Regina v Randell and McAlister

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0249 FILE NUMBER(S) : LOWER COURT Shillington DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1914 CCAP (60169/04) 2004/1719 CCAP

WOOD CJ at CL KIRBY J BUDDIN J

Thursday 30 September 2004 Regina v Luke Anthony Randell Regina v Mark Bradley McAlister Judgment 1 WOOD CJ at CL: The Applicants, who had pleaded guilty in the Local Court, on 18 July 2003, to a charge of robbery while armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900, appeared for sentence before his Honour Judge Coolahan in the District Court at Newcastle on 24 July 2003 and on 11 September 2003, and then finally before his Honour Judge Shillington on 21 October 2003. The Applicant Randell was sentenced by Judge Shillington to imprisonment for 6 years with a non-parole period of 4 years. The Applicant McAlister was sentenced to imprisonment for 5 years with a non-parole period of 3 years. Each seeks leave to appeal against the sentence that was imposed.

Facts 2 Upon the basis of the statement of facts, the police brief which included the statement of the victim and the electronically recorded interviews which had been conducted with the Applicants, the evidence which was given by them, and some notes prepared by Randell, his Honour made the following factual findings concerning this offence: "The facts are serious. On the night of 2 April of this year, Randell met a man who was at school with him some years before, Josh Wilcock, and it was suggested that they met after the concert that was being held that evening. They were at the Club Nova in King Street in Newcastle. The man Wilcock left the scene later and apparently went to a concert which was being held elsewhere in the city. The two prisoners then determined to go to Wilcock's home. It is the account certainly of Randell that he was told that drugs could be obtained at the address that the man Wilcock was living at. They went to the house and found the victim of this offence, Meg Scrutton, at the home. Randell made enquiries about Wilcock and was told that he wasn't there. They then left. It is not altogether clear how they, or how in particular Randell knew where Wilcock was living, but apparently he gave a description in general terms which led them to the premises. They later returned, and it is the account of both prisoners that they were going to the premises to obtain drugs and money. There is no suggestion in the statement of Meg Scrutton, the victim, or of Wilcock, that there was any discussion about drugs, but certainly that would explain why they were going to the premises, particularly as in the case of Randell, that he, according to him, had been provided with a small amount of drugs, and that he was anxious to get some further drugs to satisfy his habit. And in any event, they both returned to the premises. Just before they got there, Randell placed over his head something which is described as a type of beanie or, in any event, something to conceal his identity. He had a knife, and he went and knocked on the door and gained access, forcing his way into the premises, and producing the knife. And although McAlister says that he did not go in with Randell, I am satisfied that certainly from the statement of the victim, that they both went into the premises virtually together, and that they made it clear that they were seeking money. That is her account. Randell produced the knife, again according to the girl, and held it near her throat. That is not conceded by Randell, but is very little to the point, it certainly was produced and seen by her, and quite clearly caused terror on the part of this girl. She screamed, calling for help, and that noise apparently led both the prisoners to leave. Before they did so, Randell took a Nokia phone, and he was the only person that took anything from the house. He later sold it for a small amount of money. Those are the objective facts. This was certainly a form of home invasion, which as I have said, must have caused extreme terror in the mind [of] this girl. She has provided a victim impact statement which suggests that she has been profoundly affected by what happened." 3 Issue was taken with some aspects of the statement of facts. That was mainly concerned with the extent of the role played by McAlister; with whether or not Randell held a knife to the victim's throat and slapped her, as distinct from having the knife out when he entered the house and pointing it at her waist, as Randell conceded when giving evidence; whether the offenders went to the house to obtain drugs rather than drugs and money; and whether McAlister held the victim by the shirt after she had been pushed onto the lounge as distinct from simply standing next to her with his arm positioned so that she could not move away from the lounge, as McAlister also conceded when giving evidence. 4 His Honour's findings in relation to the offence were amply supported on the evidence which was placed before him, and having regard to the concessions which each offender made when giving evidence, no basis for any challenge to them has been made good. In this regard it needs to be restated that this Court is a Court of error. It is not a court of rehearing or a primary fact finding tribunal: R v Kurtic (1996) 85 A Crim R 57 at 60 per Hunt CJ at CL, R v Hutchison [2000] NSWCCA 113 and R v Crowley [2004] NSWCCA 256 at para 44 per Smart AJ.

Application of McAlister 5 It was submitted in essence, that the sentence was manifestly excessive and that error was established in that:

(a) The absence of any mention, in the reasons for sentence, of the fact that a discount had been given for the plea, indicated that this factor had been overlooked and/or that the plea had been given insufficient weight;

(b) insufficient weight was given to the limited involvement of this offender in the offence, or to his subjective circumstances;

(c) the caveat that was placed on the extent of his contrition, as a result of his Honour's assessment that he had consciously downplayed his involvement and emphasised that of his co offender, was not justified;

(d) there should have been a finding that he had demonstrated remorse and contrition; and

(e) there was a lack of parity between the sentences imposed upon the two offenders, taking into account the differences in their ages, in the extent of their involvement in the offence, and in their subjective circumstances; 6 Subject to error being shown, it was submitted that in the event of the Court resentencing the Applicant, credit should be given for the progress which he had made towards his rehabilitation while in custody, that was disclosed by the various Certificates of Attainment that were tendered. 7 These submissions overlap to some degree. The case was one which fell within the reach of the guideline judgment in R v Henry (1999) 46 NSWLR 346 where a narrow sentencing range between 4 and 5 years imprisonment was identified (at para 162) for the category of cases that share the following features: "(i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case." 8 The Court added: "169. Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point. 170. In addition to factors which may arise in any case, for example, youth, offender's criminal record, co-operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include: (i) nature of the weapon; (ii) vulnerability of the victim; (iii) position on a scale of impulsiveness/planning; (iv) intensity of threat, or actual use (v) number of offenders; (vi) amount taken; (vii) effect on victim(s)." 9 The present case shared all of the characteristics of the guideline case, save for that articulated in item (VII), since each of McAlister and Randell offered pleas at the earliest available opportunity. There was utilitarian value attached in so far as there was a saving in time and cost, and in so far as the victim was spared from giving evidence. In this regard it is the case that in Regina v Thomson and Houlton (2000) 49 NSWLR 383 Spigelman CJ confirmed that the Henry guideline should be understood, so far as feature (vii) in para 162 is concerned, to have involved a late plea of guilty. 10 The victim in this case did not fall within the precise category of victims mentioned in factor (v). She was, however, vulnerable in a different sense, in so far as the offenders forced their way into her home at night, at a time when she was alone and defenceless. 11 There is no reason to suppose that his Honour overlooked the fact of the plea of guilty, particularly since he expressly mentioned, in the opening paragraph of the remarks on sentence, that the offenders were appearing for sentence following their confirmation, before him, of pleas entered in the Local Court. 12 It is generally desirable for express reference to be made to the extent to which an allowance has been made for a plea: R v Sutton [2004] NSWCCA 225 at paras 16 to 17, although a failure to do so will not vitiate a sentence if it is otherwise clear that this factor has been taken into account. 13 However, in a case where there was no reference, in the remarks on sentence, to Henry, or to the clarification in relation to factor (viii) which was established by Thomson and Houlton, or to the extent to which the plea was taken into account, and where the sentence imposed fell at the top of the Henry range, a question does arise as to whether the sentence was manifestly excessive, which is sufficient for leave to be granted. 14 This question needs to be considered in the context of the circumstances that the offence was particularly serious in so far as it involved two offenders forcing their way into the victim's home, between 11 and 11:30 PM, at a time when she was alone and defenceless, and having gained entry threatened her with a knife and effectively restrained her while a search for money and/or drugs was made. On any view the occasion was extremely frightening for an entirely innocent victim, and as such it was one that called for a significant measure of general and specific deterrence. The fact that it involved a home invasion was also an aggravating circumstance: R v Knight [2002] NSWCCA 12. 15 It would not have been appropriate for this Applicant's objective criminality to have been discounted by reason of the fact that he followed his co-offender into the premises. He knowingly joined in a robbery that was planned, at least on the way to the victim's home, he was aware that a knife had been drawn when entry was made, and he assisted the co-offender who he knew to be disguised. He was aware that the victim was very frightened and had been threatened. Moreover, the fact that he may have been affected, to a degree, by alcohol, did not operate in mitigation of sentence. 16 His objective culpability, as a person who knowingly joined in a serious criminal enterprise, was accordingly significant, particularly as there were present the circumstances of aggravation noted in sub paras (b), (d), (e), (g), (j), (l) and (n) of s 21A(2) of the Crimes (Sentencing Procedure) Act. 17 The "caveat" concerning the extent of his contrition clearly had its origin in the pre sentence report which contained the following observations: "Mr McAlister minimized his offending actions and displayed little insight with regards to the impact of his actions on the victim. It would appear from discussion with the offender and family that he also experiences problems in accepting responsibility for his behaviour, choosing instead to blame those around him and external factors. Until Mr McAlister recognises the need for him to address these deficits he may well continue to come before the Court." 18 It is the fact that in the ERISP the offender indicated that he felt "pretty bad" about what had happened, and that, in the course of his evidence, he described feeling "stupid" for the offence, as well as feeling "sorry to the girl" and indicated, additionally, that he would not be reoffending because he did not want to go to gaol, or to be in Court again. 19 His Honour was entitled to take such expressions of remorse, when offered by an offender facing sentence, and otherwise unsupported, with a grain of salt, particularly in the light of the pre-sentence report, and in the light of the absence of any mention of remorse in the neuro psychologist's report. 20 In circumstances where an offender does not fully accept the seriousness of becoming party to an offence of the kind before the Court, and where he shows little insight into his criminality or into the effect on the victim, but tends to pass the blame to others, the caveat sounded by his Honour was well founded. Error is not shown in relation to his Honour's findings concerning contrition. 21 The parity argument which rests upon the principles outlined in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 98 A Crim R 134 would permit intervention if this Court was satisfied that the difference in sentences between the two offenders, after making sufficient allowance for any differences in their objective and subjective circumstances, would leave this Applicant with a justifiable sense of grievance. 22 In summary, their subjective circumstances were as follows:

(i) McAlister had been aged 18 years at the time of the offence, while Randall had been aged 20 years at that time.

(ii) McAlister was assessed as being of low average intellectual ability, with weaknesses in his verbal intellectual function, capacity for abstract reasoning and memory;

(iii) there was no psychological report tendered in relation to Randell; however, there was evidence to show that he had experienced a significantly deprived upbringing in which he had been deprived of any meaningful family support.

(iv) McAlister had a record which commenced in the Children's Court with nuisance type offences in February 2002, but which included a recent offence of robbery in company in respect of which he was given an 18 month bond, which was still current at the time of the present offence. He had not served any prior custodial sentence; (v) McAlister had some history of employment and there were some moderately favourable character references tendered. Randell had a lesser record of employment although he had studied for a while at a TAFE college.

(vi) Randell had a more significant record which commenced in the Children's Court in 1999 with offences of stealing as well as firearm offences which resulted in him being placed on probation. This was followed in 1999 and in January 2000 by convictions for offences of break and enter with intent, larceny, possess implements, obtain money by deception, break enter and steal, and serious motoring offences, which were dealt with by further probation orders, community service and control orders. In September 1990 he first appeared as an adult in the Raymond Terrace Local Court where he was fined for an offence of offensive behaviour, and sentenced to imprisonment for 12 months with a non-parole period of 4 months for an offence of break and enter a building. Subsequent appearances in that Court for further offences of break and enter with intent, larceny, and drive while disqualified, saw him receive sentences of imprisonment of 4 months, and of periodic detention for 6 months. On one occasion before the commission of the present offence he was dealt with for breach of parole. (vii) By the time that Randell appeared for sentence he was serving a sentence of 6 months and 23 days commencing from 20 April 2003, as a result of the revocation of the orders for periodic detention, that had been made on 2 September 2002. That sentence was due to expire on or about 12 November 2003. To the extent that there was an overlap of approximately 5 months with the sentence for the present offence, which was fixed to commence on 8 May 2003, he had the benefit of a degree of concurrence.

(viii) Objectively, while McAlister's criminality was significant, it was the case that Randell was the instigator of the offence, and the person who carried and used the knife. Additionally, it was the case that Randell alone gained any benefit from the offence in that he sold the mobile phone which had been stolen and kept the proceeds. 23 Each of these subjective and objective circumstances was expressly taken into account by his Honour, who accepted that Mcalister was not the leader of the enterprise, and simply went along with it, although knowing what was intended. 24 Notwithstanding the objective severity of the offence, which was committed by McAlister while he was subject to a bond to be of good behaviour, following his recent conviction for an offence of robbery that was also committed in company, I have reached the conclusion that insufficient weight was given to the fact that the plea was offered at the very first available opportunity, or to the fact that the Applicant readily admitted his guilt when first spoken to by police. That circumstance, it seems to me, called for a sentence that fell somewhere below, although not substantially below, the top of the Henry range. 25 I am also satisfied that McAlister is entitled to entertain a limited sense of grievance in relation to the sentence which he received when that is compared with that passed on Randell. That arises from the circumstance that, effectively, both the non-parole period and the head sentence which Randell was required to serve for this offence will be served concurrently with the sentences that were imposed for earlier unrelated offences, as a result of his failure to comply with two periodic detention orders. 26 The difference between the two offenders, in terms of their criminal antecedents, and in the level of their responsibility for the present offence, justified some differentiation between the head sentences and the non-parole periods, although that was moderated by the fact that McAlister reoffended while subject to a bond and by the fact that the non-parole period was set at 60% of the head sentence in his case, while that for Randell was fixed at 66% of the full term. 27 In those circumstances I propose the following orders:

1. Leave to appeal granted; 2. The appeal against sentence be allowed; 3. The sentence below be quashed, and in lieu thereof the Applicant be sentenced to a non-parole period of 2 years 6 months to date from 21 October 2003 and to expire on 20 April 2006, and to a balance of the term of the sentence of 1 year 6 months, equivalent to an overall term of 4 years to date from 21 October 2003. 4. The earliest date on which the Applicant would be eligible for release on parole would accordingly be 20 April 2006. 28 I would maintain the finding of special circumstances justifying a departure from the s 44(2) ratio by reason of the Applicant's age and the need for an extended period of post release supervision, following the service of what will be for him a first custodial sentence.

APPLICATION OF RANDELL 29 The principle submission of this Applicant was that, because of his dysfunctional background and early plea, error was disclosed in so far as the sentence exceeded the guideline range in Henry. 30 In his case each of the seven elements of a common case that were identified in Henry was applicable, save that the Applicant's plea was not a late plea of limited utilitarian value, and save also for the fact that he was not an offender with "no or little criminal history". As previously indicated, he had a significant criminal history, and he had demonstrated a continuing unwillingness to respond to the alternatives to full time imprisonment which had been made available, including the orders for periodic detention which he had breached, or to the constraints of Parole. He had reoffended in an aggressive way, within 7 months of being sentenced for offences of larceny and drive while disqualified. Those circumstances, in my view, were to some extent counterbalanced by the fact that the Applicant offered an early plea, although not quite as early as McAlister since his initial response to police was to deny any involvement in the offence. 31 In his case there were present aggravating circumstances of the kind mentioned in Henry, as well as those specifically mentioned in s 21A(2)(b), (d), (e), (g), (l) and (n). For the reasons discussed in Henry, the fact that his motive for the offence lay in his addiction to drugs was not a matter that could be called in aid. In that regard, it is also relevant that he had recently been given the opportunity of participating in a drug rehabilitation program, but had failed to respond to that program. 32 It is also of no avail that the knife used was a folding utility weapon of the Swiss army type. Such a weapon can inflict a serious or mortal wound, and it is disingenuous to suggest that the objective criminality involved in the use of a knife is proportionate to its size. That proposition has been rejected by this Court: R v Doorey [2000] NSWCCA 456. 33 Similarly to his co-offender his criminality was aggravated by the fact that the offence fell into the home invasion category and as such justified a sentence above the guideline range, even allowing for the guilty plea, for the reasons discussed by Hidden J in Knight at para 11. 34 Counsel for the Appellant cited three cases in which sentences falling below the guideline range had been imposed. R v Cimone (2001) 121 A Crim R 433, however, was a case which was said to have justified a unique and exceptional departure from Henry by reason of parity considerations. R v Randall NSWCCA 19 April 1994 preceded Henry, while R v Bavadra (2000) 115 A Crim R 152 involved a Crown appeal in which the double jeopardy principle resulted in a significant reduction in the sentence which the Court considered should have been imposed at first instance. 35 Of more fundamental relevance for this submission however is the fact that reference to the outcome in other individual cases provides little, if any, guidance to sentencing, either at first instance or on appeal. This Court has pointed out more than once, for example R v Morgan (1993) 70 A Crim R 368, R v Trevenna [2004] NSWCCA 43 and R v George [2004] NSWCCA 247, that other cases merely form part of a range, that inevitably there are significant differences between these cases in their objective and subjective characteristics, and that, in any event, comparison depends upon an assumption which cannot necessarily be made that the sentence in the other case was one that was otherwise appropriate, and was not affected by some special consideration. 36 It is clear in this case that his Honour gave full weight to this Applicant's dysfunctional background and to his age, which led to the non-parole period being reduced. 37 While guideline judgments serve the purpose identified by Spigelman CJ in R v Whyte [2002] NSWCCA 343, and are not to be taken as a straight jacket for sentencing judges, it does seem to me that in this case insufficient weight was given to the fact that the plea was offered in the Local Court and that it did have a utilitarian value. 38 There was ample justification arising from the circumstances in which the offence was committed, and the Applicant's poor antecedents, for the imposition of a sentence that was at the top or slightly above the guideline range. In my view, however, the apparent failure to give sufficient weight to the plea resulted in a sentence which was excessive, and to that extent involved an error of law. 39 By reason of the fact that the sentence passed is to be served concurrently with the sentences that were imposed following the revocation of the periodic detention orders, any further reduction of it would result in a sentence that would be disproportionately lenient for the objective criminality here involved. 40 I would accordingly propose, in his case, that:

1. Application for leave to appeal be granted; 2. The appeal be allowed; 3. The sentence below be quashed; 4. In lieu thereof the Applicant be sentenced to a non-parole period of 3 years and 6 months commencing on 8 May 2003 and expiring on 7 November 2006, and to a balance of the term of the sentence of 1 year 9 months constituting a total term of 5 years and 3 months to date from 8 May 2003; 5. On that basis the earliest date on which he would be eligible for release on parole would be 7 November 2006. 41 I would similarly to his Honour find special circumstances justifying a reduction of the non-parole period by reason of the Applicant's age, his dysfunctional background and the need for him to have an extended period of supervision post release in which his drug addiction will need to be addressed. 42 KIRBY J: I agree with Wood CJ at CL. 43 BUDDIN J: I agree with Wood CJ at CL.

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