REGINA v WELDON

COUNSEL : P G Ingram (Crown) S Kluss (Applicant) SOLICITORS : S E O'Connor (Crown) Ross Hill & Associates (Applicant) CATCHWORDS : Sentence - robbery - parity - offence committed shortly after release to parole - principle of totality - relevance of earlier sentence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Henry (1992) 28 NSWLR 348 CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309 R v Fernando (1992) 76 A Crim R 58 DECISION : Leave to appeal granted; the sentence of six years is confirmed but the non-parole period imposed is quashed and in lieu thereof a non-parole period of three years is substituted, commencing therefore on 8 January 2000 and expiring on 7 January 2003

1 ADAMS J: The Applicant seeks leave to appeal from a sentence, imposed in the Penrith District Court on 11 August 2000, in respect of an offence of robbery, of a term of six years imprisonment dating from 8 January 2000 and expiring on 7 January 2006, with a non-parole period of four and a half years. 2 A number of grounds were enumerated in the helpful submissions of counsel for the applicant but, considering the way in which the matter has been argued, it is necessary only to consider the appropriateness of the non-parole period. I might say - and this will be evident from the account of the facts - that the crime was a very serious one and, to my mind, the head sentence was not in error in any sense. 3 On 8 January 2000 the applicant and another three offenders travelled in a stolen motor vehicle to Penrith Plaza. The applicant and one of the offenders, Hughes, and one of the other offenders entered a jewellery store. The applicant was armed with a 30cm knife whilst Hughes and the other offender were each armed with spanners. The applicant herded three members of the shop staff into a rear office while Hughes and the other offenders smashed the glass jewellery display cabinets and placed jewellery worth about a quarter of a million dollars into bags. The applicant removed slightly over $3,000 in cash from the rear office and some other jewellery from a safe. The three offenders returned to the stolen car and all four then fled, abandoning the car nearby when a tyre was punctured. 4 The applicant and Hughes were arrested a short time later. The cash of just over $3,000 was found in the applicant's possession and the jewellery was recovered in a nearby yard. The other two offenders have not been apprehended. 5 The applicant participated in a videoed interview on the afternoon of his arrest and admitted his involvement in the offence. He said that he had known Hughes for some time but had met the other two co-offenders the previous day. He said that one of these men, the driver, had given him a knife and told him to use it to scare the people in the store. When asked why he participated in the robbery, the applicant said, "I was desperate for cash". In this respect the applicant later told a psychologist who interviewed him for the purpose of the sentence proceedings that he owed money to drug dealers who had been supplying him with cocaine on credit. I am not disposed to disbelieve the applicant in this regard, but it seems to me not to be a mitigating consideration. 6 Although not strongly pressed, the applicant submitted that the sentence was excessive. I think it is plain from the simple statement of facts which I have given that the head sentence was not appealably excessive. This is especially so when taking into account the fact that the applicant had been released shortly before on parole for a sentence imposed on him in October 1998 of robbery armed with a dangerous weapon, in respect of which the minimum term imposed was one year and nine months commencing on 20 February 1998 and concluding on 19 November 1999, with an additional term of two years and three months to commence on 20 November 1999 and concluding on 19 February 2002. 7 It was also submitted, though not strongly pressed, that the applicant had a justifiable sense of grievance having regard to the sentence imposed on Hughes of four years imprisonment with a non-parole period of three years, which was varied on 20 June 2001 by this Court in respect of the non-parole period which was reduced to two years. 8 I do not intend to dilate upon the differences between the two offenders, but it seems to me that the differences are entirely and reasonably explained by the record of the applicant and the fact that he was older. 9 The applicant submits that the sentence imposed on him did not take into account, or insufficiently took into account, his plea of guilty and the contrition shown by his early and candid admissions to the police and the indication that he proposed to plead guilty at the earliest time. His Honour adverted to the plea of guilty indirectly by referring to the fact that in R v Henry (1992) 28 NSWLR 348 the range of sentences proposed there for the guideline already took into account a plea, the significance of which is limited by a strong Crown case. Here, there is no doubt there was an overwhelming Crown case against the applicant. 10 There is, I think, some reason for complaint that his Honour did not give in these circumstances some more weight to the plea, but to my mind his Honour's treatment of this matter was within his discretion and, although I might have weighed up the matter somewhat differently, I am not prepared to find that his Honour erred in this regard. I should add that his Honour's decision was given shortly before the decision of this Court in R v Thomson and Houlton [2000] NSWCCA 309. 11 I propose to consider the next two, and to my mind more substantial, grounds together. They were that his Honour failed to take into account the principles of totality when the whole of the custodial history of the applicant is considered and that his Honour failed to consider whether there were special circumstances justifying a reduction in what I might call the statutory calculus contained in s44 of the Crimes (Sentencing Procedure) Act 1999. To my mind, these complaints are made out. 12 In relation to the first offence his Honour did not advert at all to the impact on the applicant of adding to the sentence period which he had served very shortly before his arrest for the offence in respect of which his Honour was sentencing him, simply fixing a non-parole period of four and a half years dating from 8 January 2000. With the greatest respect, the conclusion that his Honour overlooked this significant matter is inevitable. 13 Whilst adverting to whether there were any special circumstances in Hughes' case - his Honour finding there were none, a decision held to be wrong by this court when considering Hughes' appeal - his Honour did not refer to the possibility of special circumstances in the applicant's case. In my view, not only were special circumstances present but they should have resulted in a significant reduction in the non-parole period which was imposed. Without going into details, this was a case in which Fernando (1992) 76 A Crim R 58 at 62-63) considerations required anxious consideration of the period of incarceration to be served in a practical sense by this applicant. A full history shows that the applicant is of Aboriginal descent, was raised with his father in Gilgandra until the age of thirteen, and he had an unfortunate relationship with his mother. His father spent time in prison when the applicant was quite young and his care was taken over by his paternal grandmother. His history showed a continual movement between one carer and another, a feature of which was his repeated unsuccessful attempts to excite, for some reason or other, the care of his mother for him. He ran away from home at the age of fifteen years to go looking for his mother and shortly after was picked up by the police after breaking into a shop. He spent two days in Yasmar, returned to live with his father in Gulargambone, remaining there until the age of seventeen, at which time he left school. He has had a problem both with drinking and drugs, especially from the age of nineteen, when he began to use heroin and then, leaving heroin, moved on to cocaine. 14 Very relevant to my mind in his case is the identification by the psychologist of a moderately severe depression, described as amounting to a dysfunction. His Honour did not refer to any of these matters, although he said that he "took into account his ethnic background". 15 I should add on the other side of the scale that the applicant has shown that he can do well at study and, indeed, it appears that he came close to obtaining his HSC but left school before achieving that goal. There are indications in the report that rehabilitation is not beyond him and it appears from what has been said on his behalf from the Bar table that he has taken substantial steps towards that rehabilitation. 16 For these reasons, I consider that the applicant's case that the sentence proceedings below went awry is made out. I would propose that the sentence of six years imprisonment be confirmed, but that the non-parole period imposed be quashed and in lieu thereof a non-parole period of three years be substituted, commencing therefore on 8 January 2000 and expiring on 7 January 2003. 17 DUNFORD J: I agree. The orders of the Court will therefore be leave to appeal granted and the other orders as indicated by Adams J.

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