R v Blow
[2010] NSWCCA 294
•9 December 2010
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
R v Blow [2010] NSWCCA 294
FILE NUMBER(S):
2009/11042
HEARING DATE(S):
11 August 2010
JUDGMENT DATE:
9 December 2010
PARTIES:
The Crown (appellant)
Christopher Barry Blow (respondent)
JUDGMENT OF:
McClellan CJatCL Hulme J Davies J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2009/11042
LOWER COURT JUDICIAL OFFICER:
Toner DCJ
LOWER COURT DATE OF DECISION:
26 March 2010
COUNSEL:
P G Ingram (Crown/appellant)
C Davenport SC (respondent)
SOLICITORS:
Director of Public Prosecutions (Crown/appellant)
Legal Aid Commission of NSW (respondent)
CATCHWORDS:
CRIMINAL LAW
whether sentences were both individually and cumulatively so inadequate that appellate intervention required
sentencing considerations of persons with particularly disadvantaged and deprived background
application of specific deterrence of particular significance in sentencing exercise
LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
CATEGORY:
Principal judgment
CASES CITED:
Mill v R [1988] HCA 70; (1988) 166 CLR 59
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Ah-See [2004] NSWCCA 202
R v Fernando (1992) 76 A Crim R 58
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Newman [2004] NSWCCA 102
R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
Re: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146
TEXTS CITED:
DECISION:
1. The Crown appeal in respect of the sentences on counts 3 and 5 is allowed.
2. The sentences for counts 1, 2, 4 and 6 are affirmed.
3. In relation to count 3 the sentence is quashed and in lieu thereof the respondent is sentenced to a fixed term of 4 years to commence on 20 January 2010 and expire on 19 January 2014.
4. In relation to count 5, having regard to matters as to the Form 1, the sentence is quashed and in lieu thereof the respondent is sentenced to a non-parole period of 5 years to commence on 20 January 2012 and expire on 19 January 2017 with a balance of term of 3 years to commence on 20 January 2017 and expire on 19 January 2020.
The aggregate non-parole period is 8 years with a total term of 11 years imprisonment.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2009/11042
McCLELLAN CJ at CL
R S HULME J
DAVIES JTHURSDAY 9 DECEMBER 2010
R v Christopher BLOW
Judgment
McCLELLAN CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against sentences imposed upon the respondent in relation to six counts on an indictment. The counts were as follows
Count 1:On or about 22 September 2008 at Forster in the State of New South Wales, knowing there were persons inside did break and enter the dwelling house at 2/92 Head Street and therein did steal a set of car keys, a Nokia mobile phone and a Nikon digital camera.
This is an offence contrary to s 112(2) of the Crimes Act 1900 (NSW) and attracted a maximum penalty of imprisonment for a term of 20 years. A standard non-parole period of 5 years is provided for such an offence.
Count 2:On or about 23 September 2008 at Forster in the State of New South Wales, in the company of other persons, did break and enter the shop of Baker’s Delight at Stocklands Shopping Centre and therein did steal a safe and $10,594 cash.
This is an offence contrary to s 112(2) of the Crimes Act for which the maximum penalty is imprisonment for a term of 20 years. A standard minimum non-parole period of 5 years has been provided for this offence.
Count 3:On 11 October 2008 at Forster in the State of New South Wales, in the company of other persons, did rob Malee Kityanyong of a handbag and a sum of money.
This is an offence contrary to s 97(1) of the Crimes Act and carries a maximum penalty of imprisonment for a term of 20 years.
Count 4:On 13 November 2008 at Forster in the State of New South Wales in the company of other persons did rob Venkata Katneni of a sum of money.
This is an offence contrary to s 97(1) of the Crimes Act and carries a maximum penalty of imprisonment for a term of 20 years.
Count 5:On 31 December 2008 at Forster in the State of New South Wales, in the company of another person, did rob Venkata Katneni of a sum of money and at the time of the robbery did wound Venkata Katneni.
This is an offence contrary to s 98 of the Crimes Act for which the maximum penalty is imprisonment for a term of 25 years. A standard minimum non-parole period of 7 years is provided for this offence.
Count 6:On or about 14 January 2009 at Forster in the State of New South Wales in the company of other persons did break and enter the shop of Betta Electrical at Stocklands Shopping Centre and therein, did steal a number of laptop computers.
This is an offence contrary to s 112(2) of the Crimes Act and carries a maximum penalty of imprisonment for a term of 20 years. There is a standard non-parole period of 5 years.
There was also a Form 1 which included four charges which were taken into account by the sentencing judge when passing sentence in relation to count 5. They are as follows:
Charge 1 was an offence committed on 13 November 2008 of aggravated break, enter and steal (being in company) from the Australia Post premises situated at Stockland Shopping Centre, Forster. This is an offence contrary to s 112(2) of the Crimes Act.
Charge 2 was an offence committed on 24 December 2008 of aggravated break, enter and steal (being in company) from the United service station premises at Forster. This was an offence contrary to s 112(2) of the Crimes Act 1900.
Charge 3 was an offence committed on 11 January 2009 of aiding and abetting an aggravated break, enter and steal (being in company) by other unknown persons from a shop at the Stockland Shopping Centre, Forster. This was an offence contrary to s 112(2) and s 345 of the Crimes Act.
Charge 4 was an offence committed between 15 and 16 January 2009 of aggravated break, enter and steal (being in company) from Harvey Norman premises situated at Breeze Street, Forster. This was an offence contrary to s 112(2) of the Crimes Act 1900.
The respondent was sentenced as follows:
On count 1: a non-parole period of 12 months to commence on 20 January 2009 and expire on 19 January 2010 with a balance of term of 6 months to commence on 20 January 2010 and to expire on 19 July 2010.
On count 2: a non-parole period of 18 months to commence on 20 January 2009 and expire on 19 July 2010 with a balance of term of 6 months to commence on 20 July 2010 and to expire on 19 January 2011.
On count 3: a fixed term of 2 years to commence on 20 July 2009 and expire on 19 July 2011.
On count 4: a fixed term of 2 years to commence on 20 July 2009 and expire on 19 July 2011.
On count 5: a non-parole period of 3 years to commence on 20 January 2010 and expire on 19 January 2013 with a balance of term of 4 years to commence on 20 January 2013 and expire on 19 January 2017. The sentencing judge had regard to the Form 1 matters when sentencing for count 5.
On count 6: a non-parole period of 18 months to commence on 20 July 2009 and expire on 19 January 2011 with a balance of term of 6 months to commence on 20 January 2011 and expire on 19 July 2011.
The aggregate non-parole period imposed was 4 years commencing on 20 January 2009 and expiring on 19 January 2013 with an aggregate balance of term of 4 years commencing on 20 January 2013 and expiring on 19 January 2017. The earliest date upon which the respondent will be eligible for release to parole will be 19 January 2013.
The Crown submitted that although no particular error could be identified the sentences were both individually manifestly inadequate and cumulatively so inadequate that this Court must intervene.
The facts
The sentencing judge made various findings of fact which have been summarised by the Crown in its written submissions. I gratefully adopt that account.
Count 1
In September 2008, Mr Everall (then aged 65) was having a family golfing holiday at Forster. He and his family were staying in some unit accommodation situated in Head Street.
On the night of Monday 22 September 2008, Mr Everall parked his car at the front of those premises. Shortly thereafter, Mr Everall secured the premises but apparently neglected to lock the front door.
The respondent gained entry to the unit through the unlocked door sometime between 10:00 pm and 11:50 pm. He went into the lounge room and took the car keys, a Nikon digital camera and a Nokia mobile telephone from the table. He then used the keys to steal Mr Everall's vehicle. He and others drove that vehicle to Stockland Shopping Centre in Forster.
Count 2
Baker's Delight is situated at the far northeastern corner of the Stockland Shopping Centre complex with a single entry/exit on the western side.
On 22 September, that business closed at 5:00 pm and the day's takings were placed in a safe at the premises. The daily takings from the two previous days were also secured in the safe at the time. The total amount present was some $10,594.
The respondent and two others, all of whom were dressed in dark clothing with balaclavas or dark shirts over their faces, approached the entry of the premises at 12:01 am on 23 September and used a sledgehammer to force open the door. This was captured on CCTV. All three then went inside and carried the safe out to the vehicle that had earlier been stolen from Mr Everall. The safe was then taken away and later forced open and the cash was removed.
On 20 October 2008, the police located the digital camera that had been stolen from Mr Everall's unit under the respondent's premises. Police also located in the camera a number of images of large quantities of cash on a kitchen bench, along with a short video showing people holding the cash.
Count 3
In October 2008, Malee Kityanyong, aged 43, was an employee at 101 Thai House Restaurant. She lived at a residence situated at the rear of the restaurant.
On the evening of Friday, 10 October 2008, another employee, Jenny Kityanyong had placed the day's takings and receipts from the cash till inside a pocket of her apron. That apron was then left on the bed of the residence. The restaurant and residence were then both secured. Marley Kityanyong retired to bed in the residence at about 1:00 am on Saturday, 11 October 2008.
At about 2:00 am that same morning, the respondent and a number of other males forced their way into the residence by kicking in the rear timber door. They went to the bedroom where Ms Kityanyong was sleeping, pushed her to the ground, and forced her to kneel with her head pushed into a lounge. She had difficulty breathing and feared for her life. The intruders asked, "Where's the money, where's the purse?" Ms Kityanyong felt what she believed was a knife being pressed against her throat. She responded that she had no money, but took a box of coins from under the lounge and gave it to the offenders. The male who had been holding her head against the lounge released his grip and said, "Don't call the police in ten minutes. If you do call we'll kill you". The offenders then ran out the back door.
A group of approximately five Aboriginal males was seen leaving from the property and the respondent was identified as one of that group.
A subsequent check of the premises revealed that the day's takings had been removed from the apron, along with a handbag which belonged to Jenny Kityanyong and had contained some $2,000 in cash and various forms of identification.
Form 1 - Charge 1
At about 1:05 am on Thursday, 13 November 2008, the respondent and others forced entry into the Australia Post shop in the Stockland Shopping Centre. They damaged two drop safes at the counter and left the premises with the cash tray that was later recovered from nearby bushland.
Count 4
Mr. Venkata Katneni was a student who worked part time at the United service station in Macintosh Street, Forster. In November 2008, he was aged 24.
At about 8:25 pm on Thursday, 13 November 2008, Mr Katneni was bagging up coins from the till at the service station and placing them into the safe when the respondent and another male rushed in. Both offenders had their faces covered with a balaclava or dark shirt. A third male remained at the front door.
One of the two males leaned across the counter and tried to take the till from Mr Katneni, but he was unable to do so. The second male walked around the counter and pushed Mr Katneni away from the till and removed $160.00 in notes.
The males yelled, "Safe", and Mr Katneni told them that the safe was in the office. When they went into the office, Mr Katneni tried unsuccessfully with his legs to lock the safe that was actually below him. When those two returned, they were alerted to the location of the safe by the male who had remained at the door. They then opened the safe and removed $1,650 in cash.
Form 1 - Charge 2
At about 2:00 am on Wednesday 24 December 2008, the respondent returned to the United service station accompanied by a number of other offenders. Entry was obtained by smashing open the front door. The offenders than attempted to smash open the ATM located at the back of the premises but were unable to do so and left, taking the CCTV recorder with them.
Count 5
On Wednesday 31 December 2008, Mr Venkata Katneni was working with Mr Bahendra Yarlagadda at the United Service Station.
Just before 9:00 pm, Mr Katneni and Mr Yarlagadda were preparing to close the business for the day when the respondent again returned to the service station apparently accompanied by one male accomplice.
The respondent and the accomplice entered the store; both were wearing dark clothing with shirts covering their faces. Each carried a knife.
The respondent pushed past Mr Yarlagadda who was at the chip counter and went to the Coca-Cola refrigerator. The second male approached Mr Katneni (who was standing behind the console) and directed him to move away. Afraid of being hurt, Mr Katneni moved away from the cash till and that male removed $175 from the till.
The respondent took hold of Mr Yarlagadda by the collar of his shirt and dragged him to the console area where the other male and Mr Katneni were. Mr Yarlagadda sat down as directed.
The other male asked Mr Katneni where the safe was and ordered him to open it. Mr Katneni said he did not know the combination and the male made a stabbing motion with his left hand towards Mr Katneni's stomach area. Mr Katneni thought he had been punched, but felt extreme pain and realised that he had been stabbed. He saw the other male holding what appeared to be a ten centimetre kitchen knife in his hand. He bled heavily from the wound to his stomach.
The respondent took a milk crate from the office and placed it on the counter. He was holding a knife in his right hand and said to Mr Katneni, "Open the safe mother-fucker or else I'm going to kill your friend". Mr Katneni told the respondent that he did not know the combination. The respondent rummaged through the drawer next to the safe and again demanded Mr Katneni open the safe. The respondent then stabbed Mr Katneni to the right side of his chest. Mr Katneni felt immediate pain and began to bleed. The other male loaded nine cartons of cigarettes into the milk crate. The respondent said to Mr Katneni, "I'm going to kill you if you don't open the safe". Mr Katneni begged not to be harmed and repeatedly said that he did not know the combination.
The respondent demanded that Mr Katneni produce his wallet, but was unable to find any money in it. The respondent demanded that Mr Yarlagadda produce his wallet, but both victims told the respondent that he did not have a wallet.
The respondent then pointed his knife Mr Yarlagadda’s head and said, "I'll kill him if you don't open the safe". He then placed his knife at Mr Katneni’s neck and said, "Open the safe, mother-fucker". Mr Katneni then attempted to open the safe, but the blood on his hands caused his fingers to slip. The respondent yelled at him, "Open it mother-fucker, or I'm going to kill him". Mr Katneni got the safe open and the other male removed $6,300 in cash. The respondent and the other male then ran from the service station with the milk crate and cigarettes, the $6,300 cash from the safe and a bottle of Coca-Cola.
The alarm was raised and Mr Katneni was taken to the Manning Base Hospital for treatment. His chest wound required stitches and the wound in his chest and the wound to his stomach was bandaged and allowed to drain. He later received for the treatment for both wounds.
In the early hours of the morning, the respondent was observed distributing cigarettes to young people in Cabariti Avenue, Forster. He was also observed with another male as they were burning clothes and shoes in a fire in the backyard of the premises at 5 Cabariti Avenue.
Form 1 – Charge 3
The respondent organised others to break into the Jamaica Blue Cafe at the Stocklands Village, Forster, between the close of business on Sunday 11 January 2009 and the opening of the business the following morning. The intruders gained entry by smashing the glass front door. A small portable safe was removed which contained $4,000.00 in takings and an amount of float money.
Count 6
At about 12:30 am on Wednesday 14 January 2009, the respondent and others broke into the premises of Betta Electrical situated at Stockland Shopping Village, Forster. Six laptop computers with a total value of $7,750 were stolen from the display counter in the course of the offence.
Form 1 - Charge 4
On 16 January 2009, the respondent and others broke into the Harvey Norman store in Breeze Parade, Forster, and stole approximately 20 digital cameras and a PlayStation 3 from the display counter.
The sentencing judge’s remarks
The sentencing judge observed that the respondent was to be sentenced in relation to 6 counts on the indictment together with 4 charges on the Form 1. His Honour accepted that the various offences were serious and identified the fact that count 4, count 5 and charge 2 on the Form 1 were all offences which had been perpetrated on the same victim. His Honour appropriately identified the maximum penalty for each offence.
His Honour noted in particular that count 5 was a very serious offence attracting a maximum penalty of 25 years. He stated that the series of offences was clearly disturbing and that count 5 was particularly brutal. His Honour accepted that many of the offences would have been terrifying for the victims. His Honour also accepted that count 3 was aggravated by the fact that it occurred in the home of the victim Ms Kityanyong.
The sentencing judge accepted that the pleas of guilty were not entered at the earliest opportunity but acknowledged the Crown’s concession that the respondent was nevertheless entitled to a 20% discount for the utilitarian value of the plea. Observing that the respondent had pleaded guilty, his Honour correctly identified the fact that the standard non-parole periods were not directly relevant but remained relevant as a “guide post”. He accepted an obligation to make a finding in relation to the relative objective seriousness of each of the offences. In this respect his Honour said that count 1 was “towards the bottom of the range for offences of its type.” He said that in relation to counts 2 and 6 they were “about the middle of the range, perhaps a little lower.” In respect of count 5 his Honour found that that count was “above the middle of the range for offences of its type, but not by much, given that those offences always are serious.” His Honour noted that the particular features of count 5 were:
“i. the persistent nature of the attacks on the victims;
ii.the nature and extent of the stabbings, although noting wounding is an element of the offence; and
iii.the vulnerability of the victims by reason of their occupation as service station attendants (s 21A(2)(1) of the Crimes (Sentencing Procedure) Act 1999.”
The sentencing judge found that the respondent is a relatively young man and at the time of sentencing had only just turned 20 years of age. His Honour determined that he had a dysfunctional upbringing notwithstanding the substantial efforts of an aunt to neutralise the effects on him of an “environment which was characterised by violence, alcoholism and drugs” which had been “the prevailing theme of the respondent’s life to date.” It is apparent that the respondent has received little formal education, having been expelled from school. He does have artistic talent which the judge described as “works of significance and his ability is obvious.”
The sentencing judge concluded that the background of the respondent disclosed a history that is “all too familiar for young Aboriginal men on the mid-north coast of New South Wales and in other parts of rural New South Wales.” His Honour referred to the principles described by Wood CJ at CL in R v Fernando (1992) 76 A Crim R 58 concerning the sentencing of persons with a particularly disadvantaged and deprived background, such as many indigenous offenders. The sentencing judge indicated that he would bear these principles in mind when sentencing the respondent.
His Honour was conscious of the fact that there was a need for general deterrence, indicating however that he shared “the scepticism of many that general deterrence might not be the great forensic weapon that others in other sections of the community believe it is.” He also acknowledged that in sentencing young people, general deterrence may play a lesser role than the possibility of an offender’s rehabilitation.
The sentencing judge recognised that the task before him was difficult. He identified that “clear and stark tension between the subjective features of the case and … the brutal reality of the objective seriousness of the crimes.”
The sentencing judge also recognised that the decision of this Court in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 was important and said he would bear it in mind. His Honour found the circumstances of the offences involving robbery, that is counts 3, 4 and 5, were more serious than those identified in the guideline judgment, observing that:
“… almost all of the features that are identified in Henry appear here, or at least in some of the offences. There are features that are well beyond Henry such as the amounts of money taken (which) could never be characterised as a small amount, so that, to an extent, Henry is of limited assistance.”
His Honour also said that he would have regard to the matters relevant to the offence of break and entering referred to by this Court in R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327.
The sentencing judge also recognised that counts 5 and 6 were offences committed when the respondent was at large on a bond. His Honour correctly identified this as an aggravating feature on these counts.
His Honour concluded that:
“… what all these crimes represent is the conduct of a young man out of control, ignoring the rights of others and oblivious to a person’s rightful understanding that they are entitled to go about their affairs without being assaulted and attacked and injured, seriously injured.”
The sentencing judge found that there were special circumstances because of the fact that he committed the offences, the respondent had only just turned 18. His Honour found that there were some prospects of rehabilitation and furthermore being required to impose a separate sentence for each offence (Pearce v R [1998] HCA 57; (1998) 194 CLR 610) recognised the need to adjust the sentences to reflect an appropriate sentence for the overall criminality involved.
The appeal
The appellant filed 11 grounds of appeal. I have set them out below. Although separate complaints were made in relation to the sentences for all counts except count 2, and in relation to the total sentence, the essential submission was that in each case the sentence imposed was so inadequate that latent error must have infected the sentencing process. The principal submissions were directed to the sentence imposed in relation to count 5.
Ground 1: the learned sentencing judge erred in relation to the sentence imposed on count 5 by imposing a non-parole period of 3 years which was not open in all the circumstances.
Ground 2: the learned sentencing judge erred in relation to the sentence imposed on count 5 by imposing a term of 7 years which was not open in all the circumstances.
Ground 3: the learned sentencing judge erred in relation to the sentence imposed on count 2 by imposing a non-parole period of 18 months which was not open in all the circumstances.
Ground 4: the learned sentencing judge erred in relation to the sentence imposed on count 6 imposing a non-parole period of 18 months which was not open in all the circumstances.
Ground 5: the learned sentencing judge erred in relation to the sentence imposed on count 2 by imposing a term of 2 years which was not open in all the circumstances.
Ground 6: the learned sentencing judge erred in relation to the sentence imposed on count 6 by imposing a term of 2 years which was not open in all the circumstances.
Ground 7: the learned sentencing judge erred in relation to the sentence imposed on count 3 by imposing a fixed term of 2 years which was not open in all the relevant circumstances.
Ground 8: the learned sentencing judge erred in relation to the sentence imposed on count 4 by imposing a sentence consisting of a fixed term of 2 years which was not open in all the circumstances.
Ground 9: the learned sentencing judge erred in the application of the principle of totality by imposing an aggregate non-parole period of 4 years which was not open having regard to the totality of the criminality for which the respondent was to be sentenced.
Ground 10: the learned sentencing judge erred in the application of the principle of totality by imposing an aggregate term of 8 years which was not open having regard to the totality of the criminality for which the respondent was to be sentenced.
Ground 11: the sentences imposed on counts 2, 3, 4, 5, 6 and the aggregate sentence are each manifestly inadequate.
By contrast with the Crown’s submissions the respondent’s submissions were relatively brief. Reliance was placed on the respondent’s age and as a consequence it was submitted he was entitled to leniency. It was submitted that having regard to both his age and his dysfunctional upbringing the sentences imposed were within the sentencing judge’s discretion. It was further submitted that it was open to his Honour to lower the individual sentences in order to ensure that the total sentence was appropriate (Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 63).
The circumstances of count 5 are, to my mind, particularly serious. His Honour recognised this fact by finding that the offence was above the middle of the range for offences of this type although “not by much.” His Honour recognised that the offence constituted a persistent attack upon the victims who, as service station workers, were vulnerable to violent crime. The appellant submitted that when it was recognised that his Honour was required to increase the sentence for count 5 because of the Form 1 matters (see Re: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146) and that the offence was aggravated because it was committed when the respondent was on a bond, a 3 year non-parole period was not open in all the circumstances.
It was submitted by the Crown that although the respondent had had a difficult upbringing, he was not entitled to any significant discount because of the principles identified by Wood CJ at CL in R v Fernando at 62-63. The offender had been raised by his aunt and was, by reason of his previous offending, knowledgeable of the criminal justice system and his obligations to comply with the law: Fernando at 64-70; R v Ah-See [2004] NSWCCA 202 at [21]; R v Newman [2004] NSWCCA 102 at [61].
I am in no doubt that the appellant’s submission must be accepted. When regard is had to the non-parole period and the matters on the Form 1, the sentence imposed for this offence is so inadequate that error must have occurred. I acknowledge that the respondent has had a difficult upbringing, no doubt contributed to by the circumstances of his living in an Aboriginal community. However, this was a violent offence of a seriousness that justified the finding by the sentencing judge that it was above the middle range for offences of its type. Although the circumstances of his upbringing were relevant, they could not justify any significant amelioration of his sentence. The respondent had been previously involved with the criminal law. His record includes offences of larceny, illegal entry of a building and affray together with a number of driving offences. He was on a bond for the affray at the time he committed the relevant offences. His behaviour has been characterised by repeated and serious breaches of the law, often committed without any regard to the harm occasioned to the victim.
The appellant also submitted that the sentence imposed in relation to count 3 was manifestly inadequate. I agree. The victim, who had retired to bed, was put into fear for her life when a knife was held to her throat. The maximum penalty for the offence is 20 years imprisonment. The sentence of a total term of 2 years provided by his Honour was wholly inadequate.
The appellant also submitted that error had occurred with respect to the sentences imposed in relation to each of the other counts and that the overall sentence was so inadequate that this Court should resentence. I accept that the sentences for those counts apart from counts 3 and 5 may be inadequate but in the circumstances have decided it is unnecessary to consider them further. I propose to resentence in relation to counts 3 and 5 and make appropriate adjustments to the overall sentences to reflect totality. In this manner, the problems which I have identified can be adequately addressed.
Resentencing
The sentencing judge found that the objective seriousness of count 5 lay above the middle of the range “but not by much.” His Honour correctly observed that robbery with wounding would be rarely other than a serious offence. This, of course, is reflected in the fact that the legislature has provided a maximum sentence for the offence of 25 years imprisonment with a standard non-parole period of 7 years. Given his Honour’s finding with respect to the objective seriousness, a non-parole period of 3 years and a total sentence of 7 years imprisonment could not be justified. It must not be forgotten that there were four charges, each an offence of aggravated break enter and steal which were included on a Form 1 which were required to be taken into account when sentencing for count 5. Each of those charges was a breach of s 112(2) of the Crimes Act (charge 3 being of aiding and abetting) for which a penalty of 20 years and a standard non-parole period of 5 years is provided.
In relation to count 3, his Honour found the objective seriousness to be about the middle of the range. Being an offence contrary to s 97(1) of the Crimes Act, Parliament has not provided a standard non-parole period and as expressed his Honour’s finding was inappropriate. However, the victim had retired to bed when at 2 am the respondent and the others forced their way into her bedroom and put a knife to her throat and made demands for her money. It would have been a grossly traumatic experience for the victim, who reported that she had feared for her life.
The respondent is a young person. However, his previous encounters with the law should have ensured that he understood that he could not set about an escapade of violent crime without expecting serious punishment when apprehended. There could be no doubt that he appreciated that his crimes were serious. Counts 5 and 6 were committed at a time when the respondent was subject to a bond. In these circumstances, although it was appropriate for his Honour to emphasise the need to encourage the respondent’s rehabilitation, considerations of specific deterrence were of particular significance. The community expects that persons who set about robbing people in their homes armed with weapons and endangering the life of the occupants will be dealt with severely.
Although the respondent had a difficult childhood there is no suggestion that he had lived in a community isolated from general society. The sentence must recognise his background but I can discern no reason to significantly reduce the sentence because of the matters referred to by Wood CJ at CL in Fernando.
The sentencing judge acknowledged the relevance of the decisions in Henry and Ponfield. His Honour accepted that counts 3, 4 and 5 were more serious offences than the type of offence considered in Henry. In particular, significantly larger amounts of money were involved. Although the reasons of the Chief Justice in Henry are relevant, the sentencing judge was correct when concluding that these were more serious offences.
A discount of 20% for the respondent’s plea and the finding of special circumstances was appropriate. Having concluded that the sentences for counts 3 and 5 were so low as to be manifestly inadequate, I have determined, after considering matters of totality, that the Crown appeal should be upheld and that the respondent should be resentenced.
The orders I propose are:
1.The Crown appeal in respect of the sentences on counts 3 and 5 is allowed.
2. The sentences for counts 1, 2, 4 and 6 are affirmed.
3.In relation to count 3 the sentence is quashed and in lieu thereof the respondent is sentenced to a fixed term of 4 years to commence on 20 January 2010 and expire on 19 January 2014.
4.In relation to count 5, having regard to matters as to the Form 1, the sentence is quashed and in lieu thereof the respondent is sentenced to a non-parole period of 5 years to commence on 20 January 2012 and expire on 19 January 2017 with a balance of term of 3 years to commence on 20 January 2017 and expire on 19 January 2020.
The aggregate non-parole period is 8 years with a total term of 11 years imprisonment.
R S HULME J: I agree with the orders proposed by McClellan CJ at CL and with his Honour’s reasons. I would however add the following remarks.
The sentencing of the respondent by Toner DCJ in this case wholly failed. In at least five of the six counts he had to consider his Honour imposed sentences which had fixed terms or non-parole periods of approximately half of the length they should have been, and this in the face of clear guidance in the form of standard non-parole periods and the decision of this Court in R v Henry (1999) 46 NSWLR 346. The effective total non-parole period that was the result of his Honour’s sentences suffered from the same deficiency.
It is all very well to be sympathetic to those whose backgrounds, whether due to their Aboriginality or otherwise, are deprived or disadvantageous. However, even in those environments it is difficult to believe that it is thought acceptable to stab people or to hold objects to the throats of others, and threaten them with death.
Prior to the first of the offences dealt with by Toner DCJ the respondent was sentenced by Courts on five separate occasions for a variety of offences. At least four of these offences involved stealing or otherwise appropriating the property of others. Whatever difficulties he may have experienced in his upbringing, the magistrates, Children’s Case Workers, Probation and Parole Officers and lawyers involved on these occasions must have made it clear to the respondent that such interference with the rights and property of others was not acceptable and that the Courts were likely to inflict serious consequences on the respondent if he continued to offend. The effective non-parole period of 8 years which will be the result of this appeal is a substantial interference with the life of someone aged 20 as the respondent now is. However, the nature and frequency of his offending argues for his incarceration being longer.
DAVIES J: I agree with McClellan CJ at CL.
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LAST UPDATED:
8 February 2011
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