VEALE v R

SOLICITORS: Crown: S Kavanagh Applicant: S O'Connor

• 9 - IN THE COURT OF CRIMINAL APPEAL 2006/5235

GILES JA HULME J HISLOP J

Tuesday 19 February 2008 JOHN DAVID VEALE v R Judgment 1 GILES JA: I agree with Hulme J. 2 HULME J: This is an application for leave to appeal against a sentence of 10 years imprisonment including a non-parole period of 7 years and 6 months imposed on 10 November 2006 by Maguire DCJ in respect of an offence of robbery whilst armed with an offensive weapon. The offensive weapon was a piece of PVC tubing. The circumstances of the offence were that as the victim was walking adjacent to a car-park the Applicant drove into the car-park and then quickly towards her. He emerged from the car with a balaclava covering his face, ran after her and dragged from her grasp a bag she was carrying, returned to the vehicle and drove off. 3 The victim and her husband ran a service station and in the bag was, in addition to a purse, mobile phone and personal papers, a sum of $20,000 in cash which the victim was taking to the bank. The car to which reference has been made was stolen on the previous evening and abandoned after the robbery. His Honour concluded, with justification, that the robbery reflected a considerable degree of planning. 4 Arguing in mitigation of penalty is the fact that the Applicant seems to have had a very disturbed background: His parents split up when he was small; his mother became an alcoholic who frequently self-harmed; the Applicant often had to call an ambulance when she was drunk or attempted suicide; and his mother in fact killed herself when the Applicant was 15, after she had attempted to strangle his younger brother. Thereafter the Applicant lived with his father for a short period, but then ran away from home and lived on the streets of Kings Cross, selling drugs to survive. When at school he had truanted frequently and was expelled at age 14. 5 Arguing in the opposite direction is the Applicant's criminal history. He was born on 15 July 1974. He started using drugs at about the age of 17 or 18 and has long been addicted to speed and heroin. His antecedent reports (from NSW and Queensland) include 6 prior incidents of armed robbery or the like, 6 of stealing or otherwise illegally using a motor vehicle and 11 other offences of dishonesty. 6 The instant offence was committed on 15 July 2002 and the Applicant was arrested on that date. However, he was kept in custody at that time because of outstanding warrants and was indeed subsequently released to parole on two occasions. The police brief in respect of the instant charge was not completed until November 2003 and the Crown Sentence Summary presented to his Honour recorded that:- "Veale should have been charged with the armed robbery in August of 2004 rather than in June of 2005. This was the basis of the plea negotiations …" 7 Since 2002, the Applicant was sentenced on 3 June 2005 in the Sydney District Court on one or more charges of breaking, entering and stealing to imprisonment for 4½ years including a non-parole period of 2 years, both periods to commence on 3 June 2005, and in the Wollongong Local Court on 20 July 2005 to imprisonment for 12 months commencing on 20 July 2005 in respect of charges of larceny and taking and driving a conveyance without consent. The Particulars of Trial prepared for this Court refers also to a sentence of 2 years imprisonment commencing on 3 June 2005 having been imposed on 20 January 2006 on a charge of breaking, entering and stealing but, given the omission of any corresponding entry in the Applicant's NSW antecedent report, I am content to ignore the Particulars of Trial in this respect. 8 It should be mentioned that his Honour also sentenced the Applicant to imprisonment for a term of 2 years including a non-parole period of 18 months on a charge of stealing the motor vehicle used in the robbery. The commencing dates of that sentence and of the sentence on the robbery charge were both 5 August 2004. 9 His Honour's remarks on sentence include the following:- "(the Applicant) acknowledges his problem (with drugs) and displays keenness to recover from it. I accept that he is contrite. I accept also that he is intent upon rehabilitation. However I am not confident that he will succeed in that regard. His guilty plea was entered at an early stage. It is taken into account on sentence at the lower end of the range. This robbery is a very serious offence and the community expects that it will be dealt with accordingly. It is aggravated by the following factors: (1) The victim was vulnerable; (2) The offender was on parole at the time; (3) He has a considerable record for similar offences; and (4) There was a considerable degree of planning … I see no special circumstances … ." 10 The grounds of appeal are:- "1. His Honour erred in failing to find special circumstances. 2. His Honour erred by finding that the Applicant's criminal record was an aggravating feature of the offence. 3. His Honour erred in the discount allowed for the plea of guilty. 4. His Honour erred in finding as an aggravating factor that the victim was vulnerable within the meaning of s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999. 5. His Honour failed to take into account the Applicant's medical condition and the fact that the Applicant was serving his sentence in protective custody. 6. The sentence is manifestly excessive."

Ground 1 His Honour erred in failing to find special circumstances. 11 This ground may be deferred.

Ground 2 His Honour erred by finding that the Applicant's criminal record was an aggravating feature of the offence. 12 This ground is made out. It is clear that in the second of the paragraphs I have quoted from his Honour's remarks he was addressing the series of factors set forth in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 and when he said "it is aggravated by the following factors" he was talking of the "robbery" or "offence" referred to in his immediately preceding sentence. 13 Although in determining the sentence to be imposed on the Applicant it was very relevant for his Honour to bear in mind the Applicant's prior record, previous decisions of this Court - e.g. R v Wickham (2004) NSWCCA 193 at [24] and R v Walker (2005) NSWCCA 109 at 27 - and the terms of s 21A(4) make it clear that an offender's prior record does not aggravate the offence itself. His Honour's remarks indicate he did not approach the topic as the law required. This ground is made out.

Ground 3 His Honour erred in the discount allowed for the plea of guilty. 14 I have indicated that the Applicant was charged in June 2005. The Crown case summary indicates he was committed for trial on 20 July 2005 and his trial was listed before the District Court on 29 May 2006. There were then negotiations between the parties, the Crown substituted a lesser charge and the Applicant pleaded guilty to it before Goldring DCJ on 30 May 2006. 15 A number of decisions of this Court have made it clear that in assessing the discount to be given for the utilitarian value of a plea, the Court is entitled to make some judgment as to what that utilitarian value is. Even if a plea is entered at the first available opportunity, if that plea is at a late stage, and even if the cause of delay is because the Crown was maintaining a more serious charge and has only recently substituted a lesser charge, it is proper for a sentencing judge to recognise that the benefits to the justice system are substantially less than if the plea was entered much earlier - R v Dib [2003] NSWCCA 117; R v Scott [2003] NSWCCA 286; R v Sy [2003] NSWCCA 291; R v Harmouche [2005] NSWCCA 298. The timing of events to which I have referred indicated that the Applicant merited no more discount on account of his plea than one at the lower end of the range.

Ground 4 His Honour erred in finding as an aggravating factor that the victim was vulnerable within the meaning of s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999. 16 I am not persuaded that his Honour was wrong in finding that the victim was vulnerable. In one sense she was no more vulnerable than any other member of the community walking in public, but on the other hand, as someone carrying a substantial amount of cash from her business to the bank, she presented a not unattractive target to those of the Applicant's ilk. 17 Section 21A(2) refers to as an aggravating factor that:- "(l) The victim was vulnerable, for example because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant)." 18 The examples given seem to indicate that persons engaged in occupations that involve having access to, or being in charge of, significant sums of cash are intended by Parliament to be characterised as vulnerable. The victim answered this description.

Ground 5 His Honour failed to take into account the Applicant's medical condition and the fact that the Applicant was serving his sentence in protective custody. 19 During the hearing of the appeal counsel for the Applicant made it clear that the "medical condition" relied upon was a significant disability in the use of the Applicant's right arm. 20 The Applicant had given evidence that this meant he could not defend himself in gaol. He said also that he was on protection and had been during previous periods of incarceration, that he did not think he would come out of protection because of the number of problems if he did, and in detailing the consequences of the protection he was on said:- "We're restricted to one small part of the gaol, don't get education much, its very hard to see drug and alcohol workers and all that sort of stuff, you're just really restricted you're just confined to one small yard."

and "It's endless, you don't get out as much as everyone else, you're restricted to ovals, you don't get work release, you don't go, like I can't go to a C class gaol because most of them are main." 21 There was no challenge to this evidence, nor was there any to contradict it. 22 Although this Court has said that mere evidence that an offender is on protection should no longer lead to an inference that his or her conditions of incarceration are harsher than those suffered by persons in the general prison population, there is no doubt that being on protection may have that effect. In light of what the Applicant had said, and the absence of contradictory evidence or challenge, his Honour was obliged to recognise the conditions of the Applicant's incarceration and impose a sentence less than would otherwise have been appropriate. 23 Although the Applicant's medical condition is not otherwise relevant, this ground is made out.

Ground 6 The sentence is manifestly excessive. 24 As has been said, the sentence imposed was one of 10 years including a non-parole period of 7 years and 6 months. The maximum penalty provided for the offence is, by the terms of s 97(1) of the Crimes Act 1900, 20 years. 25 Reliance was placed on Judicial Commission statistics of sentences imposed in respect of offences under s 97(1) and in the category "Non-consecutive terms only, all offenders, after Henry & Ors". It was said that these showed that of 291 sentences imposed none included a head sentence as high as 7½ years and the highest non-parole period was 4 years. 26 Statistics provided by the Crown for the period from October 2004 to September 2006 showed that of 291 sentences there was one head sentence of 14 years and 19 in excess of 6 years and one non-parole period of 10 years and 18 exceeding 4 years. Statistics as at September 2007 for the period from April 2002 to March 2007 show that of 255 sentences for offences under s97(1) in the category "Non-consecutive terms only, Same Type with Custody, Plea Guilty, after Henry & Ors", there were 12 sentences exceeding 7 years (including 4 of 10 years or more) and the longest non-parole periods were 1 of 7 years and 2 of 8 years. 27 Given the wide variety of offences under s 97(1) that occur and the wide variation that there is in the circumstances of offenders, and that the statistics reveal nothing of the circumstances of the individual offences and almost nothing about the offenders, they are of limited use in this case. As I said in R v Derbas (Shadi) [2003] NSWCCA 44 at [34]:- "… statistics but represent the application by other judges, rightly or wrongly, to particular offenders and fact situations which come before them. It seems to me far preferable in this Court to consider the proper sentence in a particular case in the light of the statutory provision and the established principles of sentencing. The statistics provide a check, but they should not be allowed to govern the process. As to limitations on their use, see R v Bloomfield (1998) 44 NSWLR at 734; R v AEM Snr, KEM, MM [2002] NSWCCA 58 at [116]." 28 In its planning, in the vulnerability of the victim and in the amount stolen, the Applicant's offence was substantially above the heinousness of many of the offences under s 97(1) that come before the courts. The Applicant's prior record meant that he also was in a worse situation than many offenders. He was a person to whom the remarks of the High Court in Veen v R (No 2) (1987-1988) 164 CLR 464 at 477 were and are particularly apposite:- "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 29 Also, he was on parole at the time of the subject offence and it is clear law that that is a seriously aggravating feature. 30 Undoubtedly the Applicant's upbringing is a factor to which regard was required. It is one that at some time entitled him to some leniency by the Courts. But at some stage leniency for such factors is liable to come to an end or at least yield to the considerations to which the High Court referred in the passage cited. The community cannot be expected to endure a situation that, simply because the Applicant has had a tough upbringing, it is forever simply at his mercy. If he chooses not to learn from his past experience with the courts and prisons, then he has to expect harsher and harsher consequences. Prior to the instant offence he had been dealt with on no less than 11 separate occasions. He would in my view have no legitimate cause for complaint if his Honour had given no more than minimal weight to the hardships of the Applicant's early life. 31 Although as I indicated when dealing with Ground 5, his Honour failed to take into account a factor he should have given weight to, the totality of the matters to which I have referred under this ground lead me to the conclusion that the sentence imposed on the Applicant is not excessive to the extent of being manifestly so. Had this been the only ground of appeal, the appeal would have failed: But the errors considered in grounds 2 and 5 mean that, subject to s6(3) of the Criminal Appeal Act, the Court should address for itself the appropriate sentence.

Ground 1 His Honour erred in failing to find special circumstances. 32 In support of this ground of appeal, reliance was placed on the length of the sentence imposed, the fact that the sentence was being served in conditions of protective custody and findings of his Honour to the effect that the Applicant's expressions of contrition and remorse were genuine, he appeared determined to reform and rehabilitate himself, had attended the Alcohol and Drug Unit whilst imprisoned and had good prospects of employment with his younger brother. Although it was recognised that, notwithstanding these matters, his Honour had expressed reservations about the Applicant's prospects of success, it was submitted that the factors mentioned argued for a lengthy period of supervision on parole. 33 I have no difficulty in accepting that these matters do provide an argument in favour of a finding of special circumstances. However, I am not persuaded to the conclusion that Maguire DCJ erred in declining to make a finding to this effect. The factors to which I have referred in considering the sixth ground meant that the non-parole period imposed on the Applicant had to be lengthy and the 2½ years difference between the full term and the non-parole period imposed by his Honour should, if the Applicant is determined to reform, be more than sufficient to cope with any supervision required. Accordingly, this ground is not made out.

Criminal Appeal Act s 6(3) 34 Although I have held that 2 of the grounds of appeal are made out, regard must also be had to the provisions of s 6 (3) of the Criminal Appeal Act 1912 which relevantly provides that unless this Court finds that a less severe sentence was warranted in law and should have been passed, the Court shall dismiss an appeal. 35 I do not regard the error dealt with in the second ground of appeal as arguing for a lesser sentence. Although the Applicant's record did not aggravate the offence, that record did, in accordance with Veen v R (No 2), argue for a heavier, and in my view substantially heavier, sentence than would otherwise have been appropriate. However, the fact of the protective custody does argue for a lesser sentence. 36 The difficulty is to determine the extent of any allowance. The Court was pressed with statements in R v Patison (David Phillip) [2003] NSWCCA 171; (2003) A Crim R 118 at [89] and other cases where it was said that every year in strict protection is the equivalent of 18 months to 2 years in normal conditions of imprisonment. However the evidence does not suggest that the Applicant is in strict protection which commonly involves being confined to a cell 23 hours per day with no or virtually no association with other prisoners. Furthermore, although the Applicant said that he had been on protection during previous incarcerations and expressed the view that he did not think that he would come out, the evidence that he will remain in protection can only be regarded as slight. Experience shows that prisoners do get moved not infrequently and that there are gaols where there are many prisoners on protection and a deal of association between such prisoners occurs. 37 In light of the matters to which I have referred I am of the view that some reduction in the Applicant's sentence from what was otherwise appropriate should have been made on account of his being on protection but that that reduction should have been limited in extent. Those matters also lead me to the view that a lesser sentence on the robbery charge should have been passed. 38 There are three other matters to which reference should be made. During the hearing of the appeal, there was read an affidavit of the solicitor representing the Applicant annexing copies of certificates issued to the Applicant for courses in which he has participated whilst in custody. I have taken such matters into account. 39 In imposing sentence, the Court must have regard to the requirements of s 21A of the Crimes (Sentencing Procedure) Act. Given the limited issues debated during the hearing of the appeal and in written submissions it is not necessary that I refer to the matters referred to in s 21A to a greater extent than I have done. I have however taken into account those that seem to me to be relevant. 40 The third matter relates to the commencing date of the Applicant's sentence. As has been indicated, at the time of sentence, the Applicant was serving sentences which included non-parole periods of up to 2 years and which had commenced in 2005. The commencing date of the sentence under appeal, apparently the subject of agreement by the parties, and adopted by his Honour was earlier. The effect of adopting this date was to negate the 2005 sentences by making the longer term set by Judge Maguire run concurrently. Surprisingly, his Honour did not refer to this fact and does not seem to have taken it into account. There is something to be said for this Court, if it is otherwise minded to interfere, to adjust the commencing date to the expiration of the non-parole periods under the Applicant's 2005 sentences. However, the Crown did not seek to rely on this factor and at the end of the day, I have concluded that the Court should not do so. The commencing date was something agreed to in the course of the plea negotiations and there are obvious disadvantages in interfering with that one component of what appears to have been a concluded agreement at this stage. On any view the Applicant has a considerable period ahead of him in prison. 41 For the above reasons, I would propose the following orders:- 1. Grant leave to appeal 2. Allow the appeal. 3. Quash the sentence imposed by Maguire DCJ on 10 November 2006 in respect of the offence of robbery with an offensive weapon. 4. In respect of such offence, sentence the Applicant to imprisonment for a non-parole period of 6 years commencing on 5 August 2004 together with a further term of 2 years commencing on 5 August 2010.

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