Regina v PG

WEDNESDAY 20 JUNE 2001 REGINA v PG JUDGMENT 1 HOWIE J: The applicant seeks leave to appeal against the sentence imposed upon him by O'Reilly DCJ at the Penrith District Court on 17 April 2000 following his plea of guilty to an indictment containing 6 counts of armed robbery contrary to s 97(1) of the Crimes Act. The applicant had previously pleaded guilty to those matters before a magistrate and was committed for sentence under s 51A of the Justices Act. However, owing to a defect in the s 51A document, an indictment was presented to the District Court and the applicant pleaded guilty on arraignment. In addition, the applicant asked the sentencing judge to take into account ten armed robbery matters and one unlicensed driver matter contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. 2 On each count his Honour sentenced the applicant to concurrent terms of 7½ years imprisonment with non-parole periods of 5 years. The sentences were specified to commence on 16 August 1999, the date upon which the applicant was taken into custody, and the non-parole periods are to expire on 15 August 2004. Judge O'Reilly took the Form 1 matters into account on the sentence he imposed in respect of the first count on the indictment. 3 The six armed robberies to which the applicant pleaded guilty occurred between 30 April and 29 May 1999. The offences taken into account on the Form 1 were committed between 17 April 1999 and 7 June 1999 and formed part of a continuing course of conduct. All the armed robberies were committed in company, the applicant being armed with a replica pistol and the co-offender on most occasions being armed with a tomahawk. 4 The first offence on the indictment occurred on the evening of 30 April 1999 at Picnic Point Bowling Club. The applicant travelled to the club with a man, whom I shall refer to as F, in a vehicle that the latter had stolen from the Winmalee area. The applicant and F entered the club through the front door and ordered staff onto the floor. The staff were then forced to enter the cool room and the manager made to comply with their demands to hand over money that was located in the office safe. The applicant and F took $20,000 in notes and coins and left the club in the stolen vehicle. 5 The other offences both on the indictment and the Form 1 were similar to this offence. They involved assaults upon the staff of licensed clubs or retail premises. The usual modus operandi was that the applicant would threaten the manager or staff with the weapon while F obtained the money. The offences usually involved stolen vehicles and a third person, either a man I shall refer to as W or another I shall call C, acted as the get away driver. On at least one occasion staff were locked in a room, on other occasions they were forced to lie on the floor. The robbers were equipped with scanners to detect police movements and communicated with the driver by hand-held radios. A very substantial amount of money was taken as a result of the robberies, over $80,000 in the matters on the indictment alone. The applicant told police that he received little of it. 6 After the commission of a robbery at the Toongabbie Bowling Club a security tape was viewed by police. One of the detectives recognised F and surveillance was commenced on his premises at Greystanes. On the evening of 11 June 1999 the vehicle driven by F was stopped by police and both F and the applicant were found in the vehicle. They were both arrested for possession of a firearm which was located in that vehicle. 7 On 16 August 1999, after being identified by a witness from a photograph, the applicant was arrested for two robberies. The applicant then participated in two recorded interviews in which he detailed his involvement in the sixteen robberies for which he was sentenced by Judge O'Reilly. The applicant provided other information and assistance to the police which I will detail shortly. 8 Judge O'Reilly determined that the sentence should be discounted both under s 23 of the Crimes (Sentencing Procedure) Act 1999 in relation to the applicant's assistance to the authorities, and for the disclosure of unknown criminality in accordance with the principles enunciated by this Court in R v Ellis (1986) 6 NSWLR 603. His Honour came to the view that an overall discount of 50 per cent was appropriate. Accordingly his Honour reduced what he thought to be the otherwise appropriate sentence of 15 years with a non-parole period of 11 years to the sentences which he imposed. 9 It is accepted by both parties that, in fixing the sentences he did, Judge O'Reilly did not follow the dictates of the High Court in Pearce v The Queen (1998) 194 CLR 610. His Honour ought to have determined the sentence appropriate for each of the offences before him, taking into account the matters on the Form 1 when sentencing for the first offence in the indictment, and then arrived at an appropriate sentence to reflect the totality of the criminality by making the individual sentences either concurrent or cumulative. 10 It may well be that in this particular case there was no real prejudice suffered by the applicant, but that does not relieve this Court from re-sentencing the applicant even if it came to the view that the total sentence was otherwise appropriate. In my view the sentences imposed for counts two to six were in themselves manifestly excessive and will have to be reduced whatever view is taken of the sentence imposed for the first count while taking the Form 1 matters into account. 11 The applicant's first ground of appeal is that the overall discount his Honour allowed was inadequate having regard to what are said to be the exceptional circumstances of this case. It was submitted that a discount of 60 per cent should have been allowed. The applicant did not submit that the starting point of a full term of fifteen years was inappropriate, although it was suggested that, by reference to other decisions of this Court and statistical information from the Judicial Commission, the starting sentence was "towards the top of the range". 12 The assistance given by the applicant was described by the sentencing judge as "quite extraordinary". It included the fact that the police had no evidence of the involvement of the applicant in relation to fourteen of the sixteen robberies and, in respect of the two that they believed were committed by him, the evidence was only visual identification and was not strong. There was other significant assistance given by the applicant to police and this is set out in an annexure which is not to be made public. 13 As a result of supplying this information to the police the applicant and his family have been threatened, his wife was assaulted, the applicant is being housed in the Special Purpose Prison and for a period his wife and children were under police protection. It is possible that both he and his family will be involved in the Witness Protection Scheme once the applicant is released from custody and probably they will have to relocate away from New South Wales. 14 The applicant is now aged 31 years. He has little criminal record before these offences were committed and until about 2 years before these armed robberies he had led the life of a responsible law-abiding citizen. His early life was unremarkable notwithstanding the separations of his parents when he was a young child. He is in his second marriage and had custody of the child of his first marriage before his arrest. He also is the father of a child from his present marriage. 15 About two years before these offences the applicant became involved with F and others who used amphetamines and the applicant became addicted to that drug. He then commenced to use heroin as well. After his arrest he was severely depressed and attempted to commit suicide. He has been receiving counselling and medication while in custody. Psychologists from the prison service have reported that the applicant appears to have gained insight into his behaviour and is making attempts to rehabilitate himself. The pre-sentence report indicated that the applicant's problems appear to have been the result of his poor self-esteem, pessimism and a tendency towards impulsive behaviour. 16 Counsel for the applicant relied in support of this ground of appeal on other cases where a discount of the magnitude of 60 per cent has been granted as a result of assistance provided by the offender. Ms Burgess also cited R v Chu (NSWCCA, 16 October 1998) where Spigelman CJ, while stating that the customary discount in New South Wales was in the range of 20 percent to 50 percent, recognised that there were exceptions where a greater discount had been allowed. 17 It was also argued, relying upon the decision of this Court in R v Thompson and Houlton (2000) 49 NSWLR 383 that, if the applicant had been given the full benefit for the utilitarian value of his plea of guilty and his contrition, a discount in the order of 35 per cent would have been appropriate. Therefore, the argument runs, the applicant was given less than 20 per cent discount for his assistance under s 23 of the Act and that discount was manifestly inadequate. 18 The Crown in response submitted that there was no error in anything his Honour said in his sentencing remarks and that the sentencing judge had expressly taken into account the applicant's plea of guilty, the discount for the disclosure of unknown offences and the discount under s 23 for this applicant's assistance generally. It was contended that an overall discount of 50 per cent was appropriate given the extremely serious objective features of these offences. 19 The Crown also submitted that the sentencing judge was required to take into account the principle of proportionality in sentencing. This applied both to the discount for assistance to the authorities under s 23(3) and to the Ellis discount: see Dodd (1991) 57 A Crim R 349. The Crown relied upon the decision of this Court in R v Huang (NSWCCA, 5 April 1995) where a Crown appeal was allowed on the ground that, in light of the extremely serious objective features of the offence, a discount of 60 per cent "constituted an affront to community standards". 20 The Crown further submitted that it was erroneous to take a mathematical approach by separating and quantifying each of the individual discounts and then comparing them against the total discount given. The Crown argues that there is a degree of overlap between the matters which gave rise to the various discounts. Further, it was submitted that such an approach is antipathetic to the instinctive synthesis approach to sentencing which has been approved in decisions of both this Court and the High Court: R v Thompson and Houlton at [71], Pearce at [46]. 21 In my opinion this ground of appeal has not been made out substantially for the reasons put forward on behalf of the Crown. The starting sentence of 15 years was well within the sentencing judge's discretion notwithstanding the fact that this was the one spree of criminal activity and that it seems to have been out of character for the accused. Those two factors are unfortunately not unusual. This is simply a case where the applicant became involved in the use of prohibited drugs for recreational purposes and having become addicted to them he committed serious criminal offences to be able to fund his addiction. There is nothing either remarkable or mitigating in that history. What is exceptional is the seriousness of the offences he was prepared to commit in light of his earlier good character. 22 The armed robberies were each offences falling within the most serious category of their kind. The offences were planned, they were committed in company and the applicant was armed with a replica firearm in order to terrify the victims. He played a significant role in the commission of each of the offences even though he suggested to police that he was often an unwilling participant. A large number of persons were put in fear by the applicant and F. The offences were committed over a period of almost two months and there is little doubt they would have continued but for the arrest of the applicant and his co-offender. 23 In one case a female employee had been so terrified by the conduct of the applicant and F that even the applicant was driven to show some compassion by telling her that the weapon was a replica. In light of the number of offences committed by the applicant during which he intentionally terrified a large number of persons by brandishing a weapon at them, there is no significant mitigation to be found in this isolated act of common humanity. 24 Each offence carried a maximum sentence of 20 years imprisonment and there were sixteen of them. It is unnecessary for me to calculate the total sentence to which the prisoner was liable in order to indicate the criminality of these matters. Although the applicant is entitled to a significant element of leniency because of his confessions to the police, he cannot thereby avoid the consequences of his serious criminal conduct. Nor is the total criminality before the Court diminished by the fact that the majority of the offences were taken into account on a Form 1; R v Bavadra (2000) 115 A Crim R 152 at [158]. I do not believe that the starting sentence was near the top of the range for sentences involving such serious criminality. 25 In my view it is erroneous in the circumstances of this case to embark upon an exercise of calculating discounts to which the applicant would have been entitled had he not proffered the assistance that he did or if he had not confessed the extent of his criminality and then using those figures to determine whether he received sufficient benefit for any particular factor including the assistance he gave. It was recognised by the Chief Justice in Thompson and Houlton at [71] that it will not always be possible to separate the utilitarian factor from contrition or other factors. There is too much overlap between the policy considerations reflected in the various discounts and too many common elements involved in calculating them for any real assistance to be derived from such a mechanical dissection of the sentencing task undertaken by Judge O'Reilly. For example, it is well recognised that a plea of guilty, assistance to the authorities and the disclosure of unknown criminality each reflect, to some measure, an offender's contrition and his resolve to put his life of crime behind him and make a fresh start: R v Gallagher (1991) 23 NSWLR 220 at 227-228. 26 The amount of discount given is as much an exercise of sentencing discretion as is the determination of the starting sentence before the discount is applied. I am far from persuaded that it was not open to Judge O'Reilly to determine upon a discount of 50 per cent rather than say 55 per cent or the 60 per cent sought by the applicant. For this Court to vary the discount from 50 to 60 per cent on a sentence of 15 years without clear justification for doing so would simply be this Court re-exercising the sentencing judge's discretion and might even be considered to be close to tinkering. 27 In any event, I do not believe that a 60 per cent discount would be appropriate on the facts of this matter. The cases indicate that such a discount is truly exceptional. I do not believe that this case comes within that category even though the assistance given by the applicant may properly be described as exceptional. The assistance and the discount to be given for it cannot be assessed in a vacuum. They have to be considered in the context of the seriousness of the offences committed and the relative importance of other factors to be reflected in the sentence such as retribution, denunciation and general deterrence. 28 It is worthwhile at the risk of making this judgment unduly lengthy to repeat what was said by this Court in Dodd at 354: "As Jordan CJ said in Geddes (1936) 36 SR (NSW) 554 at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider it always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place." 29 I accept that there is some conflict between, on the one hand, giving a discount for utilitarian purposes such as the encouraging of early pleas and the assistance to police and prosecuting authorities and, on the other hand, the need to impose a sentence appropriate to reflect the other purposes of punishment. The resolution of those competing sentencing objectives in the particular case is a matter for the exercise of the discretion of the sentencing judge. I am not persuaded that his Honour erred in the exercise of his discretion in that regard. In my view a sentence of 7½ years is not manifestly excessive having regard to the criminality for which the applicant was to be punished. 30 The second ground of appeal is that the non-parole period is excessive having regard to the particular circumstances of the applicant. Judge O'Reilly found special circumstances existed because the pre-sentence and psychological reports revealed that the applicant needed intensive and prolonged supervision on release, particularly with respect to his drug problem. His Honour in effect determined that there was a need for a longer parole period than would result from the normal application of s 44 of the Act. 31 His Honour determined that an appropriate sentence before the application of the discount would be 15 years with a non-parole period of 11 years. His Honour then applied the 50 percent discount but determined that there should be a non-parole period of 5 years as against a full term of 7½ years. It is not appropriate, in my view, to determine what the non-parole period would be before applying the discount. There is, with unfeigned respect to his Honour, little purpose to be served in doing so and it can lead to error in calculating the appropriate non-parole period in respect of the discounted full term. There are different considerations applying when determining whether there are special circumstances justifying a reduction in the non-parole period for a sentence of 15 years than in the case of a sentence of 7½ years. 32 Further, his Honour seems to have had regard only to what the length of the parole period should be rather than to what was required by way of a non-parole period. Section 44(2) speaks of special circumstances for the non-parole period being less than three-quarters of the term of the sentence. The focus is now upon what is necessary by way of a non-parole period rather than whether a longer parole period is justified in the circumstances of the case; cf Phelan (1993) 66 A Crim R 446. Although the need for a longer parole period will automatically mean there are special circumstances for a lesser non-parole period: R v Carrion (1999) 49 NSWLR 149, that is not the only reason why it may be appropriate to reduce the non-parole period. 33 The applicant relies upon two arguments to support this ground of appeal. The first is that the parole period of 2½ years is an insufficient period for the assistance which the applicant will need after release to parole. The second is that his Honour failed to have sufficient regard to the nature of the applicant's custody while serving the sentence. 34 I do not believe that either of these arguments have any merit. As to the first complaint, the parole period is in my view more than adequate for the needs of the applicant in light of the prospects for rehabilitation which have so far been revealed. In any event, this was a matter falling well within his Honour's discretionary judgment. As to the second matter, the discount of the whole term on the basis of the assistance takes into account the fact that the applicant will serve his sentence in a more difficult and rigorous environment. Generally the benefit for assistance will be found in the reduction of the total term and not again in the reduction of the non-parole period unless there is a good reason to do so: R v S [2000] NSWCCA 13. 35 But in my view there is a good reason in the present case to further reduce the non-parole period as a result of the assistance given by the applicant in addition to the matters taken into account in discounting the full term. His Honour makes no reference to it in determining special circumstances and perhaps overlooked it because he concentrated on matters relevant to the length of the parole period. It has also become more apparent in the material which this Court has received on the basis that we may have to re-sentence the applicant. 36 It is evident now, as it was before his Honour, that because of the applicant's assistance to police, the family of the applicant are in need of protection and that can only be achieved if they are placed in the Witness Protection Scheme or if they relocate to another state. Neither of those steps can realistically be taken while the applicant is in custody. The difficulties for the family have been made clearer than they were before his Honour by an affidavit of the applicant's wife which is before this Court. She finds it virtually impossible to receive appropriate protection if she and the children are to remain in contact with the applicant in custody. 37 In my view the non-parole period should be further reduced in order to facilitate, as far as is reasonably possible, the re-establishing of the family so that they can either enter a protection scheme together or so that they can relocate. As the Crown points out, the non-parole period must not be disproportionate to the seriousness of the offence, but the risk to the applicant and his family is a matter to which regard should be had in determining whether the sentence is disproportionate: R v C (1994) 75 A Crim R 309. 38 In my opinion insufficient, if any, weight was given to this factor by his Honour and, therefore, this Court should intervene. I have taken into account the material placed before the Court by way of affidavits and certificates. I believe that an appropriate non-parole period in the exceptional circumstances of this case is one of 4 years. 39 Therefore, I propose that the application for leave to appeal should be granted, the appeal should be allowed and the sentences imposed by his Honour quashed in respect of the second to sixth counts and in lieu the applicant be sentence to a fixed term of 3½ years. I have chosen a fixed term because of the sentence that I propose should be imposed for the first count. Those sentences are to date from 16 August 1999 and to expire on 15 February 2003. In respect of the first count and taking into account the matters on the Form 1, I propose that the non-parole period be quashed and in lieu a non-parole period of 4 years be specified to expire on 15 August 2003 the date upon which the applicant is eligible to be released to parole. 40 SMART AJ: I agree with Howie J. 41 HOWIE J: The order of the court would be as I proposed. **************

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