Regina v Robinson [2000] NSWCCA 182 | Case summary

Wednesday, 21 June, 2000 REGINA -V- Jason Heath ROBINSON JUDGMENT 1 FOSTER AJA: The Director of Public Prosecutions brings this appeal, pursuant to s. 5D of the Criminal Appeal Act 1912, against two sentences imposed on the respondent in the Sydney District Court, on 22 November 1999, by Ainslie-Wallace DCJ. The sentences were in respect of a charge of escape from lawful custody (s. 34(1) Correctional Centres Act 1952) and one count of break, enter and steal (s. 112 Crimes Act 1900). In the sentence for the latter offence, her Honour took into account one offence of assault on a Form 1 document. The assault was associated with the break, enter and steal offence. 2 Her Honour, in respect of the offence of escape lawful custody, imposed a fixed term of penal servitude of six months to commence on 7 March 2000 and expire on 6 September 2000. For the other offence she sentenced the respondent to eighteen months penal servitude comprising a minimum term of nine months commencing on 7 June 1999 and expiring on 6 March 2000, together with an additional term of nine months commencing on 7 March 2000 and expiring on 6 December 2000. 3 The Director of Public Prosecutions submits that both sentences were manifestly inadequate. Before that submission is considered it is convenient to set out the context in which the sentences were imposed. 4 The respondent, after a period of living in Queensland with his family, to which further reference will be made, and during which he engaged in no significant criminal activity, came to New South Wales in mid to late 1997. He had expectations of continuous gainful employment which, unfortunately, came to nothing. He acquired a heroin habit and began to engage in criminal activity in order to support it. There was a significant period of criminality in late 1997 and early 1998 which had the following results. 5 On 5 January 1998 he was charged with two counts of breaking and entering a building to commit a felony therein. These charges related to events in November 1997. He was admitted to bail and remanded to appear before the Waverley Local Court on 18 February 1998. 6 On 19 January 1998, whilst on bail, he committed the break, enter and steal offence and associated assault for which he was later sentenced by her Honour. 7 On 18 February 1998 he failed to appear at Waverley Local Court to answer his bail. A warrant for his arrest was issued. 8 On 19 February 1998 he committed certain crimes, for which he was arrested and charged that day. The offences have been described compendiously as, common assault, use offensive weapon to prevent lawful detention, kidnapping, attempt armed robbery, robbery whilst armed and attempt illegal use of car. It appears that bail was not given and that he was taken into custody. He has been in custody ever since, apart for the period of his escape, to which reference will be made later. 9 On 13 November 1998 he appeared at Campbelltown District Court to answer the charges laid on 19 February 1998. It appears that the charge of attempted armed robbery was not proceeded with. He pleaded guilty to the other charges and was sentenced to four years penal servitude consisting of a minimum term of two years together with an additional term of two years to date from 19 February 1998, the day when he was taken into custody. 10 On 21 January 1999, whilst in custody, he appeared at Fairfield Local Court to be dealt with in respect of the breaking and entering charges of 5 January 1998. A charge of goods in custody was dealt with at the same time. He pleaded guilty to all charges. He was sentenced to eighteen months penal servitude commencing on 20 February 1998. This period of penal servitude was, thus, to be served concurrently with the sentence imposed in the Campbelltown District Court on 13 November 1998. 11 On 28 April 1999 the respondent escaped from prison. He was at large until his recapture on 15 May 1999. This period of freedom was added to the sentence he was serving with the result that its expiry date became 7 March 2000. The essential facts relating to this escape will be considered later. 12 On 19 August 1999 the respondent, whilst in custody, appeared at Central Local Court in relation to the break, enter and steal charge of 19 January 1998. He was committed for sentence to the District Court, pursuant to s. 51A of the Justices Act. 13 On 10 November 1999 the respondent appeared before her Honour in the Sydney District Court for sentence in respect of this last offence. Her Honour was asked to take into account the associated assault which had been placed on a Form 1. The sentencing was not finalised on that day, because there was still outstanding the charge against the respondent of escape from lawful custody, arising from his escape in April of that year. This was to be dealt with at a future date in the Central Local Court. It appears that, when the respondent had appeared in that Court previously, the Magistrate had declined to deal with the charge until the outstanding charge of break, enter and steal had been disposed of in the District Court. This created a problem for her Honour in the sentencing process. 14 Section 34 of the Correctional Centres Act 1952 required that a sentence imposed for the offence of escape from lawful custody be cumulative upon any existing sentence being served by the offender. This produced "a dilemma". Her Honour was impressed by the subjective elements of the case, particularly evidence put before her of courses that were being undertaken by the respondent, whilst in gaol, to deal with his heroin addiction. She was also impressed by the evidence of his lengthy trouble-free period whilst in Queensland when, apparently, he was leading a drug-free existence and was in fairly constant gainful employment. She had in mind that there were "special circumstances" enabling her to vary the statutory ratio between the minimum and additional components of a sentence, which would allow for an extended period of rehabilitation under supervision. However, if she were to impose a sentence that day, the subsequent sentence for escape would be cumulative upon it and would commence from the moment of expiry of the minimum component of her Honour's sentence. The sentence for escape, which could be lengthy, would thus occupy a considerable portion of the additional period of sentence and, consequently, interfere with the opportunity for supervised rehabilitation, which her Honour had in contemplation. 15 After debate between her Honour and counsel for the Crown and the respondent, the case was adjourned, with their concurrence, part-heard to enable application to be made to the Local Court for the respondent to be committed for sentence to the District Court pursuant to s. 51A of the Justices Act, so that her Honour could also have that sentencing matter before her to be dealt with contemporaneously with the break, enter and steal sentencing. By this means her Honour was of the view that she was enabled to sentence the respondent for the escape cumulatively on the existing sentence which was to expire on 7 March 2000 and then impose the sentence for break, enter and steal with minimum and additional sentence periods deemed by her to be appropriate, together with recommendations for supervision when the respondent should be on parole. Her Honour considered that she could obtain suitable flexibility in the sentencing procedure by selecting an appropriate date before 7 March 2000 for the commencement of the break, enter and steal sentence. It was recognised that the respondent, by acquiescing in the removal of the escape matter from the Local Court would be foregoing an advantage, in that the maximum sentence that could be imposed by the Magistrate, who could deal with the matter summarily, was two years. The District Court, however, could impose a significantly higher sentence, the statutory maximum being ten years. 16 On 22 November 1999, the respondent again appeared before her Honour, when the sentences were imposed which are the subject of this appeal. 17 It was not contended before her Honour that, under the statutory regime then applicable, her Honour could not approach the sentencing in the way that she did. It was not submitted, for instance, that her Honour was required, in the first place, to sentence the respondent on the charge of break, enter and steal and then make the sentence imposed for the escape from custody cumulative upon that sentence. In the circumstances it is not necessary to consider whether s. 34 of the Correctional Centres Act permitted her Honour to take the course that she did. In my view the operation of the section was somewhat unclear in this regard. The situation is now covered by s. 310D of the Crimes Act 1900 and s. 57 of the Crimes (Sentencing Procedure) Act 1999 to which reference will be made later. It was submitted, however, that her Honour fell into appellable error, in that both sentences were manifestly inadequate and resulted, in particular, in the respondent receiving no significant punishment at all for the break, enter and steal offence, which, on the facts, was a most serious one. 18 Her Honour had regard to the respondent's background and to subjective factors involved in the case. They were as follows. 19 He was born on 28 June 1973 and was twenty-four years of age at the time of the subject offences. He had a criminal record commencing in 1987, with many appearances before Children's Courts. He had an unfortunate family background. He suffered physical abuse in his early years from his father, who was violent towards him, a problem which continued after the separation of his mother and father, when he was about two and a half years old. His sister was severely physically disabled. He was supportive of her and was desirous, when released from custody, of going to Queensland to live with his mother and sister so that he could care for them. In his early days he had a history of truancy as well as of criminal behaviour. It was apparent that his schooling was, largely because of his attitude, ineffective. Drug and alcohol abuse were also a feature of his life until 1993. In that year he left Sydney and went to Queensland where he lived with his mother and sister. As already mentioned, he obtained regular employment and was drug free. He avoided any significant criminal activity. Unfortunately, as previously mentioned, he followed a particular job to Sydney where, it was anticipated, he would continue in that employment. The employer, however, went out of business, leaving the respondent unemployed. He drifted back into his earlier pattern of behaviour, became addicted to heroin, and commenced drug-related criminal activity. 20 In relation to his drug problems, his attitude to his family, and his reasons for escaping from custody, her Honour said in her reasons: "Since he has been in prison he has addressed his drug problem and is offering assistance to young offenders in prison. He expressed a desire to take his place in the community on his release and to live with his family and help with the care of his sister. His sister's problems prompted, in part, the escape. The prisoner said, through his legal representative, that he was experiencing emotional problems. His brother had recently died. His sister was in Sydney for serious treatment with his mother but he was not able to see them because of her treatment schedule. He tried to see the prison psychologist for help but was not able and he, in the result, escaped." 21 Her Honour also took into account that the respondent exhibited remorse for his crimes and concern for the victims. He gave evidence before her and she accepted his contrition as genuine. His plea of guilty was made in circumstances where the case of breaking and entering was not strong, depending at the time he was interviewed by the police, on the evidence of a co-offender, his girlfriend, who had been with him when the offence was committed. Her Honour said that, in the circumstances, "his plea has considerable value." She also took into account that the escape offence could have been dealt with summarily, with the advantage to which I have made reference. 22 Her Honour indicated that "these subjective matters, of course, cannot, nor should they, outweigh the objective seriousness of the crimes for which he is sentenced." 23 It is submitted on behalf of the Director of Public Prosecutions, that despite her Honour's careful consideration of the case and attention to correct principles, the sentences that were imposed, in themselves, and especially having regard to the selection of the commencing date for the break, enter and steal sentence, were manifestly inadequate. Counsel for the Crown submitted that, in relation to the break, enter and steal sentence, the period of eighteen months consisting of nine months minimum term and nine months additional term was in itself quite inadequate for the offence in question. Moreover, the selected commencing date meant that the respondent, in practical terms, went unpunished. In respect of the sentence for escape, it was not contended that her Honour erred in imposing a fixed term sentence. However, it was submitted that the period of six months was inadequate to the point where intervention by this Court was warranted. I shall consider first the sentence for the escape. 24 Her Honour was obviously correct in finding that it was not an escape of the more serious kind. No violence was involved. There was no evidence of planning or premeditation. Personal considerations impelled the respondent to seize an opportunity that presented itself. He was not at large for a long period. He offered no resistance to his recapture. He committed no crimes during the period of freedom. 25 It is submitted that, notwithstanding these ameliorating features, the sentence of six months does not respond to the serious nature of the offence. 26 In Reg. v Thomson, (CCA, unreported 21 May 1986), Street CJ said: "The ordinary level of sentence for what might be called an unremarkable escape could be expected to approximate two years." 27 His Honour had previously indicated that: "sentences in the order of six to nine months, whilst not necessarily erroneous, are below the pattern ordinarily to be expected. Judges are not free to disregard the impost of the legislature's prescription of seven years as the maximum. " 28 It must be noted that, since this decision was given, the statutory maximum sentence has been increased to ten years. However, it should also be noted that in Thomson, a non-parole period of a little under fourteen months was imposed in relation to the head sentence of two years. 29 I do not consider that Thomson can be regarded as laying down, as it were, a minimum tariff for sentences for escape. Later cases have taken this view. (See e.g. Reg. v Machinroth, CCA unreported 1998). Sentencing statistics placed before the Court indicate that, despite the statutory maximum, it is not unusual for sentences, as low as six months, to be imposed for this offence. There can be no doubt that a sentencing Court should not lose sight of the fact that a strong general deterrent is required to inhibit escape from Centres of Correction especially low security institutions, or from situations of low security (see Thomson and Reg. v Ertl, CCA unreported 7 May 1997). For my part, I consider that it would have been quite appropriate for a longer sentence to have been imposed in the present case. However, the question is whether her Honour's discretion miscarried in the relevant sense. 30 In the present case it was appropriate for her Honour to take into account that the sentencing could have taken place in the Local Court, where, indeed, it appears, the preponderance of sentences for this offence are imposed. This did not require that she proceed on the basis that the maximum available sentence was the two year period which could have been imposed by the Court. It was, however, an available factor to be taken into consideration (R. v Crombie, CCA unreported 15 May, 1999). Moreover, it is appropriate that this Court should take into account "double jeopardy" considerations, in so far as any re-sentencing should properly be in the lower range of appropriate sentences. 31 Taking all these matters into account, I have come to the conclusion that, her Honour's sentence, although demonstrably low, was not so low as to warrant the intervention of this Court. In this regard I propose that the appeal be disallowed. 32 I turn then to the sentence for break, enter and steal. It is necessary to refer to the facts. It may be accepted that the offence was drug related. The respondent required money to purchase heroin. He and his co-offender, his girlfriend, went by car, in daylight hours, to the suburb of Cammeray, hitherto unknown to him, but one where he expected to find a suitable dwelling from which to steal. He took with him tools, including a hammer, to aid in breaking into and removing possessions from such a dwelling. He found a house, temporarily unoccupied. He broke in by smashing a panel of the front door. After entry, he removed goods from the house to a value in excess of $20,000. Whilst his girlfriend kept watch from a position near the doorway, he removed the goods and placed them in the car which was parked in a nearby driveway. Several trips were involved. He tried unsuccessfully to remove a safe from its position in the house. He was also unsuccessful in opening it. He had placed two television sets in the hallway close to the front door, prior to their removal, when the female occupier of the house unexpectedly returned to it. The respondent's girlfriend was observed by the occupier in her position near the doorway. The occupier caught her by the wrists, whereupon the girl called for assistance from the respondent. The respondent secured her release by threatening the occupier with his hammer, saying that he would kill her, a threat that was repeated more than once. The two then made their escape in the car, together with the stolen goods. The interior of the home was left in considerable disarray. It was, as her Honour found, a most frightening experience for the occupier. The goods have not been recovered. 33 Her Honour accepted the evidence of the respondent that he had not taken the hammer with him to use as a weapon and that he had not intended to carry out his threat. When interviewed by the police he had expressed remorse for his actions and sought to tender, through them, an apology to the occupier. It appears that, when confronted with the fact that his girlfriend had been previously interviewed by the police and had implicated him in the offence, he readily confessed to the crime. These matters were relied upon in the present hearing, by Counsel for the respondent, in support of her submission that her Honour's sentence should not be interfered with. 34 Additional matters were relied upon. It was submitted that the respondent was disadvantaged because the break, enter and steal and assault matters had not been placed on a Form 1 document and dealt with by the Campbelltown District Court, along with the other matters in the earlier hearing. It was not entirely clear to me whether the submission embraced the suggestion that, had this offence been placed upon such a schedule, it might have escaped punishment in that it would have been subsumed in the sentence imposed that day in respect of the other offences. Alternatively, the submission, as I apprehend it, was that its inclusion on the form would have resulted in some relatively small increase in the sentences imposed. I can see no substance in this submission. The obviously serious nature of this offence could not, reasonably, in my view, have led to its being ignored or, in some way, downgraded in the Court's consideration of the appropriate level of sentence. 35 It was also submitted that this Court should have regard to the sentence recently imposed by a Local Court, upon the respondent's co-offender . The Court was told that the sentence was one of three hundred hours community service. It was put that the respondent would have a justifiable sense of grievance, if he received a sentence significantly higher than this. The submission should be rejected. It is not clear why the co-offender was dealt with in the Local Court having regard to the value of the goods stolen. Be that as it may, there is, in my view, no real parity between the position of the co-offender and the respondent. He clearly played the dominant role in this crime. It was he who damaged the house and its contents and determined what and how many goods should be the subject of theft. It was he who chose to threaten the life of the occupier by brandishing a hammer at her in most frightening circumstances. It was he who repeated that threat. It was he who drove the vehicle away from the house, containing the victim's possessions of which she was permanently deprived. In my view the sentence imposed upon the co-offender should have no bearing upon the appropriate sentence to be imposed upon the respondent. 36 As has been indicated, the sentence imposed comprising nine months minimum term plus nine months additional term to date from 7 June 1999, the date of charge, resulted in the minimum term expiring immediately prior to the commencement of the sentence for escape. The only additional punishment for the offence over and above that relating to the escape was that of an additional term to be served from 7 September 2000 to 6 December 2000, during which the respondent would be free on parole. It was her Honour's recommendation that during parole, supervised rehabilitation of the respondent should occur, if possible, in Queensland so that he could have the support of and also be of assistance to his family. 37 Her Honour was obviously strongly influenced by a desire to assist the respondent to rehabilitate himself. She was impressed by progress he had already made in dealing with his addiction. He has added, by leave, in this appeal, further evidence of such progress, in an affidavit, which sets out details of a violence prevention course that he is undertaking in gaol. 38 These activities are, of course, commendable and worthy of encouragement. However, they cannot be allowed to mask the serious criminality of the respondent's actions. 39 With respect, I consider that the matter of rehabilitation played too great a part in her Honour's deliberations. It outweighed the demonstrable need to impose punishment appropriate to the very serious nature of the offence and also to provide a deterrent to like-minded offenders. 40 In the matter of The Attorney-General's Application (No. 1) under s. 26 of the Criminal Appeal Act (CCA unreported, 16 December 1999), a guideline judgment was issued by this Court for sentencing in respect of this offence. The Court listed factors which should lead a Court to "regard the seriousness of the offence as enhanced, and reflect that in the quantum of sentence" if any of them were present. The Court also said that "if more than one factor is satisfied there is an accumulative effect upon the seriousness of the offence." In the present case five of these additional factors were present namely, the offence was committed whilst the respondent was on bail, the respondent had a criminal record which included like offences, there was significant damage to property, the value of the property taken was substantial and there was a significant threat of force. When these matters are taken into account, the sentence, even allowing for all the subjective factors and other ameliorating matters, must be seen as manifestly inadequate. When account is taken of the commencing date for the serving of the minimum period, the sentence can be properly described as negligible. 41 Although it was not specifically mentioned in her Honour's reasons, it seems apparent that she took into account the totality principle. Having regard to the proximity in time of the whole of the offences, it was appropriate that she do so. The offences were part of a pattern of criminality exhibited by the respondent in late 1997 and early 1998. However, I consider, with respect, that that fact could not reasonably result in the imposition of such a low sentence for such a serious offence. 42 In my opinion the appeal should be allowed and the sentence should be set aside. It will be necessary, in re-sentencing, not to lose sight of the subjective and other ameliorating factors which have been referred to and of the desirability of the respondent's rehabilitation. Proper weight must also be given to the plea of guilty and also to the principle of double jeopardy in sentencing "by imposing the least sentence that could properly have been imposed upon the respondent at first instance." (Per Gleeson CJ in Rose, CCA, unreported 23 May 1996). Regard must also be paid to the totality principle. There are special circumstances which justify a shorter than usual non-parole period, namely the respondent's need for and prospects of rehabilitation and the accumulation of the sentences. 43 Before re-sentencing can take place, it is necessary to decide whether The Crimes (Sentencing Procedure) Act 1999 applies to the situation, or whether recourse should be had to the previous legislation. The Crimes (Sentencing Procedure) Act 1999 (the new Act) became operative on 3 April 2000. On the same date the Sentencing Act 1989 (the old Act) was repealed. 44 The new Act contains transitional provisions, to be found in Clause 37 (a) of Schedule 2 which provides: "Subject to the regulations: (a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in this Act may be continued and completed under the old legislation as if the Crimes Legislation Amendment (Sentencing) Act 1999 had not been enacted, …." 45 There is no relevant regulation. Accordingly the question whether re-sentencing should occur under the new Act or the old Act depends upon the construction of Clause 37(a). It should be noted that "old legislation" means any Act repealed or amended by the new Act (Schedule, Clause 32). Also, the new Act, as well as repealing the old Act, repealed (by Schedule 1) the Correctional Centres Act, 1952. Section 34 of the latter Act provided for the charge of escape from lawful custody of which offence the respondent had been convicted. As already indicated, that offence is now provided for in s. 310D of the Crimes Act 1900 which was inserted in that Act by Schedule 3 of the new Act. The sentencing procedure in relation to the offence of an escape is now governed by s. 57 of the new Act. 46 Section 5D of the Criminal Appeal Act is not affected by the new Act. It does not form part of the "old legislation" repealed or amended by the new Act. 47 Clause 37 (a) of Schedule 2 presents some problems in construction. The phrase "anything begun before the appointed day" is very wide. However, it cannot apply to the whole appeal process because s. 5D, as already indicated, is not, relevantly, a provision of the old legislation. However, it is submitted that the imposition of a sentence could be said to be "anything so begun" because s. 5D provides that the Court may, in its discretion, "vary the sentence and impose such sentence as (to the Court) may seem proper", (cf s. 63 of the Criminal Appeal Act); then a re-sentencing under s. 5D may be said to be a continuation and completion of something begun under the old legislation. However, it has been held that s. 5D does not have a limited operation. In Griffiths v R, (1977) 137 CLR 293, the High Court considered the operation of s. 5D. It was made clear by Barwick CJ (at 309) that the Court, in upholding an appeal against sentence and imposing another sentence, was itself substituting "the sentence which it considers appropriate for that imposed by the trial judge." In these circumstances, in my opinion, this Court, when substituting a fresh sentence in the place of that previously imposed, is not continuing and completing a process arising under "the old legislation". When the previous sentence is departed from, no warrant remains for using the procedures of the old Act in the imposition of the fresh sentence considered to be appropriate by this Court. The transitional provisions do not apply. 48 Since the above passage was written, the question has been the subject of detailed consideration by a Full Court of five, Spigelman CJ presiding, in Reg v Carrion, [2000] NSWCCA 191. The same conclusion was reached. 49 In these circumstances the Court must approach the re-sentencing of the respondent in terms of the new Act. Were it not for the respondent's conviction and sentence for escape, this would present no particular problem. However, s. 57 of the new Act has changed the sentencing procedure for escape. It is clear, moreover, that it covers the field in relation to such sentencing. (See s. 55 (5)). The effect of s. 57 of the new Act is that a sentence for escape cannot be made concurrent with other sentences. It must be accumulated upon all other sentences existing or imposed in the same sentence proceedings. 50 In the present case, therefore, it is necessary that the sentence of six months imposed upon the respondent for the escape offence must be added to any non-parole period of a sentence imposed for the break, enter and steal offence, in substitution for that which her Honour had imposed. 51 It must be recognised that s. 57 of the new Act produces a result which is harsher in effect than that flowing from the application of s. 34(2) of the Correctional Centres Act 1952 (now repealed). Under that section, her Honour had felt free to make the sentence for escape concurrent. I am satisfied, moreover, that s. 55(1) of the Interpretation Act 1987 has no application to this situation. Section 57 of the new Act does not, relevantly, increase the penalty for the offence of escape. 52 It is appropriate, however, in considering the totality principle in relation to the substituted sentence to bear in mind that s. 57 operates more stringently in relation to the respondent than did the repealed section. 53 Bearing all these factors in mind, I would propose that re-sentencing occur as follows:-

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Regina v Robinson

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