REGINA v. SMITH [2001] NSWCCA 152

No. 60759 of 2000 CORAM: HANDLEY, JA. IPP, AJA. GREG JAMES, J.

1 HANDLEY, JA: The court will give its judgment in the matter of Smith and I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: This is an appeal by the New South Wales Director of Public Prosecutions against the sentence pronounced by his Honour Judge Moore, a judge of the District Court, on the respondent on a charge of armed robbery with wounding. The ground of appeal assigned to the notice of appeal was that the sentence was manifestly inadequate. 3 The respondent was convicted on his own plea of an offence under s.98 of the Crimes Act 1900, that is robbery with wounding, which offence is punishable by a maximum penalty of 25 years. He was sentenced by the trial judge to imprisonment for three years to commence on 13 October 2000 and a non-parole period of 18 months to expire on 12 April 2002. 4 By reason of the sentence being a sentence of three years or less, the trial judge was constrained by s.50(1) of the Crimes (Sentencing Procedure) Act 1999 to make an order directing the release of the offender on parole at the end of the non-parole period. His Honour did so. 5 The facts found by his Honour as to the commission of the crime were substantially based on a document provided to him for sentence headed, "Full Facts". Those facts disclosed to his Honour a crime of considerable gravity. The offender had in company with another person, while armed with a knife robbed a prostitute, taking from her the monies provided to her for her services and in the process of that robbery she had come to be severely wounded in circumstances to which I will refer in a moment. 6 His Honour acknowledged the maximum sentence of 25 years imprisonment provided by the legislature for the crime, that it was a grave crime and that the effect on the victim was a grave one. 7 The crime had come to be committed when the offender and the other man, whilst drunk, had picked up the prostitute in the other man's car. They had smoked cannabis together with the prostitute and then journeyed to a remote area in the vicinity of Wollongong. The co-offender had sex with her first. He expressed dissatisfaction with the services provided and apparently, by way of reprisal for the asserted inadequacy of the services, sought that the offender, using a knife secreted alongside the seat of the car, should seek to retrieve the money. The offender used the knife for that purpose. He stated it was his intention to scare the victim into giving the money back. 8 The trial judge found that the victim on seeing the knife panicked, kicked at the offender, screamed and struggled with him, and received numerous lacerations from the knife to her hands and arms. She kicked one of the windows out in the struggle. Eventually the offender pulled her from the car and put her on the ground. She was left in that remote location, bleeding profusely. The co-offender disguised the number plate of the car. They left and the co-offender took with him her handbag and its contents. 9 There was evidence before his Honour from the victim of her belief that her life was in danger, that she had been threatened by the knife, even to the point where she thought the offender was trying to slash her with the knife and that she became slashed by the knife. The statement that she provided which was tendered before his Honour included a statement that she became extremely frightened and thought she was going to die. 10 The evidence provided of the extent of her injuries showed that she had suffered superficial cuts on the left foot and left forearm and a serious injury to the right hand, which was so deep as to expose the bone and required repair to cut tendons. 11 Following these events, the identity of the offender could not be established, but in consequence of widespread publicity, an anonymous tip was received. Police discovered the motor vehicle and went to the offender's home. The offender was spoken to at his place of employment and then at that place of employment invited to accompany the police to the police station for interview. 12 Initially, he said, according to the statement provided by Detective Northfield, part of the material provided to his Honour, that he was willing to see the police in the afternoon, but when later that day they approached him, he said that he had been expecting this to happen one day, "It has made me sick every day just thinking about it". He was then arrested. 13 At his interview he recounted the circumstances to which his Honour had referred. He gave an account of what had occurred in terms of his having presented the knife to the victim and then "she would have been pretty scared, she was going, like, pretty berserk as you could imagine". He denied sticking her with the knife in her lower back, but did describe the events in terms which plainly recognised his having put the victim in fear of serious injury, if not her life. 14 His Honour noted that as the tip-off was an anonymous one, there was no evidence against the offender at the time the police first went to speak to him and that as soon as the police arrived he immediately volunteered his guilt and informed the police that he was deeply guilty and remorseful for his actions. 15 His Honour described the record of interview, to which I have referred, as completely inculpating by an absolutely full and frank disclosure of activities which were unlikely otherwise to have been discovered. In this regard, it is noted that the co-offender had been charged and has pleaded not guilty and that the woman was apparently unable to identify the offenders, although she had given descriptions. 16 His Honour found in consequence that the plea of guilty was one for which a substantial discount should be given and that the admissions were of such value that he was required to give attention not only to s.22 of the Crimes (Sentencing Procedure) Act 1999, but to the reduction provided for in s.23, and referred to the decision in Regina v. Ellis (1986) 6 NSWLR 603 with reference to the necessity to extend a substantial degree of leniency. 17 He found the offender to be a young man of excellent character notwithstanding some imperfections certainly of substantial value to the offender when it came to sentence. He had employment and had enjoyed employment prospects on eventual release. He had a young wife and daughter, and they had, after some rejection of him, become supportive. He had on the night in question apparently been, as a consequence of some domestic argument, got himself extremely drunk and vulnerable, so it was said by his Honour, to suggestions by the co-accused. 18 His Honour felt that the use of the knife was itself absolutely impulsive, with no forethought whatsoever. The account given by the offender suggests that what his Honour there was referring to is any forethought independent of the invitation being extended to him by the co-accused to obtain the use of the knife. 19 His Honour referred to the lack of prior planning. I take that to mean the lack of prior planning in contrast with that degree of planning necessary for the performance of the sort of armed robbery that is described in Regina v. Henry & Anor (1999) 46 NSWLR 346 is used to describe. 20 His Honour, when considering the question of general deterrence, was of the view that it was an impulsive crime and it might well be treated as requiring less by way of general deterrence than might otherwise be the case. 21 His Honour was greatly impressed by the subjective case made on behalf of the offender, and by the gallery of supporters. He held:- "He is clearly a young man who would never have contemplated a crime of this nature and although he accepts full responsibility for it, it is something which evolved on impulse after impulse". 22 His Honour accepted that the offender accepted full responsibility and was very genuinely and deeply remorseful. 23 His Honour noted the youth of the offender and the unlikelihood of the offender re-offending, but nonetheless had regard to the necessity that the strong subjective case not cause sight to be lost of the gravity of the crime. He referred to the breach of trust and the vulnerability involved in the victim putting herself in their hands as she had. He referred to the gravely aggravating feature of the use of the knife, and noted the absence of an intent to wound, but qualified that since the offence does not have any element of intentional infliction of wounds. However, rightly in my view, he observed that the use of the knife renders the case more grave because of the risk of injury, the very risk which was accomplished in this case when the victim resisted, and the wounds were inflicted. 24 His Honour referred to the plea of guilty and in that context, apparently by reason of the combination of the matters referred to in s.22 and s.23 decided on a reduction of something like 40%. Although his Honour expressed it as additional to the element I have just mentioned, his Honour appears to be referring to the utilitarian element of the plea as a matter that should be expressed in terms of its significance in that discount, and also referred to the remorse and the saving of the victim from having to give evidence. 25 He noted that the respondent might be at risk within the prison system in consequence of his youth, that he was going to gaol for the first occasion, and the prospect that if it were thought he had provided material against the co-offender, he might well be treated adversely by other prisoners. 26 His Honour accompanied the sentence by recommendations that the offender be classified urgently and that he be classified to minimum security. 27 It is apparent that the sentences passed by his Honour involve a variation of the statutory proportions referred to in s.44(2) of the Crimes (Sentencing Procedure) Act 1999. That subsection provides:- "The non-parole period must not be less than three quarters of the term of the sentence unless the court decides there are special circumstances ... in which case the court must make a record of its reasons for that decision." 28 At the close of his Honour's remarks counsel for the respondent drew to his Honour's attention the necessity to refer to special circumstances, and his Honour said:- "The special circumstances have been expressed at length in my reasons."

29 Putting aside what other matters have been argued on this appeal, in my view his Honour there fell into error. His Honour did not identify the particular special circumstances. He did not identify the circumstances which might have the necessary character and which might attract thereby such significance as to warrant the variation of the statutory proportions, and failed in that regard to give adequate reasons for variation of the proportions. 30 The Crown has argued on the appeal that his Honour's sentence was manifestly inadequate, and that his Honour fell into error in some three ways. I put aside for the moment the submission that the sentence was manifestly inadequate. His Honour was said to have fallen into error having regard to the guidelines expressed in the judgment in this court in Henry (supra) concerning the appropriateness of sentence for armed robbery. There was debate before his Honour concerning those guidelines and their applicability. 31 The guidelines provide for a category of case of armed robbery, which is sufficiently common as to include such characteristics as: a young offender with no previous criminal history; a weapon like a knife, capable of killing or inflicting serious injury; a limited degree of planning and limited, if any, actual violence and the victim in a vulnerable position; a small amount of money being taken; and a plea of guilty, the significance of which is limited by a strong Crown case. 32 This offence was, however, a different offence. It involved actual violence and injury. It could not be said to have involved limited actual violence, albeit that that violence has to be considered in the context that the injuries were not intentionally deliberately inflicted. On the other hand, it could not be said that the significance of the plea was limited by a strong Crown case. Indeed, in my view, it could not be said that the significance of the plea was such as to show that his Honour fell into appellable error, as his Honour weighed it, having regard to the range of decisions open to a trial judge in the discounting of the sentence in accordance with the guidelines set out by this court in the decision of Regina v. Thomson & Houlton [2000] NSWCCA 309 and having regard to the additional matters to which s.23 applies. 33 The appropriate range for the offences to which it refers is identified in Henry (supra), so that sentences for an offence of this character should generally fall between four and five years for a full term, although aggravating and mitigating factors could justify a sentence in a lower part of the range. Further, of course, if there is a finding of special circumstances, the non-parole period may fall further below that which otherwise would have been appropriate as referred to in Henry (supra). 34 However, this is a crime that is very different to those referred to in Henry (supra). 35 Consequently, when the Crown contends that his Honour fell into error in (1) failing properly to apply the guidelines in Henry (supra), having regard to the fact that the maximum penalty for this offence was 25 years, rather than 20 years, and (2) failing to have adequate regard to the fact that actual violence was used, so that the appropriate sentence starting point, having regard to the range in Henry (supra), was too low. I do not accept that submission. 36 The Crown also submits that the plea discount was too much. Having regard to the matters to which I have already referred, to s.22 and s.23 and to the principles in Thomson (supra), I am not persuaded that it was inappropriate for his Honour to have given a substantial discount and to have regard to the principles in Ellis (supra) notwithstanding that the co-operation and assistance furnished by the accused, since it did not include evidence against the co-offender, was not of the greatest utility as is envisaged in that decision. 37 Moving then to the Crown's submissions that the sentence was manifestly inadequate. The reduction of the non-parole period means that the sentence when considered as a whole is a sentence which would require the defendant to spend 18 months in prison, to be liable to be returned to prison or for supervision during the balance of the term. It is undoubtedly an entirely lenient sentence for a crime of this gravity. It was a crime of a vicious and despicable nature. 38 However, even though his Honour did not detail them, in my view there were in evidence before his Honour, and on his Honour's findings, clearly special circumstances, such as to warrant a variation of the statutory proportions. In particular they were that this was the offender's first time in custody, that he had a young family, that he had entirely excellent rehabilitation prospects, and indeed his Honour's findings were sufficient to conclude that this event was an aberrant occasion in an otherwise reasonably well conducted life, putting aside the smoking of marijuana. 39 It was contended on the offender's behalf that the sentence was to be regarded as entirely appropriate, notwithstanding his Honour had reduced the custodial proportion of it so drastically, and notwithstanding that his Honour had failed, as I have already said, adequately to give reasons as to why and on what basis he had so decided. 40 Our function on an appeal of this kind, I have already referred to in some detail in the decision of this court in Regina v. Pont [2000] NSWCCA 493. It is not necessary for me to set out again here the well-known principles that are there summarised. 41 I have concluded that the sentence as it stands should not be interfered with, and that, not because his Honour did not fall into error in his decision concerning the special circumstances, because I am plainly of the view that he did, and he failed to give adequate reasons for his findings, but because, for this court to vary the non-parole period pursuant to s.52 of the Crimes (Sentencing Procedure) Act 1999 or to re-sentence to the extent necessary to correct that error, would be to increase the sentence and its practical effect in a way that would amount to tinkering. I find no other basis which would warrant interference. 42 I therefore am of the view that the appropriate course to take, notwithstanding the error that I have referred to, is for this court to dismiss the appeal. 43 HANDLEY, JA: I agree with Justice Greg James that the learned sentencing judge fell into error in the way that he has identified. I would add for myself that his Honour's remark, "there was absolutely no planning" is not, with respect, accurate. There was planning, albeit at a late stage on the occasion in question. 44 I am also of the view that the plea of guilty should not have been given enhanced value, because the offender had been discovered, and the police were able to interview him. 45 His prompt confession put an end to the police investigations, so there was no occasion for the police to investigate the availability of DNA evidence, the presence of bloodstains or damaged clothing in the prisoner's home, and the possibility that he could have been identified through DNA testing of the vehicle and the victim. 46 His Honour also plainly disregarded the statutory injunction to give reasons for his decision that there were special circumstances for making the non-parole period less than three-quarters of the total sentence. 47 The crime, with its ugly and dangerous incidents, was one which evolved, and the prisoner did not have complete control over the events. I have nevertheless been troubled by the lightness of the total sentence and the fact that only 18 months of that sentence is to be spent in custody. 48 My mind has fluctuated during the course of the argument. It is not clear to me that s.44(2) of the Crimes (Sentencing Procedure) Act 1999 is directed at mitigating the full time custodial portion of the sentence independently of the need of the offender for additional time under supervision following his release, but this is not a suitable case, nor has the argument been such as to make it appropriate to decide those questions. 49 The section departs from the previous legislation in significant ways and we have not been referred to any material in the second reading speech of the Minister or any explanatory memorandum which might throw light on the meaning of s.44(2) in the sense that I have referred to. 50 Nevertheless, the other members of the court are of the view that the sentence should not be disturbed and not without some doubt, I am prepared to acquiesce in that result. I therefore agree with the order proposed by Justice Greg James. 51 IPP AJ: I agree with Justice Greg James. 52 HANDLEY, JA: The order of the court will be that the appeal is dismissed. *******

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