Robinson v R

Facts

1. There was an agreed statement of facts tendered in the sentence proceedings which disclosed the following.
2. In early 2014 the applicant (then 18½ years of age) was living in a house at Banora Point near Tweed Heads with some of his co-offenders. Other co-offenders would visit from time to time. The group regularly hosted parties at which alcohol and illicit drugs were consumed. It was at this house where the group discussed and planned the commission of home invasion offences targeting suspected drug dealers with the use of a sawn off .22 calibre rifle owned by the co-offender Wood, machetes, knives and batons.

Enter dwelling with intent to commit the serious indictable offence of robbery in company whilst armed with a dangerous weapon at Tweed Heads South between 6 and 13 February 2014

1. At about 7.30pm on either the first or second Thursday in February 2014, the applicant together with co-offenders Wood, Huxstep and another male went to a house in Tweed Heads South. The house was occupied by a married couple; I will refer to the husband as "Victim 1" and the wife as "Victim 2".
2. The offenders were wearing balaclavas and hand coverings. The co-offender Wood was armed with a sawn off .22 calibre rifle. The applicant and other two co-offenders were armed with bladed weapons or batons.
3. They knocked on the door and it was opened by Victim 1 who was confronted by the group, with Wood holding the rifle towards his face. Victim 1 moved back into the house, followed by the applicant and two co-offenders (the fourth co-offender also entered at some point). Victim 1 grabbed the gun and Wood forced him to the floor. Victim 2 heard the commotion and came to the scene. She found her husband lying on the floor with Wood standing over him.
4. Victim 2 stood in front of her husband and took hold of Wood, pushing him towards the front door. Victim 1 crawled to the kitchen and armed himself with two kitchen knives. The applicant and Huxstep remained near the front door ready to assist but hesitating due to the altercation Wood was involved in.
5. Victim 1 showed the knives and verbally challenged all the offenders. Victim 2 continued to push Wood towards the front door, during which time the gun was pointed at both victims. The offenders then fled the house without any proceeds. Items within the house were knocked about and damaged.
6. The victims did not report the matter to the police as they realised they had been targeted because of cannabis dealing.

Break, enter and commit the serious indictable offence of robbery in company whilst armed with a dangerous weapon at Tweed Heads on 7 April 2014

1. The applicant, Wood and two other offenders agreed to carry out a home invasion on an alleged drug dealer at Tweed Heads. Gloves and balaclavas were worn by three of the offenders, while the fourth offender was the driver. Wood opened the closed (but unlocked) front door and entered the house, followed by the applicant and the third male. The applicant and the third male were armed with steel bars. Wood had a sawn off .22 calibre rifle.
2. Two occupants, aged in their 50's, were confronted by Wood pointing the rifle at them and ordering them to lay down. All three offenders made demands for steroids. The applicant guarded the first two victims while the third male searched the house. Wood forced entry to a bathroom where the 25 year-old alleged drug dealer was showering. Wood pointed the rifle at him and demanded steroids and money. The victim slammed the door and held it closed against Wood's force.
3. Wood and the third male rummaged through rooms. Wood took a wallet and a mobile phone from the living room before the female victim wrestled it back from him. Wood pointed the rifle at her face and said, "I will shoot you".
4. The male victim got up and fled the house screaming for help. The applicant alerted the other offenders to this and they all fled to the waiting vehicle driven by the fourth offender. The male victim saw this and approached to get the registration number. Wood stopped, pointed the rifle at him and discharged it. The male victim felt something hot brushing past the inside of his left elbow. The offenders then drove away.
5. The younger male victim told police that an empty vial of steroids had been taken from his room. He admitted past involvement in helping friends and associates to obtain cannabis and steroids.

Assessment of the objective seriousness of the offences

1. The judge devoted a portion of her judgment to a discussion of the objective seriousness of the offences. She noted the following matters: ● The serious indictable offence intended to be, or in fact, committed in each of the homes was robbery in company. Her Honour regarded this as falling "towards the middle to higher end of the range" of serious indictable offences. ● The circumstance of special aggravation in each case was constituted by a co-offender being armed with a dangerous weapon. Her Honour noted that while the applicant was not the person who was armed, "he is equally responsible given his knowledge of such a weapon being used and was part of a joint criminal enterprise". She also noted that this was not as serious as other possible "specially aggravating circumstances", they being intentional wounding, intentional infliction of grievous bodily harm, or inflicting grievous bodily harm and being reckless as to causing actual bodily harm (see s 105A(1) of the Crimes Act). ● Each offence was "ultimately poorly executed" and the proceeds were "limited". However her Honour also said, "otherwise the offences were enthusiastically planned, premeditated and organised by virtue of the use of weapons and disguises". ● The two offences could not be regarded as isolated and they were at least a couple of months apart. Her Honour added, "consequently the offender had considerable time to consider the seriousness of the activities in which he was engaging with respect to this particular group". ● As to the element of each offence of being in company, her Honour noted, "there were three or four of them involved, all at that time fit young men who should have easily physically overwhelmed the occupants of the premises". ● In both offences the firearm that was used was pointed directly at the victims and the applicant knew that the co-offender Wood, if not carrying a loaded weapon had the capacity to load the weapon and in one of the offences it was discharged. ● The offences were carried out when it was intended that the victims would be at home. Her Honour commented, "That circumstance makes these offences more serious". ● The offenders were motivated by an intention to gain financially or obtain illegal drugs, either for use or for on selling.
2. Later in the sentencing judgment her Honour discussed a submission that she should impose a non-custodial sentence. In rejecting that submission, she explained: "These are very serious offences having regard in particular to the maximum penalties of 20 years for one and 25 years for the other with a standard non-parole period of seven years. I do not regard myself as bound by the standard non parole period in light of the pleas, the assistance that he has given, and that these are his first offences but it is nevertheless a guide. The maximum penalties are a clear indication that such offences are rated very seriously in the calendar of criminal offences. The next step up in terms of maximum penalties for offences is life imprisonment. So they are very serious matters indeed, they are not misdemeanours, as they were referred to in one reference."

The applicant's personal circumstances

1. The judge described the applicant's personal circumstances as follows: "[The applicant] was aged 18 and a half at the time of the offences and he comes before the Court without a prior record. I note that he was placed on a good behaviour bond in the interim between the commission of these offences and being charged with them in relation to a minor matter, in the context of these offences, of possession of a weapon, namely a knife. The detail of his subjective background is presented to the Court through a pre-sentence report and a psychological report. They both provide essentially the same information that he had the benefit of a very good and supportive upbringing in a Christian household. He now has a partner and a five month old child. He had some difficulties at school with being accepted and apparently was bullied and it made his time in high school most unpleasant. However after he left school he studied for a period and has plans to develop a timber furniture making business. He became involved in these offences after moving into the house that he shared with Huxstep and Wood. He has said in the reports that he became involved in the offences because he wanted to fit in and be one of the "cool kids". In his evidence before the Court today he essentially confirmed his motivation in mixing with these other offenders. He also indicated that after he moved in his alcohol consumption increased and he started using steroids, cannabis and ecstasy. He told the authors of both reports that he has no excuse for what he did and takes full responsibility for his actions. He confirmed that again in his evidence before this court. After a few months of living in those circumstances with that group he says that he became tired of that anti-social existence and knew what he was doing was wrong. Since leaving the influence of that group and those activities, in which he became involved, he has reconnected with his church and spent part of his time with the church as a youth worker. In addition to that material there are numerous references before the Court from members of his family and from a number of friends who are upstanding members of the community who all say very similar things about him: that his involvement in these matters is a huge shock to everyone and that it is completely out of character. They also confirm that he has taken responsibility or he has accepted his part in the offences and has expressed remorse, as he did to the Court."
2. The judge specifically noted that the applicant was a person of unblemished prior character but she added, "although the gloss is taken off that because these offences in which he was involved occurred over a couple of months".
3. Her Honour found that the applicant had very good prospects of rehabilitation because he was remorseful and intends to rehabilitate himself. Further, he had a very good upbringing and he had a support network which included his family, friends, his partner and a church with whom he had reconnected.

Other aspects of the judgment

1. At the conclusion of her judgment the judge said she would give "considerable weight" to imposing a sentence that reflects the principle of general deterrence, punishment of the offender and protection of the community. She also referred to the future rehabilitation of a young offender and said she had taken that into account as well.
2. Special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act were found so as to justify a reduction of the proportion of the sentences represented by the non-parole periods. These circumstances were said to be that it would be the applicant's first time in custody and he would be in protection.

Ground 1 - insufficient discount for assistance to authorities

1. The judge said the following on the subject of the applicant's assistance to authorities: "Of most significance, in this offender's particular case, has been his attitude once approached by investigating police. He gave a high degree of assistance to the police in that he readily admitted his part in a number of offences and implicated the others who were involved. He gave a detailed account of what had been taking place within this group. He has also put himself in a degree of personal peril by assisting the investigating police by wearing a recording device which gathered further evidence against his co-offenders. He has, in addition, offered to give evidence against those co-offenders. Those matters are significant in terms of consideration of the appropriate penalty because they are a clear demonstration, in addition to his early pleas of guilty, of his remorse and willingness to rehabilitate. I have had the opportunity of reading the interview that he had with the police and it is clear that his assistance is significant and useful and that he gave a truthful and complete account when he was questioned. The promised assistance is substantial. While he only assisted after being approached by the police and some six months or so after all of these events and he had separated from this group, he nevertheless made full admissions as soon as the police confronted him and, it must be added, in the absence of any real evidence implicating him. It is clear from the extent of the assistance that he has given and the threats that he has received, and there is clear evidence of that (exhibit C) that he is in danger of risk or injury, both to himself and to his family, as a result of his assistance. He will also suffer harsher custodial conditions as a consequence. I note finally, in that regard, that the assistance and promise to give evidence relate largely to the offences with which he was involved and others."
2. The applicant's submission in support of this ground was crystallised at the hearing of the application and may be stated quite succinctly: it was unreasonable for the sentencing judge not to have found that the assistance to authorities provided by the applicant was "exceptional". It was submitted that with a finding that the assistance was "exceptional", the assessment of the discount should have been at a higher level.
3. It was submitted that for assistance alone, the discount should have been in the order of 30 to 40 per cent, although it was conceded that that would bring about a sentence that was contrary to s 23(3) of the Crimes (Sentencing Procedure) Act in that it would be unreasonably disproportionate to the nature and circumstances of the offence. Accordingly it was submitted that a combined discount of 55 to 60 per cent should have been allowed.
4. There was discussion at the hearing about the appropriateness of a sentencing judge engaging in a multi-staged process of reasoning such as indicated by the above summary of the applicant's submission. Counsel referred to the reasoning of the members of the Court in Panetta v R [2016] NSWCCA 85. In that case each of the judges assessed a starting point for the sentence and then what was considered to be an appropriate discount for the applicant's plea of guilty and assistance to authorities. Then, upon calculating the resulting sentence and concluding that it would be unreasonably disproportionate, they reduced the levels of the discounts so as to arrive at an ultimate sentence.
5. Nothing was said in that case to suggest that the exposure of such staged reasoning is a necessary part of the exercise of the sentencing discretion. Indeed, with respect, it would appear to be contrary to the instinctive synthesis approach spoken of in various High Court authorities: see, for example, Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 611 [75]; [2001] HCA 64.
6. Counsel for the applicant submitted that the assistance was "exceptional" because this was not simply a case of an offender nominating co-offenders and undertaking to give evidence against them. In this case there were the additional features of the applicant disclosing to police his own guilt, actively assisting police in the course of their investigation of the involvement of others, and the threat of danger the applicant faced as a result of his assistance. Counsel acknowledged that the assistance did not concern a recognised organised criminal gang or an outlaw motorcycle gang but submitted that "it is still a criminal gang and there was a finding of fact that there was a very real risk of danger to both the applicant and to his family" (T11.30).
7. Section 23 of the Crimes (Sentencing Procedure) Act provides a power to reduce penalties for assistance provided to law enforcement authorities. It provides in sub-s (2) a list of matters that a court must consider in deciding whether to impose a lesser penalty for an offence. These matters were addressed in the passage of the judge's remarks on sentence set out above (at [30]). Importantly, sub-s (3) provides: "a lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of offence."
8. It is uncontroversial that a discount to be given for assistance to authorities is an aspect of the judicial sentencing discretion. For example, in Hutchinson v R [2014] NSWCCA 317 Fullerton J said (at [32]): "In Ehrlich [[2012] NSWCCA 38; 219 A Crim R 415], Basten JA at [6], citing R v Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248, emphasised that the appointment of a discount for assistance involves a broad discretionary exercise. It is neither a rigid or mathematical exercise, nor an exercise where some notional 'tariff' might be discernible from other cases. In the judgment of Johnson J in Ehrlich at [63], his Honour also emphasised that the challenge to the discretionary judgment that is engaged when a discount for assistance is under challenge must be in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499."
9. As the Crown pointed out in its submissions, this Court has observed that the combined discount for both a plea of guilty and assistance to authorities should not normally exceed 50 per cent. In Z v R [2014] NSWCCA 323, McCallum J said (at [27]): "The view has been expressed and endorsed in this Court that, in general, a single, combined discount should be given for both a plea of guilty and assistance and that such a discount should not normally exceed 50 per cent: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [3] per Howie J; Simpson J agreeing at [1]; at [53] per Buddin J. Buddin J ventured the view that a combined discount exceeding 50 per cent should be reserved for an exceptional case (at [53])."
10. The Court has also said on many occasions that combined discounts for pleas and assistance of more than 40 per cent should be granted very exceptionally, if at all, in a case where there is no evidence that the offender will spend time in custody in circumstances that are more onerous than for the general prison population. In this regard, the Crown referred to: R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 at [5]; R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415 at [67]; LB v R [2013] NSWCCA 70 at [62]; and Haouchar v R [2014] NSWCCA 227 at [37].
11. In SL v R [2015] NSWCCA 30; 249 A Crim R 295, Basten JA observed (at [6]) that "the kinds of cases in which a discount in excess of 25% [for assistance alone] is allowed tend to be ones involving organised criminal activities, where the risk of harm to the offender or his or her family is quite significant".
12. Given that the assessment of a discount for assistance to authorities is a matter of discretion, it is unsurprising that there are references in the cases to there being "no fixed tariff": see, for example, R v Lenati [2008] NSWCCA 67 at [5] (Bell JA). Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 230 expressed it thus: "Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by 'tariffs' derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice."
13. In the present case there is no suggestion that the sentencing judge overlooked any aspect of the applicant's assistance to authorities that was said to be pertinent to the assessment of the appropriate discount to be allowed. The provision in s 23(3), like the corresponding provision in s 22(1A) relating to the reduction of a sentence on account of a plea of guilty, imposes a limit on the degree to which a discount can be allowed in order that the ultimate sentence is not unreasonably disproportionate to the nature and circumstances of the offences.
14. The fact that the judge used the term "high degree of assistance" (twice) rather than "exceptional" is not significant in my view. She was clearly satisfied that the assistance fell towards the upper end of the range of assistance that is encountered. The word "exceptional" is not a term of art; it's simply one way of expressing a conclusion and there are alternatives.
15. Whilst another judge may have chosen to allow a different combined discount, in the circumstances I am not persuaded that the judge was required to do so. It was a matter for her discretionary evaluation and the assessment that she made was one that was reasonably open to her.
16. For these reasons I would grant leave to appeal in relation to this ground but it must be rejected.

Ground 2 - manifest excess

1. In Harper v R [2017] NSWCCA 159 I set out the principles to be applied when it is contended on appeal that a sentence is manifestly excessive (at [24]): "A contention that a sentence is manifestly excessive requires consideration by this Court with the following principles in mind. They are derived from Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55]. (a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. (b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. (c) It is not to the point that this Court might have exercised the sentencing discretion differently. (d) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. (e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. Counsel for the applicant made clear at the hearing of the application (T8.39) that this ground relates solely to the sentence imposed for the second offence (the sentence for the first offence having expired).
3. The contention that the sentence for the second offence was manifestly excessive was based exclusively upon a comparison with sentences imposed in other cases: De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32; 249 A Crim R 252 ("De Jong v R") and the cases referred to in a schedule to that judgment; R v Campbell [2014] NSWCCA 102; Burrows v R [2017] NSWCCA 45; and Harper v R.
4. It was submitted that a "meaningful range of sentences" could be discerned from those cases which indicated that the starting point of 8 years 2 months for the second offence was too high and resulted in an overall sentence that was manifestly excessive.
5. In written submissions counsel for the applicant submitted that a review of the cases in the schedule to the judgment of Fullerton J in De Jong v R supported the proposition that the sentence for the second offence was manifestly excessive. No analysis of the cases in that schedule was provided. Reference was made, however, to my judgment in Harper v R which dealt with a similar submission. I found (at [38]) that "a meaningful range of sentences pertinent to the present case cannot be discerned from De Jong v R and the 10 cases listed in the schedule" (emphasis added).
6. It is important to bear in mind what has been said by the High Court about the care which is required when comparing sentences that have been imposed in earlier cases: see Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at 537 [54]; [2010] HCA 45.
7. It must also be observed that identification of a case that has comparable objective seriousness and similarly compelling subjective features cannot be determinative of a contention that a sentence is manifestly excessive. As it has been noted on numerous occasions, there is no single correct sentence. For example, in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, Gleeson CJ, Gummow, Hayne and Callinan JJ explained (at 371 [27]): "[J]udges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach, and as accords with the statutory regime that applies."
8. As the Crown submitted, the cases referred to in the applicant's submissions are illustrative of the very diverse range of offending in offences against s 112(3) of the Crimes Act. They also demonstrate a diverse range of sentencing outcomes and it is difficult to see that a meaningful range of sentences pertinent to the present case can be discerned.
9. The cases involving Crown appeals decided before 24 September 2009 have to be read with caution because they preceded the insertion of s 68A in the Crimes (Appeal and Review) Act 2001 (NSW) which had the effect of abolishing the consideration of double jeopardy in such appeals.
10. Given there has been prescribed under the Crimes (Sentencing Procedure) Act a standard non-parole for offences against s 112(3) since the inception of standard non-parole periods on 1 February 2003, care is also required in relation to cases decided prior to the decision of the High Court on 5 October 2011 in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 120.
11. A number of the cases relied upon are clearly more serious than the present case and attracted sentences with higher starting points: for example, De Jong v R; Srikantharajah v R [2012] NSWCCA 209; Micklesson v R [2009] NSWCCA 61; R v Baghdadi [2008] NSWCCA 239; R v Van Rysewyk [2008] NSWCCA 130; and R v Chaaban [2006] NSWCCA 107; Burrows v R [2017] NSWCCA 45.
12. A few of the cases are of broadly similar seriousness to the present case and attracted assessments of sentence less than that in the present case: for example, R v Campbell (starting point 6 years 6 months) and Aslett v R [2012] NSWCCA 235 (starting point 7 years 6 months). R v Dole; R v Nguyen [2010] NSWCCA 101 could be regarded as being of similar seriousness and attracted a significantly lower sentence (starting point 4 years) but in that case one of the offenders was described (by the sentencing judge) as having suffered a dysfunctional upbringing and the other suffered a major depressive illness which was recurrent and severe with psychotic features.
13. Sheen v R [2011] NSWCCA 259; 215 A Crim R 208 (a post-Muldrock case) could be regarded as of broadly similar seriousness but the offender had a less compelling subjective case. This Court re-sentenced the offender to an undiscounted term of 7 years.
14. There was a starting point for the sentence in R v Cheh [2009] NSWCCA 134 that was similar to that in the present case (8 years) but in dismissing the Crown appeal it was noted that, but for the applicant's mental illness, a longer sentence would have been appropriate (McClellan CJ at CL at [32]). It may be noted that this was one of the cases predating s 68A of the Crimes (Appeal and Review) Act.
15. Harper v R (starting point of 6 years) might be regarded as a somewhat less serious case than the present in the sense that the dangerous weapon in the present case was a loaded sawn off rifle (which was discharged) as opposed to the stun gun that was used in Harper.
16. It must be borne in mind that the s 112(3) offence in the present case was a particularly serious example of its type. It was planned and was committed with three other offenders. The applicant and the two co-offenders who entered the house with him were disguised with balaclavas and gloves. One of the offenders was armed with a loaded sawn off rifle while the applicant and the other offender were armed with steel bars. The male and female victims who were aged in their fifties were ordered at gunpoint to lie down and the rifle was also pointed at the third victim. At one point the gun was pointed at the face of the female victim who was told, "I will shoot you". Finally, the firearm was in fact discharged in the direction of the older male victim as the offenders fled.
17. This Court has regarded home invasion offences as being of considerable seriousness: see for example Palijan v R [2010] NSWCCA 142 at [22] (Barr AJ) and R v Elmir; R v Salami [2003] NSWCCA 192 at [19] (Adams J). Whilst the sentencing judge took into account the various subjective matters that were favourable to the applicant, she also took into account, as she was required to, the need to impose a sentence that gave considerable weight to general deterrence, punishment and protection of the community.
18. Another pertinent matter is that the s 112(3) offence could not be regarded as an aberration in that the applicant also stood to be sentenced for the other home invasion offence committed two months earlier.
19. Having regard to the authorities set out earlier (at [46]), I am not persuaded that the sentence imposed in the present case can be characterised as unreasonable or plainly unjust. The starting point assessed by the primary judge may be regarded as a stern one but it was not beyond the range of the legitimate exercise of her sentencing discretion. Accordingly, this ground must be rejected.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Leave to appeal dismissed.
2. WILSON J: I agree with R A Hulme J for the reasons his Honour has given.

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