DOLAN v R

[2010] NSWCCA 10

New South Wales
Court of Criminal Appeal

CITATION:	DOLAN v R [2010] NSWCCA 10
HEARING DATE(S):	3 February 2010
JUDGMENT DATE:	11 February 2010
JUDGMENT OF:	Grove J at 1; Simpson J at 28; RA Hulme J at 29
DECISION:	Appeal allowed.
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Sentence - Robbery in company - Young offender - Plea of guilty at earliest opportunity following frank admissions to police - Unplanned opportunistic offence - Failure to accord utilitarian value of the plea benefit to offender - Material available for resentence - Assessment of new sentence (by majority)
LEGISLATION CITED:	s 97(1) Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Legge v Regina [2007] NSWCCA 244 Markarian v The Queen (2005) 228 CLR 357 R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 R v Murchie (1999) 108 A Crim R 482 R v Sundar [2005] NSWCCA 93 R v Sutton [2004] NSWCCA 225 R v Tetereycz [2005] NSWCCA 197 R v Thomson & Houlton (2000) 49 NSWLR 383
PARTIES:	Christopher DOLAN - Applicant REGINA - Respondent/Crown
FILE NUMBER(S):	CCA 2008/5723
COUNSEL:	N Steel - Applicant P Leask - Respondent/Crown
SOLICITORS:	S O'Connor, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/5723
LOWER COURT JUDICIAL OFFICER:	Toner DCJ
LOWER COURT DATE OF DECISION:	18 November 2008

CCA 2008/5723

GROVE J
SIMPSON J
RA HULME J

11 February 2010

Christopher DOLAN v R

Judgment

1 GROVE J: This is an application for leave to appeal against sentence imposed by Toner DCJ at Goulburn District Court. The applicant was committed for sentence from Moss Vale Local Court after pleading guilty to a charge of robbery in company contrary to s 97 (1) of the Crimes Act 1900. His Honour imposed a sentence of imprisonment comprising a non-parole period of 2 years 6 months with a balance term of 2 years. It was agreed that the applicant had been in custody in respect of this matter since 4 March 2008 and that his Honour, as he did, should specify that as the commencement date of sentence.

2 The facts were not the subject of controversy. At about 2.20 am on Saturday 16 February 2008, having departed from a party where considerable amounts of liquor had been consumed, three young men approached the car park of a McDonalds restaurant in Mittagong. The victim was working as a cleaner in the car park. The applicant and one other (a juvenile) accosted him and the latter said that he would get his mates to rob him. These two were carrying beer bottles at the time. As a result of what was said, the victim stood still.

3 The applicant admired a necklace which the victim was wearing and he unclipped the catch and put the item in his pocket. He then asked if the victim had anything else, in response to which a mobile phone was produced and the applicant also took this.

4 Thereafter all three young men ran off.

5 On the same day, police attended premises in Mittagong and found the applicant there on a bench seat. He was seen to be wearing the necklace that had been taken in the early hours of the day but he claimed that he “got it from a mate last night”. The applicant was arrested, handcuffed and placed in a police vehicle.

6 On the journey to the police station the applicant told police honestly how he had acquired the necklace and he also produced the mobile phone from within his trousers. He identified the two persons in whose company he had been at the restaurant car park.

7 At the Bowral Police Station he was formally interviewed and made full admissions about taking the necklace and the mobile phone from the victim.

8 The applicant was aged eighteen at the time of the offence and at the time of sentence. He is now twenty. He had a record of offending for which he had been dealt with at Children’s Courts. At the time of this offence he was subject to a good behaviour bond. A pre-sentence report recorded turbulent family relations during his formative years and transfers between his parents, both of whom had formed new relationships. The transfer to his father’s care involved residing in New Zealand. His schooling was described as “problematic”. He had used multiple illicit drugs from a young age and he also came to drink immense quantities intoxicating liquor. At one point he spent four months at the Ted Noffs Rehabilitation Centre to address this problem but on graduation he partook of “a celebratory drink” and quickly fell back to abusing drugs and alcohol.

9 After leaving school he had some employment tiling and at a warehouse. He has the support of his mother who informed his Honour that she could arrange work on a voluntary basis with the local council when the applicant is released from prison.

10 Consistently with his frankness to police, the applicant pleaded guilty at the earliest opportunity. Subject to the intent of an observation about R v Henry (1999) 46 NSWLR 346 and guidelines appearing therein, it was nevertheless appropriate for his Honour to consider, inter alia, the utilitarian value of the early plea and what benefit might therefore flow to the applicant in sentence assessment: R v Thomson & Houlton (2000) 49 NSWLR 383.

11 Ground 2 in the Notice of Appeal claimed that his Honour failed to allow any, or any sufficient, discount for the utilitarian value of the plea. It is convenient to address this ground. Save initially noting the plea of guilty the only reference in his Honour’s Remarks on Sentence to the plea of guilty was a statement “the offender has entered a plea of guilty at the earliest opportunity, albeit there was probably a pretty strong Crown case against him.” As the strength of the Crown case is irrelevant to any utilitarian value of the plea: R v Sutton [2004] NSWCCA 225 a conclusion follows that his Honour did not make an allowance in his assessment for the utilitarian value of the plea.

12 Ground 3 complained that his Honour failed to have sufficient regard to the value of the guilty plea as demonstrating contrition. As, for reasons which appear herein, I consider this Court should intervene and resentence, it is not necessary to deal separately with this ground.

13 Ground 1 asserted that his Honour “erred in treating the applicant as being ‘on all fours’ with the factors identified in the Henry guideline judgment”.

14 His Honour said:

“This case is broadly on all fours with Henry’s case (1999) 46 NSWLR 346. Each of the criteria identified in Henry at paragraph 162 more or less apply here. There are however additional aggravating features in this man’s case. He is a young offender, true enough but he has quite a substantial criminal history already and for offences like that for which he now stands to be sentenced. There was no weapon used in this case however he did have a beer bottle in his hand and that might have created some additional apprehension in Mr Singh’s mind when he found himself confronted by these three young men alone in a car-park at 2.20am.
There was a limited degree of planning and I accept entirely that this crime was opportunistic. There was limited violence but the circumstances of the offence itself were pregnant with the possibility of violence against the victim. The victim was in a vulnerable position as I have identified previously. The amount taken, or the value of the goods taken was relatively small, namely the value of the chain and the mobile phone.”

15 He added:

“The aggravating feature above and beyond the factors identified in Henry are that he has a substantial criminal history and he was on conditional liberty at the time; namely he was on a bond from the Children’s Court as I have noted previously.”

16 The guideline in Henry specifically applied to an offence of armed robbery, the current offence of robbery in company has the same prescribed penalty and the guideline has been held to apply to such offences: R v Murchie (1999) 108 A Crim R 482.

17 As his Honour did not reveal what gloss he intended by the expression “more or less” it is necessary to look at some of the evidence.

18 As stated, the applicant was a young offender but he did have a criminal history.

19 Each of the applicant and the other offenders were carrying beer bottles at the time. There was no evidence that these had been broken and had sharpened edges so that they might qualify as expressed in the second criterion as a “weapon like a knife”. It was not suggested that the bottles were brandished at the victim nor were they used to threaten him in any way. There was no evidence that this criterion was applicable.

20 The third criterion referred to a limited degree of planning but it is difficult to reconcile his Honour “entirely” accepting that the crime was opportunistic with any degree at all of what might ordinarily be understood as planning.

21 The seventh criterion in Henry is in terms “plea of guilty, the significance of which is limited by a strong Crown case.” This is consistent with his Honour’s comment already quoted.

22 The notion that the Henry guideline has an incorporated allowance for the plea of guilty has led to some complications particularly in the light of the subsequent decision in Thomson and Houlton. In the latter case the suggested upper limit of discount for a plea at the earliest opportunity was 25 percent. In R v Sundar [2005] NSWCCA 93 it was said to be accepted doctrine that the seventh Henry criterion is taken as representing a discount of 10 percent. That doctrine had earlier been applied in R v Hemsley [2004] NSWCCA 228 with the result that a factor for the utilitarian value of the difference (15 percent) was calculated. This approach has not always been taken although, of course, circumstances differ; see for example R v Teterycz [2005] NSWCCA 197.

23 This appeal is not an appropriate vehicle for pause to analyse whether any inconsistency of approach can be detected. The applicant’s date for parole eligibility is a little over six months hence. For the reasons given, I am of the opinion that this Court should intervene and resentence and in particular he should have a benefit of the utilitarian value of his plea of guilty. Any resentence giving appropriate weight will result in the applicant’s eligibility for release falling due in the very near future. He has already been in custody for nearly two years of the two years six months non-parole period ordered by the sentencing judge.

24 At the hearing his Honour was provided with a letter from the applicant in which he stated that he had remorse for what he had done and that his time in gaol had given him time to think about his actions and to assert that “nothing like that will ever happen again.”

25 For the purpose of resentence the Court received an affidavit from the applicant which reveals that he has maintained that attitude and made good use of his time in custody. An affidavit by his mother reveals that upon release, a home is available for him and some detail is given of the available work which was mentioned at the sentencing proceedings. The applicant’s mother is employed by the local council and her employer has agreed that the applicant may accompany her to work in order to learn about the environment. She has also spoken to a previous employer who has indicated his willingness to consider re-employing the applicant. His mother commented that she had seen a change in her son whilst in custody and she described him as “bright, healthy and accepting of responsibility for his wrongdoings.”

26 In resentencing I would adopt the finding of special circumstances. The sentence which I would substitute represents a head sentence of four years discounted by 25 percent for the earliest available plea of guilty.

27 I would propose the following orders:

(i) Application for leave to appeal against sentence granted.
(ii) Appeal allowed.
(iii) Sentence imposed in the District Court quashed.
(iv) In lieu thereof the applicant sentenced to imprisonment consisting of a non-parole period of 2 years commencing on 4 March 2008 and expiring on 3 March 2010 with a balance term of 1 year commencing on 4 March 2010.
(v) The applicant ordered released to parole on 3 March 2010.

28 SIMPSON J: I agree with Grove J.

29 RA HULME J: I agree that leave to appeal should be granted, the appeal allowed and the appellant re-sentenced.

30 I agree with what Grove J has proposed in terms of the non-parole period but find myself unable to agree with the balance of the term of the sentence being twelve months. As I am in the minority in this respect I will state my reasons briefly.

31 As Grove J has observed, the sentencing judge found that:

“This case is broadly on all fours with Henry’s case (1999) 46 NSWLR 346. Each of the criteria identified in Henry at paragraph 162 more or less apply here ”. (Emphasis added).

32 I agree with what Grove J has said above (at [18] – [21]) about some of the specific characteristics identified in relation to the typical case identified in Henry. I also agree that the sentencing judge omitted to make allowance for the applicant’s early plea of guilty. The omission was the failure to observe that the Henry guideline range has built into it an allowance for the utilitarian value of a late plea of guilty. The early plea in this case warranted additional allowance.

33 There is discussion in the cases to which Grove J has referred to there being a need to deduct 15 per cent from the Henry range to achieve appropriate recognition of the utilitarian value of an early plea of guilty. In strict mathematical terms that is not quite correct as the four to five year range in Henry represents sentences that are 90 per cent of a notional starting point. Sentencing, however, is not a matter of mathematical precision (Markarian v The Queen (2005) 228 CLR 357 at [27]) and guidelines are simply that, they are not tramlines (Legge v Regina [2007] NSWCCA 244 per Spigelman CJ at [58] – [59]).

34 In addition to what the judge said in comparing the typical case characteristics referred to in Henry with the relevant aspects of the case at hand, including that the applicant could not be described as having “no or little criminal history”, he also took into account the aggravating feature that the applicant was on conditional liberty at the time of the offence. A mere four days prior to the commission of the offence he had been placed on a bond by the Children’s Court at Moss Vale for two offences of assault and two offences of resist/hinder police officer in the execution of the officer’s duty.

35 I note also from the criminal history that at the time of the offence the applicant had charges outstanding for an offence of robbery in company, three offences of possession of a prohibited drug committed on separate occasions, and two offences of destroy/damage property. He had been charged with those offences on 30 June 2006, 2 March 2007 and 11 February 2008, the latter being a mere five days before the offence in question.

36 Taking into account these matters of aggravation but giving the applicant full allowance for the utilitarian value of his early plea of guilty and also taking into account the additional material to which Grove J as referred (at [25]), a total term of 3 years 9 months is appropriate.

**********