WINDLE v R

Judgment 1MEAGHER JA: I agree with Hoeben J 2HOEBEN J: Offence and sentence On 12 November 2010 the applicant pleaded guilty in the Gosford Local Court to the offence of robbery, contrary to s94 of the Crimes Act 1900 in that on 7 April 2010 at Shelly Beach he did rob Kenneth Raymond Nipsalla of $18,000. The maximum penalty for this offence is imprisonment for 14 years. When the matter came before his Honour Judge King SC on 3 February 2011 the applicant adhered to his plea of guilty. 3His Honour sentenced the applicant to imprisonment with a non-parole period of 2 years and 6 months commencing 3 February 2011 and expiring 2 August 2013 with a balance of term of 1 year and 6 months expiring 2 February 2015. 4The applicant seeks leave to appeal pursuant to s5(1)(c) of the Criminal Appeal Act 1912 against the severity of the sentence on the following grounds: Ground 1: The sentencing judge erred in concluding that he was unable to find any acceptable evidence of remorse or contrition in that the judge: (i) Failed to properly assess remorse expressed in evidence by the applicant at the proceedings on sentence. (ii) Failed to properly consider the remorse demonstrated as a result of a plea of guilty; and (iii) Took into account the fact that the applicant had refused to name his co-offenders as going to the issue of remorse and contrition. Ground 2: The sentence was in all the circumstances manifestly excessive. Factual background 5At the time of the offence, the applicant was subject to a good behaviour bond pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999. The good behaviour bond was for 12 months commencing 19 January 2010 and was imposed by the Gosford Local Court as part of a sentence for the offence of larceny. 6The victim was aged 63 and conducted a business known as "Nippi Consulting Pty Ltd". Through that business the victim employed 40 persons in relation to the collection of shopping trolleys at shopping centres at various places in New South Wales. 7The company paid wages fortnightly on Wednesdays with the majority of employees being paid in cash. The victim's system was to withdraw cash from banks at Bateau Bay and then to pay the wages to the company's Central Coast employees. His procedure to obtain the cash, divide it and pay it to the employees was widely known to the employees of the company. 8The applicant had previously been employed by the company as a trolley collector for 3 years. His employment was terminated in July 2009. 9On 7 April 2010 the victim withdrew a total of $27,000 in cash to pay the wages. $18,000 of that cash was placed in a cloth bank bag. On collecting the cash, the victim paid a number of employees in the vicinity of the bank, including a Mr Robertson. By the time the victim left the bank area, he still had approximately $21,000 in cash, $3,500 of that in his pocket and $18,000 in the bag. 10The victim gave Robertson a lift to his home. After dropping off his belongings, Robertson accompanied the victim as the victim drove to his daughter's home in Shelly Beach. It was at these premises that the victim intended to divide the wages and put the cash into separate envelopes to pay the employees. 11When they arrived, Robertson alighted from the vehicle and walked towards the victim's son-in-law, Jason Miller. The victim went from the driver's seat to the rear driver's side door to retrieve a number of envelopes on the backseat. He had the $18,000 in the bag under his arm. As he was leaning in, he was pushed in the back by someone and the bag was snatched from under his arm. He fell face first onto the rear seat of the car. 12The victim observed the person who had pushed him running away towards a maroon four-wheel drive vehicle. The victim alerted his son-in-law, Miller, who chased the male person as he was running towards the vehicle. The male person was observed to jump into the front passenger seat of that vehicle and it immediately sped off west along Shelly Beach Road. 13Just before the incident, another of the victim's employees had arrived in his vehicle at the daughter's home to collect his pay. That person, Wayne Byth, witnessed the robbery and saw the male person run past his car. Byth drove after the maroon four-wheel drive vehicle, pulling up next to Miller to allow him to get into the car. Miller and Byth then followed the four-wheel drive through a number of streets. 14Eventually they managed to drive in front of it so as to prevent it from proceeding further. Miller and Byth got out and approached the four-wheel drive. As they did so, they recognised the applicant as the driver. Miller grabbed the applicant by his shirt and said a couple of times "Give back the money" while shaking him. The male who had snatched the bag was sitting in the front passenger seat and there was a further unknown male in the rear of the four-wheel drive. 15While Miller was holding onto the applicant, the applicant revved the four-wheel drive and managed to reverse away. Miller and Byth got back into Byth's car and again attempted to pursue the four-wheel drive vehicle. Eventually they lost sight of it. They returned to the victim's daughter's premises and told the victim of their identification of the applicant. 16The victim reported the offence to the police. He then rang the applicant on his mobile phone and on a number of occasions requested that the applicant return the money. The applicant denied any knowledge of the money, or the robbery. 17At about 3.40pm on the day of the robbery, the police located the applicant and spoke to him. He denied any involvement in the offence and claimed that he had been home all day. The applicant was then arrested, conveyed to the Gosford Police Station and informed of his rights. In due course he was charged with the offence and granted bail. The police were unable to locate any of the $18,000 cash that had been taken. No repayment of any of the stolen money had been made at the time that his Honour passed sentence. 18The police were unable to identify the other two persons involved in the offence. The applicant provided no information to the police in relation to the identity of those two persons. 19A victim impact statement was placed before the Court. It revealed that the victim had been released from hospital four days before the robbery, having had stents inserted because of heart problems. At the time of the robbery, he not only suffered from significant heart problems, but had also been diagnosed with lung cancer. 20The loss of the $18,000 in cash placed him in significant difficulty in relation to paying his employees, all of whom were persons who "lived from week to week and needed their money for rent and food". The victim eventually was able to pay his employees by calling on friends to lend him money and taking on debt as a result. As of the sentencing date, the victim was still paying back the money which he had borrowed. 21The financial hardship brought about by the robbery caused the victim to move his family to a smaller and cheaper house because he could no longer afford the premises that he had been renting. As a result of one long outstanding account, which he could not meet, he was declared a bankrupt. Remarks on sentence 22His Honour reviewed the factual background to the offence as indicated above. When referring to the fact that the applicant had not identified his co-offenders, his Honour said: "The offender has provided no information to the police in relation to the identity of any other person involved in the offence, which of course means that there could be no consideration of any discount on sentence for assistance. The fact that he has not identified any co-offender or possible co-offender does not of course increase the penalty to be imposed. It is, however, also relevant to the question of remorse and contrition, which I will deal with later." (ROS 5.8) 23The applicant gave evidence in the sentence proceedings. In that evidence he accepted that of the three persons involved in the robbery, it was he who had knowledge of the victim's procedures in relation to the payment of employees, as a result of his past employment. He accepted that he used that knowledge to plan the commission of the offence with the assistance of his co-offenders. 24His Honour noted that the applicant was not the person who actually snatched the bag from the victim. His Honour concluded that there was a good reason for this. Had he done so he would immediately have been recognised by the victim. This meant that he needed the assistance of at least one other person who was unknown to the victim to effect the offence. 25While there was no injury to the victim, his Honour assessed the offence as a serious example of such offences. In reaching that conclusion, his Honour took into account the amount which was stolen, the planning and the use of the applicant's prior knowledge which involved a breach of trust on his part. 26His Honour then analysed the applicant's subjective case. He was aged 48 and had one child aged 22. The child was the result of a relationship between the applicant and Ms Godden, an Aboriginal Liaison Officer with the Department of Education and Training. Ms Godden gave evidence on sentence. Their relationship had broken up as a result of the applicant's alcohol addiction when the child was aged 2. Some 7 years before the proceedings, they became re-acquainted and the applicant had been residing in the same premises as Ms Godden and his son, but not in terms of a new relationship between himself and Ms Godden. 27The applicant gave evidence that he committed the offence to acquire money to spend on his amphetamine addiction, which had existed for approximately 12 years. He said that at the time of the offence, his amphetamine addiction was costing $400 per day. The applicant did not explain how he could afford such an addiction when apart from the proceeds of the robbery, his only income was from a disability pension. The applicant said that of the $18,000, he only received $6,000 which he spent on drugs. 28Apart from the 3 years that the applicant spent working for the victim, there was no evidence of any other previous work history. 29There was medical evidence before the Court that the applicant suffered ischaemic heart disease, chronic obstructive lung disease, gastroesophageal reflux disease, chronic lower back pain and an anxiety disorder. The ischaemic heart disease was apparently irreversible and restricted the applicant's ability to engage in heavy work. His chronic obstructive lung disease was due to a long-term addiction to cigarettes since his early teenage years. 30His Honour concluded that all of these conditions could adequately be treated within a custodial situation. Ms Godden said that she remained supportive of the applicant and would endeavour to remain supportive of him when released, provided that he participated in appropriate programs to deal with his drug problem. She said that she had tried to get him into rehabilitation in the past, but without success. 31In relation to the applicant's amphetamine addiction, his Honour said: "The offender has had his amphetamine addiction for some 12 years. Despite being before the court from time to time in respect of drug-related offences, it does not appear that he has ever made any genuine effort on his own behalf to obtain any treatment or assistance in respect of that addiction prior to committing this offence." (ROS 10.8) 32Prior to sentencing, the applicant had applied to be admitted to the Glenn Residential Rehabilitation Centre, but his application had been rejected. 33The applicant had a criminal history which commenced when he was a juvenile and had continued into adulthood. There had been periods when the applicant was apparently able to stay out of trouble with the law for a number of consecutive years. His offending largely related to matters of violence, prohibited drugs, being in possession of goods suspected of being stolen and larceny. His Honour regarded these offences as falling within the lower range of seriousness in that they had all been dealt with in the Local Court and only bonds, community service and fines had been imposed. 34His Honour regarded the fact that the offence occurred while the applicant was subject to a s9 good behaviour bond as a significant aggravating factor. 35In relation to remorse, his Honour said: "There is nothing in the pre-sentence report which indicates that the offender has expressed any remorse or contrition for his offending behaviour. In his evidence on sentence when asked by Mr Bickford his solicitor about having committed the offence, he said that he had committed the robbery and that he was sorry he had done it. When asked how he felt about the fact that he was robbing other peoples' wages he said "I realise it was wrong, I wouldn't have liked it done to me". Other than acknowledging that he should not have done it and "would not have liked it done to me" there was little evidence of remorse or contrition contained in the offender's statement. A plea of guilty itself does not necessarily indicate either remorse or contrition." (ROS 12.3) 36In relation to remorse, his Honour also noted that although the offence was committed on 7 April 2010 and the applicant knew he had been identified, he proceeded to take the benefit of his offence by spending at least $6000 of the victim's money to satisfy his addiction. In that regard, his Honour noted that the applicant had not repaid the victim any of the money stolen. His Honour also noted that when Ms Godden gave her evidence, she did not say anything about the applicant having expressed any remorse or contrition to her. 37His Honour expressed his conclusions as to remorse as follows: "The court is unable to find, in the circumstances, that there is any acceptable evidence of remorse or contrition. Nor can it be said, in the absence of any treatment or counselling to this time, that there is a good prospect of the offender being rehabilitated in the sense of being able to deal with his current drug addiction." (ROS 13.7) 38His Honour then referred to the purposes of sentencing and noted that general deterrence had an important part to play in this matter. In respect of aggravating features, his Honour said: "I note that the offender was on conditional liberty at the time of committing the offence and that the offender's prior criminal history does not increase the seriousness of the offence, but is relevant to such issues as retribution, deterrence and the protection of society. That is, the sentence is not increased because he has a criminal history but his criminal history is relevant also to the question of any possible amelioration." 39His Honour allowed a 25 percent discount because of the applicant's early plea of guilty. APPEAL Ground of Appeal 1 40The applicant submitted that contrary to his Honour's findings, he had given evidence which demonstrated remorse in that he said he was sorry he had committed the offence, he knew he was taking wages from people, he realised it was wrong, he would not have liked someone else to do it to him, and he did not realise the victim had cancer and was sorry about that. 41Implicit in that submission is the unstated premise that his Honour was obliged to accept what was said as evidence of genuine remorse. That is not the law. While it was open to his Honour to accept the evidence, he was not obliged to do so. This is particularly so when his Honour had the advantage of seeing and hearing the applicant give his evidence which this Court does not. 42His Honour's acceptance or rejection of this evidence was essentially a discretionary matter and the principles in House v The King (1936) 55 CLR 499 at 504-505 apply. No error of the kind referred to in House v The King has been identified. 43In any event, the evidence to which the applicant has referred is at best oblique. There was no statement in terms which would constitute a clear assertion of remorse and contrition and no evidence of conduct which supported the truth of such an assertion. 44In that regard, the observations of Buddin J (with whom McClellan CJ at CL and Schmidt J agreed) in Alvares & Farache v R [2011] NSWCCA 33 are of assistance. "44 The issue which presently falls to be considered arose because each of the applicants was endeavouring to persuade the sentencing judge, with a view to ameliorating the otherwise appropriate sentence, that he was remorseful, and genuinely so. Remorse in this context means regret for the wrongdoing which the offender's actions have caused because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended. Remorse is but one feature of post offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. The manner in which the issue of remorse is approached is not unique to either the sentencing process or to the courtroom. Indeed, it is a common feature of everyday existence. Ordinary human experience would suggest that it is only natural that a person who is committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it. It is unsurprising that such a person would also wish to maximise the prospect that his or her expression of remorse was seen as genuine by the person or persons whose task it was to determine the appropriate sanction for the misdeed. Such an outcome is likely to be assessed as having increased prospects if the expression of remorse, whether it be by deed or word, is communicated directly, rather than indirectly to those responsible for determining the sanction. By the same token, an assessment of the genuineness of the remorse by the person or persons to whom it is expressed, is likely to be better informed in circumstances in which it is expressed directly, that is face to face. That is because remorse is an intrinsically subjective matter, the evaluation of which depends upon the subtleties of human interaction." 45The applicant submitted that his Honour should have given greater weight to the fact that he had entered a plea of guilty at an early point in time as indicative of remorse. The applicant submitted that his Honour erred in taking into account as a relevant consideration that the plea had been entered some 6 months after the charge was laid. 46His Honour's statement that "A plea of guilty itself does not necessarily indicate either remorse or contrition" is a correct statement of principle. In R v Winchester (1992) 38 A Crim R 345 at 360 Hunt CJ at CL observed that the extent to which a plea of guilty evidences remorse and contrition so as to attract leniency, depends to a large degree upon whether or not the plea resulted from a recognition of the inevitable. See also Majid v R [2010] NSWCCA 121 at [48]. 47On that issue, the strength of the Crown case is relevant to the evaluation of remorse and in that context what weight should be given to a plea of guilty in determining the appropriate sentence: R v Sutton [2004] NSWCCA 225 at [12]. His Honour specifically addressed the question of the strength of the Crown case. His Honour pointed out that the applicant had been clearly identified by two persons at the time of the offence. It is clear that his Honour held the view that the Crown case was a strong one and that the applicant's plea of guilty was not necessarily indicative of any contrite attitude towards the offence as distinct from a recognition of the inevitable. Not only was that conclusion open on the evidence, it was the more likely of the inferences available. 48Against that background, it was not erroneous for his Honour to take into account that the plea was entered 6 months after the applicant had been charged as a factor in determining the genuineness of remorse and contrition. The corollary is that an admission of guilt much closer to the commission of the offence than to the sentencing proceedings is capable of demonstrating genuine remorse. 49The applicant's final submission on this issue was that his Honour erred in treating the applicant's reluctance to identify his co-offenders as indicative of the absence of remorse and contrition. In that regard, the applicant referred to the remarks of Simpson J (with whom Macfarlan JA and Hall J agreed) in Pham v R [2010] NSWCCA 208 where her Honour said: "27 I do accept that it was erroneous to treat the applicant's reluctance to identify his co-offenders as relevant to, and indicative of the absence of, remorse and contrition. As was pointed out on his behalf, there are good and well-known reasons why participants in drug offences might display that reluctance: see R v Baleisuva [2004] NSWCCA 344." 50A proper reading of what his Honour in fact said, does not support the submission that he treated the reluctance to identify as indicating an absence of remorse. When referring to his refusal his Honour specifically stated that this "does not of course increase the penalty to be imposed". When referring to its relevance to the question of remorse and contrition, his Honour said that he would deal with that later. When he did deal with remorse and contrition later in his remarks on sentence, his Honour set out clearly the bases for his decision and they did not include the applicant's refusal to name his co-offenders. Whatever his Honour's preliminary views were on that issue, by the time he came to consider remorse and contrition, he did not take that matter into account for the suggested purpose. 51Apart from the advantage which his Honour had of seeing and hearing the applicant, the matters which he did take into account in relation to remorse, were clearly and fully set out and were relevant to that question. 52These were the applicant's failure to express contrition and remorse in clear terms, the absence of any mention of contrition and remorse in the pre-sentence report or in the evidence of Ms Godden, the absence of any attempt to repay the victim and the delay between his arrest and the plea of guilty. These considerations justified his Honour's conclusion that there was no acceptable evidence of remorse or contrition. 53While his Honour did not refer to them expressly, the provisions of s21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 which list remorse as a mitigating factor are instructive. That subsection provides: "... remorse shown by the offender for the offence, but only if: (i) The offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) The offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 54The evidence before his Honour did not satisfy those requirements. His Honour set out in clear terms why it was that he was not prepared to find remorse and contrition. No error in his Honour's approach has been established. This ground of appeal has not been made out. Ground of Appeal 2 55The applicant accepted that for him to show that the sentence was manifestly excessive it was necessary to show that the sentence was "unreasonable or plainly unjust". He accepted as applicable the test in R v Vuni [2006] NSWCCA 171 where (with the agreement of Tobias JA and James J) I said: "33 To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust" ( Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. ( Markarian v The Queen [2005] HCA 25 at [26] - [28])." This statement of principle was recently endorsed in Stewart, Wade John v R [2009] NSWCCA 152 at [16] - [17] and Simon Hayek v R [2010] NSWCCA 139 at [37]. 56The applicant submitted that the offence was the non-aggravated form of robbery in that the victim was pushed and the bag snatched. The applicant submitted that he was the driver of the vehicle but was not the assailant. While accepting that a sentence of imprisonment was the only available option, the applicant submitted that the sentence imposed was excessive when looked at against the objective seriousness of the offence which was towards the lower end of the range. 57The basis for that submission was a series of cases involving offences under s94 which, the applicant submitted, demonstrated that the sentence imposed was excessive given the absence of violence and his comparatively modest contribution to the offence. 58The applicant provided the Court with a schedule of 40 cases relating to s94 offences which set out a brief summary of the facts and the sentences imposed. The applicant submitted that in many cases the objective seriousness of the offences in the schedule appeared to be significantly greater than that prevailing in this case, yet the sentence imposed was lower. Implicit in the submission was the proposition that by reference to those cases, the sentence imposed by his Honour was outside the appropriate range of sentences for an offence of this kind and was therefore "unreasonable or plainly unjust". 59When assessing the objective seriousness of the offence, his Honour had regard to the substantial sum of money taken ($18,000) and the important part played by the applicant in planning the offence because of the knowledge which he had acquired during the course of his employment by the victim. His Honour took into account that this offence involved a breach of trust. 60His Honour took into account other considerations. The offence was aggravated because it was committed whilst the applicant was at conditional liberty being subject to a s9 bond. The applicant's previous criminal record was relevant to retribution, deterrence and the protection of society and reduced the applicant's entitlement to any leniency. His Honour's unwillingness to find remorse and contrition has already been referred to. Finally, as his Honour pointed out, there were good reasons why the applicant did not take the bag containing the money, i.e. he would have been recognised by the victim. 61It is trite law that each case has to be considered on its own merits and no case is entirely similar to any other. There is a wide discretion to impose a sentence that seems to the judge to be just and appropriate. As was recently restated in Muldrock v The Queen [2011] HCA 39 when imposing a sentence the court has to take into account, not only the objective seriousness of the offence, but all of the associated circumstances. In this case, while the applicant had health issues, his subjective case was modest. 62As the applicant acknowledged, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess. The particular difficulty was identified by Garling J in Fogg v R [2011] NSWCCA 1 at [59] [60]: "59 ... But for many offences, culpability varies over so wide a range that the statistics are of limited utility for a particular case: ... 60 I accept that the statistics referred to demonstrate that the sentence in this case falls at the high end of the range of sentences imposed for the offence. But the question remains whether it falls within the range of the permissible exercise of the sentencing judge's discretion." 63This Court has said on a number of occasions that undue weight should not be given to sentencing statistics. This is because of the "vast range of factors relevant to sentencing for such offences" (RA Hulme J in Furia v R [2010] NSWCCA 326). The large number of variables is simply not reflected in statistical figures, percentages and a brief statement of the facts of the offence. 64What is important when considering a particular sentence are the specific findings as to the objective seriousness of the offence and the culpability of the offender. These are the considerations which are determinative when assessing whether a particular sentence is manifestly excessive rather than the comparison of the sentences with statistics ( Holloway v Regina [2011] NSWCCA 23 [85]). The critical question is whether the sentence imposed was appropriate for the particular case ( R v F [2002] 132 A Crim R 308 adopted in Ayoub Omran v R; El Masri, Ali v R; [2010] NSWCCA 196 at [58]). 65The limitations of sentencing statistics have been identified by decisions at the highest level. In Hili v The Queen; Jones v The Queen [2010] HCA 45, (2010) 85 ALJR 195 the plurality said: "54 In Director of Public Prosecutions (Cth) v De La Rosa Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence " (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned." ... 59 As was said in Dinsdale v The Queen , "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong , appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say[ in Wong , "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error"." 66The matters which his Honour took into account when imposing the sentence were relevant, cogent and compelling. Taking all of the circumstances of the offence into account, including its objective seriousness, the surrounding circumstances and the applicant's subjective case, I am not satisfied that the sentence imposed was outside the range or that error has been revealed. Most particularly, I am not satisfied that the sentence imposed is plainly unjust or unreasonable or that it is manifestly excessive. 67This ground of appeal has not been made out. 68The orders which I propose are that leave to appeal should be allowed, but that the appeal should be dismissed. 69ROTHMAN J: I agree with Hoeben J.