custody in the gaol was a matter relevant to the question of special circumstances, it was not decisive. It will not always require the sentencing judge to find special circumstances justifying a reduction in the non-parole period. Much will depend upon the particular circumstances such as the reasons for the prisoner being in protection, the prospects of his remaining in protection throughout the sentence and the actual effect that it has upon the prisoner and his prospects of reform. What weight such a factor will have will also depend upon the objective seriousness of the offence for which the sentence is passed and the extent to which other factors such as general and specific deterrence must be reflected in the non-parole period. [20] Although the question in that case was concerned with whether there should have been a finding of special circumstances, the same considerations seem to me to apply to the question of whether the head sentence should be reduced. Generally speaking, the fact that an offender is to serve a sentence under more harsh or restrictive conditions is relevant to an assessment of the sentence as a whole rather than the length of the non-parole period; R v MacDonnell [2002] NSWCCA 34. In R v S [2000] NSWCCA 13 sentencing judges were cautioned against applying such a discount twice in reducing both the head sentence and then the non-parole period. Once that matter has been taken into account in determining the length of the sentence to be served, it may have no further role to play in determining whether special circumstances exist unless by itself or in combination with other factors it points to a need to further reduce the minimum term of imprisonment to be served by the particular offender; see for example R v GP [2001] NSWCCA 231". 63 After citing the passages referred to in Totten, Howie J said: "[22] In the present case the protective custody is not due to the nature of the offence for which the sentence is being served, or because the applicant gave assistance to the authorities or for some other reason that is related to the sentence imposed by Judge Nield. There will be any number of reasons why a prisoner may choose to seek protection during the course of serving a sentence and it is not a matter that must always result in a reduction of the sentence that would otherwise be appropriate" . (emphasis added)

His Honour went on to say: "[24] But in other cases, especially where the offender has sought protection, there may have to be closer scrutiny given to just what effect that factor should have on the sentence to be imposed having regard to the seriousness of the offence, the purposes of punishment and the nature of the conditions of custody which the offender may have to bear by reason of his or her protected status . There are undoubtedly other cases like the present where there might be good reason to doubt that a significant discount would be justified". ( emphasis added) 64 The last paragraph, with respect, is of particular significance in the instant appeal in my view especially where his Honour refers to the requirement of close scrutiny to the effect the factor should have on sentence having regard to the matters to which his Honour refers. I would add that there might be cases where there might be good reason to doubt that any discount would be justified. 65 Finally, in Mostyn Howie J said: "[179] The material raises once again the issue of what mitigation of a sentence should be made on the basis that the offender might spend all or some of his sentence in protective custody. The matter has been recently considered in R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299. It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education. The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner's custody when predicting how a sentence will be served. Although in Durocher-Yvon the Court indicated that a sentencing judge was entitled to assume that an informer would find himself in strict protection for the best part, if not the whole, of his sentence, that assumption would have proved to be erroneous in the present case. [180] As was recognised in Totten , the court is placed in a difficult position. On the one hand, the sentencer should take into account the conditions of the prisoner's custody where it appears that they will be unduly onerous because of some matter particular to that prisoner. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. On the other hand, the courts should now be aware that assumptions or predictions, which have been made in the past about the nature of an offender's custody because, for example, the offender has given assistance to the authorities, no longer hold good. But the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement. [181] It is unnecessary in the present case to do more than refer to this conundrum without trying to solve it, but if this Court is required to re-sentence the appellant, it cannot ignore the fact that he is not apparently serving his sentence under any more onerous conditions than any other prisoner in the general population and is unlikely in the future to do so. To the contrary, we are asked to take into account the progress he has made in prison by undertaking courses to address those problems that might have given rise to the present offences. Although the assistance proffered, and so far given, is of considerable benefit to the community in relation to a very serious offence, the Court cannot overlook the fact that the detriment suffered by the prisoner as a result is not as significant as might have been assumed in the past or with other prisoners". 66 I am not persuaded that her Honour committed the error asserted in written and oral submissions. This was not a case that could be described as falling within a well-known category about which assumptions about the likelihood of protection could be made, namely a case involving a child sexual offender, an informer or possibly a corrupt police officer. It was open to her Honour on the material before her that there was no evidence requiring her to take into account as a mitigating factor the fact that the applicant would be serving his custody under protection generally. If that be correct and the sentence was otherwise impeccable there is no basis for this Court to take into account the material it has received on this issue. 67 However, if it be the case that her Honour could be said to have been in error in simply saying there was no evidence as to the likelihood of the applicant serving his sentence in protection - he had given evidence that he had been in protection during the period which would be incorporated in the backdating of the sentence to be imposed, then the outcome in my view would still be the same. 68 Bearing in mind particularly the observations that Howie J in para [24] of Durocher-Yvon cited above and what his Honour said in Mostyn, I would be of the opinion that the evidence before us does not disclose a degree of onerousness in the applicant's custody as to warrant any discount. Indeed, the nature of the custody, both before sentence and since, is nowhere near that which usually attends the protection afforded offenders of the kind to which I have referred above. Further, in fact the "protection" has been of a kind to enable quite liberal movement, contact, work, and as evidenced by the affidavit "for usual purposes" sworn 30 April 2004, educational and other rehabilitative achievements. 69 Having regard to the seriousness of the offence, the purposes of punishment and the nature of the conditions of the custody which the applicant has borne and may well continue to bear (cf Howie J, above), I am of the view that no discount is justified and assuming the sentence otherwise to be impeccable, no other sentence is therefore available. 70 Ground 5 does not succeed. 71 Ground 6 is that the sentencing judge erred in failing to take into account the lack of offences of violence in the applicant's criminal record. 72 It is argued that although her Honour made reference to the criminal antecedents of the applicant (ROS p4) her Honour failed to appreciate "the lack of violence reflected in the record and failed to appreciate that the offences were committed with and obviously under the influence of a co-offender who was the one carrying a (fake) weapon" and who had committed a large number of such offences. 73 Her Honour characterised the antecedents of the offender as "doing him no credit" and as reflecting "an escalation of his criminal behaviour since the commission of predominantly property and driving offences as a juvenile". 74 The applicant's counsel upon sentence with appropriate candour referred to entries in the applicant's antecedents as "sporadic matters of assault". It was acknowledged by counsel at the sentencing proceedings that there had been the elevation to violence of the gravity involved in the trial offences. In 1995 the applicant had been dealt with for using an offensive weapon with intent, assault police; in 2001, assault officer and in 1985 for assault occasioning actual bodily harm. 75 The brevity with which her Honour dealt with the antecedents of the applicant was appropriate in my view. It certainly does not convince me that her Honour failed to take into account the lack of offences of violence. She simply found that the antecedents did him no credit 76 I am of the opinion with respect to this ground of appeal that it must fail. 77 The seventh ground is lack of parity. 78 In the usual language, it is contended that the applicant is entitled to have a legitimate sense of grievance when comparison is made with the sentence imposed on his co-accused by the same judge on 20 June 2003. A similar justified sense of grievance, it is contended, is available to this applicant when comparison is made with the sentences imposed upon his brother by his Honour Judge Ducker on 12 June 2002. 79 I have set out above the sentences imposed in relation to the co-offender and the applicant's brother. 80 In relation to the complaint about the lack of parity with the co-offender, Mr McKeon, I would have thought that the short answer to that is that his co-offender received a sentence of 24 years with a non-parole period of 15 years. In this regard I am not persuaded of any necessity to go behind the totality principle clearly applied by her Honour in dealing with the person who had committed far more armed robberies than the present one. I can see no sensible way of isolating from the greater number of crimes for which the co-offender was sentenced the one committed in common with the applicant. 81 As to the applicant's brother, he was charged with two armed robberies, one at Lismore and the one he committed with the applicant at Kingscliff. Mr Nathan Kain received significant discounts in the sentences imposed because he pleaded guilty to the two offences. One plea was entered at the Local Court and one on arraignment. In relation to the offence at Lismore he gave information to police and an undertaking to give evidence in any subsequent court hearing against his co-offenders. 82 This ground also fails. 83 I propose:

(a) that leave to appeal against sentence be granted.

(b) that the appeal be dismissed. 84 HIDDEN J: I agree with Levine J.

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