Vos v Regina

Court of Criminal Appeal (NSW)|2006-08-03|Before: Spigelman CJ, Hoeben J, Rothman J

JUDGMENT OF: Spigelman CJ at 1; Hoeben J at 2; Rothman J at 37

DECISION: Leave to appeal granted and appeal allowed. Applicant re-sentenced.

CATCHWORDS: Sentence appeal - sentencing for multiple offences - concurrency and accumulation - proper treatment of Form 1 matters - report pursuant to s11 of the Criminal Appeal Act.

LEGISLATION CITED: Criminal Appeal Act 1912 Crimes Act 1900

Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Sloane ([2001] NSWCCA 421 Veen v The Queen (No 2) (1988) 164 CLR 465 R v Zamagias [2002] NSWCCA 17

PARTIES: Daniel Robert Vos - Applicant Crown - Respondent

COUNSEL: C Craigie SC - Applicant D Frearson SC - Crown

SOLICITORS: S O'Connor, Solicitor for the Legal Aid Commission of NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/873

SPIGELMAN CJ HOEBEN J ROTHMAN J

Thursday, 3 August, 2006 Daniel Robert VOS v REGINA JUDGMENT 1 SPIGELMAN CJ: I agree with Hoeben J. 2 HOEBEN J: Offences and sentence On 7 October 2005 Judge Donovan QC sentenced the applicant in respect of the following offences:

Count 1 - Assault with intent to rob, contrary to s94 of the Crimes Act 1900 (maximum penalty 14 years imprisonment).

Count 2 - Possession of an offensive weapon with intent to prevent lawful apprehension, contrary to s33B of the Crimes Act 1900 (maximum penalty 12 years imprisonment).

His Honour took into account on a Form 1 the offence of stealing from the person contrary to s94 of the Crimes Act 1900 (maximum penalty 14 years imprisonment). 3 His Honour passed identical and concurrent sentences in respect of each offence, being a non-parole period of 3 years to commence on 13 March 2005 and to expire on 12 March 2008 with a balance of term of 3 years to expire on 12 March 2011.

Factual background to offences 4 At 4.30pm on 13 March 2005 the victim, Constantin Popovici, a 55 year old man was standing at a bus stop in Macleay Street, Potts Point. With him were two British tourists. All three were waiting for a bus. The victim had his black leather wallet open so as to remove his bus ticket. 5 The applicant forcibly grabbed the victim's left wrist in an attempt to steal the wallet. The victim grabbed the wallet with his right hand and there was a struggle during which the applicant attempted to punch the victim. The applicant slipped to one knee, thereby giving the victim the opportunity to secure his wallet. The victim then attempted to hold the applicant down. He was assisted by one of the tourists. The applicant kicked out and broke free. 6 The victim saw the applicant reach for an object at his left side. The victim observed a knife with a five-centimetre blade and called out "Oh my God, he has a knife". The offender held the knife in a clenched fist and lunged at the victim. The victim backed away without harm and he continued to scream "Oh my God, he has a knife". 7 The applicant then walked away from both the victim and the tourists. In the course of the struggle the applicant received a cut to his right hand which later required treatment. 8 The Form 1 matter occurred in the following circumstances. At 4.40 pm on 13 March 2005 the victim, Owen Sleight, an 80 year old who was a local resident was walking along Manning Street at Kings Cross towards the Woolworth's Supermarket in Macleay Street. As the applicant approached the victim, the victim moved to the right side of the footpath. The applicant walked up to the victim and grabbed the front of his jacket. The victim felt a tug to the left side of his jacket and then the applicant released him. Shortly thereafter the victim realised that his prescription reading glasses and their black vinyl case were missing from his jacket. 9 Shortly after these incidents, the police attended. Descriptions of the applicant were provided by the first victim and the British tourists. The applicant was apprehended in the vestibule of the Kings Cross Railway Station. The prescription reading glasses and their case were found on his person. At the time of his apprehension the applicant was highly intoxicated and aggressive towards the police. The applicant has been in custody since 13 March 2005.

Subjective matters 10 The applicant was born on 13 August 1966. He was 38 at the time of the offences and is now almost 40. The applicant has a poor record with offences commencing as a juvenile in 1982. Those offences have continued at a steady rate since that date. Most were associated with the abuse of alcohol and drugs and many involved offences of dishonesty. 11 In January 2000 he was sentenced to a significant period of imprisonment in Queensland for various charges including serious assault. He was released on 20 May 2002. On 16 April 2003 he was sentenced for obstructing a police officer to two months imprisonment suspended for a period of 12 months. On 15 July 2004 he was convicted of the dangerous operation of a vehicle. He was sentenced to imprisonment for 18 months which was suspended for 3 years. Accordingly the applicant was at conditional liberty at the time of the offences presently under consideration. 12 His Honour had before him letters from the applicant's present de facto wife and from his previous de facto wife. Both women described the applicant as having respect and love for people he cared for and having a good rapport with children. Both referred to a need for rehabilitation and the applicant's willingness to undertake it. 13 In evidence before his Honour, the applicant told of his violent upbringing and his long-term addiction to heroin and alcohol. These addictions had started early in the applicant's life. His only real period of abstinence had been between August 2004 and shortly before the offences. His reason for relapsing was that he and his family were soon to be evicted from their accommodation. 14 The applicant's evidence was consistent with the contents of an alcohol and other drug report from the Department of Corrective Services which was placed before his Honour. The report indicated that the applicant had commenced methadone treatment and was currently stable and compliant with his regime.

Remarks on sentence 15 His Honour considered that the objective criminality of the offences was high. There were two victims, if one took into account the Form 1 offence. There was a high level of violence in that a knife was used. There was some small degree of planning. The victim in relation to the Form 1 offence was vulnerable, in that he was 80 years of age. 16 In relation to subjective matters, because of the applicant's poor criminal record, his Honour noted that it would be difficult to grant him leniency. On the other hand his Honour found that the applicant had genuine remorse and contrition. There was an early plea of guilty. 17 His Honour found that the applicant's desire to rehabilitate himself was genuine. His Honour's concern was whether, given his past history, the applicant would be able to maintain that focus and successfully achieve rehabilitation. His Honour concluded that there were real prospects of rehabilitation but that he was not in a position to predict the future with any degree of certainty. 18 It was against that background that his Honour passed the sentences previously referred to. The long period of parole was to enable the applicant to be adequately supervised while undergoing rehabilitation. Having passed the sentences, his Honour was reminded of the Form 1 matter but advised that he had taken it into account in formulating the sentences. 19 In what appears to be a report to the Registrar of this Court dated 13 March 2006, his Honour advised that on reflection he believed he had made an error in the calculation of the sentences in that the sentences were too long. His Honour thought that he had treated the matter of the knife too much as a serious armed robbery and that although the matter was a serious crime, it was not in the same category as a serious armed robbery. His Honour was also concerned that he had used a stepped approach in formulating the sentences rather than an intuitive synthesis.

Appeal Ground 1: His Honour erred in failing to properly identify and apply the principle pertaining to the sentencing of multiple offences. 20 It was submitted on behalf of the applicant that the simple application of the same sentence without discrimination to two offences with varying maximum penalties, suggested very strongly that the approach required by Pearce v The Queen (1998) 194 CLR 610 had not been followed. 21 It was submitted that had there been a proper assessment of each individual offence with an appropriate sentence passed in respect of each, the individual sentences would have been less and the total sentence would have been less.

Ground 2: His Honour erred in failing to apply appropriate procedure in relation to the consideration of the Form 1 matter in relation to one nominated count only. 22 The applicant submitted that his Honour had failed to indicate in relation to which offence he proposed to have regard to the Form 1 matter. This left open the possibility that his Honour may have had regard to the Form 1 matter in respect of both offences.

Ground 3: The sentences imposed were manifestly excessive. 23 The applicant submitted that as a result of the above errors and in the light of his Honour's favourable findings of fact and favourable assessment of subjective factors, the sentences were manifestly excessive. This was particularly so when one had regard to the early plea of guilty which would normally attract a discount of 25%. Applying a discount of that amount, his Honour's start point must have been 8 years for the head sentence which was manifestly excessive for an offence of this kind.

Consideration 24 In oral submissions the applicant placed some reliance upon his Honour's report to the Registrar of the Court of 13 March 2006. In those circumstances the Court needs to clarify what use, if any, it proposes to make of the report. I assume that his Honour's report was made pursuant to s11 of the Criminal Appeal Act. Otherwise it is difficult to understand why the report was prepared. 25 In that regard the applicable principles were set out by Wood CJ at CL in R v Sloane ([2001] NSWCCA 421 at [5]-[13]: "[5] In fairness to the relevant witnesses, and for the assistance of any Court required to review the sentence upon appeal, it was incumbent upon his Honour to have articulated, at the time of passing sentence, the reasons for any doubts which he had, and to make clear and explicit his findings on the facts. This he regrettably and noticeably failed to do. The most which can be drawn from the reasons is that his Honour accepted that the minimum had been established consistent with the jury's verdict. [6] However, his Honour has since articulated, in a Report to the Court of Criminal Appeal, the reasons for the doubts which he had held in relation to the evidence of the victim and the other police witnesses, and for not imposing "a more severe sentence". [7] It would appear from this report that he formed a conclusion, in relation to the respondent's objective criminality, solely upon the basis of the evidence of the witnesses other than the victim, his wife, the police and members of their families, whose evidence he reported was "almost totally lacking in credibility". [8] The observations made in this report, concerning those witnesses, are of an extremely serious kind, so far as they involved conclusions that Senior Constable Swanston had behaved in ways which were "highly provocative and offensively racist", and that the "police evidence gave the impression of having been fabricated in order to prejudice the respondents." [9] The purpose of a Report to the Court of Criminal Appeal is not to justify or to explain why a Judge has dealt with a matter in a particular way. The proper place for the exposure of reasoning of this kind is in the Reasons for Sentence, and nowhere else. The reasons for that are obvious: (a) the Reasons for Sentence are the published statement of the Court, addressed to the community at large, as well as to those immediately involved in the case, as to why an offender was dealt with in a particular way;

(b) the provision of an explanation directed to the Court of Criminal Appeal, after a sentence is handed down and an appeal is lodged, risks conveying an impression that the Judge, whose decision has been appealed, is seeking to justify or to support it. [10] An important function of a Report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded. [11] Another permissible and relevant function of such a Report is its use, by a trial Judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record. [12] A third permissible reason for such a Report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it. [13] Otherwise, in times where there is in existence an adequate system for Court reporting, occasion for the provision of a s11 Report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance." 26 It is no function of a report under s11 of the Criminal Appeal Act to provide a reconsideration of a sentence. The report by his Honour in this case does not appear to meet any of the purposes for which s11 was enacted and accordingly I propose to disregard it. 27 In relation to ground of appeal 1, I agree that the principles in Pearce do not appear to have been followed. What his Honour needed to do was to consider the objective criminality of each offence together with factors in aggravation and mitigation and to then pass an appropriate sentence in respect of each - R v Zamagias [2002] NSWCCA 17. Having done that it was necessary for his Honour to consider the principles of totality and proportionality in deciding to what extent the sentences should be concurrent or cumulative. It is not apparent that his Honour carried out his formulation of the sentences in that way. No reasons were offered as to why the sentences should be the same and as to why they should be concurrent. 28 I do not agree with the submission of the applicant that had his Honour applied the principles in Pearce the result would have been significantly more favourable to the applicant than the sentence which was ultimately passed. The two principal offences were both serious. Both provided for significant maximum periods of imprisonment. Both involved violence. Both were committed while the applicant was at conditional liberty. In respect of the second offence in point of time (use offensive weapon to avoid apprehension), it was a particularly aggravating factor that having freed himself from the victim and the tourist, the applicant sought to stab the victim before departing the location. 29 Although the two offences occurred within a short space of time, they were quite distinct and separate. They ought not be regarded as a single episode of criminality. Applying the principles in Pearce, in particular those of totality and proportionality, not only would it have been necessary for two sentences to have been passed, but those sentences would have had to have been at least partially cumulative. 30 In respect of ground of appeal 2, I agree that his Honour should have made it clear in relation to which of the two principal offences he proposed to take the Form 1 matter into account. This is normally done in respect of the more serious of the two offences. As with ground of appeal 1, if his Honour had followed this approach it would not have greatly assisted the applicant. 31 In accordance with Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 account was to be taken of the Form 1 matter by giving greater weight to the need for personal deterrence which the commission of the offence indicated and by giving greater weight to "the community's entitlement to exact retribution for serious offences where there are other offences for which no punishment has in fact been imposed" (at [42]). The offence on the Form 1 was itself a serious one given the vulnerability of the victim. 32 Had his Honour properly applied the principles in Pearce, including some accumulation between the two sentences and had his Honour properly taken into account the Form 1 matter in respect of one of those sentences, the position of the applicant would not have been greatly improved. It would usually lead to some increase in the sentence for the offence to which the Form 1 matter was attached so as to have regard to the matters referred to in the Attorney-General's case. 33 I do not agree that the total effect of the sentences passed by his Honour was to produce a sentence that was manifestly excessive. Nevertheless, there is some force in the submission of the applicant that each sentence taken individually is manifestly excessive. If one assumes a 25% discount for an early plea of guilty, each sentence had a start point in the order of 8 years. Despite the fact that the applicant's poor record was "a manifestation of continuing disobedience of the law" and that "retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted" (Veen v The Queen (No 2) (1988) 164 CLR 465, such a start point for each sentence is outside the range of sentences appropriate for such offences.. 34 Because of the errors identified above, I am of the opinion that the applicant is entitled to have sentences passed on him according to law and therefore needs to be re-sentenced. 35 In respect of count 1, taking into account the Form 1 matter, the sentence I propose is a non-parole period of imprisonment of 2 years with a balance of sentence of 2 years. In respect of the offence in count 2, involving the possession of the knife with intent to prevent lawful apprehension, I propose a sentence of imprisonment with a non-parole period of 2 years with a balance of term of 2 years, such sentence to be partially concurrent and partially cumulative upon that passed in respect of count 1. The effect of the re-sentencing is a non-parole period of imprisonment of 2 years and 6 months with a parole period of 2 years. 36 The orders which I propose are:

(2) The sentences passed by Judge Donovan QC on 7 October 2005 are quashed.

(3) In lieu thereof the following sentences are passed:

(i) For the offence of assault with intent to rob contrary to s94 of the Crimes Act 1900, the applicant is sentenced to a term of imprisonment with a non-parole period of 2 years to commence on 13 March 2005 and to expire on 12 March 2007 with a balance of term of 2 years to expire on 12 March 2009.

(ii) For the offence of possession of an offensive weapon with intent to prevent lawful apprehension contrary to s33B of the Crimes Act 1900 the applicant is sentenced to imprisonment with a non-parole period of 2 years to commence on 13 September 2005 and to expire on 12 September 2007 with a balance of term of 2 years to expire on 12 September 2009. 37 ROTHMAN J: I agree with Hoeben J. **********

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