Lobsey v R

[2012] NSWCCA 239

Court of Criminal Appeal

New South Wales

Case Title:

Gary Wayne Lobsey v R

Medium Neutral Citation:

[2012] NSWCCA 239

Hearing Date(s):

24 October 2012

Decision Date:

21 November 2012

Jurisdiction:

Before:

McClellan CJ at CL at [1]
Bellew J at [2]
Button J at [35]

Decision:

1.Extend time in which to file a notice of intention to seek leave to appeal;

2.Grant leave to appeal;

3.Dismiss the appeal.

Catchwords:

CRIMINAL LAW - appeal - robbery inflicting grievous bodily harm - significant injuries occasioned to elderly victim - whether description of sentencing judge that the offending was "vicious and cowardly" was open - lack of intent on the part of the applicant to inflict injury - previously lengthy criminal history - maximum penalty of 25 years imprisonment - sentence of 7 years imprisonment with a non-parole period of 5 years imposed -- whether sentence manifestly excessive

Legislation Cited:

Crimes Act 1900

Cases Cited:

Han v R [2009] NSWCCA 300
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520

Texts Cited:

Category:

Principal judgment

Parties:

Gary Wayne Lobsey - Applicant
Crown - Respondent

Representation

- Counsel:

R Wilson - Applicant
J Pickering - Crown

- Solicitors:

Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

File number(s):

2009/8133

Decision Under Appeal

- Court / Tribunal:

- Before:

Coolahan DCJ

- Date of Decision:

20 August 2009

- Citation:

- Court File Number(s)

Publication Restriction:

None

JUDGMENT

1. McCLELLAN CJ at CL: I agree with Bellew J.

2. BELLEW J: The applicant Gary Wayne Lobsey seeks leave to appeal against a sentence imposed in the Newcastle District Court on 20 August 2009 in respect of a charge of robbery inflicting grievous bodily harm pursuant to s 96 of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment.

3. The applicant also seeks an extension of time within which to file the notice of intention to seek leave to appeal. That application is not opposed by the Crown.

THE FACTS

1. A statement of agreed facts was before the sentencing judge. The facts can be summarised as follows.

2. At about 1pm on New Years Day 2009, Audrey Clarke ("the victim") who was then 73 years of age, was about to enter a vehicle belonging to her sister which was parked in the car park of the Woolworths supermarket at Mayfield. At the time, the victim and her sister had just completed their grocery shopping.

3. As the victim was about to get into the vehicle, with her handbag over her right shoulder, the applicant pulled her bag from behind. As she was pulled backwards she resisted, but the force exerted by the applicant was such as to cause her to fall heavily to the ground. As she hit the ground, she felt immediate pain in the region of her left hip and left arm but nevertheless kept hold of the bag. Despite the victim's resistance, the applicant continued to pull on the bag, as a consequence of which the victim was dragged across the bitumen surface of the car park. A strap on the bag then broke, enabling the applicant to obtain possession of it and flee the area. Within the bag was a sum of $400 in cash, two key cards, a cheque book, a diary, and a set of keys.

4. After the applicant had fled, the victim attempted to stand up. When she did so, her left leg buckled underneath her and she felt what she subsequently described as "excruciating pain". A number of areas of skin on her arm were grazed and/or broken, causing her arm to bleed.

5. The victim's sister, along with staff from Woolworths and members of the public, came to the victim's aid. An ambulance and police were summoned, and the victim was immediately conveyed to the John Hunter Hospital at Newcastle. Upon admission to the emergency department of the hospital, she was diagnosed as having sustained a fracture of the neck of her left femur. This necessitated the victim undergoing emergency surgery the following morning, in the form of a total replacement of her left hip.

6. At the time of the offence, Nicole Berg was the girlfriend of the applicant. In an interview with police, Ms Berg stated that she had seen the applicant at about 10am on 1 January 2009, and that having left her, he later returned carrying a handbag. She told police that she did not question the applicant as to his possession of the bag, but that she saw the applicant remove money from it. Shortly after this the applicant again left, before returning with a quantity of heroin, some of which he was then seen to use.

THE PROCEEDINGS BEFORE THE SENTENCING JUDGE

1. The applicant had pleaded guilty before the Local Court and had adhered to that plea when he appeared before the sentencing judge. In addition to the agreed facts, the applicant's criminal history was tendered. That history was lengthy, and included offences of violence. Two photographs of the victim, taken following her admission to hospital, were also tendered. They showed abrasions and grazing to her arm, consistent with her having been dragged along the bitumen surface of the car park in the manner described in the facts. The photographs obviously did not show the victim's primary injury, namely the fracture of the femur, but there was no issue that this injury was caused by the applicant's commission of the offence.

2. The applicant gave short evidence before the sentencing judge. In the course of doing so he expressed contrition, which his Honour ultimately accepted as genuine. The applicant also accepted that the victim's injuries were the result of his actions, but said that he had not intended to cause any injury. He said that he had committed the offence for money in order to support his drug addiction. None of this evidence was challenged by the Crown in cross examination.

3. The applicant also gave evidence that since being taken into custody on the day following the sentence (some 8 months prior) he had taken steps to obtain his School Certificate, and had undertaken a course in drug and alcohol addiction. However, he agreed in cross examination that in late 2004 he had been sentenced to a period of imprisonment in respect of an offence of assault occasioning actual bodily harm and that whilst on parole for those matters he had undertaken drug and alcohol counselling which included his attendance at meetings at Alcoholics Anonymous and Narcotics Anonymous. He agreed that he had since relapsed, and said that he had been a user of heroin for six years.

THE SENTENCING JUDGEMENT

1. Having set out the facts, the sentencing judge described the offence as a "very serious one" which called for a significant full time custodial sentence. His Honour spent some time detailing what he described as the applicant's "significant criminal history".

2. His Honour accepted the applicant's evidence that he did not intend to cause any injury to the victim. However, he observed that it would have been obvious to the applicant that the victim was an elderly lady. His Honour concluded that her injuries had resulted from "gross recklessness" and a "complete lack of care" on the part of the applicant.

3. Although he accepted the applicant's expressions of contrition as genuine, his Honour expressed doubt as to the applicant's level of insight into his offending, as well as his resolve for the future. He was therefore unable to reach any conclusion about the applicant's prospects of rehabilitation.

4. His Honour concluded that the objective seriousness of the offence was "perhaps just below the mid-range" and proceeded to find special circumstances, based upon the applicant's age and his need for rehabilitation. At the same time, his Honour observed that nothing could detract from the objective seriousness of the offence and that the applicant's criminal history required added prominence to be given to specific deterrence.

5. His Honour proceeded to impose a non-parole period of 5 years imprisonment, with a total term of 7 1/2 years imprisonment, both of which were expressed to commence on 2 January 2009, being the date upon which the applicant was taken into custody.

THE GROUNDS OF APPEAL

Ground 1 - The sentence was manifestly excessive

Ground 2 - The sentencing judge erred in finding facts adverse to the applicant which it was not open to him to find, namely:

(a)the serious injuries caused to the victim were the result of the applicant dragging her along the ground;

(b)that the actions of the applicant constituted a "vicious, cowardly attack" upon the victim.

1. Ground 2(a) was not pressed at the hearing. It is convenient that grounds 1 and 2(b) be dealt with together.

2. Relevant to ground 2(b), his Honour said the following:

   "As can be seen, the offence is a very serious one. The victim was an elderly and vulnerable woman. She resisted her handbag being stolen, but in the teeth of that resistance, the offender persisted to the extent that he dragged her along the ground, resulting in the serious injuries to her. Photos of the victim have been tendered. Apart from the injuries it is also obvious, and would have been obvious to the offender, that she is an elderly lady. This was a vicious, cowardly attack by a fit young man on a defenceless elderly woman. It calls for a significant full time custodial sentence".

3. It was submitted on behalf of the applicant that although it was open to the sentencing judge to find that the applicant's conduct was "cowardly", it was not open for him to find that it was "vicious". Counsel for the applicant went so far as to say that his Honour's use of the word vicious was a factual finding which was both "overly emotive and inaccurate". In written submissions, the Crown advanced a definition of the word "vicious" as meaning "...something that is especially cruel, harsh or violent".

4. In my view, there is no substance in the submission made on behalf of the applicant. His Honour's description of the attack was neither overly emotive, nor inaccurate. The actions of the applicant in grabbing the handbag of an unsuspecting 73 year old woman, pulling her to the ground, and then dragging her across the bitumen surface of a car park with sufficient force to break the strap, thereby causing the victim significant injury, are properly regarded as cruel, harsh and violent, and therefore vicious. To reach a conclusion to the contrary would be to ignore the reality of what occurred.

5. It follows that ground 2(b) is not made out.

6. In respect of ground 1, the submissions of counsel for the applicant were centred upon:

   (i)suggested mitigating factors;

   (ii)the absence of any intention on the part of the applicant to cause injury;

   (iii)other sentences imposed in respect of offences contrary to ss 96 and 98 of the Crimes Act.

7. As to the first of those submissions, the mitigating factors relied upon included:

   (a) the absence of any planning;

   (b) the small amount of money which was taken;
   (c) the fact that the applicant was not in company; and
   (d) the fact that there was no weapon.

8. Not all of these factors were the subject of submissions to the sentencing judge. In any event, in my view they do not, whether singularly or in combination, undermine the sentencing judge's characterisation of the seriousness of the offence as falling slightly below the mid range.

9. Counsel for the applicant placed particular emphasis on the fact that (as his Honour accepted) the applicant had no intention to cause any injury to the victim. He submitted that such an absence of intention was an important factor bearing upon the assessment of the objective seriousness of the offence. However, intention to cause injury is not an element of the offence under s. 96 with which the applicant was charged. Had there been evidence of such an intention on the part of the applicant, one presumes that he would have been charged with some other offence of which intention was an element.

10. Moreover, and accepting that the applicant did not intend to injure the victim, the injuries which were the result of his offending were nevertheless a relevant matter for the sentencing judge to take into account. There is nothing contained within his Honour's reasons which would suggest that he ascribed undue weight to that factor in the sentencing process.

11. Finally, the sentences to which this Court's attention was drawn for comparative purposes are in my view of limited value. There have been a number of observations made, by this Court as well as by the High Court, concerning the care which must be exercised when engaging in such comparisons (see for example Han v R [2009] NSWCCA 300 per Campbell JA at [2] and Rothman J at [34]; see also Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53] - [56]). A similarly careful approach must be exercised when analysing sentencing statistics. Moreover, the need for a careful approach is heightened in the present case, where some of the sentences with which a comparison was sought to be drawn were imposed for offences different to that with which the applicant was charged.

12. In the present case, the applicant appeared for sentence having pleaded guilty to an offence carrying a maximum penalty of 25 years imprisonment. He did so in circumstances where he had a criminal history dating back some 8 years, which included entries for offences of violence including:

    (i) assault occasioning bodily harm;
    (ii) common assault;
    (iii) resisting police officers in the execution of their duty;

    (iv) destroying or damaging property;

    (v) contravening apprehended domestic violence orders; and

    (vi) using an offensive weapon to prevent detention.

13. Counsel for the applicant described the offending in the present case as amounting to a "forceful bag snatch". That, in my view, is an overly charitable description, and one which fails to give proper recognition to the objective seriousness of offending which left an innocent and elderly victim with significant injuries.

14. The nature of that offending, particularly in light of the applicant's criminal history, called for a significant measure of specific deterrence. Questions of general deterrence, as well as the need to protect the community from such behaviour, were also important factors in determining the appropriate sentence.

15. The mitigating features were essentially limited to the early plea of guilty and the applicant's expressed contrition, which his Honour found was genuine. It is clear from the sentencing remarks that his Honour had proper regard to both of those matters.

16. For all of these reasons I am not persuaded that the sentence was manifestly excessive and accordingly, ground 1 has not been made out.

ORDERS

1. I propose the following orders:

   (i) extend the time in which to file a notice of intention to seek leave to appeal;
   (ii) grant leave to appeal;
   (iii) dismiss the appeal.

2. BUTTON J: I agree with Bellew J.

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