Lea-Caton v Regina
[2006] NSWCCA 285
•05/09/2006
CITATION: Lea-Caton v Regina [2006] NSWCCA 285 HEARING DATE(S): 5 September 2006 JUDGMENT OF: Giles JA at 19; Sully J at 1; Latham J at 20 EX TEMPORE JUDGMENT DATE: 09/05/2006 DECISION: Leave to appeal against sentence granted; Appeal against sentence dismissed LEGISLATION CITED: Crimes Act 1900 PARTIES: Stuart Wayne Lea-Caton
ReginaFILE NUMBER(S): CCA 2006/1744 COUNSEL: P. Barrett - Crown
S. Kluss - ApplicantSOLICITORS: S. Kavanagh - Crown
Ross Hill & Associates - ApplicantLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/0057 LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 9 December 2005
2006/1744
5 September 2006GILES JA
SULLY J
LATHAM J
1 SULLY J: Mr Stuart Wayne Lea-Caton applies for leave to appeal against sentences of imprisonment passed upon him in the Sydney District Court on 9 December 2005.
2 Mr Lea-Caton was presented before the Sydney District Court on 7 April 2005 and was so presented upon an indictment containing two counts. Count one charged the applicant with having taken part in a robbery while being armed with a dangerous weapon. Such an offence contravenes s 97(2) of the Crimes Act 1900 and it attracts upon conviction a statutory maximum penalty of relevantly imprisonment for twenty-five years. Count 2 in the indictment also charged a robbery whilst armed with a dangerous weapon and it attracted upon conviction the same statutory maximum penalty.
3 The applicant asked that there be taken into account in connection with his sentencing on the two indictable matters a number of associated offences. That was done in the form of a grouping of the additional offences into three appropriate schedules.
4 The first of those schedules, the offences enumerated in which were taken into account in connection with the sentence passed on count one, detailed five counts of robbery being armed with a dangerous weapon.
5 In connection with the sentencing upon count two there were, as I have said, two further schedules. The first of them embraced two charges; one being the taking and driving of a conveyance without consent; and the other, a charge of allowing himself to be carried in a conveyance without consent. The separate schedule, the contents of which were taken into consideration in respect of the sentencing on count 2, embraced, also, two additional charges, each being a charge of possession of a prohibited drug, namely, cannabis.
6 The applicant pleaded guilty to each of the counts in the indictment and in due course he was sentenced as follows.
7 Upon the offence charged in count 1 and taking into account the associated scheduled matters, he was sentenced to imprisonment for a non-parole period of five years to commence on 9 October 2005 and to expire on 8 October 2010 with a total head sentence of eight years to commence on 9 October 2005 and to expire on 8 October 2013.
8 In connection with count 2, a non-parole period of four years to commence on 9 October 2007 and to expire on 8 October 2011 was set, the head sentence being eight years to commence on 9 October 2007 and to expire on 8 October 2015.
9 The upshot of that pattern of sentencing was that in respect of counts 1 and 2, and taking into consideration all of the associated matters, a head sentence of ten years and a non-parole period, effectively, of six years were set.
10 The aspect of that sentencing exercise which has given rise to the present application, and the only aspect of the sentencing exercise which is really put in contest in the present application, concerns the starting date of the sentence imposed for the armed robbery and associated matters. Those sentences were dated so as to commence effectively on 9 October 2005, that is to say, immediately after the expiration on 8 October 2005 of the non-parole period component of sentences which had been earlier passed upon the applicant in the Drug Court.
11 The effect of the total accumulation of the armed robbery sentences upon the relevant component of the Drug Court sentences has exposed the applicant to a head sentence of slightly more than twelve years with a corresponding increase in the total effective non-parole period.
12 It is conceded in the submissions put for the applicant, and in my respectful view correctly conceded, that there is no identifiable error in the reasoning which brought the learned primary Judge to the particular sentence which he passed in connection with counts 1 and 2 in the indictment before him. It is contended, rather, that his Honour fell into error by accumulating the end result of the sentencing on counts 1 and 2 wholly upon the sentences earlier passed in the Drug Court. The effect of his Honour’s having done so, it is submitted, offends the principle of totality in that it exposes the applicant to an effective sentence greater than what is reasonably proportionate to the entirety of his demonstrated criminality.
13 It seems to me that the correct starting point for a consideration of that submission is the course of events in the Drug Court. It is not necessary to detail them in any very great detail, but it is useful to observe that the applicant came under the tutelage of the Drug Court and was admitted to the programmes run by the Drug Court. In circumstances the detail of which is not of present moment, he broke the conditions attached to his membership of the Drug Court programme and was called up, effectively, by the Drug Court for sentence. The sentences passed upon him in the Drug Court, therefore, were imposed as a proper punishment for the matters within the remit of the Drug Court and have nothing to do with the matters that came before the District Court in 2005.
14 The learned primary judge who came to sentence the applicant in the District Court was obliged, as it seems to me, to fashion the sentences to be passed in the District Court in such a way as made clear that the sentences imposed in the Drug Court were not, as it were, simply subsumed into the District Court sentences with the effect either that the Drug Court matters were not effectively punished, or that the proper punishment of the District Court matters was attenuated more than was proper in accordance with correct principle correctly applied.
15 It is not necessary, having regard to the narrow focus of the argument made in support of the present application, to go into a great deal of detail about the offences with which the District Court was called upon to deal. Suffice to say that there was a succession, over a comparatively short time, of very serious armed robberies. It is trite, perhaps, in the circumstances of this case to say, but there is no harm in saying it again: armed robbery with a sawn-off shotgun or with any other weapon is one of the most serious offences in the criminal calendar. It is equally trite, but again it might be useful to say it one more time, that offences of that character are to be dealt with with all proper severity, and certainly so in a case which involves a succession of such offences.
16 In the course of argument in this Court there were exchanges between the Bench and the Bar to the point where it was put, and I respectfully think correctly so, that the essence of the present application was that the intuitive response of this Court ought to be that the end result achieved by the sentencing structure adopted in the District Court simply yielded a result that on its face ought to offend the Court’s sense of the proper requirements of totality.
17 For myself I can respond to that way of putting the argument in support of the application by saying simply that I am wholly unpersuaded by it. That is not to disparage the prospects for rehabilitation which the primary sentencing Judge expressed himself as perceiving in the applicant’s case. It is simply to say that the integrity of the sentences passed in the Drug Court must be preserved, and with it a proper sentencing in respect of extremely serious offences of armed robbery committed, as I have said, in number and over a comparatively short time.
18 Having regard to all of those matters, and it not being controversial that there is no other particular error demonstrable in what was done by the primary Judge in the District Court, the present application for leave to appeal against sentence ought be granted but the appeal against sentence itself ought to be dismissed.
19 GILES JA: I agree with the reasons given by Sully J that leave should be granted but the appeal should be dismissed.
20 LATHAM J: I agree with the orders proposed by Sully J and the reasons provided thereto.
21 GILES JA: Those will therefore be the orders of the Court.
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