Harris v The King

[2023] NSWCCA 174

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Harris v R [2023] NSWCCA 174

Hearing dates:

01 March 2023

Date of orders:

12 July 2023

Decision date:

12 July 2023

Before:

Beech-Jones CJ at CL at [1];
Davies J at [2];
McNaughton J at [3]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIME – appeal – appeal against sentence – whether the sentence imposed was manifestly excessive – armed robbery with an offensive weapon – tomahawk and petrol – offending occurred at RSL Club in small country town – sentence imposed not unreasonable or plainly unjust – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), s 97

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 21A

Criminal Appeal Act 1912 (NSW), s 5

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Chartres-Abbott v R [2021] NSWCCA 239

Dang v R [2014] NSWCCA 47

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (Cth) v De La Rosa

Foaiaulima v R [2020] NSWCCA 270

Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353

Hall v R [2021] NSWCCA 220

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Hoskins v R [2021] NSWCCA 169

McLaughlin v R [2013] NSWCCA 152

MLP v R [2014] NSWCCA 183

Naveed v R [2019] NSWCCA 149

Ngatamariki v R [2016] NSWCCA 155

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pham v R [2014] NSWCCA 115

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

Sabbah v R (Cth) [2020] NSWCCA 89

Turnbull v R [2019] NSWCCA 97

Vandeventer v R [2013] NSWCCA 33

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Timothy Harris (Applicant)
Rex (Respondent)

Representation:

Counsel:
I McLachlan (Applicant)
S Lind (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/67044

Publication restriction:

A pseudonym order has been made to protect the identity of a child.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 September 2021

Before:

Turnbull SC DCJ

File Number(s):

2020/67044

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 8 March 2021, Timothy Harris (“the applicant”) was convicted of one count of armed robbery with an offensive weapon (contrary to s 97(1) of the Crimes Act 1900 (NSW)).

The robbery had taken place in the Molong RSL Club on a Sunday afternoon with staff and patrons present. The applicant was armed with a tomahawk axe and a bottle filled with petrol. The applicant squirted petrol into a patron’s face and made threats of further violence to staff and other patrons.

On 10 September 2021, Judge Turnbull SC (“the sentencing judge”) sentenced the applicant to a term of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months. The applicant sought leave to appeal against the sentence.

The ground of appeal was whether the sentence imposed was manifestly excessive. The applicant also raised patent error in relation to three findings of fact, referred to as “sub-grounds” of appeal, those being:

(i) the harm to the community was not a relevant matter to be taken into account in sentencing the applicant (“sub-ground 1”);

(ii) it was not open to the sentencing judge to find that the proximity of Mr Stevenson’s child to the offending was “aggravating in the circumstances” (“sub-ground 2”);

(iii) it was not open to the sentencing judge to find that the use of a chemical “substantially” increased the objective seriousness of the offending (“sub-ground 3”).

The Court held (McNaughton J, Beech-Jones CJ at CL and Davies J agreeing), granting leave to appeal but dismissing the ground of appeal:

As to sub-ground 1:

(1) The fact the offence took place on a Sunday afternoon in a small country town at a club associated with leisure and relaxation is not irrelevant. It was a proper sentencing consideration in accordance with s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW): [1] (Beech-Jones CJ at CL); [2] (Davies J); [56] (McNaughton J).

(2) The sentencing judge did not double-count or improperly elevate the harm to the community caused by the offending. Sub-ground 1 is not made out: [1] (Beech-Jones CJ at CL); [2] (Davies J); [56] (McNaughton J).

As to sub-ground 2:

(3) The wording used by the sentencing judge indicates his Honour was not purporting to refer to the statutory aggravating factor pursuant to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act. The list of aggravating features specified in subs (2) of s 21A is not exhaustive: [1] (Beech-Jones CJ at CL); [2] (Davies J); [61]-[62] (McNaughton J).

Turnbull v R [2019] NSWCCA 97, cited.

(4) It was open for the sentencing judge to treat the proximity of Mr Stevenson’s child as a factor which increased the relative seriousness of the offence. Sub-ground 2 is not made out: [1] (Beech-Jones CJ at CL); [2] (Davies J); [62]-[63] (McNaughton J).

As to sub-ground 3:

(5) The finding that the use of the chemical substantially increased the objective seriousness of the offending was clearly open to the sentencing judge. The use of the chemical was clearly substantially more serious than the “limited, if any, actual violence” contemplated in the guideline judgment. Sub-ground 3 is not made out: [1] (Beech-Jones CJ at CL); [2] (Davies J); [66] (McNaughton J).

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, considered.

As to the ground of appeal alleging manifest excess:

(6) The sentence imposed was open to the sentencing judge, being neither unreasonable, nor plainly unjust: [1] (Beech-Jones CJ at CL); [2] (Davies J); [74]-[76] (McNaughton J).

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 applied.

(7) This was a particularly serious example of a robbery armed with an offensive weapon. The applicant was armed with two weapons. He sprayed petrol into the face of a patron and threatened to kill the bartender and set her alight. The offence involved a degree of planning. The applicant was on multiple forms of conditional liberty, his criminal history disentitled him to leniency, and he was convicted after trial, thus attracting no discount for a guilty plea: [1] (Beech-Jones CJ at CL); [2] (Davies J); [77]-[83] (McNaughton J).

(8) Whilst the sentencing judge accepted that the applicant’s moral culpability was reduced because of his deprived background, his Honour also stated that “countervailing factors such as community protection may affect the degree of mitigation”:[1] (Beech-Jones CJ at CL); [2] (Davies J); [84] (McNaughton J).

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, cited.

(9) The findings on sentence about personal deterrence, retribution and special circumstances were open to the sentencing judge. The ground of appeal is not made out: [1] (Beech-Jones CJ at CL); [2] (Davies J); [85]-[88] (McNaughton J).

JUDGMENT

1. BEECH-JONES CJ at CL: I agree with McNaughton J.

2. DAVIES J: I agree with McNaughton J.

3. McNAUGHTON J: On 8 March 2021, Mr Timothy Harris (“the applicant”) was convicted of one count of armed robbery with offensive weapon (contrary to s 97(1) of the Crimes Act 1900 (NSW)) following a trial by jury in the District Court in Bathurst. The robbery had taken place in the Molong RSL Club (“the RSL Club”) on a Sunday afternoon with staff and patrons in attendance. The applicant was armed with a tomahawk and a water bottle filled with petrol (which was used to splash one of the patron’s faces) and he also made threats of further violence.

4. On 10 September 2021, Judge Turnbull SC (“the sentencing judge”) sentenced the applicant to a term of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months. The sentence commenced on 1 June 2020.

5. The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal the sentence on the ground that it was manifestly excessive.

6. For the reasons provided below, I am of the view that the sentence was not manifestly excessive, and the appeal should be dismissed.

Factual Background

7. The facts found by the sentencing judge are not in contest. The following summary is largely taken from the remarks on sentence.

8. When the offence occurred on 1 March 2020, the applicant was 29 years old and in a domestic relationship with Ms Aylward. They lived together in Molong. The couple had plans to go out for a special dinner that evening in Orange with hopes to become engaged.

9. At approximately 3:30pm that day, Ms Burchett started work as a bartender at the RSL Club.

10. Shortly before 5:12pm, the applicant entered the RSL Club. He was dressed in a black hoodie and his face was partially covered with a shirt or bandana. He was also armed with a tomahawk approximately 50 centimetres in length and had a water bottle filled with petrol. The sentencing judge found that the applicant had brought the tomahawk from his house and had also prepared the bottle of petrol at his house.

11. There were several people in the RSL Club on that Sunday afternoon when the applicant entered the premises. At the main bar stood Mr Stevenson, ^[1] who had ordered a beer. In the poker machine room adjacent to the main bar was Ms Tewksbury and Ms Fitzsimmons. In the small bar known as the workers bar was Ms Binks.

    1. This is a pseudonym to protect the identity of his child.

12. The applicant walked through the bistro area and presented himself in the main bar area. He yelled out, “This is a robbery”. Mr Stevenson turned around and the applicant squirted petrol into Mr Stevenson’s face. Mr Stevenson was incapacitated, and his eyes were stinging as he fell to the ground.

13. The applicant then made the following threats and demands: “Empty the till, I’m going to burn this fuckwit”, “Everybody get the fuck down, I know who you are, I know where – where the kids are, my mother’s dying” and “I’m going to set him alight”.

14. Initially believing it was a joke, Ms Burchett said, “Come on guys what’s going on?”. Ms Burchett moved towards the applicant by moving to the entrance of the actual bar area. The applicant said, “Get the money bitch or I’ll kill you”.

15. While this was occurring, Ms Binks left the workers bar area and headed into the RSL Club office and began making attempts to contact the police. Ms Tewksbury and Ms Fitzsimmons had now come out from the poker machine room.

16. At the main bar, Ms Burchett made her way to the front till and the applicant followed her. Ms Burchett opened the till and said, “Get what you need”. The applicant replied, “You get the money. I’ll set you alight, bitch. I will kill you.” Ms Burchett handed the money over to the applicant and he placed the notes into his pocket. When he dropped some of the notes, Ms Burchett helped him pick them up.

17. The applicant then left the bar area at a “very quick pace”. As he was leaving, he made a final threat: “I know every one of you cunts and I will kill all of youse if the cops are rung.”

18. Ms Burchett subsequently identified the applicant to police. She recognised him as the boyfriend of Ms Aylward. She had attended the home of Ms Aylward and the applicant to purchase children’s clothes from Ms Aylward on 25 and 29 January 2020 and the applicant had been present.

19. The sentencing judge found that the jury must have concluded beyond reasonable doubt that the applicant recognised Ms Burchett and issued the final threat in contemplation of the fact that he may be identified by her because of their prior encounters. As such, the sentencing judge accepted that the final threat was made in order to terrify Ms Burchett and to deter her from identifying him to the police.

20. As the applicant left through the bistro area, he dropped the bottle that was used in the robbery. This was later found by police when they arrived at the RSL Club. The contents of the bottle were subsequently tested and identified as petrol.

21. After the applicant left, Ms Burchett went to the front doors of the club to lock them. Around this time, Mr Stevenson had crawled on his hands and knees towards the outside beer garden. His 14-year-old daughter was outside and at the club’s play equipment where she had been making a video for social media. He yelled out to her and was met by her at the beer garden doors.

22. Shortly thereafter, Ms Mulhall, the President, Licensee, and Honorary Secretary of the RSL Club arrived outside. Ms Mulhall was met by Ms Burchett and together they went inside the RSL Club. By this time, the police had been contacted and Ms Burchett had realised that the offender was Ms Aylward’s boyfriend. Ms Burchett viewed a Facebook profile and obtained the applicant’s name.

The applicant’s movements after the robbery

23. After committing the robbery, the applicant returned home and removed the clothing he was wearing. The applicant, Ms Aylward and her daughter then left Molong and headed to the North Orange Shopping Centre. They arrived at approximately 5:50pm, that is, around 38 minutes after the robbery began.

24. The trio visited various places before going to the School House Restaurant in Orange at 8:00pm where they had dinner.

25. On their return to Molong, the applicant became aware through social media that he was a suspect in the robbery at the RSL Club.

The police investigation

26. According to the records of the RSL Club, it was estimated that approximately $1,000 was taken during the robbery. The amount stolen was in various denominations and included many $5 notes.

27. After their initial investigations at the RSL Club, the police went to the applicant’s home, which was unattended. Police then made observations around the backyard of the applicant’s premises and remained at his house awaiting his return.

28. When the applicant arrived home, he was momentarily out of the sight of the police officers. He was thereafter arrested while standing in close proximity to his car and the fence which led to the back garden. During a search of the applicant’s vehicle, police located $245 cash in his wallet. Police then looked in the applicant’s backyard again and saw approximately $100 in $5 notes that had not previously been seen in the backyard. The sentencing judge accepted beyond reasonable doubt that those $5 notes were part of the proceeds of the robbery and were cast there in a panic by the applicant to avoid implication in the offence.

29. The applicant was then taken to the Orange Police Station where he participated in a recorded interview denying any involvement in the robbery.

Relevant findings of the sentencing judge

Objective seriousness of the offence

30. The sentencing judge found that this was a “serious example” of armed robbery.

31. The sentencing judge found that the offending comfortably exceeded the offence that was contemplated in the guideline judgment^[2] of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (“Henry”) and therefore, “exceed[ed] the putative range.” By reference to the factors set out in Henry, the applicant was not young, possessed an extensive criminal history, the planning was not limited, there were threats as well as actual violence, the amount taken was “a little worse than that contemplated by Henry” and there was no plea of guilty. The sentencing judge acknowledged that the Court was not invited to engage in a two-stage process and noted that it was impermissible and “not a situation where I pick the Henry range and allow consideration of relevant sentences oscillating above or below that range.”

    2. A guideline judgment is defined under s 36 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to mean a judgment that is “expressed to contain guidelines to be taken into account by courts sentencing offenders”. It includes guidelines that apply to particular offences. Guideline judgments are no longer being promulgated following the introduction of standard non-parole periods. However, existing guideline judgments are still operative, as a policy decision was made not to introduce standard non-parole periods to offences covered by a guideline judgement: see Foaiaulima v R [2020] NSWCCA 270 at [16]-[27] (Johnson J) and at [127] (Rothman J).

32. The sentencing judge quoted the following passage from Foaiaulima v R [2020] NSWCCA 270 at [135] (Rothman J):

“The principles expressed by the High Court in Markarian, Muldrock and Hili & Jones apply with equal, if not greater, force to the manner in which a sentencing judge should approach the guideline judgment in Henry. The sentencing judge should identify all the factors that are relevant to the sentence and determine an appropriate sentence, bearing in mind the guidepost of the maximum sentence imposed by the legislature and, if there be one, the standard non-parole period. The guideline judgment is, as expressed by this Court, a check on the sentence derived, bearing in mind the factors that the Court had in mind in setting the guideline and the factors that a sentencing judge must consider in synthesising each of the purposes of sentencing and arriving at an appropriate sentence.”

33. When assessing the objective seriousness of the offence, his Honour noted the following:

1. The “intensity of the [applicant’s] ambition to subjugate, to steal, and escape detention by threats and acts of real magnitude” elevated the objective seriousness beyond similar offences of this type.

2. The combined presence of both the tomahawk axe and the bottle filled with petrol enhanced the terror of the event.

3. The applicant engaged in conduct “calculated to facilitate compliance” including confidently brandishing a weapon, utilising another and issuing “chilling threats”.

4. It could be reasonably foreseen that “distress and long term psychological harm and personal consequences” would result from those being confronted with the applicant spraying petrol into the face of a man and threatening to light him up in circumstances where it was not known whether the applicant possessed a lighter. This is a matter to which his Honour gave “significant weight”.

5. The offence was an “affront to people’s sense of society and confidence in their fellow citizens” and undermined the community’s “confidence in itself”.

6. The offence involved some planning, which was not limited but was “commonly evident”. The applicant prepared the water bottle containing the petrol, obtained the tomahawk from the home he shared with his partner and arrived disguised. However, the planning did not extend to obtaining advance intelligence that the bartender at the RSL Club was a woman he had met previously.

7. The applicant was “prepared for a quick getaway” to Orange.

8. The offence was financially motivated.

34. The sentencing judge found that the offence was aggravated by the fact that it involved the actual use of a chemical (s 21A(2)(ca) Crimes (Sentencing Procedure) Act), it involved multiple victims (s 21A(2)(m)), and was committed whilst the applicant was on conditional liberty (a good behaviour bond and Intensive Correction Order (“ICO”)) (s 21A(2)(j)).

35. Other relevant findings of the sentencing judge included the following:

1. The applicant’s prior criminal record disentitled him to leniency.

2. The applicant had not expressed any contrition, remorse or accepted any responsibility for the offending.

3. The likelihood of re-offending was high, with risk of future violence.

4. The impact of the pandemic on prisoners in custody coupled with additional restrictions stemming from the applicant’s E2 classification (former escapee) was taken into account.

5. The applicant suffered profound childhood deprivation which reduced his moral culpability for the offence.

6. Retribution, deterrence, and protection of the community assumed relevance in the sentencing exercise.

36. Victim impact statements from Ms Burchett, Mr Stevenson and Ms Tewksbury were taken into account by the sentencing judge pursuant to s 3A(g) of the Crimes (Sentencing Procedure) Act.

37. A finding of special circumstances reducing the non-parole period to 60% of the head sentence was made on two bases: the risk of institutionalisation and the support the applicant requires to reintegrate into the community.

36. The sentence imposed on the applicant was partially accumulated upon a sentence of imprisonment imposed on the applicant for an offence of affray in respect of which he had initially been placed on an ICO. On 1 March 2020, the ICO was revoked and the applicant was sentenced to 1 year 8 months and 5 days commencing on 1 March 2020. The sentence imposed for the subject offence commenced 3 months after that date, on 1 June 2020.

The applicant’s subjective case

39. The sentencing judge addressed the applicant’s subjective case at some length.

40. The applicant was 29 years old at the time of offending and 31 years old at the time of sentence. The sentencing judge noted that he was “still a relatively young man.”

41. The applicant grew up in Mount Druitt. His father left before he was born. The applicant’s mother was a heroin user and may have been a sex worker. The sentencing judge noted that the applicant saw his mother being beaten up by several men, and that he too would be beaten up if he tried to protect her.

42. The applicant was sexually abused by men from the age of 4 to 14 and his mother did not intervene. The applicant’s mother was “neglectful and self-focused” and showed him a limited amount of affection.

43. The sentencing judge noted that it was suggested the applicant had Attention Deficit Hyperactivity Disorder at a young age but this was not followed up by his mother. The applicant was bullied at high school and would often get into fights.

44. The sentencing judge noted that when the applicant was 14 years old his mother started a relationship with the applicant’s stepfather who was abusive towards the applicant. In the same year, the applicant’s older sister died in a car accident which significantly affected him. He described his older sister as “the only family member that showed him any affection and that she attempted to care for his needs through her employment.” He then began running away from home and associating with adults who were involved in drug use and criminal sub-culture.

45. At 16 years of age, the applicant commenced living with a foster mother whom he refers to as “mum”. He says she continues to be supportive.

46. The applicant began using drugs on a daily basis at the age of 15. He reportedly ceased using illicit substances six years before sentencing. The applicant had a history of psychotic symptoms when using or ceasing stimulant drugs but was found by the sentencing judge not to be suffering from a psychiatric illness at the time of offending, or sentence.

47. The sentencing judge noted that the applicant was raised in a high crime neighbourhood, did not have appropriate discipline and experienced “poor supervision, neglect, harsh physical punishment, low parental warmth, sexual abuse, exposure to a criminal lifestyle and the death of his sister”.

48. The sentencing judge noted that the effects of such deprivation did not diminish over time. The applicant’s history of sexual abuse was to be given some weight in determining his moral culpability alongside the other factors of deprivation. The sentencing judge stated:

“While countervailing factors such as community protection may affect the degree of mitigation, it does not mean that the profound childhood deprivation which I find occurred here, does not lead to a reduction in moral culpability.

It is reduced because he does have an upbringing characterised by social disadvantage and exposure, and whilst one has regard to Bugmy, it has got to be borne in mind that just does not relate to indigenous communities. It must be recognised incarceration does not always provide an effective deterrent, and it seems to be borne out here. There is no threshold test to profound childhood deprivation, and there does not need to be a causative link between the deprivation and the offending to be demonstrated, but of course if there is [a] link there must inevitably be a reduction in moral culpability, Hoskins v R [2021] NSWCCA 169, and I find that, and I do reduce his moral culpability accordingly.”

49. The sentencing judge dealt with the applicant’s extensive criminal history in some detail, noting that the applicant has spent a “significant portion of his life in gaol”. He was first sentenced to full time custody at the age of 18. In 2011 (at the age of 21), he was sentenced to 6 years and 6 months imprisonment with a non-parole period of 3 years and 6 months for two offences of robbery armed with an offensive weapon, one offence of break, enter (steal), and one offence of take and drive conveyance. Two months after being released on parole for those offences, the applicant committed three offences of dishonestly obtain property by deception. Within five months of being released to parole, the applicant committed four further offences and was sentenced to another term of imprisonment. Three months after being released to parole for those offences, the applicant committed an offence of affray. After spending four months on remand for that offence, the applicant was released on an ICO. The applicant committed the subject offence 17 weeks later.

50. At the time of the offence, the applicant was subject to that ICO. He was also subject to a three-year s 9 bond for an offence of resist officer in the execution of his duty that dated from 8 June 2018.

Appeal Ground: The sentence imposed was manifestly excessive

51. Whilst there was only one ground of appeal, in his written submissions and orally, the applicant also asserted patent error in relation to three findings of fact which he referred to as “sub-grounds” in his written submissions. Orally, the applicant indicated he could seek leave to extract those matters out as a separate ground (or grounds). These “sub-grounds” are:

1. The harm to the community was not a relevant matter to be taken into account in sentencing the applicant;

2. It was not open to the sentencing judge to find that the proximity of Mr Stevenson’s child to the offending was “aggravating in the circumstances”;

3. It was not open to the sentencing judge to find that the use of a chemical “substantially” increased the objective seriousness of the offending.

52. It is convenient first to take each of these matters in turn.

Sub-ground 1: The harm to the community was not a relevant matter to be taken into account in sentencing the applicant

53. The applicant submitted that it was not open for the sentencing judge to elevate the harm to the community over and above the harm to the multiple victims. The applicant contended that he was being punished for harm done to the community when there was no evidence about such harm over and above the harm to the victims. The applicant submitted that he should not be punished more because the offence was committed in a small town, as opposed to a club in Sydney that was frequented by thousands of patrons – where there may be a broader impact than in the country. It was contended that there was impermissible double-counting or additional punishment that ought not to have occurred.

54. The respondent contended that it was open for the sentencing judge to find that one of the relevant purposes of sentencing was recognition of the harm done to the community, that being one of the purposes of sentencing set out in s 3A(g) of the Crimes (Sentencing Procedure) Act. ^[3] As noted by the sentencing judge, the offence occurred on a Sunday afternoon in a RSL Club in a quiet rural town when several members of the Molong community were present. Consistent with the acceptance of the applicant’s counsel at first instance that RSL Clubs have an important role in small rural towns, the sentencing judge observed that such clubs are a “haven for the community, a provider of work to community members, a focus of recreation for young and old”. Further, not only did the applicant commit an act of terror and violence within this environment, he utilised the small community context in which the offence occurred to attempt to secure compliance. The applicant told patrons that he knew who they were, where their “kids” were and that he would kill them if they called the police.

    3. “to recognise the harm done to the victim of the crime and the community”.

55. Drawing on observations his Honour made of the witnesses who gave evidence at trial and the contents of the victim impact statements, the sentencing judge found that the emotional toll on the community was significant. Further, both Ms Burchett and Ms Tewksbury (bartender and chef respectively) had left their jobs at the RSL Club as neither felt safe. Mr Stevenson, who had recently settled in Molong, began having nightmares of his daughter watching him burn and his daughter refused to continue to visit him. The respondent contended that the applicant had not established the first sub-ground.

Consideration of first sub-ground

56. The sentencing judge did not double-count or improperly elevate the harm to the community caused by the offending. The fact that the offence took place on a Sunday afternoon in a small country town at a club associated with leisure and relaxation was not irrelevant. It was a proper sentencing consideration in accordance with s 3A(g) of the Crimes (Sentencing Procedure) Act, and especially so because the offender appeared to leverage his knowledge of the community in attempts to make his threats more effective. Moreover, given the club was an important source of employment within the small community, the loss of employment flowing from the offence for two of the employees was clearly more significant than it would have been in a larger centre with more job opportunities. The first sub-ground is not made out.

Sub-ground 2: It was not open to the sentencing judge to find that the proximity of Mr Stevenson’s child to the offending was “aggravating in the circumstances”

57. The applicant contends that the proximity of Mr Stevenson’s child to the offending should not have been considered by the sentencing judge as a factor aggravating the objective seriousness of the offending. The evidence was that Mr Stevenson’s daughter was at all times outside the premises as the robbery took place and therefore was completely unaware of the robbery as it occurred. In order for the statutory aggravating factor pursuant to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act to be considered it was necessary for the offence to be committed in the presence of the child.

58. The applicant argues that the statutory aggravating factor must be strictly construed, and mere proximity is not enough: McLaughlin v R [2013] NSWCCA 152 at [28] citing Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [103]-[104]. Further, at common law, being in the presence of a child was not recognised as an aggravating factor, and thus it can be inferred that the common law would not recognise the proximity of the child as an aggravating factor.

59. The respondent contends that it is clear from the language used by the sentencing judge that he was not referring to the proximity of the child as being a statutory aggravating factor. His Honour found that the “proximity” of the child was “aggravating in the circumstances”. The respondent submits there was no error. The sentencing judge clearly understood where the child was at the time of the offending, which was in the playground within the adjoining beer garden. That Mr Stevenson was able to traverse the area from the main bar (where the confrontation took place) to the beer garden doors (where he was met by his daughter) on his knees, is indicative of her proximity to the offending.

60. The respondent further argues that there can be little doubt that the proximity of Mr Stevenson’s daughter to the offending bore upon the extent of the distress and fear that he experienced, referring to his victim impact statement to that effect. In those circumstances, it was open to conclude that the proximity to the child elevated the objective seriousness of the offending.

Consideration of second sub-ground

61. It is apparent from the wording used by the sentencing judge that his Honour was not purporting to refer to the statutory aggravating factor pursuant to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act in relation to this issue, ^[4] as he did not adopt the language of the provision nor did he refer to s 21A. This can be contrasted with other parts of the remarks where aggravating factors under s 21A(2) were referred to, and his Honour specifically set out the relevant sub-paragraph.

    4. “the offence was committed in the presence of a child under 18 years of age”.

62. Further, it is clear that the list of aggravating features specified in subs (2) of s 21A is not exhaustive: see s 21A(1)(c); ^[5] Turnbull v R [2019] NSWCCA 97 at [22] (Simpson AJA, Ierace J agreeing at [166]). It was open for the sentencing judge to treat the proximity of Mr Stevenson’s child as a factor which increased the relative seriousness of the offence.

    5. “(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters – […] (c) any other objective or subjective factor that affects the relative seriousness of the offence.”

63. The proximity of the child was properly taken into account by the sentencing judge as it “confirm[ed] the context within which this offence took place and what this man did”. Indeed, it would have been wrong for the sentencing judge to ignore the context of the offending being a community club in a regional town during opening hours at a time when it was likely that families including children would be around. The experience of Mr Stevenson and his child confirmed, as the sentencing judge stated, the context in which the offence was committed. The second sub-ground is not made out.

Sub-ground 3: It was not open to the sentencing judge to find that the use of a chemical “substantially” increased the objective seriousness of the offending

64. The applicant contends it was not open to the sentencing judge to find that the use of a chemical “substantially” increased the objective seriousness of the offence, whilst accepting that its use necessarily increased the level of objective seriousness.

65. The respondent submits that such a finding was “open”. The respondent pointed to the fact that the chemical incapacitated Mr Stevenson such that he was unable to see and fell to the ground. This was done for the purpose of negating the threat of a “proximate individual in a virtually empty bar”. The respondent also submitted that together with the threat to set Mr Stevenson alight, the use of the chemical carried a terrifying risk in the minds of Mr Stevenson and those in the RSL Club that Mr Stevenson could be imminently burnt alive. As the sentencing judge observed, “no one was to know whether he had a lighter or not”.

Consideration of third sub-ground

66. I am of the view that the finding that the use of the chemical substantially increased the objective seriousness of the offending was clearly open to the sentencing judge. That would be the case in any event, but the point is even more clearly available when considering the part of the remarks on sentence in which that finding was set out. The finding appeared in the part of the remarks where the sentencing judge was considering the guideline judgment of Henry. The “common” factors set out in that judgment involved neither the threat, nor use, of any chemical. The use of the chemical was thus clearly substantially more serious than the “limited, if any, actual violence” contemplated in Henry. The third sub-ground is not made out.

The sentence is otherwise manifestly excessive

67. The applicant contended that the sentence was manifestly excessive, particularly in light of the applicant’s significantly deprived Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) background which reduced his moral culpability. That background included “poor supervision, neglect, harsh physical punishment, low parental warmth, sexual abuse, exposure to a criminal lifestyle and the death of his sister”.

68. The applicant also pointed to both sentencing statistics and comparative sentences in support of this ground.

69. The applicant submitted that the sentence fell right at the top of the sentencing statistics. He submitted that the statistics showed that of the 12 offenders sentenced since 24 September 2018 who pleaded not guilty, the applicant’s sentence was the longest sentence imposed, with most offenders receiving a head sentence of around 4-6 years imprisonment. Further, of the 81 offenders sentenced before 24 September 2018 who pleaded not guilty, most offenders received a head sentence of 4 years and 6 months to 6 years imprisonment, with none receiving a sentence above 9 years imprisonment. For most of those offenders, the non-parole period varied from 2 to 4 years imprisonment, with none receiving a non-parole period above 5 years and 6 months.

70. The applicant also pointed to a number of comparative sentences all of which involved lower sentences. He also relied upon the statement of this Court in Chartres-Abbott v R [2021] NSWCCA 239 at [31] (Brereton JA, Campbell J agreeing at [47], Hamill J agreeing at [48]) as to the usefulness of comparative cases. There it was stated:

“I entirely agree that there are limitations to the use of comparative cases, that the Court must weigh the similarities and dissimilarities of the objective and subjective circumstances, and that even then a close alignment is not determinative of manifest excess. That said, in a field in which it is not uncommon to encounter the terminology that ‘the sentence imposed is so far outside the range of sentences available’, sentences imposed in like cases are illustrative of ‘the range … available’, though not definitive of it. The process of ‘instinctive synthesis’ necessarily involves an instinct informed by awareness of sentences imposed in like cases; otherwise it would be entirely idiosyncratic.”

(Footnotes omitted.)

71. In response, the respondent referred to the following passage of another judgment of this Court in Hall v R [2021] NSWCCA 220 at [132] (R A Hulme J, Leeming JA agreeing at [1], Campbell J agreeing at [137]):

“Use of so-called comparative cases in the way the applicant has sought to use them here has been the subject of criticism on many occasions. For example, in Sabbah v R (Cth) [2020] NSWCCA 89 at [132]-[135], Wilson J (with the agreement of McCallum JA and Cavanagh J) said:

‘This Court has frequently emphasised the lack of utility in relying on a series of cases, or sentencing statistics, or both, to contend that a particular range of sentence can be determined and, in turn, that the impugned sentence falls outside it and is manifestly excessive. The point has been made in, to select a very few from a very long list, Vandeventer v R [2013] NSWCCA 33 at [45]-[46]; Dang v R [2014] NSWCCA 47 at [55]; Pham v R [2014] NSWCCA 115 at [57]; MLP v R [2014] NSWCCA 183 at [41]-[44]; Ngatamariki v R [2016] NSWCCA 155 at [65]; and Naveed v R [2019] NSWCCA 149 at [63].

It is an easy thing to find a case or cases where another offender has received a lesser sentence and, by making the comparison between penalties imposed, argue that the sentence in the case at hand was too harsh.

That approach is far too glib a mechanism by which to assess the complicated task which is determining an appropriate sentence for an offender. It also falls foul of what has been said by the High Court about the use of so-called comparable cases. In Hili v The Queen; Jones v The Queen 242 CLR 520 [2014] HCA 45 at [59] the Court said, citing Dinsdale v The Queen (2000); [2000] HCA 54; 202 CLR 321 [sic] at 325 at [6] and Wong v The Queen (2001) 207 CLR 584 at 605 [58]:

“[…] 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’.”

It was held that the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must determine sentences.’”

72. In addition to these limitations, the respondent also contends that each of the cases relied upon by the applicant in truth provide little assistance as they possess several factors which distinguish them from the subject case. The respondent set out the differences in its written submissions.

73. The respondent then pointed to a number of factors which indicated why the sentence imposed was neither unreasonable nor plainly unjust.

Consideration

74. The principles to be applied in determining a ground asserting manifest excess (or inadequacy) of sentences are well known. They were collected in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

“• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this Court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

75. Further, as stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [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’."

(Emphasis in original and footnotes omitted.)

76. I am of the view that the sentence imposed on the applicant was open to the sentencing judge, being neither unreasonable nor unjust.

77. This was a particularly serious example of a robbery armed with an offensive weapon. The applicant entered a RSL Club in a regional town on a Sunday afternoon partially disguised and armed with two weapons – a tomahawk axe and a bottle of petrol. At the time, several members of the Molong community were present inside the RSL Club and at least one child was in the adjoining play area. The applicant utilised one of the weapons – spraying petrol into the face of a patron, Mr Stevenson, who was ordering a beer at the bar and threatened to set him alight. Such an experience would have certainly been terrifying for him and those near him. The petrol incapacitated Mr Stevenson such that he was unable to see, and he crawled on his hands and knees to the beer garden to look for his daughter.

78. The applicant also threatened to kill the bartender and set her alight and issued chilling threats to the surrounding patrons that he not only knew who they were, but he knew where their children were and would kill them if they called the police. The amount of money taken was not insubstantial.

79. The offence involved a degree of planning – in getting the weapons and disguise organised as well as ensuring a quick getaway to Orange.

80. The applicant was on multiple forms of conditional liberty at the time he committed the offence, being on a good behaviour bond as well as an ICO imposed 17 weeks earlier.

81. His criminal history disentitles him to any leniency. It is extensive. It includes two prior convictions for armed robbery. Over the course of the three years preceding the offence, the applicant had been released on parole on three occasions and committed further offences within months of being released.

82. He was convicted after trial, thus attracting no discount for a plea of guilty, and demonstrated no remorse.

83. There is (appropriately) no challenge to the finding by the sentencing judge that the offence “comfortably exceeded” the typical offence contemplated in Henry.

84. Whilst the sentencing judge accepted that the applicant’s moral culpability was reduced because of his deprived background, his Honour also stated that “countervailing factors such as community protection may affect the degree of mitigation”. This approach was open to the sentencing judge, and accorded with the observations of the plurality in Bugmy at [44]:

“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

(Footnote omitted.)

85. Further, the findings of the sentencing judge about personal deterrence and retribution were also open to him, as was the finding of special circumstances.

86. The maximum penalty for the offence is 20 years’ imprisonment, an important yardstick in the sentencing exercise.

87. When all these factors are considered carefully, neither the comparative sentences nor the statistics show this sentence is manifestly excessive. Not only did all the comparative sentences relied upon involve a plea of guilty, each one of them was readily distinguishable as to the objective seriousness of the offence and/or the subjective factors.

88. The sentence imposed upon the applicant was within the bounds of the wide discretion of the sentencing judge. The ground of appeal is not made out.

89. The orders I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

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Endnotes

Decision last updated: 12 July 2023