Regina v Olive

R v Majors (1991) 27 NSWLR 624 R v Morgan (1993) 70 A Crim R 368 CASES CITED: R v Osenkowski (1982) 30 SASR 212 R v Palu (2002) 134 A Crim R 174 R v Rawson [2001] NSWCCA 399 R v Zahab [2002] NSWCCA 430

PARTIES: Jarrod Michael Olive (Applicant) Regina (Respondent)

COUNSEL: Wayne Condon (Solicitor) (Applicant) Nicole Noman (Crown) (Respondent)

SOLICITORS: La Fontaine Solicitors (Applicant) S Kavanagh (DPP)

IN THE COURT OF CRIMINAL APPEAL 2006/1710

TOBIAS JA GROVE J BELL J

THURSDAY 12 OCTOBER 2006 JARROD MICHAEL OLIVE v REGINA Judgment 1 TOBIAS JA: I will ask Bell J to give the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant in the District Court on 16 December 2005, following his plea of guilty to a charge of assault with intent to rob while armed with an offensive weapon. The charge is provided by section 97(1) of the Crimes Act, and carries a maximum sentence of 20 years imprisonment. 3 The applicant was sentenced to two years and three months imprisonment, comprising a non-parole period of 15 months, and a balance of 12 months. The sentence commenced on 15 December 2005 and the non-parole period will expire on 14 March 2007. The balance of the sentence will expire on 14 March 2008. The Judge directed that the applicant be released to parole at the expiration of the non-parole period, subject to conditions, including that he accept the supervision of the Probation and Parole Service. 4 The facts upon which the Judge sentenced the applicant are as follows: The immediate circumstances of the offence are that on 14 March 2005 the offender went into a video store at 219 Princes Highway, Corrimal owned by Mr and Mrs New. Mrs New was serving in the store behind the counter and Mr New was on the premises but not in proximity to her. The offender said to Mrs New, 'I've got a syringe. I've got HIV, open the till, give me the money'. Mrs New could see that the offender had a syringe with red liquid in it. She jumped back, fearful that he was going to stab her with it. The offender then leapt up over the counter, grabbed her by both hands, grabbing one of her hands with his right hand and her other hand with his left, he told her to open the till, in a loud voice, squeezing her fingers really hard. She thought that he still had the syringe in his hand and that she would be stabbed. She called out to her husband who had come towards her at this point. When the offender saw Mr New coming towards him, he jumped over the counter and over an ice cream dispenser, and ran out of the store. He was chased by Mr New, but escaped. The offender was apprehended following the examination of fingerprints taken at the store on the ice cream dispenser, and on the counter. There was also video footage available. The offender was not wearing a mask or any other disguise. 5 The applicant was arrested and charged with this offence on 23 March 2005. The proceedings in the Local Court were adjourned to enable him to attend a twelve week residential drug rehabilitation program. On 24 August 2005 the applicant entered a plea of guilty to the offence before the Local Court at Wollongong and was committed for sentence to the District Court sitting at Wollongong on 7 October 2005. 6 The proceedings were adjourned on the applicant's application on the first occasion they were before the District Court to allow his solicitor to obtain some additional medical evidence. The matter was next listed before the Court on 28 October 2005, when a further adjournment was obtained on the applicant's behalf in order to resolve an issue relating to the contents of the pre-sentence report. The proceedings were stood over to 11 November 2005 to this end. 7 On 11 November Ms O'Reilly, the applicant's solicitor, informed the Court that she required the author of the pre-sentence report to be available for cross-examination since the report contained material that was in issue. Time was not available to deal with a sentence hearing of the likely length of this one on that day, and the proceedings were stood over to 15 December. 8 On 15 December the Crown Prosecutor informed the Court that the pre-sentence report was challenged on the grounds that it contained factual errors and a deal of unsubstantiated hearsay material. He observed that little of the report was, in his view, receivable over objection and that he did not propose to tender it in the Crown case. He informed the Court that the parties were agreed that the applicant had been assessed by the Probation and Parole Service as suitable for (i) a community service order; (ii) medium level intervention by way of supervision by the Parole Service; and (iii) periodic detention, and that the applicant had signed the appropriate undertakings in these respects. The Crown Prosecutor noted that the Judge may, nonetheless, wish to see the report, or that Ms O'Reilly may wish to make some use of it, and that for this reason, arrangements had been made for the author to be present in court. 9 The Judge asked Ms O'Reilly whether she objected to him reading the report. She said that she did, and that her objections to it were as outlined by the Crown Prosecutor. The Judge observed that the approach adopted by the parties gave the applicant the advantage of the favourable conclusions recorded by the author, without the disadvantage of placing before the Court the contentious material. The report was marked for identification. The Crown Prosecutor said that he proposed to tell the author of the report that she could leave, since it did not appear that she was required to give evidence. The Judge observed that he did not know how the matter would unfold, but that in the circumstances the officer could leave. 10 The applicant seeks leave to appeal on four grounds that were filed on 21 July 2006. Written submissions prepared by his solicitor, Mr La Fontaine, were filed with the grounds. Further written submissions prepared by Mr Condon, the solicitor with the carriage of the matter in Mr La Fontaine's office, were filed on 21 August 2006. Mr Condon, who appeared on the hearing of the application, informed that reliance was placed on each of the written sets of submissions. 11 The first ground challenges the sentence on the grounds of manifest excess. It is convenient to return to this ground after considering the remaining grounds.

Ground 2 - the trial Judge was not able to take into consideration the prepared pre-sentence report by Adult Probation and Parole Service due to hearsay issues when determining the sentence. 12 On the applicant's behalf, it is submitted that Ms O'Reilly and/or the Crown should have invited the Judge to order a fresh pre-sentence report and to stand the proceedings over in the interim to enable this to be done. Further, it was submitted that the Judge should have adjourned the proceedings of his own motion, and directed the preparation of a fresh pre-sentence report. An alternative challenge was that his Honour was wrong to excuse the author of the report, and that having regard to the potential importance of the report, his Honour should have taken the evidence of the parole officer, presumably over the objection of the applicant's solicitor. 13 In R v Majors (1991) 27 NSWLR 624, this Court considered a challenge that proceedings on sentence had miscarried by reason of the sentencing Judge's refusal to adjourn the hearing and direct the preparation of a pre-sentence report. Carruthers J (with whose judgment Hunt and McInerney JJ agreed) observed (at 627): It is essentially for the trial judge to determine whether he or she considers it appropriate to defer the sentencing process until such time as a pre-sentence report is obtained. In this regard a number of factors would exercise the sentencing judge's mind. One factor which may be relevant, is that in many cases the pre-sentence report, the preparation of which invariably involves an interview with the offender, consists substantially of self serving statements made by the offender, often involving unsubstantiated allegations. The Crown is obliged to tender the report, which obviates the need for the offender to give evidence before the sentencing judge, and thereby deprives the Crown Prosecutor of the opportunity to cross-examine the offender. It also deprives the judge of the opportunity of hearing the offender give evidence of subjective matters. The sentencing judge is often then left in doubt as to how much weight may be given to all or any of the report, particularly conclusions, suggestions and recommendations by the interviewing officer. Experience indicates that much of the information gathering undertaken by officers who prepare pre-sentence reports involves work, which should have been undertaken by the legal representatives of the accused, prior to the conclusion of the trial. It is essential for the proper administration of the criminal justice system that those representing an accused person be in a position to adduce all relevant evidence for the purposes of a plea in mitigation of sentence at the conclusion of the trial. I refer here to such matters as the preparation of a family, work and medical history of the offender and the like. It is acknowledged that there are certain matters in respect of which probation officers may be of special assistance, for example, details of previous behaviour by the offender whilst on parole, but the principle remains that except in rare cases, those representing the offender should be in a position to adduce all relevant evidence in mitigation at the conclusion of the trial. Adjournment of the sentencing process to enable the preparation of a pre-sentence report should be confined to those cases where it is apparent to the judge that there is a clear and legitimate advantage to be obtained by this course. 14 It is appropriate for the Court to direct the preparation of a pre-sentence report in a case in which the Judge is of the opinion that an alternative to a sentence of fulltime custody may be within the range of appropriate sentencing dispositions: a number of sentencing options cannot be imposed unless the Court is satisfied that the offender is a suitable person to undertake them. In deciding whether to sentence an offender to a term to be served by way of periodic detention, or home detention, or to impose a community service order, the Court is required to have regard to the contents of an assessment report, and to such evidence from a probation and parole officer as the Court considers necessary. 15 In this case the Judge was informed by agreement of the parties that the applicant had been assessed by the Probation and Parole Service as suitable for a community service order and for periodic detention. It is clear from his Honour's remarks that he considered the statutory requirements for each of these sentencing dispositions to have been met. 16 Mr Condon did not submit that the applicant was deprived of an assessment as to his suitability for alternative sentencing dispositions. The complaint made in the written submissions, and pressed in the course of oral argument, was that the applicant had been deprived of additional information as to his suitability for alternative sentencing dispositions. It is to be observed that any such material was considered by Ms O'Reilly not to advance the applicant's interests. 17 There is no basis for concluding that Ms O'Reilly was derelict in not asking the Judge to direct the preparation of a fresh pre-sentence report. The applicant had the benefit of the favourable assessments in relation to the alternative sentencing options. The applicant gave evidence and was cross-examined by the Crown Prosecutor. His mother and stepfather gave evidence in his case. Direct evidence was before the Court concerning the applicant's upbringing, history of drug addiction and of his endeavours to overcome it. 18 In addition to the oral evidence, there were a number of reports and other documents tendered in the applicant's case. These included a report by Anita Duffy, a psychologist; an affidavit sworn by David Follent, an Aboriginal Health Education officer, who has had dealings with the applicant in relation to the applicant's attempts to enter a drug treatment program in the days immediately prior to the commission of the offence; a report from the Orana Withdrawal Management Unit, giving details of the applicant's admission to their drug rehabilitation program upon his release on bail; a report from the Weigelli Centre Aboriginal Corporation, concerning drug rehabilitation undertaken by the applicant while on bail; letters from the Wollongong Crisis Centre Drug and Alcohol Services and the Illawarra Aboriginal Medical Service. There was also a letter relating to casual employment undertaken by the applicant by the proprietor of a business, Dionshannon Transport. A number of certificates were tendered on the applicant's behalf, attesting to courses undertaken by him in business skills, language, literacy and numeracy, and other vocational preparation. 19 The applicant's case appears to have been thoroughly prepared and to have been advanced competently. The applicant, at the age of 31 years, stood for sentence in relation to an offence under section 97(1), which involved the threatened use of a syringe, represented to the victim as filled with HIV contaminated blood. The submission that had the Judge had the benefit of a pre-sentence report he might have imposed a sentence other than one of fulltime custody, in my view, should be rejected. I consider that this was a case in which it would have been open to the Judge to decline to order a pre-sentence report on the basis that the offence was one that called for a sentence that was to be served in fulltime custody. 20 Ground 2 fails.

Ground 3 - the trial Judge failed to give due weight to the subjective matters tendered to the Court. 21 In neither the initial nor the supplementary written submissions filed on the applicant's behalf, nor in the further matters advanced by Mr Condon on the hearing of the application, is it contended that the Judge failed to take into account a relevant matter of mitigation. The Judge's remarks on sentence address the body of evidence that was tendered in the applicant's case and include a number of favourable findings. 22 The Judge found that the applicant had taken significant steps to overcome his addiction and that he appeared to be having success in this respect. He commented on the applicant's willingness to undertake further counselling and courses. He concluded that there were good prospects that the applicant would not return to heroin addiction and, in these circumstances, that the applicant was to be assessed as a person who was unlikely to reoffend. He accepted that the applicant was remorseful and that he had a supportive mother and stepfather. He noted that the applicant has five children, four of whom were living with their mother, and one who was living with the applicant's mother. His Honour found that the applicant had taken a more active role in looking after this child in the months during which he had been at liberty on bail. His Honour considered the applicant's relatively minor criminal history to be of insignificant weight in sentencing him for this offence. 23 In the absence of any contention that the Judge failed to take into account a relevant matter bearing on the applicant's subjective case, or that he erred in the application of any sentencing principle, the assertion that he failed to afford sufficient weight to the subjective case must fail.

Ground 4 - the solicitor for the appellant failed to give proper and adequate advice to the appellant throughout the proceedings, prior to sentence in relation to the appellant's drug addiction. Such failure resulted in there not being other significant and important reports for the Court to consider when determining an appropriate sentence for the appellant. 24 There is no evidence to support this ground. In my opinion, it is wholly lacking in merit. 25 As I have noted, a considerable body of material was placed before the Court on the applicant's behalf detailing his history of drug addiction and his endeavours to overcome it. The Weigelli Centre Aboriginal Corporation report recorded the applicant had successfully completed a twelve-week residential drug rehabilitation program. He had also completed the Wollongong Crisis Centre Drug and Alcohol Services six-week relapse prevention group, and was an active participant in the Illawarra Aboriginal Services substance misuse service program. 26 The Crown conceded that the applicant had good prospects of rehabilitation, and the Judge approached the sentence upon an acceptance that this was the case. In the written submissions filed on the applicant's behalf, it was contended that an appropriate sentencing disposition would have been to adjourn the proceedings for a lengthy period, to enable the applicant to complete a course of residential drug treatment. There was evidence that the applicant was willing to undergo a further course of drug rehabilitation. He was on the waiting list for admission to Lyndon House at Canowindra. He favoured this program because he had formed a new relationship and Lyndon House admitted couples to their program. However, there were no beds available at the date of sentence. 27 The complaint advanced in the written submissions was that Ms O'Reilly should have made some further efforts to secure the applicant's admission to Lyndon House or some other facility to lay the foundation for an adjournment of the proceedings under section 11 of the Crimes (Sentencing Procedure) Act 1999. It is to be noted that Ms O'Reilly did advance such a submission in written submissions. The Crown opposed this course, submitting that a sentence of fulltime custody was the only course open to the Court in light of the objective seriousness of the offence, and the Judge accepted this submission. 28 In the course of oral submissions, Mr Condon did not press the contention that this Court would consider an appropriate disposition to have been the adjournment of the proceedings pursuant to s 11. This was a realistic concession: R v Palu (2002) 134 A Crim R 174. Rather, he submitted that the Court might intervene to restructure the sentence, so as to afford the applicant a lengthier period of parole. Any consideration of this contention requires that the applicant first make good his contention that the Judge erred. 29 As I have noted, there was a good deal of evidence placed before the Court on the applicant's behalf to attest to his apparently successful efforts to overcome his drug addiction. The assertion that there was a want of proper preparation of the applicant's case is without foundation, and ground 4 fails.

Ground 1 - that the sentence delivered by the trial Judge was in all the circumstances manifestly severe. 30 The supplementary written submissions contain a detailed analysis of the decision of this Court in R v Zahab [2002] NSWCCA 430, and seek to demonstrate that the objective gravity of the present offence is of a lesser order than that with which the Court was concerned in that case. Zahab was a Crown appeal against the inadequacy of sentence imposed upon the respondent on his conviction on five counts of armed robbery, taking into account a further twelve similar offences in a Form 1. 31 The offences involved the production of a syringe filled with what appeared to be blood and assertions by the respondent that he had AIDS. Zahab's drug addiction was complicated by his serious psychiatric condition. 32 In order to make good this ground, the applicant must show that the Judge's sentencing discretion miscarried by reason that the sentence he imposed falls outside the range of discretion. Nothing in the judgment in Zahab assists the applicant in this endeavour. 33 It is appropriate to repeat the observations of Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371: It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence, and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender), which merely forms part of that range. 34 The Judge took into account the sentencing guideline promulgated in R v Henry, considering in turn the seven factors identified by Spigelman CJ at 381; [170]. His Honour recorded his findings with respect to each as follows: (i) the threat of assault with a blood-filled syringe was more serious than the threat of the use of a knife: R v Hodge (Unreported) 2 November 1993; R v Renton [2002] NSWCCA 74; and R v Fernando [2002] NSWCCA 28; (ii) a female shopkeeper was a victim in a vulnerable position; (iii) there was a very limited degree of planning involved in this offence; (iv) the force involved in the assault was not significant and had not resulted in long term physical injury, although the use of physical force, coupled with a threat involving a syringe had a significant impact on the victim; (v) the offence involved only one offender; (vi) no property was in fact taken; (vii) the effect on the victim was that she had been scared and concerned for her life - there was no evidence of long term psychological trauma of the type that would bring section 21A(2)(g) of the Sentencing Procedure Act into operation. 35 The Judge concluded that the offence was one that fell squarely within the range proposed in the guideline judgment; namely, a sentence of four to five years. It was well open to his Honour to come to this assessment. His Honour gave detailed consideration to the significance of the applicant's history of drug addiction in the light of the judgments in Henry and in R v Wilson [2001] NSWCCA 399 and, in particular, to the principles enunciated by Wood CJ at CL in Henry at 397; [273]. In doing so he found: · the applicant's addiction was very relevant to the prospect of his re-offending and, hence, that overcoming his addiction was very likely to lead to him not re-offending; · even upon an acceptance of the applicant's account that the offence had been committed at a time when he was in the process of withdrawing from heroin, there was no evidence of frank disorder of thought processes; · this was not a 'cross-roads' case in the context of R v Osenkowski (1982) 30 SASR. 36 His Honour took a favourable view of the subjective case in concluding, by reference to the Henry guideline, that the appropriate sentence was one of three years' imprisonment. As the Crown Prosecutor in written submissions noted, his Honour then gave the applicant the benefit of a discount of 25 percent in recognition of his early plea of guilty. This was generous, taking into account that the Henry guideline assumes a plea of guilty, albeit not one entered at an early stage in the proceedings. In this respect, and in the finding that special circumstances justified a departure from the statutory proportion as between the non-parole period and the balance of sentence, the Judge extended a further measure of leniency in favour of the applicant. The contention that his Honour's discretion miscarried in that an overall sentence of two years and three months' imprisonment, comprising a non-parole period of 15 months, and a balance of 12 months, fell outside the range of discretion is, in my opinion, unsustainable. 37 Ground 1 fails. 38 For these reasons, the orders I propose are:

2. Dismiss the appeal. 39 TOBIAS JA: I agree with Bell J. 40 GROVE J: I also agree. 41 TOBIAS JA: The orders proposed by Bell J will be the orders of the Court.

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