REGINA v PILE [2003] NSWCCA 289 | Case summary

FRIDAY 12 DECEMBER 2003 REGINA v PILE Judgment 1 BEAZLEY JA: I agree with the judgment of Adams J and with the orders his Honour proposes. 2 ADAMS J: The applicant, Clinton John Pile, pleaded guilty to an offence of aggravated armed robbery under s97(2) of the Crimes Act 1900 carrying a maximum term of imprisonment of twenty-five years. The applicant had entered a plea of guilty in the Local Court and had made significant admissions to the police when he was arrested. The offender sought to have taken into account a further three matters listed on the schedule to a Form 1 document. Those three matters were that between 29 and 30 January 2002, he stole a motor vehicle, that he drove it without being licensed and that he destroyed it by fire, all these offences being committed on the same day and connected with or arising out of the principal offence. 3 On 29 August 2002 the applicant was sentenced in the District Court to imprisonment for six years commencing 16 August 2002. His Honour was not satisfied that special circumstances within the meaning of s44 of the Crimes (Sentencing Procedure) Act were present and, accordingly, fixed a non-parole period of four years and six months, expiring 15 February 2007. 4 The applicant appeals upon the ground that the sentence imposed was, in all the circumstances, too severe and that some other lesser sentence is warranted in law: s6(3) Criminal Appeal Act 1912. 5 No issue is taken with the learned sentencing judge's determination of the facts and the following account is drawn from his Honour's reasons for sentence. In the early hours of Wednesday 30 January 2002 a co-offender, Vaughan, in company with the applicant, stole a motor vehicle in Cox Street, Mudgee. Obtaining a pair of scissors and a pair of black tracksuits pants, they travelled to Kandos to commit an armed robbery on the post office. Whilst en route, Vaughan cut the tracksuit pants to make a "balaclava" and a money bag, whilst Pile drove the vehicle, although he was not, at that time, the holder of a driver's licence. At about 9am on 30 January they arrived at Kandos and the applicant parked the vehicle near the post office. Vaughan alighted, placed the "balaclava" over his head, entered the post office and approached the counter area, waving a wooden-handled pistol about. He ordered the twelve people then in the post office, of whom two were staff members, to get on the floor. The postmaster, at Vaughan's demand, placed the cash takings in the bag held by Vaughan, who then ran from the post office, into the stolen vehicle. The applicant drove off. They travelled to an area known as Dun Swamp, near Rylstone, where they set fire to the vehicle, which was totally destroyed. By prior arrangement, the applicant and Vaughan were collected by two associates in a motor vehicle. As they were travelling towards Mudgee, the vehicle attracted the attention of the police who, as it happened, were on the way to the post office in Kandos to answer the police call made following the robbery. The car was stopped (for unrelated reasons) and Vaughan was searched, as he did so dropping the ignition key of the vehicle he had previously stolen and which had by then been burnt. 6 On the police search of the vehicle a .22 calibre self-loading pistol with a wooden stock wrapped inside a shirt was found underneath the seat on which the applicant was seated. Also found was $8,700 in cash concealed under the dashboard. Not surprisingly, both Vaughan and the applicant were arrested and cautioned in respect of their alleged involvement in the armed robbery. Both declined to say anything at this point. After arriving at Mudgee Police Station, the applicant was interviewed and then admitted his involvement and that of Vaughan. He declined to take part in an identification parade but I do not see that anything depends on this. The applicant told police, amongst other things, that he had concealed the $8,700 that was found by police and that it was the proceeds of the robbery. 7 Offences of armed robbery are covered in the guideline judgment of this Court in R v Henry & Ors [1999] NSWCCA 111, (1999) 46 NSWLR 346. Taking the common features listed at paragraph [162]: as to (i), the applicant was twenty-one years of age at the time of the offence, with a short history of common assaults, contravening an apprehended violence order and possessing a prohibited drug (in respect of this offence, he was placed on a bond for two years, which was almost completed at the time of commission of the present offence); as to (ii), Vaughan used a .22 calibre self-loading pistol, which was not loaded at the time and, hence, although was not then capable of killing or inflicting serious injury, certainly was capable of engendering fear and caused the persons in the post office to be in fear for their lives; as to (iii), the robbery had been planned for some time, it included stealing a motor vehicle in the early hours of the morning so that it could be used in the robbery later in the day, planning the destruction of the stolen vehicle and organising two associates to pick them up and take them to another destination; as to (iv), there was limited actual violence, if any at all, but the threat implicit in the circumstances undoubtedly terrified a number of the persons in the post office; as to (v), both employees and customers of post offices, but especially the former, are in vulnerable positions and it is necessary to protect them from crimes such as this; as to (vi), the amount stolen was just over $9,000 which cannot be regarded as a "small amount"; and, as to (vii), the offender pleaded guilty and made admissions, without which the prosecution case was said by the sentencing judge to be "not all that strong against him", an assessment with which I, with respect, agree. 8 His Honour considered that the applicant was entitled to a discount in the order of 25% for his early plea both for utilitarian purposes and as constituting an expression of remorse, in accordance with R v Thomson & Houlton [2000] NSWCCA 183, 294; (2000) 49 NSWLR 383; 115 A Crim R 104. It should, however, be noted that the range of 10% to 25% discount specified (at 49 NSWLR [151-152]) "is limited to the utilitarian value of the plea" (emphasis added) and it is most desirable, having regard to the policy considerations underlying the guideline, that the following injunction [at 160] of the Chief Justice should be followed unless there are sound reasons for not doing so: "Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass all or any of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter . Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to the authorities, a single combined quantification will often be appropriate." [Emphasis added.] 9 So far as the subjective features of the case are concerned, the applicant had been abusing drugs since he left school and, just prior to the commission of the offence, was using amphetamines two to three times a day, paying for what he could get whilst on the dole and leaving very little left for food and other necessities. The applicant said that he was affected by the drug at the time of the offence but candidly admitted that he knew what he was doing. His family circumstances were unfortunate in some ways and he was raised primarily by his father. His Honour described his upbringing as "hard". He has two older sisters. The applicant was raised in the Mudgee area, leaving high school at year 9 because he said that he found it very difficult. His Honour noted that the applicant "claims to be able to read and write". The applicant commenced work as a labourer at the abattoirs at Mudgee when he left school and, although he has moved from place to place since then, it seems that he has always managed to get work, albeit unskilled. He has a son now aged about two and a half but the relationship with the child's mother has broken down. His father and step-mother were in court during the sentencing proceedings to support him. 10 Following his arrest, the applicant was granted bail and obtained work as a bricklayer, whilst living with his sister at Wollongong. The proprietor of the firm for which he worked, who was aware of the charges, said that the applicant worked as a bricklayers' labourer, had proved to be a hard working and reliable employee and that his "strong work ethic" had made him a valuable employee. His foreman, also, wrote a testimonial speaking well of the applicant, saying, amongst other things, that he had showed himself to be honest, conscientious and reliable and, in his opinion, "has also shown that he has successfully turned his life around since moving to the Illawarra". Other testimonials were tendered from responsible persons also indicating distinct improvement in the applicant's attitude and habits of life. 11 The objective circumstances of this offence were undoubtedly grave and the fact that the applicant may have been affected by amphetamines at the time is not a mitigating feature. Having imposed a sentence of six years' imprisonment, the starting point before the Thomson & Houlton discount was eight years. Although high, it must be remembered that this included some recognition of the matters taken into account. I do not consider that this sentence demonstrates an error in the learned sentencing judge's discretion. However, two matters do cause me concern. As I have mentioned, his Honour was not satisfied that special circumstances were present justifying departure from the statutory calculation provided for in s44 of the Crimes (Sentencing Procedure) Act 1999. This is the first time upon which the applicant has been in prison, his past offences were relatively trivial. He was only twenty-one years of age at the time of this crime although, of course, it is in every sense an "adult" crime. In light of his work history and the testimonials that were tendered, it is fair to infer that the applicant's drug abuse was a significant factor in the offence, which, I think, should be regarded as an aberration. The applicant's ready admissions to the police of his guilt, in circumstances where the evidence against him was far from strong and his early plea of guilty, required recognition it seems to me, not only of its utilitarian value but also as demonstrating genuine contrition and a commitment to rehabilitation. 12 It does not need the citation of much authority to demonstrate that prospect of rehabilitation and reform are especially important in respect of young offenders, not only for their own sake but also in the public interest. For this reason, a sentence should "[preserve] a proper opportunity and encouragement for rehabilitation": Wood CJ at CL, R v Hearne [1999] NSWSC 605 at 77. Although the significance of this factor diminishes as the offender approaches maturity (Nguyen, unreported, NSWCCA 14 April 1994) and when the offender conducts himself like an adult and commits a particularly serious crime (Tran, unreported [1999] NSWCCA 109), I consider it to be an important element in this case. 13 Although the learned sentencing judge did not refer in his otherwise careful and thorough judgment to the issue of rehabilitation, I would not conclude that his Honour did not, in fact, advert to it. However, having regard to the sentence itself, I have formed the view, with respect, that this important consideration was not given appropriate significance by his Honour. I consider, therefore, that the applicant has made good the submission that, so far as the non-parole period was concerned, the learned sentencing judge's discretion went awry. In the circumstances, this enlivens the jurisdiction of this Court to consider whether a lesser sentence is warranted in law. It appears from the affidavit of the applicant filed in this Court that he has made sound progress in undertaking a seventeen week alcohol and other drug based programme called "Normalisation, Education, Treatment and Training". The senior psychologist responsible for the course has described the applicant's progress as "very sound" and states that "he appears to be very intrinsically motivated in terms of addressing his offending behaviour". In my view, this supports the movement towards rehabilitation that was evident almost from the time of the applicant's arrest. It seems likely that, if the applicant can overcome his drug abuse problem, he will become a worthwhile member of the community. It is very much in the public interest that he be encouraged to accomplish this end. It seems to me, therefore, that his sentence should be so constructed as to provide a lengthy period of supervision in the community whilst on parole. 14 Accordingly, I would propose that leave to appeal be granted, the sentence passed below quashed and substituted therefor a sentence of six years' imprisonment to commence on 16 August 2002 and expire 15 August 2008. I would fix a non-parole period of three years to commence on 16 August 2002 and to expire on 15 August 2005. I would direct that the applicant be released for parole at the expiration of the non-parole period under the supervision of the Probation and Parole Service. 15 MILES AJ: I also agree. **********

REGINA v PILE

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