Wayne Holten v Regina

HULME J HIDDEN J LATHAM J

Monday 28 November 2005 Wayne Daniel Holten v Regina Judgment 1 HULME J: In this matter, I have had the advantage of reading the judgment of Hidden J. I agree with his Honour that the sentencing judge erred by having additional regard to one or more factors which were elements of the offences for which the Applicant was sentenced. It follows that, unless it is appropriate to apply the proviso to s6(3) of the Criminal Appeal Act, leave to appeal against sentence should be granted and the appeal allowed. 2 The sentences imposed on the Applicant were severe but so was his offending and, were it not for the Applicant's youth and history, I should have thought no case was made out against the application of that proviso. However, that youth and history has led me to the conclusion that this Court should interfere. 3 The Applicant was born on 7 March 1984. He is an aboriginal and one of 5 children. His problems in life commenced at a young age. He seems to have absconded from his home at ages 10 and 14, on the latter occasion living on the streets for some 3 months. This absconding may well have been due to parental domestic violence and in words of a psychologist quoted by Judge Delaney the Applicant "appears to have developed behavioural problems during childhood, which reflect a synthesis of environmental factors and learned behaviours in addition to a pattern of poor educational attainment, limited impulse control and a display of aggression as a means of coping. His offending behaviour is a function of this presentation, and his poor insight into the effects of his criminal conduct at that time". 4 The Applicant commenced using cannabis from age 13, this quickly escalating to daily and heavy use. Abuse of alcohol commenced at age 15 or 16 and abuse of other drugs about 1 year later. His offences were committed to obtain money to feed his drug addiction. 5 This Court has made it clear that drug addiction is not a matter of mitigation - see R v Henry (1990) 46 NSWLR 346 at 384-5, 397-8, 410. Indeed, in that as long as addiction persists the person addicted is likely to re-offend, it argues for a longer rather than a shorter period in custody. Nevertheless, in the circumstances of this case it does not seem to me possible to conclude other than that the Applicant's offending is, at least in part, the product of his upbringing and youth to an extent which argues for a degree of leniency in accordance with decisions such as GDP (1991) 53 A Crim R 112 and Fernando (1992) 76 A Crim R 58. In saying so, I do not, or course, forget the limits to the argument for such leniency adverted to in cases such as Tran [1999] NSWCCA 109 and Nichols (1991) 57 A Crim R 391 at 396. See also Hearne (2001) 124 A Crim R 451. 6 The Applicant's record includes the following:- (i) On 10 August 2000 he was sentenced to imprisonment for 3 years and 6 months, including a non-parole period of 18 months, both such periods commencing on 19 May 2000 on one count of demanding property with menaces with intent to steal and one count of robbery whilst armed with a dangerous weapon. (ii) On 27 November 2000 he was sentenced to a concurrent term of imprisonment for 1 month for escaping or attempting to escape from lawful custody. (iii) On 12 June 2003, concurrent sentences commencing on 10 May 2002 were imposed in respect of a number of offences. There was a sentence of 2 years imprisonment imposed on a charge of assault occasioning actual bodily harm. Nine months imprisonment was imposed for taking and driving a conveyance without the consent of the owner. A sentence of imprisonment for 4 years, including a non-parole period of 3 years was imposed in respect of a charge of robbery in company. (iv) On 12 June 2003 the Applicant was also sentenced to imprisonment for 3 years and 6 months, including a non-parole period of 18 months in respect of a second charge of robbery in company and to 9 months imprisonment in respect of a further charge of driving a conveyance taken without the consent of the owner. All of these periods commenced on 10 November 2003 and the Applicant had been charged with them, and with those referred to in the immediately preceding sub-paragraph on 20 February 2002, i.e. 3 months after the expiration of the non-parole period imposed in respect of the sentences referred to in sub-paragraph (i). 7 (It appears from information given to Judge Delaney without dissent that the offences for which he was sentenced on 12 June 2003 were committed on 20 February 2002 and that he was granted bail about a month later, presumably having been arrested soon after the commission of the offences. As appears from the judgement of Hidden J, the offences the subject of appeal to this Court were committed on the 4th and 7th June and the 6th July 2002. The Applicant was arrested on 16 July 2002.) 8 The effect of the sentences imposed on 12 June 2003 is that, apart from a period of 6 months from November 2001 to May 2002 when it may be inferred the Applicant was on parole, from 19 May 2000 when he was a little over 16 years of age, until at least May 2005 he has been incarcerated. The effect of the sentences under appeal is that this incarceration will extend until at least May 2012 when the Applicant will be 28. Thus, unless his appeal is allowed, from the age of 16 the Applicant will be required to serve almost 12 years of almost continuous custody. Such a result is very severe. 9 That said, it must also be recognised that the Applicant has done a great deal to lead to this situation. His offences were all serious, and not only by the standards of the criminal law but by the standards necessary to any civilised society. The timing of the offences presently under consideration show that he chose not to learn from the sentences of imprisonment imposed in August 2000, chose not to adhere to the conditions of parole which he must have undertaken to be at liberty at the time of commission of the offences, and chose not to fulfil terms upon which the bail he had been granted would have been conditioned. 10 These factors and the number of offences argue strongly against any interference by this Court and, although I have come to the view that the appeal should be allowed, they seriously limit the extent to which any reduction in sentence can occur. 11 The effect of the sentences which Judge Delaney imposed was to increase the Applicant's minimum term from 3 years to 10 years. In my view, given the Applicant's subjective factors to which I have referred, this was too high and manifestly so. I would reduce the period to 8 years. In an affidavit of the Applicant read on the hearing of the appeal, he deposed to having now embarked on a full time course of study so he can have prospects for work and a normal life on release from custody. That is certainly encouraging but, because of the extent of his offending, I am not disposed to reduce the parole period. In that regard I note that Judge Delaney made a finding of special circumstances. 12 The result I regard as appropriate may be achieved without interference with the length of the individual sentences themselves which, considered individually, I do not consider as outside the legitimate exercise of Judge Delaney's sentencing discretion, particularly when one recognises that his Honour had to take a number of other offences into account. I acknowledge that the degree of concurrency I propose will have the effect that the Applicant is, effectively, not punished for some of his offending. That of course often occurs when offences are sufficiently numerous and in the circumstances of this case, should, I think, be accepted. However the Applicant should be fully aware that the factors which have led me to the stance I propose will never again have the weight they have had on this occasion - indeed his youth will have no weight at all - and should he commit similar offences after the occasion of his next release, he can expect heavier and heavier penalties. So long as he conducts himself as he has, he is unfit to be in any civilised community and proper recognition of the need to deter him, the community's entitlement to retribution, and to protection from him, is likely to lead to him spending the vast bulk of his life in gaol. 13 The orders I would propose are: (i) Leave to appeal granted. (ii) Appeal allowed. (iii) The sentences imposed by Judge Delaney on 17 June 2004 be quashed, and in lieu thereof the Applicant be sentenced as follows: (iv) In respect of each of the offences of robbery whilst armed with an offensive weapon, committed on 7 June 2002, the Applicant be sentenced to imprisonment for a fixed term of 5 years, commencing on 10 November 2003. (v) In respect of the offence of, on 6 July 2002, assaulting Bradley Lane with intent to rob, the Applicant be sentenced to imprisonment for a fixed term of 6 years commencing on 10 November 2003. (vi) In respect of the offence of, on 4 June 2002, whilst armed with an offensive weapon, robbing Justin Hennessy, the Applicant be sentenced to imprisonment for a fixed term of 6 years and 6 months commencing on 10 November 2003. (vii) In respect of the offence of, on 4 June 2002, detaining Justin Hennessy with the intention of obtaining an advantage and in circumstances of special aggravation, the Applicant be sentenced to imprisonment for a non-parole period of 6 years and 6 months commencing on 10 November 2003 and a balance of term of 3 years and 6 months commencing on 10 May 2010. (viii) Record as the date upon which it appears that the Applicant will become eligible for release on parole, 10 May 2010. 14 HIDDEN J: The applicant, Wayne Daniel Holten, seeks leave to appeal against sentences passed upon him in the District Court after he pleaded guilty to a number of offences, arising out of three separate incidents. In relation to the second and third of those incidents, certain additional offences were also taken into account on a Form 1. It is convenient to describe briefly the facts of each incident, setting out the charges resulting from each of them and the sentences imposed.

First incident (Bankstown offences) 15 On 7 June 2002 the applicant entered a pottery shop at Bankstown, armed with a knife. Present at the shop were two employees of the business, Ms Brouwer and Ms Rowe. He produced the knife, seized Ms Brouwer by her clothing and directed Ms Rowe to lie on the floor. He took cash from the till and cut the telephone line. He asked whether there were other telephones and, being told that they were at the back of the store, he walked the two victims to that area. 16 There he again directed Ms Rowe to lie on the floor. He took $30 from Ms Brouwer's handbag, and $215 and a mobile phone from Ms Rowe's bag. He then walked the victims to an office at the rear of the store, where he closed the door on them and secured it with string. 17 This incident gave rise to two charges of armed robbery under s97(1) of the Crimes Act, each carrying a maximum sentence of twenty years imprisonment. He was sentenced on each of them to fixed terms of imprisonment for five years, to date from 9 May 2004. Those sentences were partly accumulated upon sentences which he was then serving, to which I shall turn later in these reasons.

Second incident (Yagoona offences) 18 On 6 July 2002 the applicant went to a platform at Yagoona Railway Station. Also on the platform were Mr Lane and two friends of his, Ms Dixon and Ms Riini. The applicant menaced Mr Lane with a knife and demanded money. When Mr Lane said that he did not have any, the applicant punched him. Mr Lane kicked out and pushed the applicant to protect himself, and there ensued a struggle in which Ms Dixon and Ms Riini became involved. 19 Mr Lane fell to the ground and the applicant lunged at him with the knife, continuing to demand money. Both of the women offered him money but the applicant declined, saying that it was Mr Lane's money that he wanted. An unidentified man approached and offered Mr Lane a screwdriver to use in self-defence. Mr Lane refused the offer and the applicant then turned his attention towards the unidentified man. One of Mr Lane's companions offered the applicant $50, which he took. Mr Lane and his companions then jumped onto the railway tracks to escape. The unidentified man ran up the steps from the platform and the applicant followed him. 20 A little later the applicant returned to the station in the company of two other young men. The unidentified man was still in the vicinity. The applicant was armed with a wooden stick and one of his companions with a baseball bat. They hit the unidentified man with those weapons a number of times until he was able to break free. 21 This incident gave rise to a charge of armed assault with intent to rob, also an offence under s97(1) of the Crimes Act which carries a maximum sentence of twenty years imprisonment. In addition, charges of common assault of the unknown male and affray were taken into account on a Form 1. On the charge of armed assault with intent to rob, with those additional charges taken into account, the applicant was sentenced to a fixed term of imprisonment for six years to date from 9 November 2004.

Third incident (Redfern offences) 22 On 4 June 2002 Mr Hennessy parked his car in the car-park of a block of flats at Redfern. On leaving the car-park, he was set upon by the applicant and two accomplices, one of whom was armed with a knife. His wallet, mobile phone and keys were taken. He was then escorted to his car, and made to lie on the ground while the applicant attempted to start it. It would not start because of the immobiliser, so Mr Hennessy was dragged to the car and forced to start it. He was directed to the back seat and the applicant, in the company of one of his accomplices, drove it off. 23 The accomplice demanded Mr Hennessy's PIN number and his ATM card was used to withdraw money at several locations. The total sum involved is not entirely clear, but it appears to have been at least an amount of the order of seven hundred dollars. At one stage the accomplice told Mr Hennessy that they were going to do an armed robbery and that he was going to help them whether he liked it or not, although in fact nothing of the kind happened. At another stage the applicant forced Mr Hennessy to hand over his running shoes and he put them on, throwing his own shoes into the back of the car. 24 On more than one occasion the applicant threatened to stab Mr Hennessy. He was eventually released, without his shoes, near Punchbowl Railway Station, but not before both offenders had punched him a number of times and the applicant had threatened to kill him if he reported the matter to police. He had been detained for over three hours. His face was sore for at least several days thereafter. 25 This is no more than a bare outline of Mr Hennessy's ordeal, which was described in greater detail by the sentencing judge in his remarks. 26 This incident gave rise to charges of armed robbery and of specially aggravated kidnapping, the latter being an offence under s86(3) of the Crimes Act which carries a maximum sentence of imprisonment for twenty-five years. A charge of aggravated car-jacking and three charges of obtaining money by deception were taken into account on a Form 1. On the charge of armed robbery the applicant was sentenced to a fixed term of imprisonment for six-and-a-half years from 9 November 2005. On the charge of kidnapping, with the matters on the Form 1 taken into account, he was sentenced to imprisonment for ten years with a non-parole period of six-and-a-half years, also to date from 9 November 2005. 27 The applicant was arrested, as I understand it, for the Bankstown offences, on 16 July 2002. When interviewed, he denied involvement in those offences. He was interviewed on 25 July 2002 about the Yagoona matters. He made admissions about the assault on the unknown male but denied involvement in the armed assault with intent to rob. He was interviewed about the Redfern offences on 29 August 2002, when he gave an account of his movements which amounted to a denial of involvement in those offences also. 28 At the time of sentence the applicant was serving sentences imposed at Parramatta District Court in June 2003 for offences of robbery in company and related offences committed in February 2002. Those sentences aggregated a term of five years with a non-parole period of three years, dating from 10 May 2002. That non-parole period expired on 9 May 2005. It will be seen that the sentences for the first two charges of armed robbery the subject of the present application were partly accumulated upon those existing sentences, being directed to commence on 9 May 2004. There was further partial accumulation of sentences on the other charges upon those two sentences, resulting in an effective overall sentence for the present offences of eleven-and-a-half years with a non-parole period of eight years, dating from 9 May 2004.

Subjective case 29 The applicant was eighteen years old at the time of these offences and is now twenty-one. He has a disturbing criminal record for one so young. Prior to the matters dealt with at Parramatta District Court to which I have referred, he had been sentenced to terms of imprisonment for offences of armed robbery and demanding property with menaces. He was on parole in respect of those offences, and on bail in respect of the offences dealt with at Parramatta District Court, at the time of the present offences. 30 There were psychiatric and psychological reports before the sentencing judge, and the applicant gave evidence. It is unnecessary to go to the detail of this material. The applicant said in evidence that he committed the offences to obtain money to feed his longstanding addiction to drugs and alcohol. There was inconsistency in the history which he supplied to the psychiatrist and the psychologist, but his Honour drew no adverse inference from that and appears to have proceeded upon the basis that he had had a difficult background. Nevertheless, his parents were supportive of him at the time of sentence. His Honour concluded that anti-social associates and a history of substance abuse were significant factors in his pattern of offending, and that educational and therapeutic support were necessary to assist him to return to the community. In the light of these matters, and the accumulation of sentences, his Honour found special circumstances. 31 The applicant's pleas of guilty were not entered at the first opportunity, although they were entered earlier in respect of the Bankstown and Yagoona matters than the Redfern matters. His Honour recognised their utilitarian value and accepted them as an indication of some measure of remorse. He discounted the sentences for the Bankstown and Yagoona matters by "something around twenty per cent", and for the Redfern matters by "something in the range between fifteen and twenty per cent".

The application 32 Counsel for the applicant, Mr Pearsall, argued that the sentencing judge fell into error in finding that certain matters amounted to aggravating factors for the purpose of s21A of the Crimes (Sentencing Procedure) Act and that, in any event, the sentences are manifestly excessive. Dealing with the first of those matters, towards the end of his remarks his Honour turned to the aggravating and mitigating factors under s21A, saying that "the aggravating and mitigating factors involved in this matter are extensive and different for each offence". He went on to observe that the Bankstown offences involved "a very limited degree" of planning, an aggravating factor under s21A(2)(n), and continued: The amounts of money that the offender has obtained have not been great. But the manner in which he carried them out in relation to the aggravating factors show that the aggravating factors (b), (c), (d), (e), (f), (g), (i), (j), (l), (m) and to a degree (n) all apply. 33 It is unnecessary to set out all of those factors. Mr Pearsall's argument was directed to four of them: (b) that the offence involved the actual or threatened use of violence, (c) that the offence involved the actual or threatened use of a weapon, (d) that the offender had a record of previous convictions, and (e) that the offence was committed in company. 34 The concluding words of s21A(2) provide that a court "is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". Mr Pearsall pointed out that, as to para (b), all of the offences to which the applicant pleaded guilty (putting aside the offences on a Form 1) had as an element the actual or threatened use of violence. Obviously, this is true of the offences of armed robbery and armed assault with intent to rob. It is also true of the offence of specially aggravated kidnapping, which involves the infliction of actual bodily harm. 35 Mr Pearsall submitted that it is unnecessary to consider the Form 1 offences for the purpose of this argument, because s21A is not applicable to the process of taking offences into account. Each of the first three sub-sections of that section requires a court to have regard to certain matters "in determining the appropriate sentence for an offence". Mr Pearsall observed, correctly, that taking into account an offence on a Form 1 does not involve the determination of the sentence appropriate for that offence. 36 I can see the force of that argument, but I find it unnecessary to resolve it to deal with the present application. As it happens, the actual or threatened use of violence is an element of all the offences which his Honour took into account except those of obtaining money by deception on the Form 1 relating to the Redfern offences. That is obviously so of the offences of assault and affray, the latter now provided for in s93C of the Crimes Act, arising from the Yagoona episode. It is also true of the offence of aggravated car-jacking (s154C of the Crimes Act), arising from the Redfern incident, because the basic offence involves the assault of a person with intent to take a motor vehicle. 37 The Crown prosecutor in this Court submitted that his Honour's reference to the various aggravating factors in the passage from the remarks quoted above should be understood distributively, that is, as a compendious list of the aggravating factors to be found in the various offences. She argued that his Honour did not intend to convey that those aggravating factors were present in all of the offences, relying upon his earlier observation that the aggravating and mitigating factors in the case as a whole were "extensive and different for each offence". This I cannot accept. 38 As I have said, the actual or threatened use of violence is an element of all the offences except those of obtaining money by deception. Accordingly, by virtue of s21A(2), that aggravating feature was capable of being taking into account only in relation to those three Form 1 offences. If that had been his Honour's intention, it is inconceivable that he would not have said so. (I would add that, even though the opportunity to commit those fraudulent offences arose through the threat of violence, it could not fairly be said that they were aggravated by that antecedent threat.) It appears to me that his Honour saw the whole of the applicant's criminality as aggravated by the factors in pars (b), (c) and (e), without considering whether each of those factors was applicable to each of the offences. 39 Accordingly, I am satisfied that his Honour did fall into error by characterising almost all of the offences as aggravated by features which were elements of them. As to s21A(c), the actual or threatened use of a weapon, that, of course, is an element of the offences of armed robbery and armed assault with intent to rob. As to par (e), the commission of an offence in company, that is an element of the offences of specially aggravated kidnapping and aggravated car-jacking. 40 Different considerations arise from his Honour's reference to par (d), that the offender has a record of previous convictions. Section 21A(4) provides that a court "is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so". It is now established that that provision applies to subs 2(d), so that a sentencing court must still approach an offender's criminal record in accordance with the common law principles enunciated in the well known passage from the joint judgment in Veen v The Queen [No 2] (1988) 164 CLR 465 at 477: see R v Johnson [2004] NSWCCA 76 at [31] - [35]. 41 That said, it is not clear that his Honour did treat the applicant's criminal record as a factor aggravating the objective seriousness of his offences, because he referred to that passage from Veen [No 2] earlier in his remarks. Given that I have already found error in his approach and that it is open to this Court to re-sentence, it is not necessary to consider this aspect of the matter further. 42 Generally, it is important that sentencing courts give careful consideration to the factors of aggravation in s21A(2) to determine not only whether they are available as a matter of law but also whether they do fairly arise on the facts of the case. With respect, one might question whether some of the other aggravating factors referred to by his Honour in the present case were available on the evidence. However, as I have said, Mr Pearsall's argument was directed to four of those factors only. His Honour did not have the benefit of Howie J's examination of s21A in R v Wickham [2004] NSWCCA 193 at [22] - [27], a reserved judgment which was handed down on the same day that the applicant was sentenced. 43 The question remains whether this Court should intervene. Relying upon s6(3) of the Criminal Appeal Act, the Crown prosecutor submitted that, even if error were established, we should not do so because no lesser sentences were warranted in law. I must say that this aspect of the matter has troubled me. The applicant, a young man with a disturbing criminal record, committed a series of very serious offences while subject to conditional liberty. Condign punishment was to be expected. 44 That said, two things concern me. The first is the sentences in respect of the charges of armed robbery and specially aggravated kidnapping, the subject of the third incident. (I have described that as the third incident in accordance with the way in which the material was presented to his Honour and his Honour structured his sentences. It was, in fact, the first in time of the three incidents.) The charge of armed robbery arose from the initial confrontation of Mr Hennessy by the applicant and his companions when, threatened with a knife, he was relieved of some of his personal property. While not denying the gravity of that offence, the sentence for it of six-and-a-half years is high. I do not see it as of the same order as the armed assault with intent to rob upon the unfortunate Mr Lane in the course of the second incident, during which the victim was punched and came very close to being stabbed. That offence (with the Form 1 matters) led to an entirely appropriate sentence of six years imprisonment. 45 The ten year sentence for the specially aggravated kidnapping is also high, even allowing for the related matters taken into account. Judicial Commission statistics for consecutive and non-consecutive terms of imprisonment for that offence record only eleven cases, but of those this is the highest sentence. The same statistics for the predecessor of that offence, s90A of the Crimes Act, record 108 cases, of which only five were visited with sentences of ten years or more (ten years in three cases, twelve years in another and fourteen years in the remaining case). I do not overlook the fact that that offence carried a lesser maximum sentence than the present offence. I am also mindful of the caution with which sentencing courts should approach raw figures of this kind. Nevertheless, serious as the present offence is, it could not be said that no lesser sentence was warranted. Nor could that be said of the armed robbery offence. 46 The second matter which concerns me is the practical effect of the sentences, given the applicant's youth. As I have said, one of the reasons his Honour found special circumstances was the partial accumulation of the sentences, both within themselves and upon the sentences which had earlier been imposed at Parramatta District Court. The effect of his Honour's sentences is that the applicant would not be eligible for release on parole until 8 May 2012. He had been in custody since his arrest on 16 July 2002, so that he would not be eligible for release for almost ten years, that is, between the ages of eighteen and twenty-eight. That is not only a lengthy period, but one at a very significant stage of any young person's life. 47 Accordingly, while acknowledging the gravity of the applicant's offences, I am satisfied that the Court should intervene. I would reduce the sentence for the armed robbery of Mr Hennessey to five-and-a-half years. I would reduce the sentence on the charge of specially aggravated kidnapping to nine years and, in recognition of the special circumstances which his Honour found, I would also reduce the non-parole period in respect of that offence to five-and-a-half years. Otherwise, I would confirm the sentences which his Honour passed. The overall sentence, then, would be ten-and-a-half years with a non-parole period of seven years. This would still commit the applicant to a lengthy period of continuous custody but, in my view, a lesser effective non-parole period would fail to reflect the serious criminality of these offences. 48 Accordingly, I would grant leave to appeal and allow the appeal. On the charge of armed robbery of Mr Hennessy, I would quash the sentence passed in the District Court and substitute a sentence of imprisonment for a fixed term of five-and-a-half years, to date from 9 November 2005. On the charge of specially aggravated kidnapping, I would also quash the sentence passed in the District Court and substitute a sentence of imprisonment for nine years, with a non-parole period of five-and-a-half years, also to date from 9 November 2005. I would confirm the sentences passed on the other charges. The applicant would be eligible for release on parole on 8 May 2011. 49 LATHAM J: I agree with Hidden J

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