Daniels v R

[2007] NSWCCA 372

New South Wales
Court of Criminal Appeal

CITATION:	Daniels v Regina [2007] NSWCCA 372
HEARING DATE(S):	12 December 2007
JUDGMENT OF:	Grove J at 1; Hulme J at 22; Simpson J at 23
EX TEMPORE JUDGMENT DATE:	12 December 2007
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Sentence - Relevance of prior record - No error of application by sentencing judge - Imposition not manifestly excessive
CASES CITED:	R v A [2004] NSWCCA 292 R v Kain [2004] NSWCCA 143 R v McNaughton [2006] 66 NSWLR 566 R v Pham [2005] NSWCCA 94 Veen v The Queen (No 2) (1988) 164 CLR 465
PARTIES:	Michael James Daniels (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/2950
COUNSEL:	C. Loukas (Applicant) J. Girdham (Respondent/Crown)
SOLICITORS:	J. Pearson (Legal Aid Commission) Applicant S. Kavanagh (Solicitor for Public Prosecutions) Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0655
LOWER COURT JUDICIAL OFFICER:	Donovan DCJ
LOWER COURT DATE OF DECISION:	16 February 2007

CCA 2007/2950

GROVE J
HULME J
SIMPSON J

12 December 2007
Michael James DANIELS v REGINA

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Donovan DCJ in the Sydney District Court. The applicant had been committed for sentence following his plea of guilty to a single count of robbery. His Honour sentenced the applicant to imprisonment consisting of a non-parole period of two years and a balance term of two years. The commencing date of sentence was specified as 21 February 2006 and the first date of eligibility for parole will be 20 February 2008.

2 There is no challenge to the facts found by his Honour. On the afternoon of Tuesday 21 February 2006 a Ms Wong, the catering manager at the University of Technology was balancing the daily takings. She locked the door to the room and opened the safe. There was approximately $2,300 in the safe and a further amount on the table of $2,500 which she was counting.

3 There was a knock on the door which she ignored. The knocking continued and became more persistent and, believing that it was a member of staff Ms Wong opened the door slightly and was confronted by the applicant who had pulled up a t-shirt to cover the lower part of his face. He pushed into the room and demanded money. Ms Wong reacted by pushing the safe door closed and dropping the handle which had the effect of locking it. In a threatening tone the applicant demanded to know the combination but Ms Wong responded that her boss knew the combination and would need to open it for her. Thereupon the applicant took the money which was on the table and started to leave the room. In fact, security guards had been alerted to the presence of the applicant on the campus and Ms Wong saw them and called to them to detain the applicant. They did so and after a brief struggle placed him on the ground.

4 The applicant was arrested and has been in custody since that date. Currency in various denominations totalling $2,480 was recovered.

5 The applicant is an aboriginal male now aged thirty two years. The learned sentencing judge recounted aspects of turbulence in his early life and his move to his grandmother’s home when aged thirteen. Since 1995 he has been in a stable relationship and the couple have two children aged seven and two. His partner assists in caring for his grandmother.

6 Two grounds of appeal are raised.

“Ground 1. His Honour erred in regarding his record of previous convictions as an aggravating factor in relation to the offence.”

7 The applicant has a not inconsiderable prior record. In his remarks, his Honour summarized relevant ingredients in these terms:

“He has a record from the Children’s Court and from 1993 his criminal record in the adult courts commenced including five counts of robbery in 1994, a robbery while armed in 1998 and his most recent period of imprisonment was a sentence of twelve months commencing on 16 April 2004 for tamper with evidence with intent to mislead a judicial tribunal. There are a number of other matters but they are not as serious as the ones that I have mentioned.”

8 His Honour further noted that in the past the applicant had failed to complete work required pursuant to community service orders and had been the subject of parole revocation on more than one occasion.

9 The complaint encapsulated by this ground is focussed upon a mention of the applicant’s record of prior convictions in this context:

“There are some aggravating factors. The offence involved threatened use of violence but I also note that that is within the offence itself. He has a record of previous convictions. There was significant injury and fear caused to the victim, even though no property or money ultimately was lost.”

10 There is no indication that the sentence assessed by his Honour was in any way increased by reason of this observation. His Honour did not elaborate beyond what appears to be a simple and accurate remark that the applicant does have a record of previous convictions. It is true that when there is an assertion of error what should primarily be looked at are the remarks of the sentencing judge, rather than exchanges during the course of the sentencing proceedings.

11 In the appeal the Crown sought to draw attention to some of these exchanges and, in further response, counsel for the applicant took us to a number of decisions of this Court. In R v Pham [2005] NSWCCA 94 the then Chief Judge at Common Law, Wood J, said, amongst other things, in reference to such exchanges that "normally this Court will not find an error of principle from interchanges between the Bench and counsel."

12 In R v Kain [2004] NSWCCA 143 Levine J said:

“Whether error was made is determined by considering the evidence and the remarks on sentence. There is little practical utility in considering the to-ing and fro-ing between the Bench and counsel during the course of submissions on sentence".

13 And finally, we were referred to the decision in R v A [2004] NSWCCA 292 where again Wood J said: "Transparency in sentencing is necessary" and added: "It would not be safe to assume that some observations passed by a judge during submissions necessarily represents a considered or final view". None of these cases, of course, say that such exchanges can never be looked at or never be useful.

14 In this case, in the absence of any elaboration, it is significant to note that there was an express exchange at some length between his Honour and counsel in which he made it clear that he regarded the existence of the record as limiting the leniency which might be extended to the applicant. Approached in that way he breached no principle of sentencing practice: Veen v The Queen (No 2) (1988) 164 CLR 465; R v McNaughton [2006] 66 NSWLR 566.

15 This ground of appeal is not made out.

16 Ground 2: His Honour’s determination of the appropriate sentence was manifestly excessive.

17 Counsel has drawn attention to statistics collected by the Judicial Commission. It is submitted that they do not represent precedents so much as an assistance as to what might be regarded as a permissible range. Whilst caution should be exercised in the use of these statistics, it is clear that the present sentence is well within the pattern which exists for impositions in respect of this crime.

18 It is submitted that the sentence is beyond the appropriate range if there be taken into account the plea at the earliest opportunity, contrition, the circumstances of the offence and the prospects of rehabilitation.

19 For my part, I would have some difficulty in assessing the circumstances of the offence as providing a matter of mitigation. His Honour observed that the applicant was affected by drugs at the time and he claimed that he had no real memory of what he did. I do not overlook his Honour’s finding that the applicant had prospects of rehabilitation. The finding is not the subject of challenge, although it might be said to have been somewhat generous bearing in mind the observations earlier made by his Honour concerning the applicant’s failure to complete community service and having been more than once the subject of parole revocation.

20 In my view the sentence was well within the range of appropriate imposition and no less severe a sentence was warranted.

21 I would grant leave to appeal against sentence but dismiss the appeal.

22 HULME J: I agree with the order proposed and with his Honour’s reasons.

23 SIMPSON J: I also agree.

24 GROVE J: The order of the Court will be as I have proposed.

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