Walker v R

Court of Criminal Appeal (NSW)|2016-08-24|Before: Hoeben CJ, Hall J, Davies J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/240356 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 24 July 2016 Before: Williams DCJ File Number(s): 2013/240356

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
HALL J: I agree with the reasons of Davies J and the orders his Honour proposes.
DAVIES J: On 12 February 2014 the Applicant pleaded guilty in the Local Court to one count of attempted robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW) and one count of possession of a prohibited weapon being a Taser contrary to s 7 of the Weapons Prohibition Act 1998 (NSW). An offence of break, enter and steal contrary to s 112(1) of the Crimes Act was to be dealt with on a Form 1 in relation to the count of attempted armed robbery. The Applicant was committed to the District Court for sentence on that day.

The facts

At about 12:37am on Thursday 1 August 2013 the Applicant attended the BP Service Station located at 156 Prospect Highway, Seven Hills. The Applicant approached the night pay window where he spoke with the victim, console operator Ajit Gill. The Applicant made enquiries about purchasing a mobile phone and was shown a number of phones and was advised of the price for each. A short time later the Applicant left the premises without making any purchase, advising the victim that he was going to get money. The actions of the Applicant were captured on CCTV.
At about 2:38am the Applicant returned to the service station. However, he went to the side of the building where he broke the lock to a side access window. The Applicant used a wooden fence paling to prop the window open before climbing through the window into the administration office of the building. The victim was standing in the adjoining console area when he was aware of a cold draught and a noise in the office. The victim activated the duress alarm and went into the office where he saw the Applicant in the office. The Applicant shouted, "Give me money, give me money!" The Applicant was armed with a hunting knife which had a 10cm long silver coloured serrated blade. The victim recognised the person in the office as being the same one who had earlier made enquiries about the purchase of a mobile phone.
The victim stepped back out of the office and pulled the connecting door between the service area and the office closed. He held the door closed as the Applicant attempted to pull it open from inside the office. The victim was unable to reach the duress alarm to engage it again whilst holding the door closed. However, he used his mobile phone to contact 000. The Applicant ransacked the office and continued to yell out, "Give me money, give me money." The Applicant took a number of mobile telephones from the office and left through the window.
Police attended and obtained a statement from the victim. Crime scene officers attended and located a number of fingerprints in and around the office and on the outside of the window. These were sent off for analysis. The police also obtained copies of the CCTV footage relevant to the incident.
A media release depicting an image of the Applicant was published and as a result of information received police applied for, and were granted, a search warrant. At 7am on 7 August 2013, police attended the residence at XX Marks Avenue, Seven Hills and executed the search warrant in the presence of the Applicant who was the sole occupant of the premises. During the search police located various items of interest including: 1 x Samsung mobile phone; 1 x handwritten receipt for the sale of a hunting knife dated 2 August 2013 and signed by the offender; cardboard packaging for a Samsung Galaxy Pocket mobile phone with serial number 353629054659171.
The Samsung phone was one of the phones stolen from the service station. The knife for which police located the handwritten receipt is similar in appearance to the knife wielded by the Applicant during the commission of the offence. The cardboard packaging for the Samsung mobile phone was for one of the other phones stolen from the service station.
During the execution of the search warrant police also located a hand-held Taser. The device appeared to be home made and was attached to a length of electrical cord. It was capable of emitting an electrical current of 10 amps. A device that emits a current of 0.1 to 0.2 amps can kill a person.
In relation to the offences the Applicant stated that due to his drug consumption on that date he could not recall his whereabouts or possible involvement in the commission of the offence. The Applicant stated to police that he is a regular user of methamphetamine and marijuana. The Applicant was unable to provide police with any explanation as to how he came into possession of the stolen property located during the search warrant.

Subjective matters

The Sentencing Judge had a report from the psychiatrist Dr Richard Furst dated 17 May 2014 and reports from the project administrator and a psychologist at the Australian Council on Alcoholism and Drug Dependence at the Canton Beach Family Addictions Recovery Centre. In addition, the Applicant gave evidence before the Sentencing Judge. The material disclosed the following.
The Applicant was the middle of three children with an older and a younger sister. He was born in April 1984 and was 30 years of age at the time of sentencing.
He went to a total of 16 schools and struggled with learning difficulties. His parents separated when he was 13 years of age. He started living on the streets at the age of 16 and commenced using cannabis at that time. He continued to smoke cannabis until his father's unexpected death from heart failure in 2008. His father's death caused him to feel suicidal and he was admitted to the psychiatric unit at Blacktown Hospital for management of his grief. He was prescribed Seroquel and Valium which he used for two to three years. Subsequently he has used Xanax.
He continued to smoke cannabis after the death of his father and did so heavily in his mid-twenties using approximately three grams every two days. He used amphetamines from 2009 or 2010 consuming approximately 0.3 grams every second day. Between 2010 and 2012 he used amphetamines and cannabis regularly with occasional ecstasy use. He commenced using methamphetamine in 2013 and started injecting it a few months before the offences in question. He was using about one gram every two days and then used Xanax to help him come down.
After his arrest he stopped using all drugs and undertook residential rehabilitation at the Canton Beach Centre. The reports of the Canton Beach Centre from the project administrator and the psychologist were positive about his rehabilitation.
The Applicant completed three years of an electrical apprenticeship at TAFE from 2002 to 2005. He studied IT in 2010 over a 12 month period working in some pick and pack jobs between 2008 and 2012 and having some periods of unemployment.
At the time he saw Dr Furst he told him that he could not stand drugs because they had ruined 14 years of his life. He said he could learn from what he had gone through and that he now had God on his side.
While undergoing the rehabilitation at Canton Beach he commenced working part time for a Mr and Mrs Gauchi at a stonemason's operation at Wyong. He then graduated to working fulltime with them. They were strongly supportive of the Applicant and said that they would re-employ him even if he was sentenced to fulltime custody.
The Sentencing Judge had a letter written by the Applicant to the Court expressing his remorse. He gave evidence to that effect also.
Dr Furst said that the Applicant met criteria for the diagnosis of: substance use disorder (amphetamine and cannabis dependence); and Social anxiety disorder. Dr Furst noted that the Applicant claimed amnesia for the offences in question which made it difficult to draw any firm conclusions about his mental state and/or motivations at the time. Dr Furst said, however, that his offences were probably driven by his addiction to drugs and probably acute intoxication with methamphetamine, cannabis and Xanax.

Remarks on sentence

Although error is conceded and established the Sentencing Judge's remarks are relevant to an understanding of the sentence imposed with a view to considering if any lesser sentence is warranted. The Sentencing Judge noted that the subjective case for the Applicant was a very compelling one. His Honour noted no offences of dishonesty on his record and some minor drug and traffic offences in 2003 and 2007.
He had served 84 days in custody before being admitted to bail. It was agreed by counsel and his Honour that 75% of the 152 days spent in residential rehabilitation should be counted in any period of custody to which he was sentenced. The sentence was therefore to be backdated by 236 days.
His Honour accorded him a 25% discount for the early plea.
The Sentencing Judge accepted the Applicant's evidence that he wanted to live a clean life and start a family and noted that he had taken up with a new partner over the previous couple of months. His Honour said that he took into account the Applicant's successful rehabilitation.
His Honour made no finding of objective seriousness of the offending. He said that he took into account the purposes and principles of sentencing as required by s 3A of the Act and he had taken into account aggravating and mitigating factors as required by s 21A.
His Honour then went on to say: The principal aggravating factors in this case are the actual threat and use of violence, the actual threat and use of a weapon and the vulnerability of the victim as a service station attendant. The powerful mitigating factors of course are those which have largely been adumbrated in various other areas by Mr Vertigan [for the Applicant], but they include that the offence was not part of a planned or organised criminal activity. The offender is unlikely to reoffend, he has good prospects of rehabilitation and he has certainly shown remorse and he has pleaded guilty. Against the subjective case which as I have said is a very compelling and powerful one, I must take into account the need for general deterrence and community abhorrence of crime such as this whether committed under the influence of drugs, alcohol or otherwise. I have come to the view that a period of fulltime custody is the only appropriate penalty in these circumstances.
When imposing the non-parole period his Honour said that he found special circumstances on the basis that it was the Applicant's first time in custody and for the prospects of rehabilitation and the need for supervision and rehabilitation.

The appeal

Both the Applicant's and the Crown's submissions dealt with ground 3 asserting manifest excess. In the light of the Crown's concession as to error identified in grounds 1 and 2 these submissions, as modified at the hearing of the appeal, were addressed to the re-sentencing exercise required of this Court by Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.
The Applicant submitted that the Sentencing Judge had placed too much weight on general deterrence in light of the rehabilitation achieved by the Applicant prior to sentence. The Applicant submitted that the statistics indicated that 34% of all offenders sentenced for attempted armed robbery received a sentence other than full-time imprisonment. Those statistics include all offenders whether they had pleaded guilty or not and whether they had rehabilitated themselves or not.
The Applicant submitted that the sentence imposed was unreasonable or plainly unjust when the Applicant, after serving 236 days, would be required to return to custody for 62 days having successfully rehabilitated prior to sentence. In that regard the Applicant submitted that neither the protection of the community nor his rehabilitation warranted a return to custody.
The Crown submitted that no lesser sentence than was imposed by the Sentencing Judge was warranted. The Crown submitted that the sentence imposed was a lenient one in all the circumstances and that, in applying the guideline judgment in R v Henry (1999) 46 NSWLR 346 it could be said that the Applicant satisfied or exceeded each of the matters stated in the Henry guideline. In particular the Applicant's conduct was more serious in that he had broken into the premises. The Crown submitted also that simply because the charge was one of attempted armed robbery, that offence could not be considered separately from the Form 1 offence of break, enter and steal.
The Crown submitted that the 75% allocation of rehabilitation time to pre-sentence custody following Brown v R [2013] NSWCCA 44; (2013) 228 A Crim R 298 was at the upper end of the range. The Crown submitted that the heart of the Applicant's complaint in respect of the sentence focused on his prospects of rehabilitation and the utility of requiring him to serve the remaining 67 days of custody in respect of these offences. In that regard, the Judge's reduction of the statutory ratio to 30% was significant.
The Crown pointed to two drug offences for which the Applicant was subsequently convicted as being relevant matters to be taken into account on any re-sentencing process.

Determination

When considering the objective seriousness of the offending and how the considerations in Henry are applicable in the present case it is necessary to consider the attempted armed robbery together with the break, enter and steal. The two matters formed part of the same offending. Even if, as was suggested, the facts might not have constituted the offence of armed robbery because the console operator had retreated to the office and the property stolen from the outside area may not have been regarded as being in his possession (a matter which I doubt), it cannot be ignored that the only reason the Applicant was enabled to steal the property was that he threatened the console operator with the knife whilst demanding money, causing the operator to retreat to the relative safety of the service area.
Since, in any event, it is necessary to take into account the Form 1 offence when fixing the appropriate sentence for the count charged, what happened in the present case should not be regarded as of any lesser seriousness than what happened in Henry simply because the charge and the conviction were for attempted armed robbery.
As the Crown submitted, there was leniency in three aspects of the sentence imposed. First, despite the Applicant's conduct being more serious than that set out in the Henry guideline, the head sentence imposed was significantly lower than the range set out in Henry. Second, there was leniency in the Sentencing Judge varying the ratio of the non-parole period to 30% of the head sentence. Thirdly, according 75% of the time the Applicant spent in rehabilitation as pre-sentence custody was generous: Hughes v R [2008] NSWCCA 48 at [38]; (2008) 185 A Crim R 155, and see also R v Anderson [2012] NSWCCA 175 at [41] - [43]. In fact, the Applicant at the date of sentence had only served 84 days in fulltime custody and on the basis of the sentence imposed was due to serve only a further 67 days.
It may be accepted that in particular or exceptional cases a sentence that might otherwise be regarded as manifestly inadequate might be able to be justified in terms of rehabilitation achieved and to be achieved with respect to an offender: Anderson at [4] and [52]-[56].
Even if the leniency of the sentence imposed can be justified by the Applicant's rehabilitation at the time of sentence the position has changed to the detriment of the Applicant. Whilst on the continuing bail he was granted to prosecute this appeal, and notwithstanding the delays in doing so, he has twice been convicted of possessing drugs in circumstances where he admitted to using those drugs or intending to do so. Given the material that was put to the Sentencing Judge by the Applicant and others on his behalf to show that his involvement with drugs was at an end, that he had turned his life around in that regard, and that his rehabilitation had been successful, these recent offences demonstrate that the leniency extended to him because of the rehabilitation is now not appropriate, at least to the same extent. It can certainly be accepted that he is in further need of rehabilitation but that matter alone could not justify a sentence which involved only 84 days in fulltime custody nor that attributed to pre-sentence custody of 236 days.
What has complicated the matter considerably is the release to bail of the Applicant at the time of sentence leaving him to serve 67 more days of fulltime custody unless the present sentence is varied. No doubt this was done by the Sentencing Judge considering that any appeal would not be heard until after the Applicant had served the whole of the custodial part of the sentence.
The Applicant's counsel submitted that it would be plainly unjust, unreasonable, counter-productive and likely to impede his ongoing rehabilitation to return the Applicant to custody especially when such a long time has elapsed since sentence was imposed. Three things should be said about that. First, it was the Applicant who had sought bail in order to appeal. Secondly, the appeal was not pursued with any vigour. Thirdly, whilst on that bail the Applicant committed two further drug offences.
As to the first of those matters, all that needs to be said is that, in applying for bail, the Applicant must have known that if any appeal was unsuccessful he would have to be returned to gaol to complete his sentence.
As to the second matter, the Applicant lodged a Notice of Intention to Appeal on 24 July 2014. The expiry date of 24 January 2015 was extended to 24 May 2015. Legal Aid made a number of attempts to contact the Applicant at the address where he had been bailed to live at Warnervale and on the mobile telephone number recorded in the Applicant's Legal Aid application. Legal Aid also contacted Mrs Gauci who had employed the Applicant but she said in April 2015 that she had not seen the Applicant for six to seven weeks. Legal Aid ascertained that the Applicant had changed reporting police stations from Wyong to Mt Druitt but Legal Aid was advised by someone from Mt Druitt police station that the Applicant had not been reporting there and had been unable to be contacted. When all of those avenues were exhausted the Legal Aid appeal file was closed in September 2015.
The Applicant gave evidence in an affidavit that in March 2015 he notified the Local Court at Mt Druitt of a change of address to The Entrance and in May 2015 he notified the Court of a change of address to Doonside. He did not specifically notify Legal Aid because he said he believed that he had notified all agencies when he changed his address at the Court. He said he had been told that appeals would take a long time. He did not at any stage contact Legal Aid to find out what was happening with regard to his appeal.
For reasons that were not explained, the solicitor for Legal Aid said in an affidavit he was contacted in February 2016 by the Legal Aid solicitor who had appeared for the Applicant before the Sentencing Judge. As a result of what he was told the solicitor lodged a Notice of Application for Extension of the NIA period. On 22 February 2016 the Registrar extended that period until 30 May 2016. The Grounds of Appeal were then lodged on 13 April 2016.
The Applicant also gave evidence in an affidavit of emotional, employment and psychiatric issues that developed during 2015. He also said that it was at that time he relapsed into using marijuana for a short period.
Since the Registrar extended time there is no issue as to the competency of the appeal by reason of the delay. Rather, the relevance of the delay goes to the submission of the Applicant's counsel that he should not be put back into custody to serve the remainder of his sentence because of the time that has elapsed since he was sentenced, and in that regard a lesser sentence was warranted.
Although there is some explanation for the time that has elapsed, the explanation is not a satisfactory one. It was not clear why notifying the Court of a change of address for bail and/or reporting reasons would result in Legal Aid finding out about the change of address. Further, at no stage did the Applicant himself attempt to contact Legal Aid to find out the status and progress of the appeal. It may be accepted that since the state of sentence the Applicant has not engaged in further violent crime and to that extent his rehabilitation has been partly successful. On no other basis, however, can the delay be considered to be a mitigating feature.
As to the third matter, on 31 August 2015 the Applicant was charged with possessing two grams of cannabis. He was convicted and fined $500. On 27 December 2015 he was charged with possessing 0.5 grams of cannabis and an instrument known as a bong used for smoking marijuana. For those offences he was convicted and fined $600 and $500 respectively. It is an aggravating matter that those offences were committed whilst on bail pending the hearing of this present appeal. Notwithstanding the commission of those offences, counsel for the Applicant pointed to what Simpson J had discussed in R v Henry where she said at [351]-[355] that although general deterrence, specific deterrence and punishment were significant factors in the sentencing process where an offender demonstrates a background to drug addiction that may explain the offender's decision to use drugs and diminish his or her moral culpability for that decision, and a demonstrated progress towards rehabilitation, general deterrence and other sentencing objectives such as retribution may yield to rehabilitation. Without wishing to diminish the significance of Simpson J's views in that regard, views with which I agree, I simply note that she was alone of the five Judges in Henry in expressing those views. The Applicant's counsel submitted that the evidence showed that the Applicant had demonstrated progress towards rehabilitation in that there had been no further violent offending and that the background to his addiction was documented in the psychiatric material.
In the unusual circumstances of this case I consider that a lesser sentence than that imposed by the Sentencing Judge is warranted. I consider that the Applicant should be assessed for an Intensive Correction Order for a period of 16 months. My reasons are these.
First, although it would not be unjust or even counterproductive to return the Applicant to custody for 62 days it would be pointless or almost pointless to do so. Whilst it might punish the Applicant for his offending it would not adequately punish him (s 3A(a) Crimes (Sentencing Procedure) Act 1999 (NSW)) and it would not fulfil any of the other purposes of sentencing in s 3A of the Sentencing Act.
Secondly, although because of the time served and deemed time served by the Applicant s 5 of the Sentencing Act is not directly on point its purpose is relevant to resentencing an offender who would, in a practical sense, be given a sentence of imprisonment well under six months. Section 5 requires an additional consideration where a sentence of six months or less is to be imposed that no penalty other than a period of imprisonment is appropriate: Fedele v R [2015] NSWCCA 286 at [40]-[41].
Thirdly, in many respects, simply to find that no lesser sentence than that imposed by the Sentencing Judge was warranted would not adequately punish the Applicant nor make the offender accountable nor promote his rehabilitation (s 3A (a), (d) and (e)). A further sentence of 62 days in custody together with a period on parole for one year and 11 months is less likely to achieve those purposes of sentencing than an Intensive Correction Order which will be more restrictive of the Applicant but at the same time by reason of the close restriction, further his rehabilitation whilst protecting the community.
The sentence proposed will take account of the fact that the Applicant has served in custody or deemed custody some 236 days. Because of the unusual circumstances of this case the imposition of an Intensive Correction Order for what must be regarded as a serious crime of violence should not be seen as a precedent for future guidance to sentencing judges.

Conclusion

I propose that, taking into account time already served, the Applicant should be sentenced to a period of imprisonment of 16 months and that the sentence should be served by way of an Intensive Correction Order if the Applicant is assessed as suitable for such an order. In the event he is not assessed as suitable for such an order I would consider that no lesser sentence than that imposed by the Sentencing Judge was warranted.
The orders I propose are: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed in the District Court on 24 July 2014. 4. Refer the applicant for assessment as to his suitability for intensive correction in the community, pursuant to Div 3 of Pt 5 of the Crimes (Sentencing Procedure) Act. 5. Adjourn the proceedings for that purpose.

Amendments 18 October 2016 - Name of counsel on coversheet amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2016

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)