RENSHAW v R

Judgment 1HOEBEN JA: Offence and sentence The applicant seeks leave to appeal from a sentence imposed on him on 5 September 2011 by Acting Judge McLauchlan in the District Court at Lismore following his plea of guilty to an offence of aggravated robbery arising out of events that took place at Murwillumbah on 29 April 2010. The aggravating circumstance was the infliction of actual bodily harm. 2The offence of aggravated robbery was contrary to s95(1) Crimes Act 1900 and has a maximum penalty of imprisonment for 20 years. 3The applicant was sentenced to imprisonment with a non-parole period of 12 months commencing 5 September 2011 and expiring 4 September 2012 with a balance of term of 10 months to expire on 4 July 2013. 4The applicant relies upon the following grounds of appeal. Ground 1 - The sentencing judge erred by failing to have regard to the mitigating factors, namely the applicant's personal history, his assistance to authorities and the absence of planning in the commission of the offence. Ground 2 - The sentencing judge erred by failing to comply with the mandatory conditions of s24(d) Crimes Sentencing Procedure Act 1999. (This ground of appeal was not pursued.) Ground 3 - The sentencing judge erred by failing to allow the applicant a discount upon his sentence for the quasi-custody served in rehabilitation. 5When the matter came before the Court on 3 May 2012, error in his Honour's reasons was identified. Accordingly, the following orders were made by the Court with effect from that date. (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed by McLauchlan ADCJ on 5 September 2011 is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 12 months, commencing 5 March 2011 and expiring 4 March 2012, with a balance of term of 10 months, expiring 4 January 2013. (4) The applicant is to be released to parole forthwith. 6My reasons for joining in the above orders are as follows. Factual background 7The applicant had been consuming alcohol on the day of the offence from 4pm. At about 10pm he met with people in a park in Mullumbimby. He consumed alcohol with these people before offering them $20 to take him to Murwillumbah. The group agreed and they drove the applicant to Murwillumbah where they stopped at the Caltex Service Station on the Tweed Valley Way. 8The victim of the robbery, Mr Briggs, was a 50 year old working a night shift in the service station. The applicant arrived at the service station at about 12.30am. The applicant exited the vehicle and walked towards the shop carrying a $20 note. He entered the console area in which the victim was attending to his duties. He entered through a door that had not been locked. 9The applicant lunged at the victim and placed him in a headlock, at which point a struggle ensued. The applicant stated that he wanted money and forced the victim to open a cash register. The applicant opened another register himself and in total removed a sum that has been stated as between $400 and $700. The applicant then placed the $20 note he had carried into the shop on the counter saying that it was for the fuel. 10When the applicant left the service station, the car with its occupants had left without him. The applicant hitched a ride to his ex-girlfriend's house where he was arrested later that night and released on bail. The applicant agreed to participate in an ERISP in relation to the matter. He made full admissions to the offence upon his arrest. There was no suggestion that the occupants of the vehicle were involved in any way in the offence. Proceedings before Sentencing Judge 11The matter first came before McLauchlan, an ADCJ, on 8 October 2010. At that time the applicant was already a resident and participant at the Transformations Rehabilitation Centre in accordance with bail conditions set on 22 June 2010. The Transformations Rehabilitation Centre was a fulltime residential rehabilitation centre located in Queensland. His Honour released the applicant upon a recognisance until 1 August 2011, pursuant to s11 of the Crimes (Sentencing Procedure) Act 1999 (a Griffiths Remand). 12The conditions of the applicant's release were: (i) To reside at the Transformations Rehabilitation Centre, 2 Iluka Street, Mermaid Beach, Queensland. (ii) To comply with all directions of the staff employed at the Centre relevant to his residence there and the activities program. (iii) To complete the program. (iv) That the Centre must notify the Court registry within 24 hours if the applicant left the rehabilitation centre. 13The applicant, in accordance with those bail conditions, remained in fulltime residence at the rehabilitation centre and completed the rehabilitation course. On 8 August 2011 the applicant appeared before Black DCJ when his bail residential condition and his reporting conditions were changed so that he was required to report to the Tweed Heads Police Station on Tuesdays and Thursdays each week. He was ordered to appear for sentence before McLauchlan ADCJ on 5 September 2011. 14At the sentencing hearing on 5 September 2011 his Honour noted that the cause of the applicant's offending was an alcohol addiction which he had had for some time. His Honour accepted that the applicant was remorseful for his actions. 15His Honour observed, on the material before him: "The rehabilitation proceeded very successfully indeed. One might say that to date, it has been spectacularly successful and one can perhaps assume that ultimately, if the offender continues to make such progress, it may be completely successful. It certainly is very encouraging for that type of evidence." 16In relation to the objective seriousness of the offence, his Honour took into account that the victim had suffered psychologically from the incident and now had difficulties with his relations with other people. The physical injuries suffered by the victim consisted of some swelling and bruising and scratching to his face that was not in itself severe. His Honour placed the offence at the lower end of the scale for offences of this kind. 17His Honour considered that deterrence in an offence of this kind was an important consideration because it had been committed against a member of the community in a vulnerable occupation. 18Because the applicant had pleaded guilty at the earliest occasion, his Honour allowed in his favour a discount of 25 percent. 19His Honour seems to have assumed, both on 8 October 2010 and 5 September 2011, that a custodial sentence was the only option open to him. While his Honour did not in terms state that, it is implicit in comments such as "It is not a matter in respect of which the offender can really hope to escape time in custody ... It is at the lower end of the scale but nevertheless the inherent seriousness of the offence would see a gaol term imposed and would be not less than a minor term". 20In fixing the sentence, his Honour said: "I consider that taking into account the matters on both sides, so far as the Crown is concerned the seriousness of the offence, the necessity for deterrence, including in particular the vulnerability of the victim and on the other hand the progress, the very substantial progress towards the offender's rehabilitation which has been made and his entitlement to a discount - I should leave the question of discount for the moment, just the progress which is made towards rehabilitation that an appropriate sentence is a period of 2 ½ years or 30 months' imprisonment." 21Having applied the discount, his Honour reached the sentence ultimately passed, i.e. 22 months with a non-parole period of 12 months. His Honour found special circumstances in that it was desirable that the applicant should continue with the rehabilitation which had worked so well for him. It was on the basis of those considerations that his Honour justified the ratio between the head sentence and the non-parole period. Submissions Ground of Appeal 1 22The applicant submitted that in his sentencing remarks, his Honour made no reference to his personal history, made no findings in relation to the absence of planning and the spontaneous nature of the offence, nor the significance of the applicant's assistance to the police. 23The submission as to assistance to the police is not made out. It is true that the applicant admitted the offence at the earliest opportunity, but he received the full 25 percent discount for that admission. He was not entitled to any further discount. There was no other conduct which could be characterised as assistance to police. 24His subjective case did, however, require consideration by his Honour. The applicant was born in September 1979 and was 32 at the time of sentencing. He was in a steady relationship, which had lasted five years, and which had produced a child who was aged two and a half years at the time of sentencing. He had a good employment record in the construction industry until he suffered a back injury in 2009 which had prevented him from returning to work. 25The applicant had commenced using alcohol at the age of 17 and by age 22 it had become a problem for him. His problems with alcohol had led to difficulties in his relationship with his partner. These relationship problems had led to a further relapse into alcohol abuse. He had been heavily intoxicated at the time of the offence. 26Although his Honour should have made it clear that he took into account and had considered the applicant's personal circumstances, those circumstances were not such as to require a reduction in sentence. His problems with alcohol explained the commission of the offence but did not excuse or mitigate it. Were this the only error in his Honour's sentencing remarks I would not have considered any reduction in the sentence was warranted. 27While his Honour did not make any specific reference to the lack of planning in the offence, his Honour's review of the facts accurately set out the background to the offence and it is clear that his Honour well understood that there was a lack of planning. Ground of Appeal 3 28No submissions were made to his Honour, on behalf of the applicant, as to the relevance of "quasi-custody" with respect to his time spent in rehabilitation. The applicant's attendance at the rehabilitation centre, gave rise to two issues: Firstly, the positive effect of the rehabilitation and secondly, the time actually spent at the rehabilitation centre. His Honour specifically took into account the first of those issues, but made no mention of the second. I infer that because it was not expressly drawn to his attention and because he failed to make any reference to it, that his Honour did not take that matter into account. 29His Honour's failure to take this matter into account did constitute error. 30In Regina v Campbell [1999] NSWCCA 76 Kirby J (with whom Grove J agreed) said on a similar issue: "24 The last complaint was the failure by his Honour to take account of the time spent by the applicant undergoing rehabilitation. It was appropriate that the applicant should have received recognition, and credit for the time spent in rehabilitation. In R v Eastway (CCA, unreported, 19 May 1992), the Court consisting of Gleeson CJ, Hunt CJ at CL and Mathews J, identified the reasons for doing so. The rehabilitation courses are residential. Persons who undergo them are subject to discipline and restrictions. The Court determined, in that case, that the prisoner should be given credit for half the time spent in rehabilitation. In some cases the proportion has been somewhat higher, as high as 75 percent. 25 Here his Honour did not advert to this aspect, although unquestionably his Honour was aware that the applicant had undergone rehabilitation. It is not apparent from his remarks on sentence that credit was given to the applicant for time spent in rehabilitation. This was an important matter which ought not to have been left to inference. Therefore, I am prepared to find there was error, justifying intervention by this Court, and the setting aside of the sentence. I would therefore give leave to appeal." 31In R v Delaney [2003] NSWCCA 342 James J (with whom Santow JA agreed, Barr J dissenting) said: "19 It was submitted before this Court on behalf of the applicant that her Honour had erred in refusing to take into account the periods the applicant had spent in The Salvation Army programs. 20 Counsel for the applicant referred to decisions of this Court in R v Eastway (unreported 19 May 1992) especially at pp 6 to 7 per Hunt CJ at CL; R v Campbell (unreported 12 April 1999) especially per Kirby J at paras 24 and 25; R v Thompson (unreported [2000] 362) especially per James J at [30] .... 22 In my opinion, her Honour did err in refusing to take into account the time which the applicant had spent in The Salvation Army programs. The programs both in Sydney and Canberra were residential programs. In his letter of 4 April 2002 Major Harmer referred to the strict discipline expected of clients who enter the William Booth program and in his affidavit of 10 November 2003 Major Harmer reiterated that The Salvation Army program is very strict. The letter from Mr Fairhall listed the activities comprised in the program in which the applicant was participating, including carrying out regular community and housekeeping chores as required. In my opinion, the conditions of the residential programs in which the applicant was participating amounted to conditions of quasi-custody." 32Similarly, in Hughes v R [2008] NSWCCA 48 Grove J (with whom McClellan CJ at CL and Simpson J agreed) said: "37 Ground 1 is focussed upon the pre-sentence entry by the applicant into rehabilitation programmes. He was in a residential programme conducted by WHOS for twenty days but he transferred to the Salvation Army Bridge Programme in order to avail himself of the one-to-one counselling available there. A letter from Mr Muendel, the Director, indicated his good response to that programme and suggested that it might profitably be completed, however his Honour declined to permit adjournment for that purpose so that the applicant participated in the latter programme from 12 December 2006 until he was committed into custody on 13 February 2007. It would appear then, that the applicant lived within the confines of residential rehabilitation facilities for about 103 days. It is apparent from Mr Muendel's report and his Honour's findings that the applicant made beneficial use of his opportunities. 38 It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50 percent of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588. What is here involved is therefore a potential backdating of a little over fifty days. I would reject the Crown submission that this ground should be rejected because that period is de minimis." 33Given the nature of the error identified, it is necessary for this Court to consider the facts and to re-sentence if appropriate. In doing so, the Court can take into account the affidavit of Francis Low, sworn 2 May 2012. That affidavit has annexed to it, the conditions which were imposed on the applicant when he attended the Transformations Rehabilitation Centre. It is clear from that annexure that this program was strict, particularly in relation to activities to be performed by participants in accordance with a set timetable and restrictions on freedom generally. The conditions of this residential program clearly amounted to conditions of quasi-custody. 34While I have some reservations about his Honour's implicit acceptance that only a custodial sentence was appropriate (Regina v Zamagias [2002] NSWCCA 17 and R v Kyroglou and Tsoukatos [1999] NSWCCA 106), the sentence passed by his Honour was undoubtedly open to him and was reasonable in the circumstances. What ought to be done in accordance with the authorities is for the commencement date of the sentence to be backdated. As already indicated, this was the course adopted by the Court. 35RS HULME J: I agree with Hoeben JA. 36FULLERTON J: I agree with Hoeben JA.