R v Archer - [2000] NSWCCA 176

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Archer [2000] NSWCCA 176

FILE NUMBER(S):
60794/99

HEARING DATE(S): 12.04.2000

JUDGMENT DATE: 11/07/2000

PARTIES:
Regina v Mathew Archer

JUDGMENT OF: Priestley JA Foster AJA Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/31/0445

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

COUNSEL:
M C Marien for the appellant Crown
T.A. Game SC for the respondent

SOLICITORS:
S E O'Connor for the appellant Crown
T A Murphy for the respondent

CATCHWORDS:
Appeal by the DPP against leniency of sentence imposed. Vulnerability of the victim.
The nature of the weapon and the way it was used, holding the knife to the throat of the victim.

LEGISLATION CITED:
5D of the Criminal Appeal Act

DECISION:
The appeal be dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60794/99
PRIESTLEY JA
FOSTER AJA
SMART AJ
Tuesday, 11 July 2000

REGINA v Mathew ARCHER

PRIESTLEY JA: This is an appeal by the Director of Public Prosecutions (the DPP) pursuant to s 5D of the Criminal Appeal Act against the sentence imposed on the respondent on 12 November 1999 in the District Court at Newcastle by his Honour Judge Coolahan.
The respondent had pleaded guilty to a charge of robbery in company the maximum penalty for which is penal servitude for twenty years.
The offence was committed in Maitland Park on 22 August 1998 shortly after midnight. The respondent at that time was eighteen. He was in company with a man. The two of them approached the victim who was sitting in the park. The respondent and his co-offender demanded the victim’s wallet. A knife was held to the victim’s throat. The sentencing judge found that the respondent kept his thumb between the blade of the knife and the victim’s throat. Although the trial judge said he was satisfied that the respondent did not intend to use the knife to inflict any actual bodily harm upon the victim he nevertheless recognised that the respondent intended to frighten the victim with the knife and succeeded in doing so. The two offenders then bullied the victim seeking anything of value he had on him. They were particularly interested in getting any credit cards and forcing the victim to give the relevant PIN. While this was going on the co-offender kneed the victim in the groin and the face and punched him. The offenders found two cards in the victim’s wallet. He gave an incorrect PIN for one of them. The offenders were meeting rather resourceful defences to their efforts. Eventually the co-offender said “Shall we tell him its only a joke”. The respondent said “Yeah its only a joke man. Let’s go to Raymond Terrace”. The victim asked for his wallet back. The offenders left it on the ground saying everything was still there and walked away. In collecting his possessions the victim realised two cash cards were missing. He got in touch with the police and they drove around Maitland until they found the offenders in a car park. The cash cards were found on the co-offender.
The co-offender pleaded guilty and was sentenced by another judge before the respondent came up for sentence. The co-offender was sentenced to six years penal servitude with a minimum term of three and a half years and an additional term of two and a half years. These facts were mentioned by the sentencing judge in the present case in his reasons for sentencing the respondent. The respondent was sentenced to three years penal servitude with a minimum term of twelve months to commence on the date of sentence and an additional term of two years. This change to the statutory ratio was based on his Honour’s finding that special circumstances existed consisting of the respondent’s need for an extended period of supervised rehabilitation upon his release.
His Honour directed that the respondent’s release on parole be subject to certain conditions pursuant to the Sentencing Regulations 1989 and also to a condition that he submit himself to the supervision and guidance of the New South Wales Probation and Parole Service and obey all reasonable directions of officers of that Service including but not limited to directions as to psychiatric assessment and/or treatment, compliance with medication regimes, adherence to treatment plans and drug and alcohol counselling. His Honour also recommended that the respondent serve his sentence in a facility which would provide the least stress and also have the facilities to continue with treatment that he had commenced while on bail pending the sentencing hearing.
The sentencing judge gave detailed reasons explaining the sentence he imposed upon the respondent. He acknowledged that the facts relating to the respondent fell into the category of case dealt with in this court’s guideline judgment of Henry (1999) 46 NSWLR 346, also reported in 106 A Crim R 149. The headnote to the latter report summarises one main aspect of the court’s decision, in my opinion accurately, as follows:
“Sentences for an offence of this character should generally fall between four to five years for the full term. Aggravating and mitigating factors will justify a sentence below or above the range, which is itself a starting point.”
The leading opinion in Henry, supported by a majority of the court of five, was that of Spigelman CJ. In it, he repeated what he had earlier said in Jurisic (1998) 45 NSWLR 209 at 266:
“... guidelines are intended to be indicative only. They are not intended to be applied in every case as if they were rules binding on sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents.
The principal arguments for the DPP in the present appeal were that the minimum term imposed by the sentencing judge did not adequately reflect the very serious nature of the offence or the importance of general deterrence and that there was an unsupportable disparity between the sentence imposed upon the respondent and that earlier imposed upon the co-offender.
The sentencing judge had considered these matters in his remarks on sentence. As I have earlier noted, these gave detailed reasons for his decision, and to me they read persuasively. I do not think it necessary to give a full summary of them. The succinct written submissions for the respondent seem to me to bring out the necessary points for dealing with the appeal. The respondent’s written submissions pointed out that the DPP did not complain about the overall sentence of three years nor the finding of special circumstances but primarily about the minimum term. The written submissions later went on:
“His Honour was sentencing a first offender, who was eighteen years of age at the time of the offence and who had entered what the sentencing judge described as an early plea of guilty. He was an offender with particular psychological and psychiatric problems, one of which, (claustrophobia) would make a custodial sentence “a great deal more difficult for him that for the general community” (p 13, remarks on sentence). As to the respondent’s youth, this was not merely a case of a youthful offender but, one who from all the reports was, clearly, emotionally immature (see for example, Kama [2000] NSW CCA 23). Nor can the finding of the sentencing judge (p 13) that the respondent will require an extended period of supervision upon release be questioned. In the circumstances the fixing of the minimum term at twelve months is unexceptional.”
The written submissions then dealt with the disparity argument. This argument only works if this court assumes or is otherwise persuaded that the sentence with which a comparison is being made was itself an acceptable one. The written submissions raised a substantial question whether that was so in the present matter. The sentence on the co-offender had been imposed before the decision in Henry and may well have been outside the Henry guidelines. Even if this be not so, there were a number of points of distinction between the circumstances of the co-offender and the respondent quite sufficient to justify the marked disparity. The reasons for the sentence in the present case depended very substantially on the particular circumstances of the respondent and the view the judge took of them.
I accept the arguments put for the respondent in this matter, both in the passage set out verbatim above and in regard to the separate issue of disparity.
In my opinion what the sentencing judge did in this case was within the area of sound sentencing discretion and was not inconsistent with the sentencing guideline considerations explained in Henry.
I would dismiss the appeal.
FOSTER AJA: I agree.
SMART AJ: The background is set out in the reasons of Priestley JA. I do not agree with his view that the sentence was not manifestly inadequate. Despite Mr Archer’s strong subjective features, the objective seriousness of the offence was such that a longer minimum term was required.
The essential matters as to the seriousness of the robbery in company were:
(a)      The victim was alone in a public park at 12.30 am when he was approached by the respondent and his co-offender. The victim was very vulnerable. He was aged 23.
(b)      The respondent and the co-offender walked towards the victim. Sensing trouble he moved to get up. As he did so their pace quickened and they crowded in upon him. They demanded his money and his wallet. The respondent produced a knife with blade extended and held it against the victim’s throat, with only the respondent’s thumb between the exposed blade and the victim’s throat. The appellant and the co-offender pressed their demands for the victim’s money. They also demanded the victim’s cards. Every time he attempted to stand he was pushed back down.
(c)       The co-offender demanded the correct pin numbers of the appellant’s cards. The victim said that the offenders kept hassling and pressuring him about what was in the bank account. The knife was still held at the victim’s throat. About this time the co-offender kneed the victim and struck him about three times. (Although the judge said the kneeing was to the groin, the victim said it was to the right side of his face. As the victim was seated, the kneeing was probably to the side of the face rather than the groin).
(d)      The picture which emerges is of two men standing over a seated and hapless victim terrorising him with a knife, threatening him and assaulting him in a public place after midnight.
(e)      Once the cards and pin numbers had been obtained the offenders left, telling the victim that it was only a joke. The victim was left to retrieve his wallet and the contents.
(f)        As expected, the victim was severely disturbed with long lasting effects.
The judge found that the respondent intended to and did frighten the victim but that the respondent did not intend to use the knife to inflict any bodily harm upon the victim and did not do so. The judge thought this was probably a chance encounter.
The Crown’s approach was to regard the full term of three years as low but possibly not such as would be set aside on appeal. Its real complaint was that the minimum term was so low as to be erroneous. It did not adequately reflect the gravity of the offence.
The respondent’s approach was to emphasise the subjective features. Further, if the full term could not be successfully attacked it was well within the judge’s discretion, having correctly found special circumstances, to apportion the sentence as he did, namely, a minimum term of twelve months and an additional term of two years. Any lesser division would not allow sufficiently for the respondent’s rehabilitation and the extended supervision which he required.
The judge used the guideline judgment in R. v Henry (1998-1999), 46 NSWLR 346 as his starting point. He thought that the subjective features were such that he was entitled to impose a lesser sentence. The subjective features were strong.
However, having regard to the gravity of the offence it was not correct to impose a sentence less than that suggested in the guideline judgment. As has often been said the objective gravity of the offence must be reflected in the minimum term as well as the full term.
The judge undertook a detailed review of the medical and psychological evidence. It appears that from an early age the respondent suffered from attention deficit hyper-activity disorder and that he was disruptive and unsettled. He had trouble with depression, explosive anger and alcohol abuse. He suffered from an anxiety disorder. The judge concluded that probably the respondent suffered from some degree of claustrophobia and that any prison sentence he served would be attended with the risk of self harm and would be a great deal more difficult for him than for the general community. The judge stated that he was unable to assess the extent of this disability. Those findings were amply justified. The judge further found that the respondent was still trying to distance himself as much as possible from the commission of the offence and a full time custodial sentence.
The respondent was born on 10 January 1980. He was thus aged eighteen at the time of the offence on 22 August 1998. His youth, the absence of any prior convictions, his admissions at an early stage and his plea of guilty, were important factors. The respondent needed ongoing treatment and medication. There were good prospects of rehabilitation.
Notwithstanding these strong subjective factors the minimum term imposed, did not reflect the objective gravity of the offence. It was manifestly inadequate.
I turn now to consider whether in the exercise of its discretion the Court should impose a longer sentence.
The original sentence was imposed on 12 November 1999. There is additional material to be considered. He has attended for individual alcohol and drug counselling and attended and completed available courses. He has re-established contact with his father and step-mother having left home at the age of thirteen because of a break-up in family relations. He has been placed on Pre-Release Programs and appears to be progressing well.
The reports from the St Heliers Correctional Centre are to the effect that the respondent causes no problems, has worked well and would be an asset to community projects. There is also material from his family who have often visited him in gaol and believe that the respondent has shown a marked change and improvement in attitude as he looks forward to his future. He has significant family support.
At St Heliers the respondent is not locked inside and can leave his door open at night. He is also able to work on the farm and thus have some open space. As at 10 April 2000 he had been advised that he was about to start doing community projects outside the Correctional Centre. He expected to receive a C3 classification about the end of May 2000.
The respondent’s girl friend is pregnant and the baby is expected to be born in a few months, while he is still in custody. That gives the respondent much to look forward to. This, his reunion with his family and their support offer hope of a degree of stability and a sense of belonging not previously available.
A solicitor employed by the Legal Aid Commission has spoken to the Manager, Classifications, Department of Corrective Services and been advised:
“As a general principle, if an inmate’s sentence is increased then we would normally move them back one classification to see how they were handling the increased sentence (for example, from C2 to C1). St Helier’s Correctional Centre only takes C2 and C3 classified prisoners, so if Mr Archer is reclassified to C1, then he will have to be moved to either Cessnock Correctional Centre or Parklea Correctional Centre, but only to Parklea if he meets the criteria for the Young Offenders Programme, and without knowing more about Mr Archer’s case I couldn’t say if he would qualify.”
If the general policy of the Department were implemented in the present case that would be counter-productive to the respondent’s rehabilitation. If he were sent to Parklea that would deprive him of the opportunity to have important supportive family visits. This Court could make a recommendation but the ultimate decision would rest with the Department.
This is a case where the principle of double jeopardy is important. Having regard to this, the progress made by the respondent, the need to continue with and not prejudice his rehabilitation and his claustrophobic condition the appeal should, in the exercise of the Court’s discretion, be dismissed.
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LAST UPDATED: 17/07/2000