Regina v Taylor

LEGISLATION CITED : Crimes Sentencing Procedure Act 1999 R v Valentini (1989) 46 A Crim R 223 at 225 The Queen v Henry (1999) 46 NSWLR 346 at 395 The Queen v Morgan (Unreported CCA 24 June 1998) CASES CITED: The Queen v Hall (Unreported CCA 28 September 1995) The Queen v Ranse (Unreported CCA 8 August 1994) The Queen v Griggs (2000) NSWCCA 33 at paras 25-30 The Queen v Lattouf (NSWCCA unreported 21 October 1996) The Queen v Allpass (1994) 72 A Crim R 561 DECISION : Appeal Dismissed

WOOD CJ at CL STUDDERT J WHEALY J

JUDGMENT 1 WHEALY: This is a Crown appeal against a sentence pronounced by Moore DCJ at Campbelltown District Court on 14 June 2000. 2 The respondent appeared for sentence that day on a charge of robbery to which charge he had pleaded guilty. He was sentenced to two years imprisonment suspended for two years. 3 The ground of the appeal is that the sentence was manifestly inadequate. 4 The facts may be stated briefly. At about 5.45pm on Friday 27 August 1999 Ms Thi Nham Ngo, a woman of about 43 years of age, was walking up the stairs at Warwick Farm Railway Station. The respondent had been standing at the top of the stairs at the station. He walked down towards Ms Ngo who was ascending in the opposite direction. He then pushed her in the chest with both hands causing her to fall down the stairs. The victim attempted to stand up but fell over again. At this time the respondent stood over her, grabbed her handbag and pulled it from her possession. He ran from the station towards Warwick Farm Racecourse. He was detained by a number of male bystanders who gave chase and held him until the police arrived. The respondent was arrested and conveyed to Liverpool Police Station where he participated in an Electronic Record of Interview. 5 He made admissions that he had assaulted Ms Ngo, taken the bag and run away. He denied, however, taking any cash from the victim's bag. This had been found empty, save for some coins, in a property at Stroud Street, Warwick Farm near where the respondent had been detained. A search of the respondent's clothing showed that $180 in notes was hidden in the lining of his tracksuit pants. 6 The respondent was on bail when he committed this offence. He has a relatively minor criminal history. At the time of the commission of the offence the respondent, who was then 18 years of age, had been convicted of larceny. 7 As I have said the sentence was pronounced on 14 June 2000. There was an unusual feature in the sentence proceedings. Both the Crown and the respondent had finished their submissions. It appears the Crown had asked for the imposition of a full-time custodial sentence. The sentencing judge commenced his remarks on sentence as follows: "Mr Taylor, I feel that if I were not to impose a full time gaol sentence I would not be doing my duty. There are very special features in your case which militate very strongly against a gaol sentence. I have to balance the question …." 8 At this stage his Honour was interrupted. It appears from the transcript, when the proceedings resumed, that the respondent had suddenly been overcome with emotion. He began to cry quite loudly and said a number of times that he did not wish to go to gaol. This outburst of emotion apparently persuaded the Judge that the respondent was "absolutely genuine" and his Honour felt satisfied as a consequence that the respondent had achieved individual rehabilitation and that his "personal deterrence", as his Honour said, was "absolute". 9 The sentencing Judge thereupon changed his mind and indicated that he would pass a sentence of two years imprisonment but suspend it on condition that the respondent enter into a bond. This is what his Honour did and the conditions of the bond included that the respondent be of good behaviour and that he accept the supervision of the Probation and Parole Service and comply with its reasonable directions. I should add that the sentencing Judge, as he explained, had been about to impose a sentence of two years with a non parole period of about three and a half months, when he was interrupted. 10 It is fair to say that the learned sentencing Judge was troubled himself by the change of mind which he had experienced. At the conclusion of the sentencing remarks he said: "Cases which fall on the point of the watershed like this one are those which cause me the most concern and one must be very careful to do the best one can to come to the right disposition. If one reaches the wrong conclusion, then that can have disastrous results for the offender who, if I am wrong, will find himself re-sentenced by the Court of Criminal Appeal and have the added burden of having had the hopes held out today dashed when I am corrected." 11 His Honour then passed sentence which was one of two years imprisonment but which was suspended on the respondent entering into a bond as I have outlined. His Honour emphasised that the sentence took into account the two months and eleven days already spent by the respondent in custody.

Submissions 12 The essential submission of the appellant in this appeal is that in all the circumstances a sentence of full-time custody should have been imposed by the sentencing Judge. It is said the sentence imposed was in fact manifestly inadequate. 13 There is no doubt that the assault on Ms Ngo which accompanied the robbery was a serious one. The victim was pushed backwards down the steps at the Railway Station and fell towards the bottom of the staircase. After she had fallen down she attempted to recover her feet, the respondent once again pushed her so that she could not recover her balance and wrenched her handbag away from her and ran away. It appears, fortuitously, that Ms Ngo was not injured physically but the traumatic effect of such an incident on an innocent woman using the Railway Station is not to be under estimated. The fact that the respondent was drug affected at the time is not a mitigating factor. (Valentini (1989) 46 A Crim R 223 at 225; The Queen v Henry (1999) 46 NSWLR 346 at 395. 14 As the submission of the Crown makes clear bag snatching is a very serious offence particularly when striking and wounding is involved. It is a traumatic experience for the victim. In The Queen v Morgan (Unreported CCA 24 June 1998) and The Queen v Hall (Unreported CCA 28 September 1995) the following passage by Gleeson CJ, as he then was, in The Queen v Ranse (Unreported CCA 8 August 1994) was referred to with approval: "One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others." 15 The Crown submits the sentence should be set aside and a sentence of full-time custody, making due allowance for time already spent in custody, imposed in place of the suspended sentence. A proper appreciation of the need for general deterrence in sentencing principles in cases of this kind, so the submission runs, needs to be affirmed. 16 The essence of the respondent's submission is that the sentencing Judge made no error and the sentence imposed was warranted having regard in particular to the statements made in The Queen v Griggs (2000) NSWCCA 33 at paras 25-30 and The Queen v Lattouf (NSWCCA unreported 21 October 1996). 17 In the alternative it is submitted that the principle of "double jeopardy" operates in such a way that even if his Honour's sentence was manifestly inadequate, the Court should not do other than to dismiss the appeal. In the event that the appeal is allowed and re-sentencing occurs, the respondent submits that a sentence of periodic detention would be sufficient in all the circumstances. It was also submitted that his Honour's change of heart, if I may so describe it, during this sentencing process, was justified.

Subjective Features 18 It is convenient at this stage to list briefly a number of subjective factors which the sentencing Judge found to be especially important. The respondent was 18 years of age at the time of the offence. He had been introduced to drug taking when he was quite young, starting with cannabis at the age of ten. By 16 he was taking amphetamines weekly. He admitted himself to Dunleigh House but this attempted rehabilitation ultimately proved unsuccessful. It was after this that he began using heroin. He was in the grip of heroin addiction when he committed the offence. 19 At the time he came before the sentencing Judge he had a number of pending matters in the Local Court but he had, as I have already indicated, only one conviction. No violence was involved in that incident which led to his conviction. 20 After his arrest he went to gaol. He spent a period of nine weeks and six days initially and later a shorter period of five days, bail refused. He had never spent any time in custody prior to the first of these two periods. The reason he spent the second period of time, bail refused, was his breach of bail in respect of his attendance at Odyssey House. 21 The respondent had attempted rehabilitation, firstly at William Booth Institute, in November 1999 and later at Odyssey House from late November to 18 December 1999. Each of these attempted rehabilitation was unsuccessful, essentially so it was said because of circumstances beyond the control of the respondent. They were, however, genuine attempts by the respondent to become involved in the rehabilitative process. 22 At the time of sentence the respondent had subjected himself to supervision by the Probation and Parole Service. He had remained free of heroin. He was participating in a methadone program. He had ceased all contact with former drug related associates including his former de facto wife. He had formed a relationship with a young woman, who had no association with drugs. He was residing with her at his parent's home. She was pregnant to him. 23 He had been leading a law abiding life and repaired his relationship with his family to a large degree, including his uncle who had offered him employment, should he be at liberty following the sentencing proceedings. He expressed remorse in a manner which clearly impressed the learned sentencing Judge who said that he accepted him as quite genuine. 24 One other matter which apparently impressed the sentencing Judge related to the assault itself. The offence occurred against the background of a recent assault on the respondent and an unrelated assault on his then de facto partner. These assaults had caused injury to each of them and the respondent was feeling angry in relation to these incidents. 25 At the time of the offence the respondent was under the influence of heroin and committed the offence in a state of extreme irrationality. He had at the time, so the Judge found, a type of "out of body" experience whereby he imagined that the victim was the person involved in the violence against himself and his de facto. As to this matter the sentencing Judge said: "When he saw the unfortunate Ms Ngo coming up the stairs at the station toward him, he formed the irrational view that she was connected with the attacks on both his girlfriend and himself and it was that which led to his assault upon her. One might say 'well why then would he take the money out of her purse'? Normally one would be extremely sceptical of accepting his story when he did take the money but I accept it is part of his "irrationale" in committing the crime that he wanted to punish the woman". 26 It seems as a consequence that the sentencing Judge took the view that this offence did not have the usual motivation of drug related crime, namely to obtain money to support the drug habit.

Was the Sentence Manifestly Inadequate? 27 In my opinion the sentence imposed by Moore DCJ was manifestly inadequate. It failed to take into account, in an adequate manner, the objective seriousness of the crime and it gave too much weight to the subjective matters, some of which were simply incapable of sustaining the weight attributed to them. 28 As to the offence itself the assault was a serious one. Although the victim was not physically injured it was a cowardly and dangerous attack on her. 29 In the years which have passed since Gleeson CJ, as he then was, made his remarks in Ranse, this type of violent robbery has continued to be prevalent in the community. More often than not it is carried out against women, children, the infirm and the elderly. There is a need now, no less imperative than it was in the mid 90s, for the sentencing process to clearly recognise the objective seriousness of such an offence. 30 As to the subjective features it must be said the respondent's youth, his attempts to rehabilitate himself with regard to criminal activities and drug use, and the renewal of relationships with his family, were all appropriate matters to take into account. 31 They were not sufficient, however, in the circumstances of this case to outweigh the need for the sentence to recognise the objective seriousness of the offence. The respondent was over 18 at the time of the offence. His attendance on the methadone program had been relatively brief, a maximum of perhaps two and a half months at the time of sentence. He was still unemployed at the time, his relationship with his present de facto wife was quite recent and his relationships with his family, although improved, were not free from strain. He had a long way to go in relation to his rehabilitation. 32 His plea of guilty is to be viewed in the light of the fact that a conviction in this matter was surely inevitable. As to the so called "out of body" experience, for my part I would have rejected it altogether had I been the sentencing Judge. There was, for example, no mention of this explanation on examination of him by Dr Jennifer Thompson, the psychiatrist who questioned the respondent on his reasons for the attack on 13 September 1999. 33 On the basis, however, that it was a relevant matter which the sentencing Judge was entitled to find, as he did, and to take into account, it could not in my opinion carry any weight as a mitigating factor. The irrational state of mind of the respondent was entirely due to the heroin he had taken that day. Whatever his state of mind as to the identity of the unfortunate victim, there is no doubt that he deliberately took her purse, ran away and later quite deliberately hid the money in his clothing to avoid detection. 34 In the same way the respondent's emotional outburst in the courtroom was simply not capable of demonstrating anything other than the respondent's fear of going to gaol. It was not in itself a mitigating factor and if it were relevant at all, which I doubt, it was not of itself, or taken into account with other matters in the case, sufficient to outweigh the need for a full-time custodial sentence. 35 I do not consider, however, that this incident or the sentencing judge's reaction to it necessarily involved any separate error of principle. A properly proportioned degree of compassion is allowable, indeed a necessary part of the sentencing process. It is additionally an appropriate judicial response, where circumstances require it, for a sentencing Judge to acknowledge he is prepared to take a view different to the one which first appeared attractive to him. A sentencing Judge may well change his mind during evidence and argument. 36 The circumstances in the present case, however, were unusual in that they demonstrate that Moore DCJ, until the outburst occurred, had himself come to the view that a full-time custodial sentence should be imposed. In that view he was plainly correct. The circumstances involving his change of heart serve to emphasise the inadequacy of the altered sentence. 37 I have also considered the decisions in Griggs and Lattouf. In so far as they set out principles of general application, those decisions essentially turn on their own facts. I do not consider that they are determinative of any of the issues in this appeal. 38 For the foregoing reasons I am of the opinion that the sentence was inadequate to such a degree as requires appellate intervention and correction. 39 There are, however, a number of matters which the Court is obliged to take into account in moderation of its approach. First, this is a Crown appeal, the element of "double jeopardy" requires the Court to impose a sentence, if one is to be imposed, that recognises this situation. It would normally be the least sentence that could have been imposed at first instance. 40 Secondly, the Court is required to take into account the subjective matters that were taken into account legitimately by the sentencing Judge in the light of all the facts as they appear at the time of re-sentencing. 41 Thirdly, the Court has an over-riding discretion which may lead it to decline to intervene even where it has come to the conclusion error has been shown in the original sentencing process. 42 The Queen v Allpass (1994) 72 A Crim R 561. 43 In my opinion, subject to the question of discretion which I have lastly mentioned, an appropriate re-sentence would be in all the circumstances a sentence of 18 months imprisonment. That sentence, if it were imposed, should specify a non parole period and in re-sentencing the respondent, if I come to do it, I accept that the subjective features in the respondent's favour would warrant the finding of special circumstances within the meaning of s 44(2) of the Crimes Sentencing Procedure Act 1999. Such a sentence, if it is to be imposed, should in the circumstances be a sentence for 18 months with a non parole period of 12 months. 44 The discretionary considerations are these: First, the respondent has already spent two and a half months or 74 days in custody. It is common ground an allowance should be made for the time spent in custody in relation to the minimum period of any re-sentence. It is, however, also a relevant matter in relation to the exercise of discretion. 45 Secondly, the respondent has the benefit of having complied with the conditions of his good behaviour bond during the period of about 18 weeks since the sentence was imposed. As a consequence the respondent has either been in custody in relation to this matter or at large on a suspended sentence abiding by the conditions of his bond, for approximately 28 weeks. 46 Additionally, there is a considerable length of time yet to run in relation to the balance of the suspended sentence. These, in my opinion, are significant matters on the issue of discretion. 47 In all the circumstances in the exercise of the Court's discretion I would dismiss the appeal. I propose that the appeal be dismissed. 48 WOOD CJ at CL: The offence in relation to which the respondent was sentenced was a serious incident of robbery. This Court has made it clear for the offence of bag snatching, where associated with any element of violence, is an offence which absent exceptional circumstances calls for a full-time custodial order. The Queen v Ranse (NSWCCA 8 August 1994 unreported). That is necessary to reflect the element of general deterrence which has a particular significance for the offence in question in view of its prevalence and in view of the fact that the victims are most often the aged and infirm. 49 I am of the view that the sentence imposed in this case was manifestly lenient. It provided for some measure of personal deterrence in that the respondent did serve a brief period of pre-sentence custody, which may have provided a short sharp lesson for him, and in that he remains subject to a suspended sentence which will see his return to gaol if he re-offends in any way. However, it provides very little, if anything, by way of general deterrence. 50 The circumstances in which the respondent began to sob when his Honour came to commence delivering sentence were irrelevant to the sentencing exercise that his Honour was required to undertake. 51 There should be no precedent set by this Court to suggest that a demonstration of distress of the kind experienced here, which seems to have been entirely directed towards the personal circumstances of the respondent and to his desire to avoid returning to gaol, rather than an expression of remorse for the victim, would justify a Judge in imposing a more lenient sentence than the circumstances call for. 52 However, for all the reasons discussed by Whealy J, I am of the view that in the exercise of discretion the appeal should be dismissed. 53 STUDDERT J: I also agree. 54 WOOD CJ at CL: The order of the Court will be as proposed by Whealy J.

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