O'Hare v The Queen

[2011] NSWCCA 252

Court of Criminal Appeal

New South Wales

Case Title:	O'Hare v R
Medium Neutral Citation:	[2011] NSWCCA 252
Hearing Date(s):	17 November 2011
Decision Date:	25 November 2011
Jurisdiction:
Before:	Whealy JA at [1] Simpson J at [2] Hoeben J at [39]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - plea of guilty - single charge aggravated robbery contrary to s 95(1) Crimes Act 1900 -circumstance of aggravation use of corporal violence - finding of special circumstances - whether undue weight placed on applicant's criminal record - prior conviction for manslaughter - similarity between offences - use of violence - drug and alcohol addiction - interstate criminal record - no error demonstrated - whether sentence manifestly excessive - sentence within available range - leave granted - appeal dismissed
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Thomson R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Texts Cited:
Category:	Principal judgment
Parties:	Jeremy O'Hare (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel W Hunt (Applicant) S Bowers (Respondent)
- Solicitors:	Solicitors Legal Aid (Applicant) Director of Public Prosecutions (Respondent)
File number(s):	09/249956
Decision Under Appeal
- Court / Tribunal:
- Before:	Syme DCJ
- Date of Decision:	28 September 2010
- Citation:	N/A
- Court File Number(s)	09/249956
Publication Restriction:

JUDGMENT

1. WHEALY JA : I agree with Simpson J

2. SIMPSON J The applicant seeks leave to appeal against the sentence imposed upon him in the District Court in Wagga Wagga on 28 September 2010, following his plea of guilty to a single charge of aggravated robbery. The circumstance of aggravation was the use of a corporal violence.

3. Section 95(1) of the Crimes Act 1900 prescribes a maximum penalty of imprisonment for 20 years for the offence.

4. Syme DCJ sentenced the applicant to imprisonment for 4 years and 10 months, commencing on 12 November 2009, and expiring on 12 March 2014, with a non-parole period of 3 years and 4 months, which will expire on 11 March 2013. In so sentencing the applicant, her Honour allowed, in recognition of the plea of guilty, a reduction in the sentence she otherwise would have imposed, of 25%: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383.

5. She also found, pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act ") special circumstances warranting departure from the statutory ratio there prescribed between the head sentence and the non-parole period. The reason for this was the applicant's need for supervision on release.

The facts

1. The facts were put before her Honour by way of an agreed statement. They may be briefly summarised.

2. The offence was committed on 9 November 2009. At about 4.30 pm on that day the applicant entered a toy shop in Wagga Wagga, at which he was a regular customer, and at which he had recently made some purchases with which he was (or said he was) dissatisfied. The shop assistant, the victim, was known to the applicant. The victim entered the office area of the store. The applicant grabbed him from behind and punched him to the face and head several times, and twice kicked him in the stomach. He demanded that the victim open the safe and give him money. While attempting to open the safe, the victim dropped the key. The applicant kicked him in the buttocks. He made general accusations against the victim, apparently to do with his previous purchases. He verbally threatened the victim with a gun (although he did not produce, and did not have, a gun). The victim believed that he was armed with a gun and feared for his life.

3. The victim walked from the safe, in an attempt to escape. The applicant took hold of his shirt, and then blocked his exit. He pushed the victim in the direction of the cash register in the store. A female customer with a child was in the store, as was another (female) employee. At the applicant's direction, the victim unlocked the cash register, and gave the applicant the till. The applicant removed notes to the value $1,370. He swung a punch at the victim's head, but missed. He ran from the store.

4. The applicant was arrested three days later, on 12 November 2009. None of the money was recovered. The applicant told police that he had spent the stolen money on poker machines, alcohol and cigarettes.

The applicant ' s personal circumstances

1. Evidence of the applicant's personal circumstances was put before the court by way of a Pre-Sentence Report dated 14 May 2010, together with an earlier Pre-Sentence Report dated 16 July 2003, and a psychological report dated 19 June 2003. The applicant did not give evidence and no other oral evidence was called. Also before her Honour was evidence concerning a prior offence committed by the applicant, of manslaughter (in 2001) in respect of which he entered a plea of guilty and was sentenced by Whealy J (as his Honour then was) on 25 July 2003, to imprisonment for six years, with a non-parole period of 3 years and 6 months. The non-parole period expired on 22 November 2006, on which date the applicant was released on parole. It was in respect of this sentencing that the 2003 Pre-Sentence Report and psychological report were prepared. The Remarks on Sentence made by Whealy J were included in the material provided to the sentencing judge.

2. The applicant was born in August 1979. He was 22 years of age when he committed the offence of manslaughter, 30 when he committed the present offence. Whealy J was told that, at the time of the manslaughter, he had no prior convictions, other than for three "minor summary offences resulting in fines" and he was treated, for the purposes of that sentencing, as a first offender. Evidence now before this Court tells a rather different story, disclosing a significant criminal history in Victoria, principally of offences of dishonesty such as theft, and motor vehicle offences, but extending to burglary (three offences) and obtaining property by deception, and one offence of assaulting police. A good deal of this record was incurred by the applicant as a juvenile, and he was dealt with in the Children's Court.

3. During the period that he was at liberty on bail in respect of the manslaughter offence, the applicant committed some additional offences, including three of breaking and entering, having goods in custody, and stealing from a dwelling; and six offences of making or furnishing a false or misleading statement. He was sentenced to concurrent terms of imprisonment for 3 months in respect of all except the false or misleading statement offences, in respect of which he was fined.

4. As mentioned above, the applicant was released on parole on 22 November 2006. His parole period expired on 22 May 2009, less than four months before he committed the present offence. During his period on parole he committed a number of additional offences, two of driving while his licence was suspended, one of driving while disqualified, and one of driving while there was present in his blood the prescribed quantity of alcohol (low range).

5. The applicant was born, and grew up, in Victoria, in a dysfunctional and violent family. He has had little contact with his biological father; the violence was at the hands of his stepfather. He left school at 16, having been suspended on a number of occasions because of disruptive behaviour. He came to live in NSW at the age of 19. He has had various forms of employment, both in Victoria and NSW. He sustained workplace injuries twice in 2002, that caused ongoing pain. He commenced marijuana use at the age of 16, and, as a result of the pain occasioned by the workplace injuries, he said, he began to use heroin, and became addicted.

6. The author of the earlier Pre-Sentence Report accepted, as did Whealy J, that the applicant's dysfunctional childhood had resulted in considerable and ongoing distress and emotional pain.

7. The applicant also began drinking alcohol at 16, and he attributed the manslaughter to heavy intoxication. He was again under the influence of both drugs and alcohol when he committed the present offence.

8. The author of the 2010 Pre-Sentence Report said that he had a supportive family, who would be able to provide him with assistance in the community, and that he would be able to access appropriate community based counselling.

The Remarks on Sentence

1. The sentencing judge recounted the facts of the offence, and the applicant's personal circumstances in a way that has not, except for one matter, attracted challenge in this application. In recording the applicant's record, she noted the offence of manslaughter, and said:

   "The [offender's] prior criminal record does not afford him the prospect of leniency. He was convicted of manslaughter in 2003 for an offence committed in 2001. The circumstances of that offence are sufficiently similar to the events in this charge to give concern. In the 2001 offence, the victim was a shop assistant who was uninvolved in any kind of provocation and simply going about his own business. After the exchange of some words, but unprovoked, the [offender] punched the victim once resulting in the victim falling to the ground hitting his head and sustaining a fatal injury.

   The [offender] at that time was reportedly upset at breaking up with his girlfriend and struck out angrily to the victim randomly. The offender was reportedly under the influence of alcohol or some other substance at the time."

2. Her Honour expressly acknowledged that that offence was not an objective circumstance for the purpose of the application of the proportionality principle set out in Veen v the Queen (No 2) [1988] HCA 14; 164 CLR 465. She accepted that:

   " ... it is not open for a court to use prior convictions to determine a boundary of an appropriate sentence."

3. She went on to say:

   "Prior convictions, however, are pertinent when deciding where a sentence should lie. A prior record is not restricted only to the offender's claim for leniency but can be relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the current offence, a continuing attitude of either disobedience of the law or a continuing state of behaviour.

   In the latter case, that is, where there is a continuing attitude of disobedience or misbehaviour by the offender, retribution, deterrence and protection of society may all indicate that those purposes of sentencing should receive special consideration from the sentencing court."

4. She declined to find that the applicant was remorseful, or that he had good prospects of rehabilitation, or to find that he has little risk of re-offending.

5. She was sceptical about the applicant's motivation to address his drug and alcohol issues.

6. In respect of the applicant's drug use, her Honour said:

   "He has admitted to having had drug issues since early adolescence and has used cannabis, amphetamines and heroin. His substance abuse appears to continue.

   Counsel submitted that his drug use on the occasion of this offence was 'a relapse', however apart from the fact that there has been little offending between the 2001 offence and this offence, there is no evidence of actual cessation of substance abuse. The offender does not even report that to be the case to the Probation and Parole officer who prepared the 2010 report.

   ...

   Even on balance, it is not possible to make a finding as sought that this offence was committed when the offender had 'relapsed' into drug use. There is simply no evidence that he ever ceased."

7. Some pages later, she said:

   "This offender apparently had an alcohol problem in 2001 and he still has it. He has not curtailed his drug or alcohol use notwithstanding the parole condition which was to address this issue.

   ...

   The present Probation and Parole Report, as I have stated, refers to his response to supervision being marginally acceptable. His drug use as reported in the current Probation and Parole Report is still problematic. It states that the offender shows insight into the 'association between his drug and alcohol use and his offending behaviour', but there is no evidence of any resolve that he has to address this issue."

8. It was in this context that her Honour declined to find that the applicant had good prospects of rehabilitation.

The grounds of the application

1. Two grounds of appeal were proposed. They are:

   (1) The sentencing judge placed undue weight upon the applicant's prior record.

   (2) The sentence is manifestly excessive.

   Ground 1: prior record

2. In written submissions, counsel for the applicant referred to, and apparently endorsed, submissions that had been put to Syme DCJ to the effect that:

   "... the substantial gap between the offences in 2001 and 2009 would permit the court to draw back from a finding that the applicant demonstrates a tendency or proclivity to offend in that way".

3. In my opinion, this submission ignores the highly relevant circumstance that, for a period of three and a half years of that time, the applicant was in custody. It is true that the offences committed whilst on bail, and whilst on parole, did not exhibit the tendency to violence seen in the manslaughter offence and the current offence.

4. The real basis of this ground, it seems, was an attack on the finding by the sentencing judge that the circumstances of the manslaughter offence were sufficiently similar to the events giving rise to the present charge "to cause concern". It was submitted that:

   "The only real points of similarity between the offences are the influence that substance abuse had on the applicant on each occasion and that those offences had elements of corporal violence."

5. It was then pointed out that the manslaughter occurred as the result of a single punch to the head; that, while that victim was, like the victim of the present offence, a shopkeeper, that was not a reason for the offence and was coincidental, and the victim was in fact outside his store and encountered by the applicant as a passer-by; and that the applicant was "highly agitated" due to an earlier altercation with his girlfriend, and intoxicated.

6. It is true that the victim in the manslaughter offence was not attacked by the applicant because he was a shopkeeper, as was the victim in the present offence. However, that difference to me is of little moment. What is relevant is that, while affected by alcohol (and/or drugs) the applicant made an unprovoked attack on each victim, in the second case for reasons apparently to do with his anger concerning his purchases, and his intention to steal money.

7. The submission was made that the current offence "is primarily a property offence". I would reject that submission. The details of the offence, recounted above, show that the applicant exhibited a good deal of violence throughout a sustained period.

8. I would reject ground 1 of the application.

   Ground 2: manifest excess

9. A simple submission was made, that the sentence was outside the range properly available in respect of this offence. It was argued that, where the statutory circumstance of aggravation upon which reliance is placed is the use of corporal violence, the nature and extent of the violence will be relevant to the seriousness of the offence. I entirely accept that proposition. I am conscious that there was no evidence of actual injury to the victim, but nevertheless he was put in considerable fear and threatened with a (non-existent) gun, and punched and kicked numerous times.

10. It was argued that, when the 25% reduction for the plea of guilty is factored in, the starting point of the sentence was 6 years and 5 months, and that this could be seen to be manifestly excessive. I would reject that submission. In my opinion the sentence imposed was one within the range open to her Honour. Under this ground, an attack was also made upon the approach taken by her Honour to the applicant's drug use.

11. As I understood the submission, it was to the effect that the finding that the applicant was unable to establish that his offence was the result of a "relapse" was converted into a positive finding that he had not ceased drug use. That is not what her Honour said. Both findings were as to the absence of satisfactory evidence that the applicant had ceased drug use. There is no positive finding either way. Her Honour's observations were correct.

12. As I have said, I am satisfied that the sentence imposed was within the range legitimately available. I would reject this ground of the application.

13. I would grant leave to appeal but dismiss the appeal.

14. HOEBEN J : I agree with Simpson J.

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