Dougan v The Queen - [2006] NSWCCA 34

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Dougan v Regina [2006] NSWCCA 34

FILE NUMBER(S):
2005/1864

HEARING DATE(S): 03/02/2006

DECISION DATE: 06/03/2006

PARTIES:
Dee Dougan (previously Robert Wilkie Dougan) - Applicant
Crown - Respondent

JUDGMENT OF: Giles JA Grove J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0178

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

COUNSEL:
H Dhanji - Applicant
W Dawe SC - Respondent Crown

SOLICITORS:
S O'Connor, Solicitor for Legal Aid - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

CATCHWORDS:
Sentence appeal - plea of guilty and assistance to authorities - assault with intent to rob whilst armed with a dangerous weapon - whether matters properly taken into account by sentencing judge under s21A of Crimes (Sentencing Procedure) Act 1999 or whether matters were elements of the offence - use to be made of offender's criminal record - whether sentence manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1864
GILES JA
GROVE J
HOEBEN J
Monday, 6 March 2006

Dee DOUGAN (previously Robert Wilkie DOUGAN) v REGINA

JUDGMENT

GILES JA: I agree with Hoeben J.
GROVE J: I agree with Hoeben J.
HOEBEN J:
Offences and sentence
On 31 January 2005 the applicant pleaded guilty on indictment to one count of assault with intent to rob whilst armed with a dangerous weapon contrary to s97(2) Crimes Act 1900 – maximum penalty 25 years. The offence was committed on 3 November 2003.
On 15 December, 2004 the applicant pleaded guilty in the Local Court to an offence of threatening a witness contrary to s322 of the Crimes Act 1900 – maximum penalty imprisonment for 10 years. This offence related to a gesture made by the applicant towards a witness called in the committal proceedings for the s97(2) offence. The offence was committed on 30 August, 2004.
The applicant, who had been in custody since 21 January 2004, was sentenced by Maguire DCJ on 25 February 2005 as follows:
Threaten witness contrary to s322 – a term of fulltime imprisonment with a non-parole period of 3 years and a balance of term of 1 year to commence on 21 January 2004.
Assault with intent to rob whilst armed with a dangerous weapon contrary to s97(2) – a term of fulltime imprisonment with a non-parole period of 6 years and a balance of term of 2 years to commence on 21 January 2005.
The total effective sentence resulting from the partial accumulation of the sentences was a non-parole period of 7 years with a balance of term of 2 years.
Background to offences
The following statement of facts was admitted into evidence without objection:
“During 2002 John Beattie and his girlfriend Anne-Marie Hatch moved into a unit at Manning Street, Kiama. Beattie and Dougan were friends who had first met each other in gaol. On his release from gaol in Western Australia Dougan contacted Beattie who invited him to come over to Kiama. Dougan travelled to Kiama. During this visit Beattie told Dougan of a service station 60 metres from his Kiama flat known as “Addison’s Garage” that he had been watching for 12 months. He stated that a lot of money went through the service station as it was the only one in the area. Beattie inquired if Dougan was interested in taking the money. Dougan and Beattie discussed and planned the robbery of the service station however Dougan subsequently changed his mind and returned to Perth.
Approximately one month later at the beginning of November 2003 Dougan flew to Sydney with a female friend, Kylie Wright. Dougan and Wright booked into a cabin at the Shellharbour Caravan Park. Arrangements were made to carry out the robbery in the early morning of 3 November. Dougan and Beattie were to proceed on a stolen motorbike to the garage. Hatch was to wait nearby in a car.
At about 6.15 am on 3 November Dougan and Beattie proceeded to the service station on the motorcycle. They waited while the milkman made his delivery. At about 6 am Fred Addison, aged 74, the owner of the garage arrived. He is a proprietor of the service station and had been there for 51 years. At about 6.15 am he heard a motorbike out the front. He observed two people on the bike and a pillion passenger came in. Addison said to that person “Can I help you?” The pillion passenger pulled a gun from his right hip and said “It’s a hold up”.
He pointed the gun at the victim’s neck and they walked over to the cash register. He asked for the weekend takings, however the victim replied they were at home. Another motor bike then pulled up and the male ran from the shop and got back on the bike and they rode off in a southerly direction.”
It was not clear whether the applicant was the offender who pointed the pistol at Mr Addison or whether he had remained on the motorcycle outside the garage.
The applicant was arrested on 21 January 2004. On that occasion he denied any part in the crime. At a later interview on 16 December 2004 the applicant made a number of admissions as to his part in the crime. He claimed to be the rider of the motorcycle and that Beattie was the person who pointed the pistol.
In the committal hearing before the Local Court, Kylie Wright a prostitute who had been closely associated with the applicant and who had flown with him to Sydney in November 2003 before the attempted robbery, was called as a witness. In her statement she implicated the applicant in the robbery and identified him as the person who pointed the pistol at Mr Addison. It was quite clear that her potential evidence was an important part of the Crown case against the applicant.
On 30 August 2004 when she was called to give evidence in the Local Court the following occurred:
“I walked into the court and was seated after giving my oath. The solicitor for the DPP had asked me certain details and as this was happening I saw Darcy look straight at me and he drew his finger across his throat. Upon seeing this I felt scared and started to shake. I felt threatened and very intimidated.”
The reference to “Darcy” was a reference to the applicant.
At the time of the offence contrary to s97(2) the applicant was on parole having been convicted in the Sydney District Court on 19 May 1999 of robbery whilst armed in company.
Subjective matters
The applicant was born on 4 July 1963 and was 40 at the time of the s97(2) offence. He was a resident of Western Australia and had spent most of his life there.
The applicant had a poor criminal record. From the age of 14 he had received many juvenile supervision orders. In Western Australia he had been convicted of numerous offences including break and enter, animal cruelty, breach of supervision, escape custody, driving and firearm matters. He had served periods of fulltime imprisonment in relation to those matters.
The most serious matters on his record were four convictions for armed robbery, three of which were in company. In 1987 he was sentenced in Western Australia to a period of fulltime imprisonment with a non-parole period of 6 years and 9 months for two offences of armed robbery in company. In May 1999 he was sentenced in the Sydney District Court to fulltime imprisonment for 7 years with a non-parole period of 4 years for the offence of armed robbery. In July 2000 he was sentenced to a 6-month fulltime custodial sentence for the offence of escape lawful custody. In July 2002 he was transferred to a correctional centre in Western Australia and served out the balance of his sentence in that facility. He was released to parole supervision in April 2003.
There was nothing particularly unusual in the applicant’s personal circumstances. He had been married in the mid 1990’s, but his imprisonment had resulted in his wife ending the relationship and the divorce was finalised in early 2005. He had been in a casual relationship with Kylie Wright at the time of the offence.
His Honour noted that the applicant had been on protection since 28 January 2004 when he was taken into custody. The Department of Corrective Services thought that it was most likely that the applicant would remain as a protection inmate for the whole of his sentence, although the level of protection required might lessen depending on his placement at an appropriate correctional centre. The reason for the applicant being in protection was because he had given a written undertaking to give evidence against his co-offenders.
His Honour accepted that the applicant would be incarcerated in circumstances of much greater hardship than would normally apply to prisoners who were not under protection. His Honour also noted that because of his conviction for escaping from lawful custody, the applicant would always be in a maximum security prison.
Remarks on sentence
His Honour found no evidence of contrition on the part of the applicant. Although his Honour had regard to the utilitarian value of the pleas of guilty, he did not think that they indicated contrition. On the basis of his criminal record which his Honour characterised as recidivism interrupted only by lengthy terms of imprisonment, his Honour thought there was little prospect of successful rehabilitation.
In relation to the s97(2) offence, his Honour fixed a global discount for the plea of guilty and the applicant’s assistance of 50%. In relation to the s322 offence, his Honour fixed a discount for the plea only of 10%.
His Honour declined to find special circumstances for the purposes of s44(2) of the Crimes (Sentencing Procedure) Act 1999. His Honour partially accumulated the two sentences because not to do so would effectively leave the s322 offence unpunished. Although his Honour was referred to the guideline judgment in R v Henry (1999) 46 NSWLR 346, he found that judgment of little assistance because he regarded these offences as significantly more serious.
In relation to aggravating and mitigating factors his Honour said:
“I am mindful of the terms of s3A of the Crimes (Sentencing Procedure) Act. In relation to the s97(2) offence, in particular, I have regard to the protection of the community and the need to denounce this crime. The attack on the service station proprietor, a man of advanced years, was particularly callous.
I am mindful of the terms of s21A of the Crimes (Sentencing Procedure) Act. I note the threatened use of violence, the actual use of a weapon, his lengthy and significant criminal record, the fact that he was on parole at the time, the vulnerability of the victim and the significant degree of planning involved.”
Grounds of Appeal
1. The learned sentencing judge erred in sentencing the applicant in relation to the offence against s97(2), taking into account as matters in aggravation matters that were elements of the offence
The particular matters which are relied upon by the applicant are his Honour’s reference to “the threatened use of violence” and “the actual use of a weapon”. It is submitted on behalf of the applicant that both these matters are elements of the offence and consequently his Honour’s reference to them was contrary to the concluding words of s21A(2):
“The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”
It should be noted that in the sentence hearing before his Honour the Crown listed as “aggravating factors” under s21A the following:
“2(b)Offence involved threatened use of violence by the pointing of the pistol at the victim.
2(c)Offence involved actual use of a weapon – namely a genuine pistol subsequently located by police buried in a sock.”
In relation to that submission, counsel then appearing for the applicant, said:
“Your Honour, if I might just briefly address the s21A criteria. My friend has very kindly set those matters out. … I agree with the aggravating features that my friend has listed there.”
Accordingly, these matters of “aggravation” under s21A were put to his Honour by consent.
Nevertheless, it was submitted to this Court (correctly in my opinion) that the applicant was entitled to be sentenced according to law. Consequently it is no answer, so the submission proceeded, that his Honour might have been led into an erroneous approach by the Crown prosecutor and by counsel then appearing for the applicant.
The offence contrary to s97(2) was of assault with intent to rob whilst armed with a dangerous weapon. An element of assault with intent to rob is intentionally causing another person to apprehend immediate and unlawful personal violence with the intent thereby of depriving a person of his or her property, ie the intention must be to compel the victim by fear to submit to the theft. Quite clearly, therefore, “threatened use of violence” must be an element of the s97(2) offence.
That does not end the matter. Just because a factor is an element of the offence, does not mean that that factor is to be treated in the same way in all offences of that class. There will inevitably be different degrees of seriousness which a sentencing judge not only can, but ought take into account.
The issue was succinctly summarised in R v Way (2004) 60 NSWLR at [106]-[107]:
“(106) As s21A(2)(e) makes clear, the factors, which are elements integral to the offence, are not to be taken, of themselves, as aggravating factors. For example, the bare fact that an offence was committed in company where that is an element of the offence (as is the case for offences charged under s61J(2)(c) or s97 of the Crimes Act) cannot have an additional or cumulative effect.
(107) That is not to say, however, that the nature and extent of the company, and the manner in which their presence and behaviour add to the menace of the occasion, cannot be regarded as circumstances relevant to the seriousness of the actual offence which is charged. Clearly the presence of a large number of overbearing and powerful companions can dramatically increase the objective seriousness, and moral culpability, of those who engage in a sexual assault of a lone victim, and s21A(2) should not be regarded as excluding reference to any such consideration.”
The same considerations are relevant here. The precise circumstances in which violence was threatened could legitimately be regarded as a factor which increased the seriousness of the offence. In this case such a consideration was relevant in that the “threatened use of violence” involved the actual pointing of a pistol at the victim’s neck. It was indicative of a heightened level of threat and a very specific use of the weapon.
The problem with his Honour’s reference to the threatened use of violence as an aggravating factor in the context of s21A, is not so much that it constituted an element of the offence but that his Honour failed to make it clear precisely how he was using that factor. Without such an explanation, there is always the risk that an offender might think that there was an element of double counting and that his or her punishment had been increased because of something already taken into account by virtue of the plea of guilty to the specified offence.
The need for an explanation is made clear in such cases as R v Street [2005] NSWCCA 139 at [32]-[34] and R v Ibrahimi [2005] NSWCCA 153. In this case his Honour’s error was in failing to make it clear that what he was taking into account was not the bare fact of a threatened use of violence (which was an element of the offence) but the nature and extent of the threat and the manner in which the weapon had been used as being indicative of the increased seriousness of the actual offence.
The other element of the s97(2) offence is “while armed with a dangerous weapon”. That element of the offence is generally taken to mean something more than to be in possession of the weapon. The weapon must also be available for immediate use as a weapon. (Miller v Hrvojevic (1972) VR 305; R v Farrer (1983) 78 FLR 10). Accordingly, robbery when armed with a dangerous weapon may be made out even if the offender does not threaten to use or use the weapon. The victim may submit to the theft by fear as a result of the knowledge that the offender is armed with a dangerous weapon.
In this case not only was the offender who spoke to the victim armed with a dangerous weapon but he actually made use of that weapon by pointing it at the victim’s neck. The offence is the more serious if the offender was not only armed but threatened to use or used the weapon. Accordingly in this case his Honour was not in error in having regard to the threatened use of the dangerous weapon as an aggravating factor.
It follows from the above analysis that while his Honour was entitled to take into account “threatened use of violence” on the question of the seriousness of the offence, he was not entitled to take it into account insofar as it constituted an element of the offence. His Honour’s error was in failing to provide an explanation as to how he used that factor so as to make the distinction clear. In that respect Ground of Appeal 1 has been made out.
2. The learned sentencing judge erred in taking into account the applicant’s prior convictions as an aggravating factor.
The applicant submitted that his Honour erred in taking into account the applicant’s “lengthy and significant criminal record” as an aggravating factor and in doing so he acted contrary to the provisions of s21A(4) of the Crimes (Sentencing Procedure) Act. This provides:
“The 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 clear that his Honour did take into account the applicant’s prior convictions as an aggravating factor. As with the first ground of appeal, this was an approach suggested by the Crown with which counsel then appearing for the applicant concurred. Nevertheless, his Honour erred in so doing.
“I would suggest that it is unfortunate that the legislature has included “a record of previous convictions” in the list of aggravating factors, because it invites, as appears to have happened here, overlooking the qualifications in s21A(4) that a court does not have regard to any such factor as specified if it is contrary to “rule of law” to do so. “Rule of law” is construed to include common law principles: R v Johnson [2004] NSWCCA 76. It is the common law that prior conviction does not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is appropriate to give more weight to factors such as retribution deterrence or community protection. Veen v The Queen (No 2) (1998) 164 CLR 465; R v Wickham [2004] NSWCCA 193” – Grove J, R v Blair [2005] NSWCCA 78 at [53].
As the above extract from R v Blair illustrates, there is a distinction between circumstances which go to the seriousness of the offence (aggravating factors properly so called) and matters that are more appropriately directed to the objectives of punishment (ie the applicant’s prior convictions).
Despite that dichotomy the consequences for the applicant are largely the same. This was made clear in Veen v The Queen (No 2) at p 477:
“There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

Those last strictures apply to the applicant. His criminal record shows a continuing attitude of disobedience of the law which demonstrated his moral culpability in respect of the s97(2) offence and required that the sentence ultimately imposed be of such severity as to ensure retribution and deterrence, both personal and general, and the protection of society.
It follows that Ground of Appeal 2 has been made out in that his Honour did take into account the applicant’s prior convictions when considering the seriousness of the offence, whereas this was a matter which his Honour should have properly taken into account but as a matter relevant to moral culpability and the basic objectives of punishment.
3. The learned sentencing judge erred in failing to adequately discount the sentence imposed with respect to the offence of threatening a witness.
The real complaint made by the applicant is not so much that a discount of 10% was not open to his Honour, but that his Honour failed to explain how that figure was arrived at. In other words there was a “total absence of any explanation of the decision” as was critically referred to in R v Johnstone [2004] NSWCCA 307 per Sully J at [28] and R v Castles [2005] NSWCCA 79 per Santow JA at [23].
For the reasons given by Sully J in R v Johnstone, it is not only useful but often important that reasons be given by sentencing judges which indicate in general terms at least, the basis upon which discounts were arrived at. It would have been helpful if his Honour had done so in this case.
The basis for his Honour’s discount of 10% is, however, readily ascertainable from an examination of the transcript. The s322 offence took place on 30 August 2004, the second day of the committal proceedings, in relation to the s97(2) offence. The plea of guilty does not seem to have been entered until 15 December 2004. It is clear that his Honour did not regard the plea as having been entered at the earliest opportunity and given the nature of the offence, this delay significantly reduced its utilitarian value. Accordingly although it would have been preferable for his Honour to provide an explanation as to how the discount was arrived at, his failure to do so does not require the intervention of this Court.
4. The sentences with respect to the offence against s97(2) of the Crimes Act and the resulting total sentence are in all the circumstances manifestly excessive.
The applicant submitted that when one had regard to the 50% discount allowed by his Honour in respect of the s97(2) offence, his Honour’s start point must have been 16 years. It was submitted that such a start point was out of all proportion to the seriousness of the offence, particularly because the offence was in the nature of an attempt. Such a start point was also towards the top of the range of sentencing statistics for this kind of offence.
It is true that the sentence was at the higher end of the sentencing range for this type of offence, if one had regard to the sentencing statistics. His Honour was aware of this since those statistics were placed before him. The problem with such statistics is, however, that they do not show the start point for the consideration of a sentence only the end point. They are also silent as to aggravating factors, subjective matters and the effect of an offender’s prior criminal record.
In Wong and Leung v The Queen (2001) 207 CLR 584 at [59] the High Court noted:
“The production of bare statistics about sentences that have been passed tells a judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.”
This is particularly so where, as in the present case, there are so few entries for this kind of offence. “The smaller the number of cases to which the statistics refer, the less helpful they are, and in any event what must be determined ultimately is what sentence is appropriate in the particular case, having regard to its feature, both objective and subjective.” (R v Prior (CCA, unreported, 7 October, 1997, per Studdert J.)
In this matter as his Honour appreciated, apart from the discount for the plea of guilty and co-operation with authorities, there was nothing in the applicant’s subjective case which would assist him on sentence. There were, however, some significant aggravating factors. It was a serious example of this class of offence involving the pointing of a firearm at the neck of an elderly and vulnerable victim. It involved a considerable amount of planning. The offence was committed while the applicant was on parole for a similar kind of offence. The seriousness with which the legislature views this kind of offence is obvious from the maximum prescribed sentence of 25 years imprisonment.
Finally, the considerations previously referred to in Veen No 2 apply with considerable particularity to the applicant. This is the very sort of case where condign punishment is required to reflect the moral culpability of the offender and to emphasise the considerations of retribution deterrence and the protection of society.
I am not persuaded that the sentence imposed by his Honour in respect of the s97(2) matter is manifestly excessive. This ground of appeal fails.
Conclusion
As indicated, I have concluded that there was error in his Honour’s failure to explain how the threatened use of violence should be properly taken into account when assessing the seriousness of the s97(2) offence. His Honour also erred in taking into account the applicant’s criminal record as an aggravating factor under s21A of the Crimes (Sentencing Procedure) Act 1999. Nevertheless I have concluded that these were matters, which his Honour could and should have properly taken into account but not in the way in which he did. Should there be any alteration to the sentences imposed by his Honour?
To reduce the sentences below that passed by his Honour would in my opinion be contrary to s6(3) of the Criminal Appeal Act 1912 in that the sentences thus adjusted would be so lenient as to fall below the applicable discretionary range. That is so for the reasons already referred to when dealing with Ground of Appeal 4 and because of the findings by his Honour of no special circumstances, of a continuing lack of contrition and of poor prospects of rehabilitation. In addition, the matters to which his Honour did erroneously have regard, had they been treated properly by him required sentences within the range actually passed by his Honour. The applicant’s appalling criminal history required condign punishment to deter not only him but others from committing further offences of that kind.

The orders which I propose are:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.
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LAST UPDATED: 08/03/2006