Fairbairn v R

[2006] NSWCCA 337

Reported Decision: 165 A Crim R 434

New South Wales

Court of Criminal Appeal

CITATION:	Fairbairn v Regina [2006] NSWCCA 337
HEARING DATE(S):	18/10/06
JUDGMENT DATE:	3 November 2006
JUDGMENT OF:	Basten JA at 1; Hidden J at 5; Bell J at 6
DECISION:	1. Grant leave to appeal; 2. Allow the appeal and quash the sentences imposed in the District Court, in lieu thereof the applicant is sentenced as follows; count 1 (taking into account the offences on the Form 1) to a non-parole period of 15 months to date from 23 March 2006. The non-parole period will expire on 22 June 2007. Direct the applicant’s release on parole at the expiration of the non-parole period. Specify a balance of term of seven months to date from 23 June 2007 and to expire on 22 January 2008; count 2 the applicant is sentenced to a fixed term of imprisonment of 13 months to date from 23 March 2006, that sentence will expire on 22 April 2007.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Summary Offences Act 1988 Weapons Prohibition Act 1998
CASES CITED:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 R v Engert (1995) 84 A Crim R 67 R v Hammoud (2000) 118 A Crim R 66 R v Henry (1999) 46 NSWLR 346 R v House [2005] NSWCCA 88 R v Ibrahimi [2005] NSWCCA 153 R v Letteri (NSWCCA unreported) 18 March 1992 R v McNamara [2005] NSWCCA 195 R v Smith (1987) 44 SASR 587 R v Street [2005] NSWCCA 139 R v Suaalii [2005] NSWCCA 206 R v Tadrosse [2005] NSWCCA 145
PARTIES:	Stephen David Fairbairn (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/1634
COUNSEL:	B Rigg (Applicant) P Barrett (Crown)
SOLICITORS:	S O'Connor (Applicant) S Kavanagh (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0662
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ

2006/1634 CCAP

BASTEN JA
HIDDEN J
BELL J

Friday 3 November 2006

Stephen David FAIRBAIRN v REGINA

Judgment

1 BASTEN JA: The application for leave to appeal against sentence should be granted. The appeal should be allowed and the applicant should be resentenced as proposed by Bell J. I agree with her Honour’s reasons for those orders, but would add two further remarks in relation to ground 3.

2 Ground 3 complained of procedural unfairness resulting from the indication by the trial judge to counsel for the Director that he was not considering any accumulation of sentences on counts 2 and 3, a course expressly accepted by the Director. Then to provide a significant level of accumulation without warning to the offender falls foul of the principles established in Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282 and, in a different jurisdiction, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, at [3]-[4] (Gleeson CJ). Ground 3 was therefore made out.

3 Secondly, ground 3 having been made out, there is an element of double jeopardy in the Director changing course and inviting this Court, in resentencing the applicant, to impose a partly cumulative sentence. It is not a case of supporting the approach of the sentencing judge for reasons other than those he gave; rather, it is an invitation to this Court to take an approach which, in part because of the Director’s conduct below, was not open to the sentencing judge.

4 For these additional reasons, in the particular circumstances of this case I would not think it appropriate to accumulate any part of the sentence on count 2.

5 HIDDEN J: I agree with the orders proposed by Bell J and with her Honour’s reasons. I also agree with the additional observations of Basten JA.

6 BELL J: The applicant applies for leave to appeal against the severity of sentences imposed on him in the District Court on 23 March 2006 following his pleas of guilty to two counts of assault with intent to rob whilst armed with an offensive weapon (a knife). The offences are provided by

s 97(1) of the Crimes Act and carry a maximum sentence of 20 years’ imprisonment.

7 The applicant was sentenced on count 1 to a fixed term of two years’ imprisonment to date from 23 March 2006 and to expire on 22 March 2008. He was sentenced on count 2 to a non-parole period of two years to commence on 23 March 2007 and to expire on 22 March 2009, together with a balance of term of 18 months’ imprisonment to commence on 23 March 2009 and to expire on 22 September 2010. The aggregate sentence was of four and a half years’ imprisonment with an effective non-parole period of three years.

8 The Judge took into account on a Form 1 an offence of demanding money with intent to steal, an offence provided by s 99(1) of the Crimes Act, and two offences relating to the possession of knives: custody of a Swiss Army knife in a public place under s 11C(1)(a) of the Summary Offences Act 1988 and unauthorised possession of a prohibited weapon (butterfly knife) in a public place under to s 7(1) of the Weapons Prohibition Act 1998, in sentencing for the offence charged in count 1.

9 I will refer to the facts on which the Judge sentenced the applicant by reference to the agreed statement of facts.

10 On the afternoon of Saturday 5 March 2005 the applicant walked into a cake shop located on the corner of Avalon Parade and Old Barrenjoey Road, Avalon carrying a knife. Alexander Ling, a sixteen-year-old girl, was working behind the counter. Her employer, Mrs Nguyen, was at the rear of the premises. Ms Ling looked up and saw the applicant leaning over the counter directly in front of her, holding the knife in his right hand. He had a handkerchief attached to his ears, covering his face from below the eyes to the bottom of his chin. He had something under his shirt that had the appearance of being a cake tin. Ms Ling jumped backwards. She saw the knife and she thought that the blade was about 9 cms long. The applicant said, “give me the money” pointing the knife towards the till. Ms Ling replied, “I can’t, my boss has put a lock on the till. Can I get my boss?” She was very scared, particularly because she was by herself in the public area of the shop. She started sobbing and shaking and she called out to Mrs Nguyen. The incident involving the assault on Ms Ling is the first count in the indictment.

11 Mrs Nguyen came from the back of the premises and stood behind Ms Ling. The applicant who was still holding the knife, said to her “come on open this till, I want cash money”. Mrs Nguyen saw the knife, which she thought had a blade about 6 cms long. She said, “look, I have two customers coming”. The applicant responded, “you no give me money I take your customer money”. The demand addressed to Mrs Nguyen is the first offence set out in the Form 1.

12 Judith Longbottom walked into the cake shop during the course of this incident. She had a pushchair with her. Her husband remained outside the shop with their son. The applicant turned and faced Mrs Longbottom, pointing the knife towards her waist and waving it around for a short time. He was at a distance of about 4 feet from her. She described the knife as being like a penknife with a 3 to 4 inch blade. The applicant said something that she was not able to hear and then he said, “give me your cash, I want cash. Where’s your cash? Give it to me”. Mrs Longbottom responded, “I don’t have any cash”. The applicant said, “what are you doing in here if you haven’t got any cash?” Mrs Longbottom repeated that she did not have any cash and the applicant turned back and pointed the knife towards Ms Ling and Mrs Nguyen and said, “give me money. Give me money”. Mrs Longbottom left the shop and joined her husband. A short time after this the applicant left the shop and walked off along Avalon Parade. He was walking with a slight limp.

13 Mrs Longbottom approached a passer-by who telephoned the police. The applicant continued walking towards Barrenjoey Road at a slow pace. He removed the handkerchief from his face and took out a hat from under his shirt. He was seen to get on a bus. The police later spoke to the bus driver who told them that he knew the applicant as “Steve” and that he had got off the bus at the Palm Beach RSL.

14 The Police went to the Palm Beach RSL and spoke with the applicant. They asked him whether he had anything on him that he should not have. He pulled out a handkerchief, which was folded in a triangular fashion with its ends twisted. Inside the handkerchief was a red handled Swiss Army-style pocketknife. He was arrested and cautioned and the police searched him. As this was being done the applicant pulled a folded butterfly knife out of his pocket saying, “alright, here you go”. It had a 9 cm blade and was consistent with being the knife used in the commission of the offences. The police also found a pensioner bus ticket and $1.30 in coins during the search of the applicant.

15 The applicant participated in an electronically recorded interview in which he denied involvement in the offences. In subsequent interviews with an officer from the Probation and Parole Service, a psychiatrist and a psychologist he has maintained that he does not remember the incident.

16 The applicant pleaded guilty to each of the offences before the Local Court.

17 The applicant was 49 years old at the date of the offences. He was aged 50 years at the date of sentence. He was a person of good character with no relevant criminal history.

18 The applicant did not give evidence at the sentence hearing. A number of reports were tendered in his case. These included a report prepared by Peter Ashkar, a psychologist, dated 20 September 2005. Mr Ashkar was called to give some short oral evidence supplementing his report. There was a report from Dr Allnutt, a psychiatrist and a report from a neurologist, Dr Polgar, which dated back to August 1995. Letters from the applicant’s mother, sister and an old school friend, Mark Boyle, were also tendered in his case. A pre-sentence report prepared by Ms Koro of the Probation and Parole Service was confirmatory of the history set out in Mr Ashkar’s and Dr Allnutt’s reports. The applicant was assessed as unsuitable for a community service order and periodic detention because of his severe epilepsy and his alcohol dependence.

19 The applicant has resided with his parents in the family home for almost the whole of his life. He did not exhibit learning or behavioural difficulties as a child and his school years appear to have been uneventful. He left school in Year 11 and commenced an apprenticeship as a shipwright. He completed his apprenticeship successfully and worked in this trade until the age of 35 years when he was injured in an accident. He broke his neck diving from a boat when his head struck a sandbank. He has not worked since and he has been in receipt of the disability pension.

20 Mr Ashkar carried out a number of psychometric tests on the applicant during the course of his interview with him. The applicant’s intellectual functioning was revealed to be within the Borderline range or better than five per cent of the population. His overall Intelligence Quotient ranged between 71 and 80.

21 At the age of nine years, the applicant was diagnosed with Scheuermann’s disease, which is characterised by abnormal curvature of the spine. He wore a spinal brace until the age of 14. He continues to suffer from some back problems. He developed epilepsy not long before the diving accident when he was aged around 34 years. Since then he has suffered grand mal seizures on a regular (monthly) basis, which medication has not been effective in controlling. The seizures have a debilitating effect on him. He suffered a severe seizure around six years ago with an associated loss of consciousness which he understood to have occasioned some form of brain injury. Dr Allnutt says that this is likely to have been a brain embolus or intracranial bleed.

22 The applicant was diagnosed with throat cancer when he was aged in his mid-40’s. In the year following the diagnosis he underwent three operations to remove it. It has been in remission since this time. He suffers from a degree of dysarthria (difficulty in articulating speech) which may be a by-product of surgery.

23 The applicant has a history of alcohol abuse, which dates back to when he was around 20 years of age. He gave Mr Ashkar a history of consuming six longneck bottles of full strength beer on most days, albeit he had moderated his consumption around the time of the interview. He described symptoms of physiological dependence associated with alcohol use and in Mr Ashkar’s opinion he did not appear motivated to undergo treatment. He told Mr Ashkar that he was more likely to suffer a seizure if he reduced his alcohol intake. He had expressed a similar fear to Dr Polgar in August 1995. Dr Allnutt considers that the applicant suffers from alcohol dependence and that this serves to increase his risk of seizures.

24 In recent years the applicant has suffered a number of orthopaedic injuries, including a fractured collarbone and fractured pelvis. Dr Allnutt comments that these may be related to periods of intoxication and/or seizures. In September 2005 when he saw Mr Ashkar the applicant was using a walking frame. He was recovering from a fall in which he fractured his pelvis. He did not remember the fall and was at a loss to explain the reason for it.

25 The pre-sentence report describes the applicant as having a caring and supportive family. It is noted that he maintains regular contact with his younger sister and her husband. His sister has observed the deterioration in his health and says that he has not shown himself to be a violent or aggressive individual. She describes the offence as being out of character for him.

26 Mr Ashkar commented that the applicant demonstrated a respect for the law saying, “it’s important to obey the law … they’re made for a reason … to stop people doing the wrong things”. He had expressed regret over his behaviour in the course of his interview with Mr Ashkar saying, “I’m pretty well down and out about it … because it is rather stupid of me to enter a pastry shop and order money from them … it’s putting a lot of people out”. Mr Ashkar noted that the applicant had an extremely limited capacity to experience victim empathy. In Mr Ashkar’s opinion, the offence was anomalous and out of character.

27 The applicant has never been married and has no children. He leads a socially isolated life. In oral evidence Mr Ashkar observed:

It appears that Mr Fairbairn is functioning with a very limited level of autonomy. He’s been living with his elderly parents for most of his life, with the exception of having spent three years in a relationship with a defacto partner. He has not been working since the age of 35, he’s very isolated socially, he does not have many friends. So what we would term – what we would commonly term psycho-social functioning which is a functioning that includes such things as the ability to work, the ability to live independently, the ability to engage in social relationships, those aspects of his social functioning are very limited (T 17/02/06 at 4.28-38).

28 The sentences are challenged on three grounds:

1. His Honour erred in his assessment of s 21A(2) of the Crimes (Sentencing Procedure) Act insofar as his Honour took into account as aggravating factors:

· The threatened use of violence;

· The threatened use of a weapon;

· The presence of multiple victims.

2. His Honour erred in his treatment of this Court’s guideline judgment in Henry & Ors (1999) 46 NSWLR 346.
3. The applicant was denied procedural fairness in that his representative was not given an opportunity to be heard on the issue of concurrency or accumulation of sentences.

29 Ground 1 arises out of the following passage in the Judge’s remarks on sentence:

I now turn to the factors in mitigation under s 21A. Factors of mitigation are that he is unlikely to re-offend, the offence was not part of a planned or organised criminal activity and he is a person of good character. In aggravation, the offences did involve threatened use of violence and the threatened use of a weapon. The victims were vulnerable and there was more than one victim (ROS 8).

30 Section 21A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) requires the Court to take into account in determining the appropriate sentence for an offence the aggravating factors referred to in subs (2) that are relevant and known to the Court. These include:

…
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
…
(m) the offence involved multiple victims or a series of criminal acts.

31 The Judge was satisfied that the applicant’s offences were aggravated by factors (b), (c) and (m). The threatened use of violence and the threatened use of the knife were each elements of the offences and it was not open to the Judge to regard them as factors that aggravated the offence: R v Ibrahimi [2005] NSWCCA 153 at [17]-[18]; R v Street [2005] NSWCCA 139 at [32]; R v House [2005] NSWCCA 88 at [8]-[9]; R v Suaalii [2005] NSWCCA 206 at [12]-[15]; R v McNamara [2005] NSWCCA 195 at [31]. The applicant was charged separately with offences involving Ms Ling, Mrs Nguyen and Mrs Longbottom. It was not open to his Honour to find that any offence was aggravated by the fact that there were multiple victims: R v Tadrosse [2005] NSWCCA 145 at [28]-[29]. The offence charged arising out of the demand made upon Mrs Nguyen was dealt with on a Form I in sentencing on the first count. It was open to increase the penalty that would otherwise have been appropriate for the first count in order to reflect considerations of personal deterrence and the community’s interest in retribution: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146, but it was not open to find the offence charged in count 1 was aggravated by the presence of more than one victim.

32 The Crown conceded that the Judge erred in taking into account each of these three matters as aggravating factors. In the Crown Prosecutor’s submission it did not follow that the Court would proceed to re-sentence. The Crown maintained that no lesser sentences were warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW); R v Simpson [2001] NSWCCA 534.

33 The applicant’s counsel developed the challenges in grounds 2 and 3 in order to persuade the Court that it should proceed to re-sentence. In her submission the Judge approached the sentencing as though he was constrained by the decision of this Court in R v Henry (1999) 46 NSWLR 346 to impose sentences within the range promulgated in the sentencing guideline. It is to be noted that the sentence imposed on count 1 is below the range set out in Henry. The sentence imposed on count 2 falls within the guideline range if full allowance is given to the applicant’s plea of guilty at the earliest opportunity. The aggregate sentence for these two offences (committed in the course of the one episode) is at the high end of the Henry range when allowance is made for the pleas of guilty entered at the first opportunity.

34 Counsel did not submit that the applicant’s level of intellectual functioning was such as to attract the principles enunciated in cases such as R v Letteri (unreported), 18 March 1992, and R v Engert (1995) 84 A Crim R 67. Her contention was that the paradigm offender in Henry is not this applicant: a 50 year old man of good character, who is unlikely to re-offend, facing imprisonment for the first time equipped with limited intellectual resources and suffering from health problems that are likely to make the experience of custody more burdensome for him than for the ordinary prisoner.

35 In my opinion this case has exceptional features, which justify a departure from the range promulgated in Henry and for this reason I reject the Crown’s submission that notwithstanding the acknowledged error the application should be dismissed since no lesser sentences are warranted in law. Before turning to the evidence for the purpose of re-sentencing it is appropriate to say something about ground 3.

36 In the course of submissions the Judge expressed a view about the structure of the sentences in an exchange with the Crown Prosecutor:

HIS HONOUR: It seems to me however that the offences are part of the one course of conduct here.
CROWN: Clearly.

HIS HONOUR: I don’t think there should be cumulative sentences imposed in this case.
CROWN: No, I wouldn’t seek to address you on that at all your Honour (T 17/02/06 20-29).

37 The Judge reserved his decision on sentence. In the result he partly accumulated the sentence on count 2 with that on count 1. Although it is not necessary to determine it, I consider that there is substance to the submissions made by the applicant’s counsel in support of ground 3. In the way matters were left it was reasonable for the applicant’s legal representative to assume that the Judge would structure the sentence in the way that he had indicated. To my mind the Judge should not have departed from the indication without alerting the applicant’s legal representative to the fact that he was considering accumulating the sentences. The position is somewhat analogous to that in R v Mohamad [2005] NSWCCA 406 in which the Judge without notice to the parties proceeded upon a factual finding concerning the offender’s role in the enterprise that was adverse to him and which did not accord with a concession made by the Crown. Here the applicant was for practical purposes denied the opportunity of having his representative address the Judge on the factors that favoured concurrency. As R v Hammoud (2000) 118 A Crim R 66 makes clear, there is not one correct answer to the question of how sentences should be structured in a case such as this.

38 An affidavit affirmed by the applicant on 9 October was read in his case on re-sentence. He is currently housed at the Silverwater correctional centre. He continues to suffer from severe epileptic seizures despite the fact that he has no access to alcohol. Tongue biting, incontinence and headaches accompany the fits. He is very tired for a few days after each episode. His dosage of Dilantin was increased in an effort to control the seizures and this led to him suffering an overdose for which he was admitted to the Emergency Department of Westmead Hospital. The dosage has since been reduced. He describes constant soreness in his back associated with his spinal disorder. This has increased in detention because there is no comfortable seating and he sits with his back against concrete walls.

39 Annexed to the applicant’s affidavit is a medical report relating to his mother, Carmel Fairbairn. Mrs Fairbairn has been diagnosed as suffering from lung cancer. Her condition is terminal and her life expectancy is several months at best. There was no evidence that she had been diagnosed with this condition at the date of the sentence hearing. The applicant’s incarceration at this time is a source of particular stress to him since they have a close bond and he has a natural desire to be with her. The other members of his family have only been able to visit him once at the prison because of the demands of looking after the mother.

40 The offence charged in count 1 is to my mind of greater objective seriousness than the offence charged in count 2. It was conceded that the victim of the first offence was vulnerable, taking into account her youth and employment as a shop assistant. The first offence although inept involved an element of planning - putting the hat under his shirt and attaching the handkerchief to his ears so as to disguise his appearance. The Form 1 offences are to be reflected in the sentence on count 1.

41 In counsel’s submission, while a sentence of imprisonment was called for in relation to the offence charged in count 1, and a sentence of the order of two years was within the range, in the unusual circumstances of this case it would be open to the Court to suspend the execution of it pursuant to s 12 of the Sentencing Procedure Act.

42 In re-sentencing the applicant for these offences it is necessary to have regard to the purposes of sentencing that are set out in s 3A of the Sentencing Procedure Act. The Court is required to take into account the aggravating and mitigating factors to which s 21A directs attention to the extent that they are known to the court. The only circumstance of aggravation is the vulnerability of the victim of the first offence. The offences are mitigated in a number of respects that I have set out above. The mitigating factors include that the applicant does not have a record of previous convictions of any relevance, he is a person of good character who is unlikely to re-offend and has shown remorse for the offences. The first offence involved little in the way of planning and the second offence involved none.

43 The applicant’s health problems are significant and are of a nature that will make the experience of imprisonment more burdensome for him than for other prisoners and this is a further factor to take into account in mitigation of sentence: R v Smith (1987) 44 SASR 587.

44 I agree with the Judge’s assessment that his early pleas of guilty entitle him to a discount on sentence of 25%. After making this adjustment (which involves a degree of rounding down) I propose a sentence of 22 months for the offence charged in count 1 and a sentence of 13 months for the offence charged in count 2.

45 The Judge found that there were special circumstances that justified a departure from the statutory proportion between the non-parole period and the balance of the term of the sentence. Counsel for the applicant submitted that, in the event this Court re-sentenced the applicant, this finding should be preserved. The Crown did not submit to the contrary. The special circumstances that his Honour found included that the applicant’s health and that this would be his first experience of imprisonment. I consider it appropriate to re-sentence the applicant upon the basis that there are special circumstances within the meaning of

s 44(2) of the Sentencing Procedure Act for the reasons that his Honour gave. The extent of the adjustment is not great having regard to the length of the sentence and the need for a non-parole period that reflects the gravity of the offence.

46 On the hearing of the application the Crown Prosecutor, contrary to the approach adopted below, submitted that the sentences ought to be at least partly accumulated in order to give recognition to the fact that they involved two victims. In the circumstances of this case in which the second offence arose spontaneously in the course of the commission of the first I consider that it is appropriate to direct that the sentence on count 2 be served concurrently with that on count 1. Taking into account the structure of the sentences and the length of the sentence on count 1, I do not intend to specify a non-parole period with respect to the sentence on count 2.

47 I have considered the submission that pursuant to s 12(1) of the Sentencing Procedure Act the sentence should be suspended upon the applicant entering into a bond to be of good behaviour. Notwithstanding his powerful subjective case, in my opinion the offences, particularly that charged in count 1, are of such an objectively serious nature that it is necessary that the applicant serve the non-parole period in full-time custody.

48 For these reasons the orders that I propose are:

ORDERS

1. Grant leave to appeal;

2. Allow the appeal and quash the sentences imposed in the District Court, in lieu thereof the applicant is sentenced as follows:

count 1 (taking into account the offences on the Form 1) to a non-parole period of 15 months to date from 23 March 2006. The non-parole period will expire on 22 June 2007. Direct the applicant’s release on parole at the expiration of the non-parole period. Specify a balance of term of seven months to date from 23 June 2007 and to expire on 22 January 2008;
count 2 the applicant is sentenced to a fixed term of imprisonment of 13 months to date from 23 March 2006, that sentence will expire on 22 April 2007.


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