REGINA v MUSCAT

Court of Criminal Appeal (NSW)|2006-07-14|Before: Mason P, Kirby J, Hoeben J, Ms J

CITATION: REGINA v MUSCAT [2006] NSWCCA 259

JUDGMENT OF: Mason P at 1; Kirby J at 34; Hoeben J at 35

CATCHWORDS: CROWN APPEALS AGAINST SENTENCE - Co-offender served with harsher sentence - Parity principles - Not applicable because co-offender had greater involvement, extensive criminal record, on bail and Form 1 matters - Sentence unduly lenient but not greatly outside allowable discretionary range.

COUNSEL: Crown: Ms J Giedham Respondent: T Watts

IN THE COURT OF CRIMINAL APPEAL CCA 2006/805

MASON P KIRBY J HOEBEN J

Friday 14 July 2006 REGINA v Christopher Paul MUSCAT Judgment 1 MASON P: A Crown appeal challenges the sentence imposed on the respondent on the ground of manifest inadequacy. 2 On 13 May 2005 the respondent was committed for trial from Windsor Local Court on one count of aggravated robbery. By the time he was arraigned in the District Court on 21 July 2005 the charge had been amended to the offence of robbery (Crimes Act 1900, s94). The respondent entered a plea of not guilty and the matter was stood over to 14 November 2005 for trial. On that first day of trial, on the application of the respondent's counsel, the matter was stood over to the following day with an indication that a guilty plea may ensue. The plea was entered the following day after some discussion as to the facts to be agreed upon. 3 Sentencing proceedings were heard by Judge Knight on 10 February 2006. A conviction was entered and the respondent sentenced to a non-parole period of nine months with a total term of eighteen months, the sentence to be served by way of periodic detention at the Parramatta Detention Centre. The special circumstances found to justify the length of the non-parole period were the age of the respondent and his need for a lengthy period of supervised parole to assist in rehabilitation. 4 The sentence commenced on 23 February 2006. First notice that the Director of Public Prosecutions was considering the question of a Crown appeal against sentence was given on 6 March 2006. The Notice of Appeal was served on 6 April 2006. 5 The prescribed maximum penalty for the offence is fourteen years imprisonment. 6 The facts were summarised by the judge as follows: [ROS pps 1-3]. 7 The respondent was charged as a principal in the second degree on the basis of a joint criminal enterprise. Judge Knight was not prepared to find that the respondent was the mastermind behind the offence. Nevertheless, his Honour correctly observed that the respondent's participation in the offence was "very considerable". After all, the respondent telephoned to make sure that his girlfriend was not carrying the bag; he pointed out the intended victim to Rodgers; he left the scene because he was known to the victim; and he met up with Rodgers immediately after the robbery, when the proceeds were divided between the two men. 8 The co-offender was sentenced to a non-parole period of one year and a head sentence of two years and three months. There were, however, convincing reasons why, as the sentencing judge observed, Rodgers was not a person to whom principles of parity could properly be applied vis-à-vis the respondent. They include Rodgers' significantly greater involvement in the offence, his very extensive criminal record, the fact that Rodgers was on bail when the instant offence was committed, and the presence of additional Form 1 offences. The Crown does not suggest that this sentence creates a relevant benchmark in the present case. But parity considerations suggest that Rodgers' sentence indicates the upper limit of any sentence that it would be appropriate to impose were this Court to resentence. 9 In his remarks on sentence, Judge Knight referred to decisions of this Court that recognise that robbery, whether armed or unarmed is a serious breach of the peace, an offence that strikes directly upon the security of the person and property which the law exists to protect. A custodial sentence is well nigh inevitable. 10 Later in his remarks, the learned judge addressed those parts of s21A of the Crimes (Sentencing Procedure) Act 1999 pertinent to the present case. It is not suggested that his Honour misdirected himself either as to law or facts. 11 As to statutory aggravating factors, it was found that the victim was vulnerable because of her occupation and that she was targeted solely because of this. It was also found that the offence was part of a planned and organised criminal activity. His Honour was satisfied that at least for some period of time prior to the robbery on the day in question the offence had been planned with the respondent carrying out surveillance and pointing out the victim to his co-offender. 12 As to mitigating factors, the respondent had no significant record of previous convictions. There was in fact a 2004 offence of driving on the road with a suspended license which resulted in a bond imposed on 24 May 2005. There was a later more serious driving offence, occurring after the offence for which the respondent stood for sentence, which resulted in its own appropriate sentence (a s9 bond) on 23 November 2005. 13 A further mitigating factor was that the respondent was found to be a person of good character prior to the offence in question. His Honour also found the respondent to have good prospects of rehabilitation, both by reason of his age and by reason of receiving assistance from the Probation and Parole Service.

14 Additional mitigating factors taken into account were the remorse found to be inherent in the plea of guilty that was entered very soon after the receipt of advice from counsel, as well as the plea of guilty itself. His Honour also noted that the respondent had expressed remorse in the witness box and to the Probation and Parole Service officer who interviewed him. The genuineness of this remorse appears to have been accepted by the judge. What his Honour described as the "utilitarian value" of the plea resulted in an allowance of twenty percent having regard to the principles in R v Thomson and Houlton (2000) 49 NSWLR 383. 15 More generally, and apart from his consideration of the s21A factors, the sentencing judge made particular reference to the respondent's age and upbringing. He was born on 27 October 1986. He had spent no time in custody prior to the instant offence. The respondent is the eldest of four children raised in a strict family environment. There was a period of earlier rebelliousness when the respondent left home for a time, but at all relevant times his relationship with parents and siblings has been a good one. 16 The respondent had used cannabis from when he was about thirteen, but was found to have ceased doing so around the time of the offence. There were additional issues associated with alcohol consumption that had caused him to see a psychologist.

17 The respondent left school after completing Year 10 and obtaining his School Certificate. He has been employed in a range of positions. In about February 2005 he gained employment with a landscape design company. There was a favourable reference indicating that his employer was prepared to keep him in employment. The decision to impose a sentence by way of periodic detention and the structuring of that sentence by way of mid-week detention were clearly designed with a view to enabling this employment to continue. 18 The Pre-Sentence Report had regard to interviews with the respondent, his de-facto partner with whom he resides on his parent's property, and with his mother. The Report assessed the respondent as suitable for a periodic detention order and for medium-low level of supervision by the Service. The proposed case plan included strategies to address alcohol and other drug issues given that the respondent appeared to lack insight into the detrimental impact his use of alcohol and cannabis had had both on his choice of associates and related offending behaviour. The Report described the respondent as "co-operative" and stated that he appeared to be making an effort to change his choice of associates and friends with the support of family, friends and employer.

19 The appellant submits that the judge failed to impose a deterrent sentence that adequately reflected the objective gravity of the offence. The amount taken was more than $12,000 and the nature of the robbery indicated that it was always expected to be a substantial sum. The respondent's share seems to have gone largely towards purchasing a motorbike that he later sold. There has been no restitution.

20 It is submitted that, were it not for the role played by the respondent, the offence would not have occurred. In particular, the respondent knew of the banking procedure because his girlfriend worked at Prouds; the respondent planned the offence with the co-offender Rodgers; the respondent confirmed with his girlfriend that she was not doing the banking on the day in the question; and the respondent pointed out the intended victim in advance of the robbery. I accept these submissions, while noting that the initiative for the offence appears to have come from Rodgers.

21 The Crown further contends that the sentencing judge erred in applying a twenty percent discount for the plea of guilty. Its timing, effectively at the commencement of the trial, was said to have merited a substantially lesser discount. It was submitted that a discount in the order of twelve percent would have been appropriate, as occurred in R v Hansel [2004] NSWCCA 436. 22 It was further submitted that the judge placed undue emphasis on the youth of the offender and the prospects of rehabilitation. In offences of this nature the principle of general deterrence is of considerable significance and must not be allowed to be swamped by factors of youth and prospects of rehabilitation. 23 The Crown submits that this Court should find appealable error and proceed to resentence. We are invited to remove the condition of periodic detention or alternatively to lengthen it as well as the total term of the sentence. Disposition 24 In my view, the sentence was unduly lenient having regard to the nature of the offence, the respondent's role in it, the prescribed maximum penalty, and the sentencing caselaw as to the seriousness with which this type of offence is regarded.

25 Nevertheless, I would decline to interfere with the ongoing sentence, in the exercise of the discretion this Court has in Crown appeals against sentence.

26 The sentencing judge clearly gave anxious thought to what was appropriate in this particular case. He did not, in my view, misdirect himself either as to the law or the facts. The Crown appeal is, in essence, a complaint about the bottom line. That bottom line was, as I have indicated, an unduly lenient one, but it was not greatly outside the range of a proper sentencing discretion.

27 I am not prepared to find that the judge erred in the level of discount granted for the guilty plea. When the respondent was first arraigned on the count of robbery, on 21 July 2005, he was then represented by a solicitor pursuant to a grant of legal aid. In accordance with Legal Aid Commission Rules, counsel could not be briefed in the matter until after that arraignment. Subsequently it was ascertained that no Public Defender was available. It was only on 10 November 2005 that the respondent obtained access to the advice of counsel. Instructions were then taken to enter a plea of guilty, with a statement of facts to be agreed upon. On the first day of the trial it was indicated to the Court that it was likely that the matter would proceed on a guilty plea. The adjournment to the following day was due to the need to resolve certain issues as to the statement of facts. 28 While the respondent therefore did not offer a plea at the earliest possible time, it is nevertheless apparent that his side of the record moved promptly as soon as he first received effective legal assistance referable to the charge proffered against him. During submissions in the sentencing proceedings the judge indicated that he was minded to allow something in the order of twenty percent discount bearing in mind that the plea might have been entered earlier. The Prosecutor at trial made no submission to suggest that this would involve error. 29 This was the respondent's first serious brush with the law and it occurred very shortly after his eighteenth birthday. Of course, youth provides no licence to commit crime and particular offences, including robbery, require the Court to keep squarely focused upon their objective gravity. 30 In the present case the sentencing judge detected genuine remorse and a real prospect of rehabilitation. The judge was well placed to form this assessment, based as it was upon effectively unchallenged testimony that the respondent was fortunate to be surrounded by a family and a group of friends associated with his church who are prepared to stand by him and encourage him. His Honour also had the assistance of a favourable Pre-Sentence Report which indicated that steps had already been taken in hand to address some of the underlying causes of the respondent's rebelliousness and criminality. 31 The respondent had commenced to serve his sentence by the time that the Crown lodged its Notice of Appeal. He has attended the Detention Centre each week from late February to date with one occasion of non-approved leave the circumstances of which are unexplained on either side To interrupt this regime and sentence to full time custody would be harsh in the circumstances and also counterproductive given that ongoing employment would be broken with adverse consequences upon the rehabilitation process. To lengthen the period of that detention in the present circumstances gives the appearance of tinkering. 32 The respondent should consider himself extremely fortunate in the sentence that he received at first instance. Hopefully the short, sharp but repeated experience of imprisonment by way of periodic detention will bring home to him that he now stands at a cross roads in his life. Were he to offend again in any serious manner then he could expect no similar leniency from a trial judge or this Court. He would also be snubbing the confidence placed in his rehabilitation by his supportive family and friends. 33 I propose that the appeal be dismissed. 34 KIRBY J: I agree. 35 HOEBEN J: I agree. 36 MASON P: That is the order of the Court. **********

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