Hudson v The Queen

[2016] NSWCCA 30

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Hudson v R [2016] NSWCCA 30
Hearing dates:	1 March 2016
Decision date:	07 March 2016
Before:	Bathurst CJ at [1]; Hall J at [2]; R A Hulme J at [3]
Decision:	1. Leave to appeal against sentence granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal – appeal against sentence – armed robbery – no error in assessment of objective seriousness – offence involved extensive planning – different conclusions reached by sentencing judges of co-offenders does not reveal error – assessment of “well above” the middle of the range open to be made – sentence not manifestly excessive – quoting entire victim impact statement in sentencing remarks did not represent undue regard – inadvertent misstatement of criminal history of no material consequence – lengthy sentence required despite unfortunate upbringing – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) s 97(2)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Mulato v R [2006] NSWCCA 282 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Millwood [2012] NSWCCA 2
Category:	Principal judgment
Parties:	Damien Lee Hudson (Applicant) Regina (Respondent)
Representation:	Counsel: Ms M Avenell (Applicant) Mr H Baker (Crown)   Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):	2012/370330
Decision under appeal	Court or tribunal: District Court Date of Decision: 9 October 2014 Before: McLoughlin DCJ File Number(s): 2012/370330

Judgment

1. BATHURST CJ: I agree with R A Hulme J.

2. HALL J: I agree with R A Hulme J.

3. R A HULME J: Damien Lee Hudson seeks leave to appeal against a sentence of 10 years with a non-parole period of 7 years 6 months imposed upon him in the District Court at Sydney on 9 October 2014 for an offence of robbery whilst armed with a dangerous weapon committed at the Stockton Bowling Club on 26 August 2012.

4. The offence is contrary to s 97(2) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 25 years.

5. Mr Hudson ("the applicant") raises two grounds of appeal, one asserting that the learned sentencing judge erred in assessing the seriousness of the offence and another asserting that the sentence is manifestly excessive.

Facts

6. The applicant pleaded not guilty but was convicted after a relatively short trial. The facts for the purpose of sentencing were not disputed. The following summary was helpfully provided in the Crown’s written submissions:

“The applicant along with two co-offenders, Peter Laupama and Scott Lynch, planned and carried out an armed robbery on the Stockton Bowling Club where Lynch worked as a barman. They planned for it to take place on the night of an annual charity function when Lynch was on duty. At about 10pm trading ceased, the patrons left and the club was secured. Lynch and another employee, Ms Susan Stirrat, remained behind to empty the poker machines, to count the tills and put the money in the safe. At about 10.23pm Lynch called the applicant to signal the start of the robbery. Immediately following this the applicant and Laupama smashed through the back doors wearing disguises and armed with shotguns. They ran through the club and pretended to hold up Lynch. Lynch directed them to the office area where Ms Stirrat was counting the money. The two men confronted her and stole $34,520. They then fled the scene in a stolen car which they burnt-out a short distance away before making their escape. Lynch provided Police with a false statement and then met the co-offenders at the applicant’s house for his cut of the proceeds. Two months later Police arrested Lynch and interviewed him. Lynch admitted his involvement in the robbery and implicated the applicant and Laupama. The applicant was arrested on 28 November 2012.”

7. The planning for the robbery involved the following steps, again usefully summarised in the Crown’s written submissions:

“i.   Six months before the offence the applicant approached and then recruited an inside man (Lynch);

ii.   Several months before the offence they discussed and identified the most advantageous time to rob the club (the “Jelly Blubber Ball” – “the busiest day in the calendar”);

iii.   Two weeks before the robbery they undertook a reconnaissance of the club, where they identified the best time to enter the club (at the end of the night once Lynch had emptied the poker machines), the point of access (the back door which was not covered by a security camera) and the path to take once inside;

iv.   On the day of the robbery they gave money and instructions to Lynch to acquire a disposable pre-paid phone in a false name and to call and then hang up as the go signal for the robbery;

v.   They acquired two shot guns, disguises and a car they could dispose of after the robbery;

vi.   Once that signal was given they broke in through the back door and robbed the club. During the robbery they took the disposal phone from Lynch to ensure it wouldn’t be found;

vii.   Immediately after the robbery they burnt out the getaway car and disposed of one of the shot guns; and

viii.   Several days later (in accordance with prior arrangements) Lynch and the others reunited at the applicant’s house to divide the money.”

8. A relatively lengthy victim impact statement by Ms Susan Stirrat was tendered and quoted in full in the judge’s sentencing remarks. It described a significant level of psychological harm she experienced and continues to endure as a result of the offence. One aspect she emphasised was the sense of betrayal she felt that one of the offenders was a co-worker with whom she thought she had a good working and social relationship.

Subjective features

9. The applicant was born in 1978. He was aged 34 at the time of the offence.

10. He has a criminal record that commenced in the Children’s Court when he was aged 16. It is only necessary to refer to the following offences which have some significance on this application.

Year	Offence	Total sentence
1994	Robbery in company	Recognizance
1995	Violent disorder	Probation
1996	Assault (x 8) and Malicious damage (x 3)	Probation
1997	Robbery in company and Assault occasioning actual bodily harm (Break and enter with intent and Resisting arrest taken into account)	2 years imprisonment
2000	Assault occasioning actual bodily harm; Assault; and Damaging property (x 2)	6 months imprisonment
2004	Assault and Damaging property	Bond
2005	Assault occasioning actual bodily harm and Stalk/intimidate with intent to cause fear of harm	15 months imprisonment
2007	Assault occasioning actual bodily harm in company and Assault occasioning actual bodily harm	14 months imprisonment
2009	Assault occasioning actual bodily harm; Assault police officer in the execution of the officer’s duty; Use offensive weapon to prevent apprehension; Failing to appear in court; and a serious driving offence	6 months imprisonment
2010	Possess unregistered firearm	Bond

11. A psychiatrist’s report was tendered in the sentence proceedings. It set out a history reported by the applicant to the author of some significant matters that occurred during his childhood and early adult years. They are summarised in the written submissions of the applicant’s counsel, Ms Avenell:

“Sexual abuse when he was 6; physical abuse by his step-father; lack of parental support; suffering ADHD; witnessing another boy’s suicide on train tracks and a homicide at 14-15; no or limited education from about 14; homelessness as a teenager; his father’s suicide on Mr Hudson’s nineteenth birthday; and attempt suicide himself. Mr Hudson started drinking at about 16, and as an adult abused alcohol, drugs and gambled. His mother had psychiatric admissions and his brother suffered schizophrenia.”

12. A Pre Sentence Report by a Community Corrections Officer referred to the applicant’s response to supervision by Juvenile Justice and subsequently as an adult pursuant to good behaviour bonds, community service orders and parole. She noted that the majority had been breached by way of re-offence or non-compliance. She added:

“Case management has focused on alcohol and other drug treatment and anger management but to date the offender has been non-compliant, hindering attempts at interventions and treatment to address his criminogenic issues.”

13. The officer made the observation that the applicant had in the past “refused to engage in case management strategies to address his anger management issues and collateral checks revealed the offender appears to self-medicate with illicit substances”.

Ground 1 - McLoughlin DCJ erred in assessing the seriousness of the offence

14. Counsel for the applicant drew attention to the following passage in the remarks on sentence:

“The crime is unfortunately prevalent and very serious. The commission of this offence, involved extensive planning, threats of violence and no consideration for the effect it may have on the victims and a considerable amount of money was stolen. …

Having regard to the Henry guideline judgment, however, I regard this offence as far more serious because of the age of the offenders, the planning, the threats of violence, the use of firearms and the amount of money taken.

The offender knew at the time what to take and how to take it and I regard the offence as well above the middle of any scale constructed for such offences, and it must result in a lengthy prison sentence.” (Emphasis added)

15. It was submitted that referring to the planning for the offence as “extensive” was an overstatement. I am not persuaded that is correct having regard to the features set out above (at [7]).

16. Issue was also taken with the judge’s reference to “violence” being “extensive”. The emphasised passage in the above extract from the sentencing remarks could be read as indicating his Honour thought the violence was extensive; but I believe it should be read as indicating that “extensive” was confined to the planning and his Honour was then immediately referring to the fact that the offence also involved threats of violence. Such a finding is unimpeachable given that Ms Stirrat gave evidence of how she was confronted in a small office by an offender (the applicant) who was wearing dark clothes and a balaclava and who was armed with a shotgun. She was told not to go anywhere. The offender took money from the safe, telling Ms Stirrat “Don’t you look at me”. He then grabbed her, pushed her to the corner and told her “get down on your knees, face the corner”. He demanded to know whether there was any more money before telling her to “stay there”.

17. Counsel for the applicant also submitted that the reference by the judge to “no consideration for the effect it [the violence] may have on the victims” was simply an observation that could be made about any armed robbery offence. I readily accept that this is usually the case but it does not mean that an offender’s selfish disregard for the impact of such an offence upon victims is irrelevant.

18. Counsel accepted the correctness of the judge’s finding that the offence was more serious than the typical offence described in the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 but argued that it did not warrant the characterisation of being “well above” the middle of the range of seriousness. Reference was made to the finding of the judge who sentenced the co-offender Laupama that the offence was at the “higher end of the lower range”.

19. As counsel for the Crown correctly pointed out, the assessment of the objective seriousness of an offence is a discretionary evaluation classically within the role of sentencing judges which is not ordinarily susceptible to interference on appeal: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J, as her Honour then was).

20. The discretionary nature of the exercise explains how one judge might come to a certain view which differs, within reason, to the view of another judge. Where the difference in assessment is significant, as in the present case, the question must be whether the assessment in respect of the sentence under consideration was open to be made. It is not the case that error must be inferred because of the extent of the departure.

21. In my view, the degree of planning for the offence; that it was committed by three offenders; that two potentially lethal weapons were used; that a substantial sum of money was taken; that the victim was vulnerable (a woman who in reality was alone in the club at night with, effectively, three armed robbers); that significant psychological distress was caused; and that it caused significant financial stress for the club itself were all features that rendered the offence particularly serious. Moreover, counsel appearing for the applicant in the District Court accepted that the offence involved “the highest degree of criminality”. He conceded that it was “disgraceful”; it was “organised”; it was committed “in company”; and “guns were used”.

22. None of the complaints raised under this ground have been made good.

Ground 2 – The sentence is manifestly excessive

23. In addition to the matters raised under the previous ground, counsel for the applicant relied upon some further matters in support of her contention that the sentence is manifestly excessive.

24. It was submitted that the judge gave “undue regard” to the victim impact statement because he quoted it in full in his sentencing remarks. It was contended that there was nothing especially out of the ordinary in the impact this offence had upon Ms Stirrat and that she seemed to be more affected by the role played by her co-worker. It was acknowledged that she was required to give evidence in the applicant’s trial but it was noted that such evidence was quite brief (six pages of transcript with cross-examination occupying a single page).

25. I do not agree that by reading the entire victim impact statement the judge gave it “undue regard”. Such a complaint is not established simply because the document was relatively lengthy and thereby occupied a significant portion of the transcript of the judgment. The statement had not been read out when it was tendered and so I see nothing untoward in the judge reading it out in full. Public ventilation of the effect upon a victim of a serious crime of violence should not be the subject of criticism. Significantly, all that the judge said about it after having read it was: “I give it statutory regard”. The impact of the offence upon Ms Stirrat was not a factor that his Honour mentioned when explaining his finding as to the relative seriousness of the offence.

26. The fact that Ms Stirrat’s evidence at the trial might have been brief does not provide a measure of the impact having to do so might have had upon her. There is nothing to indicate she was aware at any time before the trial that there would be little or no challenge to her evidence.

27. Criticism was made of his Honour’s reference to the applicant as “no stranger to violence, weapons or robbery” and later, “it is his third robbery offence” and “this is his third robbery offence with the use of weapons”. It was submitted that the repetition of reference to the applicant’s history of robbery offences suggests that it bore strongly on his determination of the appropriate sentence. And the last reference to this being a third robbery with the use of weapons was submitted to be wrong.

28. The applicant’s criminal history has been set out earlier. It is patently obvious that he has been a recidivist violent offender. The present matter constituted his third robbery offence but there have been many other offences of a violent nature. He has been imprisoned repeatedly with no deterrent effect and he has not responded to supervision within the community. It was entirely appropriate for his Honour to emphasise such features as bearing upon the need for a strongly deterrent sentencing response. The reference to a “third robbery offence with the use of weapons” was not literally correct but the two components of the statement are both reflected in the applicant’s history. If the judge had referred to a “third robbery offence and a third offence involving a weapon” there could be no complaint. In my view, at worst, this was an inadvertent misstatement of no material consequence.

29. Reference was made to the various unfortunate experiences in the applicant’s early life (see above at [11]) and R v Millwood [2012] NSWCCA 2 was cited as an example of how such a background was relevant to the assessment of sentence. The circumstances of Mr Millwood's upbringing were not dissimilar to the present applicant. The Crown in that case had submitted that "there is little in the circumstances of the respondent that assist him by way of mitigation". Simpson J (as her Honour then was) rejected the submission and her response included the following:

"[69] … Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. …"

30. Bugmy v The Queen [2013] HCA 37; 249 CLR 571 is well-known for its discussion of the significance on sentence of an offender having emanated from a background of tragedy and deprivation. In the plurality judgment at [44] there is reference to the various purposes of punishment and the fact that a feature of a particular case might reduce an offender’s moral culpability whilst at the same time increasing the emphasis to be given to protection of the community. In the present case the various unfortunate experiences and disadvantages in the applicant’s past might serve to explain his entrenched abuse of alcohol and drugs. However, whilst in that way it might explain his frequent interaction with the criminal justice system, there was also a heightened need for personal deterrence and community protection. Further, it is important to bear in mind that whilst the applicant’s experiences in early life might justifiably evoke sympathy, it was necessary for the sentence to be proportionate to the gravity of the crime: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15] (Spigelman CJ).

31. The sentencing judge referred to the personal history set out in the psychiatric report in some detail. While he did not accept various aspects of the applicant’s account of the offence, he appears to have accepted without question the account of his earlier life. For example, his Honour considered that a lengthy sentence was called for “despite his upbringing and the difficulties he has had in his youth”. This was a conclusion well open to his Honour in the exercise of his sentencing discretion.

32. It is clearly the case that the index offence is substantially more serious than any offence for which the applicant has been sentenced in the past and the present sentence is by far the longest that has been imposed upon him. Nevertheless it was a serious example of an offence for which the statutory guidepost is a high maximum penalty of imprisonment for 25 years. In my view, it cannot be concluded that there was any miscarriage in the manner in which the sentencing discretion was exercised.

Orders

33. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

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Decision last updated: 07 March 2016