REGINA v SILVER [1999] NSWCCA 108 | Case summary

I do not agree that in the circumstances of the case the total term of 3 years was not manifestly inadequate. The robbery was at an isolated truck stop café and service station at Gurley. It involved substantial premeditation including driving from Gunnedah to Moree to Goondiwindi (about 300kms) and part of the way back in search of a place to rob. The offenders equipped themselves with balaclavas and a replica pistol. The robbery was conducted in company using this equipment. The barrel of the pistol was placed against the victim's temple and later his head struck with it. He feared he would be shot.

SIMPSON J : 7 On 21 August 1998 in the Local Court at Tamworth the respondent pleaded guilty to a charge of aggravated armed robbery brought under s 97(2) of the Crimes Act 1900 and was committed for sentence to the District Court. 8 On 6 November 1998 he adhered to his plea. On the same day Johnston ADCJ sentenced him to a term of penal servitude for three years which, having found special circumstances justifying variation of the statutory ratio provided by s 5(2) of the Sentencing Act 1989, he divided into a minimum term of six months and an additional term of two and a half years, the minimum term to commence on 5 July 1998, the date on which the applicant was taken into custody and the date of the offence. By reason of s 24(1) of the Sentencing Act the respondent was entitled to release on parole at the expiration of the minimum term. That term expired on 4 January 1999 and the respondent was accordingly released from custody. 9 The maximum penalty applicable to the offence is penal servitude for twenty-five years. 10 Notwithstanding the respondent's relea0000se on parole the Crown appeals the sentence asserting that it is manifestly inadequate. Facts 11 The offence occurred at about 6.10am on 5 July 1998. In company with two others, one of whom was a juvenile, and armed with a replica pistol, the respondent drove from Gunnedah, where he lived, to Moree and Goondiwindi seeking a suitable establishment to rob. Eventually he selected an isolated truck stop café and service station at Gurley, attended only by the fifty-three year old male proprietor, Mr Darrell Brydon. The respondent entered with one of his co-offenders. Both were wearing balaclavas. The respondent held the barrel of the replica pistol against Mr Brydon's head and ordered him to produce the money that was in the till. When Mr Brydon accidentally pressed the wrong key on the till, the respondent struck him on the head with the weapon. Mr Brydon opened the cash register, handed its contents, $341, to the co-offender, and the two rejoined the third person in the vehicle. The respondent drove off. They were apprehended after police pursued them at high speed over about 45 kms on the Newell Highway shortly after. 12 A little later that morning the respondent took part in an electronically recorded interview. He made full admissions. He said that the three had driven from Gunnedah to Moree, "more or less" seeking out a place to commit the offence, but without any real plan. The Gurley truck stop was chosen on impulse as they drove past. The respondent's assertion, in answer to one question, that they did not have any real plan, was to some extent contradicted by other answers, to the effect that the three had agreed to commit an offence of this kind, and that, initially, the respondent was to drive and remain in the car whilst the other two entered the selected premises; and by the provision of the replica pistol and the balaclavas, which were fashioned from cut down stockings and track pants. The arrangement for the respondent to remain in the car was abandoned when the third person declined to take part in the robbery itself. The respondent gave a full description of what had occurred in the service station. He said that the purpose of the offence was to obtain money to purchase amphetamines. He said he had been intoxicated at the time, having consumed a considerable quantity of beer the evening before. He had injected amphetamines at about 3 o'clock the previous day. 13 The respondent has remained in custody since the day of his arrest. 14 The respondent was born on 18 June 1974 and was 24 at the time of the offence. He gave evidence in the sentencing proceedings. He is of aboriginal descent and identifies with the aboriginal community. He grew up and attended school in Gunnedah where he was the only aboriginal in his class. He left school at age fourteen, he said as a result of discriminatory treatment at the hands of other students, in part at least because of his aboriginality, and because he could hardly read or write and accordingly was treated harshly by teachers. 15 Since leaving school he had employment in the local abattoirs until they closed down, and has had farm and labouring work. He was talented at sport and played representative football, and was a champion boxer. Both of these activities he relinquished when he became addicted to drugs and alcohol of which I will say more below. 16 At the age of sixteen he met and established a de facto relationship with Leanne Foley. That relationship continues although there have been periods of separation attributable to his drug use. At the time of the offence the respondent and Ms Foley were temporarily separated. The relationship has resumed and Ms Foley has visited the respondent in prison. She gave evidence on his behalf. They have four daughters, aged between seven years and nine months. Letters written by the respondent to two of his daughters from gaol were in evidence. 17 The respondent's aunt also gave evidence. Her husband is a cotton chipping contractor with a business in the Manilla area, and is able to offer the respondent seasonal employment in that industry. She also has visited him in prison. 18 The respondent, his wife, and his aunt all gave evidence of the change they have observed in the respondent since his incarceration. Ms Foley said that he has a different attitude, and produced the letters to his daughters as evidence of his affection for and sense of responsibility to his daughters. The letters do provide grounds for optimism about his rehabilitation. His aunt has also observed changes "personality, weight-wise" which she said she found hard to describe. The respondent said he had never felt better nor looked better, he had more self esteem, and he had gained weight. He expressed contrition for his actions, regret for the effect of the offence on Mr Brydon, and stated a desire to be a father figure to his children and be part of their family life. He acknowledged the part that drugs and alcohol had played in his criminal behaviour. He said that he had been controlled by drugs. He has undertaken counselling at the Alcohol And Other Drugs Unit in prison, and was reported to have been open and willing to discuss his problem and the underlying issue. This was reflected in the evidence he gave. He expressed the wish to continue with counselling on his release and to participate in a six week residential programme at an institution called Ray Thorne House, which was willing to accept him, on his release. He has undertaken other courses whilst in gaol, has improved his literacy and discovered and developed a talent for drawing. 19 The respondent has some criminal history, although his record is considerably less serious than many of those that come before this court. In 1994 he was convicted of two counts of assault, for which he was fined $250 and placed on a recognisance for three years. Since then he has been convicted of offensive language and resisting arrest, driving whilst his licence was cancelled, and malicious damage. All offences were dealt with in the Local Court, and in relation to each a fine was imposed. He has never previously served a term in custody either in a juvenile or adult institution. Sentence 20 Johnston ADCJ was impressed by the respondent's evidence, describing it as having been given in a simple and forthright manner without any excuse for his participation in the offence. He took into account, as he was obliged to do, the respondent's early plea of guilty, and his contrition and remorse that his Honour was satisfied was genuine. He considered the prospects of the respondent and his wife re-establishing their lives free of drugs and crime were good. 21 The judge found special circumstances under s 5(2) of the Sentencing Act 1989, and imposed the sentence already mentioned, that is, a total term of penal servitude for three years made up of a minimum term of six months and an additional term of two and a half years. With a view to the respondent's release on parole, to which he was entitled at the expiration of the minimum term (Sentencing Act, 24(1), he imposed conditions (i) that the respondent thereafter accept the supervision and guidance of the Probation and Parole Service for the balance of the additional term or such shorter period as the officer in charge deemed necessary; (ii) that the respondent obey all reasonable directions of that Service directed towards drug and alcohol counselling; and (iii) that the respondent, if directed, and if a vacancy were available, make arrangements on his release to enter the Roy Thorne Institution for the six week drug rehabilitation course. 22 The evidence before this court demonstrates clearly that the applicant accepted these conditions and has fully abided by them. The Appeal 23 The appeal was limited to two issues. 24 The first issue concerned reasons for the finding of special circumstances under s 5(2) of the Sentencing Act. I do not understand the Crown to have argued that such a finding was not open, nor that such a finding was inappropriate on the evidence, but that his Honour failed to give reasons therefor and that failure to explain the finding constitutes error of law. S15(3) of the Act expressly requires that reasons be given for such a finding. This court has already decided that failure to give reasons is an error of law sufficient to provide the basis for setting aside the finding: R v McDonald, unreported, 12 October 1998, per Spigelman CJ, McInerney and Sperling JJ concurring. 25 Up to the point of the finding of special circumstances, the remarks on sentence were structured in a largely conventional way. His Honour outlined the circumstances of the offence and noted its seriousness, and the well-known effects of armed robberies on their victims. He then moved to the matters individual to the respondent, his age, his criminal history, the evidence given by him and on his behalf; his family circumstances, past and present; his involvement with drugs; his steps towards rehabilitation whilst in custody on remand; his stated intentions to undertake further rehabilitation in the future; and his remorse and contrition. He then expressed the view that the respondent and his wife could successfully re-establish their lives. He referred to authorities in relation to punishment, with particular reference to the decision of Mahoney ACJ in R v Lattouf, unreported, 12 December 1996. Following this exposition, his Honour said, without more: "I believe this is a case where I can find special circumstances within the provisions of s 5(2) of the Sentencing Act." 26 All of the material referred to by his Honour was material relevant to the length of the overall sentence. Much of it was also relevant to the finding of special circumstances. There was no reason why the same material could not be used for both purposes: R v Moffitt (1990) 20 NSWLR 114. It may well be that his Honour envisaged that the various circumstances to which he referred, or some of them, were relevant to finding of special circumstances as well as the overall sentence. In order to comply with s 5(3), it was necessary for him to say so clearly and to differentiate the reasons that led him to impose a total sentence of three years, and those which led him to make the finding of special circumstances and structure the sentence as he did. He did not do so. 27 I therefore accept that the Crown has demonstrated error of law within the principles stated in MacDonald. There is, however, nothing in that case that decides that failure to give reasons for a finding demands that the finding be set aside. It does, however, demand reconsideration of the finding. 28 I am of the view that not only was there a proper basis for the finding that special circumstances existed, but that this case was one which called for such a finding. In coming to that view, I have in mind that line of authority in which it has been held that the need for effective rehabilitation is, at least, the most common reason for a finding of special circumstances: eg, R v Morrissey, unreported, 15 July 1994, per Carruthers, Finlay, Badgery-Parker JJ; MacDonald, p 11. If the total term to which the respondent was sentenced is undisturbed, but the finding of special circumstances set aside, the respondent would serve a minimum term of two years and three months, and an additional term during which he would have the benefit of supervision, of nine months. 29 The respondent is still a relatively young man. He has the too familiar history of drug and alcohol abuse, which he has taken steps, whilst in prison, (both before and since sentence) to overcome, but in relation to which he will need considerable assistance when he is again exposed to the temptations of life outside gaol. His own stated (and accepted) enthusiasm to rehabilitate himself are cause to hope that, with extended help, he will be able to live a drug and crime free life, and involve himself fully in his family responsibilities. It would, however, be unrealistic to think that he can do this with supervision only for nine months. This was, in my view, a clear case for a finding. 30 Accordingly, while I accept that there was error in the failure to specify the reasons for the finding of special circumstances, I would not interfere in that finding. 31 (ii) The second basis on which the appeal was argued on behalf of the Director of Prosecutions was that the sentence imposed, and more particularly the minimum term, was inadequate. 32 In all the circumstances of this case, I do not accept that the total term was manifestly inadequate, although it was toward the lower end of the available range. I do, however, accept that the division made by his Honour resulted in a minimum term that was, when it was imposed, inadequate to reflect the objective gravity of the offence, even when that circumstance is taken in conjunction with the strong individual features. The applicant's need for extended supervision could (and should) have been met without the drastic variation to a conventional sentence that was made. As was pointed out in the Crown's written submissions, there were four features which emphasised the gravity of the crime. Despite one rather non committal answer given by the respondent in the record of interview, to which reference has already been made, he and his co-offenders had planned the offence and had equipped themselves with a weapon and with disguises. The replica pistol was used over what must have been some minutes, in a threatening manner plainly intended to frighten and intimidate, and Mr Brydon was struck to the head with it. Mr Brydon was, understandably and justifiably, in fear for his life. Further, the offences were committed at an isolated location, where the victim was alone, and at an early hour of the morning, when help from passers-by would be unlikely. A juvenile was involved. (Although he appears to have been the instigator of the offence, in my view, adult offenders who commit crimes in company with juveniles expose themselves to severe penalties.) 33 It is well recognised in this court that special considerations apply to Crown appeals. This court retains a discretion, even when satisfied that the sentence imposed was manifestly inadequate, to decline to interfere. In my opinion this is a case in which that discretion should be exercised. Among the reasons for this conclusion is that the respondent has been at liberty for more than two months having been released at the expiration of the minimum term. The principle which is described as the principle of double jeopardy has even more force when an offender has been released from custody. Putting that fact together with the favourable subjective circumstances, and the favourable findings of fact made by the sentencing judge, I would, notwithstanding the inadequacy of the sentence as and when imposed, dismiss the Crown appeal. 34 That view, which I would have reached in any event, is strengthened by the matters that follow. In this court additional evidence was received without objection. This consisted of affidavits sworn by the respondent, Ms Foley, the respondent's uncle, and his solicitor. Mr Clare, the respondent's uncle, confirmed his willingness to do what he could to secure employment for the respondent, although, as the work he is able to offer is seasonal, he cannot guarantee its availability. The remaining material affords convincing evidence of the respondent's successful rehabilitation. On his release from custody he entered the Ray Thorne Substance Misuse Rehabilitation Centre. At the end of the first six weeks course, feeling that he still needed help, he requested and was granted an extension for a further twelve weeks. A report from the Probation and Parole Service dated 5 March 1999 accepted the description of the respondent's efforts at rehabilitation as "one of the very best". An alcoholism counsellor at the Centre said that he had "advanced tremendously well" during his stay, had made great progress in the accumulation of skills, and had commenced an external certificate in general education. He had had leave on more than one occasion and breath and urine testing on his return on each occasion produced negative readings. 35 Counsel for the Crown argued that to return the respondent to custody would not necessarily impede his rehabilitation. That may be so, but there must be a grave risk that it would do so, and that is a risk I consider in the circumstances to be unacceptable. While it may be accepted that the minimum term, when initially imposed, was unduly lenient, the passage of time and the respondent's commendable efforts at rehabilitation are such that, in my view, he ought not be returned to custody. 36 In the exercise of this court's discretion, I would dismiss the Crown appeal.

REGINA v SILVER

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