Regina v Street

CATCHWORDS: Correct application of s21A Crimes (Sentencing Procedure) Act 1999, effect of finding of special circumstances on structure of sentences where more than one sentence is involved.

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

R v Henry (1999) 46 NSWLR 346 R v LWP [2003] NSWCCA 215 R v Pham (1991) 55 A Crim R 128 R v Tarek Mohamadin [2004] NSWCCA 401 CASES CITED: R v Thomson and Houlton (2000) 49 NSWLR 383 R v Walker [2005] NSWCCA 109 R v Wickham [2004] NSWCCA 193 R v Youkhana [2004] NSWCCA 412

Matthew Thomas Street - Applicant PARTIES: Crown - Respondent

M Johnston - Applicant COUNSEL: P Barrett - Crown

SE O'Connor - Solicitor for Legal Aid SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2005/94

WOOD CJ at CL GROVE J HOEBEN J

Thursday, 14 April, 2005 REGINA v Matthew Thomas STREET JUDGMENT 1 WOOD CJ at CL: I have read in draft form the judgment of Hoeben J. I agree with the orders proposed, and with the reasons of his Honour. 2 GROVE J: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence On 18 June 2004 the applicant was sentenced as follows by Delaney DCJ at the Parramatta District Court.

(i) 24 November 2002 - armed robbery with a dangerous weapon at Toongabbie Bowling and Recreational Club in breach of s97(2) - maximum penalty 25 years imprisonment. Sentenced to fixed term of 5 years to commence on 4 June 2003 and to expire on 3 June 2008.

(ii) 9 December 2002 - armed robbery with dangerous weapon at Stamford Hotel, Macquarie Park in breach of s97(2) Crimes Act . Sentenced to fixed term of 5 years to commence on 4 December 2003 and expire on 3 December 2008.

(iii) 29 December 2002 - armed robbery with a dangerous weapon at Hunters Hill Hotel in breach of s97(2). Sentenced to fixed term of 5 years to commence on 4 December 2004 and expire on 3 December 2009.

(iv) 13 January 2003 - robbery whilst armed with an offensive weapon at Macquarie Park in breach of s97(1) Crimes Act 1900 - maximum penalty 20 years imprisonment. Sentenced to fixed term of 4 years to commence on 4 June 2005 and expire on 3 June 2009.

(v) 13 January 2003 - be carried in conveyance without consent of owner in breach of s154A(1)(b) Crimes Act 1900 - maximum penalty imprisonment for 5 years. Sentenced to fixed term of 2 years to commence on 4 June 2005 and expire on 3 June 2007.

(vi) 19 January 2003 - armed robbery with a dangerous weapon at Orange Grove Hotel in breach of s97(2). Sentenced to term of 8 years to commence on 4 June 2006 and expire on 3 June 2014 with a non-parole period of 5 years to commence on 4 June 2006 and expire on 3 June 2011. 4 There were eight matters included on a Form 1:

(i) Between 30-31 July 2001 break enter and steal from Eastern Road Gourmet Chicken at Turramurra - in breach of s112 Crimes Act .

(ii) 24 November 2002 - steal motor vehicle at Toongabbie in breach of s154AA Crimes Act 1900.

(iii) 24 November 2002 - maliciously destroy motor vehicle by fire at Toongabbie in breach of s195(b) Crimes Act 1900.

(iv) 9 December 2002 - steal motor vehicle at North Ryde in breach of s154AA Crimes Act 1900.

(v) 9 December 2002 - maliciously destroy motor vehicle by fire at North Ryde in breach of s195(b) Crimes Act 1900.

(vi) 29-30 December 2002 - take and drive a conveyance without consent at Lane Cove in breach of s154A(1)(a) Crimes Act 1900.

(vii) 19 January 2003 - take and drive conveyance without consent of owner at Lilyfield in breach of s154A(1)(a) Crimes Act 1900.

(viii) 29-30 January 2003 - break enter and steal at Hunters Hill in breach of s112 Crimes Act 1900. 5 On the Form 1 signed by the DPP these matters were to be taken into account in relation to the armed robbery with a dangerous weapon offence of 24 November 2002. In fact his Honour took the Form 1 matters into account when sentencing in relation to the armed robbery with a dangerous weapon offence of 19 January 2003. 6 The total effect of the sentences was a head sentence of 11 years commencing on 4 June 2003 and expiring on 3 June 2014 with a non-parole period of 8 years commencing on 4 June 2003 and expiring on 3 June 2011. 7 The applicant had been in custody since 2 March 2003 when he was arrested following the revocation of his parole in relation to other matters. That period of imprisonment was due to expire on 20 December 2003. His Honour chose 4 June 2003 as the commencement date of the applicant's sentences since it was agreed that this was the date on which the applicant had admitted the offences (ROS 27).

Offences 8 The applicant was born on 21 July 1982. He was twenty at the time of the offences and twenty-one at the time of sentence. 9 A brief of evidence was tendered by the Director of Public Prosecutions and the circumstances relating to each offence were reviewed by his Honour. (ROS pp 3-8) 10 24 November 2002 - armed robbery with dangerous weapon at Toongabbie. Between 12 am and 7.35 am on 17 November 2002 the applicant attended a car park at Toongabbie and stole a Hyundai motor vehicle. On 24 November 2002 the applicant and three co-offenders drove this Hyundai to the Toongabbie Bowling and Recreation Club. The applicant and two others, armed with a rifle, entered the club with their faces covered and wearing gloves. The patrons of the club were forced to lie on the floor whilst the manager was taken at gunpoint to the safe room. The applicant removed $18,424.80 from the safe. The applicant and co-offenders left the club and drove away in the Hyundai which was driven to the rear of 102 Station Road, Toongabbie. The applicant and co-offenders then removed their clothing and placed it in the vehicle and set the vehicle alight. The Hyundai was completely destroyed by the fire and had a value of $7,000. 11 9 December 2002 - armed robbery with a dangerous weapon at Stamford Hotel, Macquarie Park. Between 9 pm on 6 December and 8.30 am on 7 December 2002 the applicant stole a Hyundai motor vehicle. At 3 am on Monday, 9 December 2002 the applicant and two other persons drove the vehicle to the car park of the Stamford Hotel, Herring Road, Macquarie Park. The applicant and co-offenders entered the reception area armed with the same rifle used in the earlier offence. The night manager was forced to open a number of safety deposit boxes and remove about $7,500 in cash. They left in the stolen vehicle which was driven to Blenheim Park, North Ryde. The offenders removed their clothing, placed their clothing in the vehicle and set it alight. The car and an earth excavator parked near it were damaged by fire. 12 29 December 2002 - armed robbery with a dangerous weapon at Hunters Hill Hotel. Between 7 pm and 8.45 pm on Sunday, 29 December 2002 the applicant stole a Ford Laser motor vehicle. At about 9.30 pm on that day the applicant and unknown co-offenders drove the vehicle to the Hunters Hill Hotel, Gladesville Road, Hunters Hill. The applicant and co-offenders armed with a .22 rifle and an M1.30 calibre carbine rifle, entered the hotel. The patrons were forced to the ground. The applicant forced the manager to open the safe and they removed $10,000 in cash placing it in a handbag. The applicant and co-offenders left the hotel in the stolen car and returned to the applicant's home. The applicant then parked the vehicle in Kells Road, Ryde where it was recovered by police. A .22 calibre magazine was located in the poker machine area of the hotel. 13 13 January 2003 - carried in conveyance without owner's consent and robbery whilst armed with an offensive weapon at Macquarie Park. On 13 January 2003 the applicant, together with three unknown males, entered the front entrance of the Stamford Hotel, North Ryde. One of the males was armed with a shortened firearm or shot gun. They approached the front night auditor, who was standing behind the counter. The offenders threatened the victim with the firearm. He was taken to the office area and ordered to open the safe or safety deposit box, and the offenders removed about $5,000 in cash, together with a number of coins in separate paper envelopes that contained the hotel logo. After taking the money, the offenders left the office area and ran to the car park of the hotel. They got into a motor vehicle and left the scene. The car was found burned at Lane Cove early the next morning. 14 19 January 2003 - armed robbery with dangerous weapon at Orange Grove Hotel. On 19 January 2003 the applicant, in company with a man Khaliquiy and a young person, MM, drove to the Orange Grove Hotel in Lilyfield. The applicant and co-offenders entered through the Point Street entrance, armed with a M1.30 calibre carbine (as used in the Hunters Hill offence). The offenders forced the patrons to the ground. The applicant opened the till in the bar, took the cash and then went to the bottle shop area and removed more cash. There was a struggle between the manager of the hotel and Khaliquiy. Other patrons joined in the struggle and detained Khaliquiy. The applicant fled the hotel with the money. The two others were detained at the hotel and arrested by police. The applicant evaded police detection and escaped with about $3,000. The police recovered the M1 .30 calibre carbine at the hotel but the .22 calibre rifle has not been located. 15 Form 1 matters. It can be seen that six of the eight matters on the Form 1 were associated with the above offences. The two break enter and steal matters were not and involved separate occasions of criminality.

Subjective matters 16 A pre-sentence report and two reports from psychologists were tendered on behalf of the applicant. He and his mother gave evidence in the sentence proceedings. 17 The effect of this evidence was that the applicant had a stable and supportive childhood and adolescence until 1985 when his father died. This led to a significant change in behaviour and displays of anger. He commenced abusing cannabis at the age of fifteen and heroin at the age of sixteen. Before that he had commenced using alcohol. He had become involved with an unsatisfactory peer group. He left school at sixteen having obtained the school certificate. His work history was relatively modest, having worked for a brief period as an apprentice plumber. 18 The applicant's criminal history was short but significant. In November 2000 he was dealt with at the Hornsby Local Court by way of a bond for the offences of enter prescribed premises and larceny. In January 2001 he was placed on a s9 bond for 12 months for the offence of break enter and steal. In June 2002 he was fined for the offence of assault. On 14 June 2002 he was sentenced to 18 months imprisonment on two counts of break enter and steal with a non-parole period of 6 months. This period of imprisonment commenced on 9 April 2002. In December 2002 he was fined for being in possession of a prohibited drug. 19 Upon the expiration of his non-parole period of imprisonment on 8 October 2002 the applicant came under probationary supervision. For a short period his response was satisfactory but on 25 November 2002 he was charged with the possession of a prohibited drug and it was noted that he had relapsed into heroin use. Tests in December 2002 and January 2003 were positive for morphine and amphetamine which led to the applicant's parole being revoked and him being returned to custody on 2 March 2003. It was during this period of imprisonment that he was initially charged with the offences of 13 January 2003 and subsequently the other offences. The applicant pleaded guilty to all of the offences and it was agreed at the hearing that these pleas of guilty had been entered at the earliest possible time. 20 It was the applicant's evidence that all of his offences were committed to support his heroin habit. At the time of the sentence hearing the applicant had not completed a full drug and alcohol rehabilitation program. While in custody he had been working in the metal shop and his behaviour was reported as satisfactory. 21 It was the opinion of the psychologists and the author of the pre-sentence report that because of his background, age and addiction it was advisable for the applicant to undergo a longer period than usual by way of supervision if he were to overcome his drug problems and achieve rehabilitation.

Remarks on sentence 22 His Honour reviewed the factual background to the offences and noted that the applicant and the two of his co-offenders who had been apprehended, consistently maintained that the weapons used in all the offences had been unloaded. His Honour also reviewed the sentences imposed on the applicant's co-offenders, MM and Khaliquiy. It was accepted by counsel for the applicant that the applicant was in a different category to those offenders and that no issue of parity arose. 23 At the conclusion of his review of the offences, his Honour said: "Suffice to say that the offences to which I have referred were not only numerous but involved frightening episodes involving the use of firearms whether loaded or unloaded naturally causing fear and distress to all of those who observed the offenders at the various venues as they stole large quantities of cash from those venues. It needs hardly to be said that the extent of the criminality of those offences is extremely high and requires significantly serious penalties to reflect the necessity for both general and specific deterrence." 24 His Honour had regard to the applicant's criminal record and concluded that it did not assist him by way of mitigating the seriousness of the offences. His Honour reviewed the subjective matters, to which reference has been made, and the recommendations of the pre-sentence report and of the psychologists. His Honour had specific regard to the youth of the applicant, the fact of the plea of guilty, the admissions made at an early point in time, that this was the first significant period in custody that the applicant had experienced, and the need for supervision and an extended period of parole. His Honour was prepared to accept that the applicant had some remorse and contrition for what had occurred. His Honour noted that the long history of drug abuse explained but did not excuse the offences which were before him. 25 His Honour referred to the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346. He noted that although some of the factors there identified applied to the applicant, Spigelman CJ had identified others which might lead to an increase of the suggested range of sentences such as the nature of the weapon, the vulnerability of the victim, the number of offenders and the effect on the victims, including the intensity of the threat or actual use of force. His Honour also noted that guideline judgments were not meant to be applied rigidly in every case but were intended to be indicative of the range of sentence that was regarded as appropriate. A sentencing judge retained a discretion to depart from the guideline but if he did so the reasoning for such a departure needed to be articulated. 26 His Honour made further reference to aggravating factors and the application of s21A of the Crimes (Sentencing Procedure) Act 1999: "It is necessary that the court indicate the extent of the criminality involved in these offences. To enable the court to do so, it is appropriate that I now refer to the provisions of s21A(2) and (3) of the Crimes (Sentencing Procedure) Act . I do not propose to refer to those sections in respect of each individual offence. Most of the offences to which the offender has pleaded guilty, in relation to s97, have relatively common features and I consider that an indication of which of those factors under s(2) of the section apply, should be read as applying to each of these matters. When one turns to s(2), aggravating factors, the following aggravating factors appear to be present in these cases (b), (c), (d), (e), (g), (i), (j), (l), (m) and (n). In relation to mitigating factors, these are (h), (i) and (k). Whilst the determination of the objective seriousness of the offences does not rely entirely on a balancing act between s(2) and (3), the presence of the number of aggravating factors to which I have referred, having regard to the comments made in R v Henry , indicate that the extent of criminality is in my opinion such as to require a starting point for the sentences to be significantly above the Henry guideline. Indeed the way in which I would propose these matters is to say that the offending in each of these offences under s97(2) was, at the very least, towards the top of the mid range of objective seriousness." 27 When further considering the objective seriousness of the offences his Honour noted that the offences under s97(2) each carried a maximum penalty of 25 years imprisonment and that the offence under s97(1) carried a maximum penalty of 20 years imprisonment. In that regard his Honour thought: "A starting point for consideration of sentence for those matters should be something approaching 12 years." 28 When considering subjective matters, his Honour accepted that the applicant's pleas of guilty were made at the earliest opportunity and in accordance with the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383. His Honour proposed a discount of twenty five percent for the utilitarian value of the plea and those aspects of remorse and contrition which it contained. 29 His Honour specifically considered the young age of the applicant and the consequential need to have regard to his rehabilitation. On the other hand, his Honour referred to R v Pham (1991) 55 A Crim R 128 where this Court restated the principle that even in the case of young offenders, the gravity of the crime was an important consideration and rehabilitation may have to be subordinated to the principles of deterrence and the protective function of a criminal court: "Deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes." 30 His Honour found that special circumstances had been established in the applicant's favour. His reasons for so finding were:

(1) The overall youth of the applicant. (2) That this was his first significant period in custody. (3) That he needed supervision and assistance to overcome his difficulties with drugs. (4) That the sentences which his Honour proposed to impose were to be accumulated.

It was for those reasons that his Honour proposed to vary the statutory ratio for the non-parole period so as to allow a greater period of supervision for the applicant. 31 It was against that background that his Honour imposed the sentences previously referred to. It should be noted that except for the 13 January 2003 "be carried in conveyance" offence (which was entirely concurrent with the "robbery whilst armed with an offensive weapon" offence of the same date) each sentence was partially cumulative on the other.

Grounds of appeal 1 - The learned sentencing judge erred by taking into account as aggravating features under s21A of the Crimes (Sentencing Procedure) Act matters that are elements of the offence 32 The applicant submitted that his Honour's approach of collectively referring to aggravating factors in s21A(2) without specifically examining the actual application of each factor to the circumstances of the offences involved error (ROS 19 and para 26 hereof). This was particularly so in relation to factors 2(b) and 2(c) which referred to matters which were elements of the offence of armed robbery. To take account of those factors was contrary to the prohibition in s21A(2) "The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". It was submitted that such an approach was contrary to what this Court held in R v Tarek Mohamadin [2004] NSWCCA 401 and R v Wickham [2004] NSWCCA 193. There was a real risk in such an approach of double counting of aggravating factors. 33 The applicant submitted that the approach of collectively and briefly referring to the aggravating features in s21A(2) involved a failure to provide adequate reasons for imposing a sentence. By way of illustration, reference was made to subs21A(2)(i) (the offence was committed without regard to public safety). It was not clear what his Honour had in mind when referring to that subsection. If his Honour was referring to the fact that weapons were used, such reasoning would involve having additional regard as an aggravating factor to an element of the offence. The same difficulty arose in relation to his Honour's reference to subs 21A(2)(g) (the injury, emotional harm, loss or damage caused by the offence was substantial). In R v Youkhana [2004] NSWCCA 412 this Court referred to specific matters to be taken into account when applying this factor as an aggravating feature of an offence. His Honour's approach failed to indicate whether the matters discussed in R v Youkhana had been taken into account. 34 I accept the applicant's submissions. His Honour's approach to s21A does reveal error. This question was considered by Johnson J in R v Walker [2005] NSWCCA 109 at [32] where his Honour said: "It should be observed, however, that a passing reference to s.21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, without reference to the precise manner in which the sentencing judge takes that factor into account on sentence, is unsatisfactory. A failure to explain the manner in which the factor is taken into account does not enlighten the sentencing process, in a manner which s.21A appears to have been designed to achieve. Nor does it inform the offender, the Crown and the community of the use which the sentencing judge has made of this factor. " 35 There was a further problem in this case in that his Honour first considered the guideline judgment in R v Henry which referred to factors, the absence or presence of which indicated that the guideline judgment was applicable and then by way of separate analysis took into account the specific factors referred to in s21A albeit in a collective and non-specific way as has been described. This exacerbated the risk of aggravating factors being double counted. 36 Taking those matters into account I am of the opinion that there was a real risk of double counting having occurred in relation to aggravating factors and a real risk that his Honour did to some extent contrary to s21A(2) have additional regard as an aggravating factor to matters which were elements of the offence.

2 - The sentencing judge erred in failing to give effect to his finding of special circumstances 37 The offences were committed before 2 February 2003. His Honour was required to fix an appropriate non-parole period in accordance with s44 of the Crimes (Sentencing Procedure) Act 1999 as it then was. Subsection 2 required that the non-parole period must not be less than three-quarters of the term of the sentence unless the court decided that there were special reasons for it being less in which case it was necessary for the court to set out its reasons for that decision. 38 The applicant's submission was that having found special circumstances, his Honour failed to give effect to that finding when structuring the totality of the sentences. The effect of the sentences was a head sentence of 11 years, with a non-parole period of 8 years. This produced a ratio between the non-parole period and the head sentence of 72.7%. 39 The submission of the applicant is correct. His Honour does appear to have overlooked the effect of the partial accumulation of the fixed sentences. This resulted in the finding of special circumstances having little practical effect. The error revealed was similar to that considered by this Court in R v LWP [2003] NSWCCA 215, paras 21-22, where Spigelman CJ said:- "[21] I am satisfied, bearing in mind that the sentence for one of the offences is of considerable length, that a lesser sentence is warranted with respect to that offence, and that a lesser non-parole period is warranted with respect to that offence, in the light of the finding of special circumstances. The issue that arises is the determination of the effective sentence looking at the sentence for this particular offence in the context of the sentences for the other two offences. [22] The exercise by his Honour of the sentencing discretion did not miscarry, save in carrying his intended result into effect. The difficulty arose by reason of the sentencing structure and the partial accumulation of the three different sentences."

3 - The overall sentence is manifestly excessive and fails to adequately take into account totality 40 It was submitted that having regard to the youth of the applicant, the fact that the offences were committed over a relatively short period of time, the subjective circumstances and the applicant's early admissions, the sentences imposed were manifestly excessive. 41 I do not agree. As his Honour explained, there were features of these offences which made them significantly more serious than the category of offence considered in R v Henry. The most obvious points of distinction were the number of serious offences, the applicant's poor criminal record, the amount stolen and that the applicant was on parole. I am of the opinion that insofar as the individual sentences are concerned, his Honour's sentencing discretion did not miscarry. For the reasons set out in relation to Grounds of Appeal 1 and 2, however, some reconsideration of the way in which the individual sentences have been structured and accumulated will be necessary.

4 - The sentencing judge erred in taking the Form 1 matters into account on the wrong principal offence 42 His Honour took into account the Form 1 matters when dealing with the armed robbery offence of 19 January 2003. The Form 1 presented and signed by the DPP nominated the armed robbery offence of 24 November 2002 as the principal offence. His Honour's error in this regard was conceded by the Crown. Although such an error could in some circumstances operate to the detriment of an offender, this was not such a case. The fact of this error does, however, require that the applicant be re-sentenced.

Conclusion 43 In view of the serious nature of the five armed robbery offences, it cannot be properly said that the individual head sentences were excessive. Nor, in my opinion, could there be any legitimate complaint because those sentences had been made partially cumulative, not only upon one another but also in relation to the prior break and enter offence in relation to which parole had been revoked. This is so because the offences presently under consideration were committed whilst the applicant was on parole in relation to that prior offence. The principle of totality justifies that course. 44 When considering totality, however, one has to have regard to the error in his Honour's approach to the application of s21A of the Crimes (Sentencing Procedure) Act 1999 and his Honour's failure to give effect to his finding of special circumstances when one has regard to the total effect and overall structure of the sentences. It can be inferred that had these errors not been made his Honour would have structured the sentences differently so as to give a lesser overall sentence. In such circumstances this Court would ordinarily intervene unless to do so would reduce the sentence to a level which was less than adequate. 45 I have come to the view that the Court should intervene. It seems to me that the errors which have been identified can be properly dealt with not by altering the individual sentences, but by adjusting the overall sentence structure insofar as the partial accumulation of the sentences is concerned. Having due regard to the principle of totality, an appropriate result, in my opinion, is a head sentence of 10 years with a non-parole period of 7 years. 46 The orders which I propose are:

(ii) The sentences imposed by Delaney DCJ on 18 June 2004 be quashed.

(iii) In lieu thereof, the applicant be sentenced as follows: (a) For the offence of armed robbery with a dangerous weapon contrary to s97(2) of the Crimes Act on 9 December 2002, imprisonment for a fixed term of 5 years to commence on 4 June 2003 and expire on 3 June 2008. (b) For the offence of armed robbery with a dangerous weapon contrary to s97(2) of the Crimes Act on 29 December 2002, imprisonment for a fixed term of 5 years to commence on 4 December 2003 and expire on 3 December 2008. (c) For the offence of armed robbery with a dangerous weapon contrary to s97(2) of the Crimes Act on 19 January 2003, imprisonment for a fixed term of 5 years commencing 4 June 2004 and expiring on 3 June 2009. (d) For the offence of robbery with an offensive weapon contrary to s97(1) of the Crimes Act on 13 January 2003, imprisonment for a fixed term of 4 years to commence on 4 December 2004 and to expire on 3 December 2008. (e) For the offence of being carried a conveyance without the consent of the owner contrary to s154A(1)(b) of the Crimes Act , on 13 January 2003, imprisonment for a fixed term of 2 years to commence on 4 December 2004 and to expire on 3 December 2006. (f) For the offence of armed robbery with a dangerous weapon contrary to s97(2) of the Crimes Act on 24 November 2002, and having regard to the Form 1 matters, a sentence of imprisonment for 8 years to commence on 4 June 2005 and to expire on 3 June 2013 with a non-parole period of 5 years to commence on 4 June 2005 and to expire on 3 June 2010. The applicant to be eligible to be released on parole as of 3 June 2010.

09/05/2005 - Typographical error by Associate - Paragraph(s) 46(iii)(c)

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