R v Brown

[2000] NSWCCA 423

CITATION:	R v BROWN [2000] NSWCCA 423
FILE NUMBER(S):	CCA 60615 of 1999
HEARING DATE(S):	13 October 2000
JUDGMENT DATE:	13 October 2000
PARTIES :	Regina George William Brown
JUDGMENT OF:	Hulme J at 1; Barr J at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0203
LOWER COURT JUDICIAL OFFICER :	Coolahan

COUNSEL :	Crown: PG Berman Appellant: CB Craigie
SOLICITORS:	Crown: SE O'Connor Appellant DJ Humphreys
DECISION:	See paragraph 18

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IN THE COURT OF
CRIMINAL APPEAL
No: 60615/99

HULME J
BARR J

Friday, 13 October 2000
REGINA -v Charles William BROWN
JUDGMENT

1 HULME J: On 30 September 1999 this Applicant for leave to appeal was sentenced to imprisonment for a minimum term of 8 years from that date and an additional term of two years with respect to a charge of robbery whilst armed with a dangerous weapon and in company. Pursuant to s 97(2) of the Crimes Act, his actions rendered him liable for penal servitude as it then was for twenty-five years.

2    The circumstances of the offence were that the Applicant and a co-offender entered a truck repair workshop at Cardiff wherein the business of Mr Max Chalmers was conducted. Both offenders were disguised with balaclavas, the co-offender was armed with a baseball bat and the Applicant, wearing gloves, was carrying a shortened 2.2 calibre rifle and a pocket knife. Present in addition to Mr Chalmers was his wife, her sister, two other men and some children. The group was rounded up by the Applicant and directed into the lunch room. Demand was made that Mr Chalmers identify himself and when he did so he was ordered to open drawers and "get the cash". The Applicant became agitated as a result of which a safe was opened and some $300 taken. Mr Chalmers was struck by the Applicant with his hand and by the co-offender with a baseball bat. His Honour accepted that during these activities the gun was pointed at Mr Chalmers and others and that the gun was loaded.

3    The grounds of appeal are:

Grounds 1, 2 and 3.

4    The foundations of these grounds lies in a report from Miss Robilliard, a psychologist, to the effect that the Applicant is intellectually limited in his ability to negotiate the ordinary demands of every day living, functioning at around the bottom 1% of the population. According to Miss Robilliard he exhibits schizoid and anti-social behaviours and lacks the ability and social understanding needed to cope with a difficult moral dilemma. He was likely to behave in an impetuous manner and pay little heed to the consequences of his actions.

5    The dilemma to which Miss Robilliard was referring arose because of a claim by the Applicant that his former de facto wife and a young girl whom he had recently befriended had become addicted to drugs and the Applicant believed Mr Chalmers to be a drug dealer. It would seem there were some grounds for that belief. The Applicant claimed that he had attended Mr Chalmers' premises for the purpose of giving him a hiding.

6    Evidence given by the Applicant had some support for this claim as to why he attended the premises. So did some of his responses during the conduct of an ERISP. However his evidence under cross-examination was not calculated to inspire confidence and His Honour recorded that he was unable to say whether the Applicant's attendance at the premises was primarily for the purposes of a drug rip-off but also that he was also "unable to accept (the prisoner's evidence) that the prisoner committed this offence primarily because of some sense of moral judgment or that his ability to perceive the wrongness of the offence was in any way clouded". Of course a third possibility, though this does not seem to be canvassed, was that the Applicant's attendance at the premises was for both purposes.

7    His Honour's failure to find that the Applicant's only motivation in attending the premises was to give Mr Chalmers a hiding was the subject of attack in this appeal. It was submitted that particularly in light of the Applicant's low intelligence as ascertained by Miss Robilliard when one has regard to the way in which the Applicant referred to his reason for attending the premises during the course of his ERISP and in particular a degree of coyness in that regard and also what he had to say about it in the witness box, His Honour should have concluded that it was in the highest degree unlikely that this was a story made up by the Applicant and thus His Honour should have accepted that was the truth.

8    However, as I have indicated the Applicant gave evidence and his answers in cross-examination were somewhat less than frank. His Honour saw the Applicant in the witness box, an opportunity of course denied to this court and in those circumstances I find it impossible to reach the conclusion that this Court can come to a different view to that reached by the sentencing judge.

9    In reaching that conclusion I am not unmindful of the argument advanced on behalf of the Applicant but nor am I convinced that the only conclusion to which His Honour should have arrived was that contended for. His Honour clearly was conscious of the Applicant's low intelligence as witnessed by another part of his judgment but, given the matter largely depended upon questions of credibility, I take the view that I have expressed.

10    His Honour also observed that there was nothing in Miss Robilliard's report to suggest that the prisoner had any problem in knowing what was right and wrong and I am satisfied that he certainly did and was able to perceive the consequences of his acts. His Honour also expressed the view that the seriousness of the offence was not significantly affected whether it was robbery or the giving of a hiding to Mr Chalmers that prompted the attendance of the Applicant at Mr Chalmers' premises. In light of his Honour's findings that the Applicant had no problem in knowing the difference between right and wrong and that he was able to perceive the consequences of his acts - findings with which I would agree - this was a view His Honour was entitled to take and I see no error such as is asserted in the second and third grounds of appeal.

11    Although His Honour said that he took into account some of the remarks and opinions voiced by Miss Robilliard he did not identify the way in which, if at all, he took into account on the issue of general or specific deterrence her findings of the applicant's limited intellectual capacity. However a further statement that deterrence must feature strongly in any sentence imposed suggests that his Honour may well not have regarded the Applicant's intellectual functioning as described by Miss Robilliard as significantly reducing the weight to be given to the deterrence factors.

12    I doubt whether the Applicant's intellectual functioning in this regard has any significance so far as personal deterrence is concerned. For, given the Applicant's actions, particularly when considered in light of his record, about which I will say more below, there is much to be said for the view that the element of personal deterrence by punishment is one which should feature strongly in any sentence and not less than in the case of a person who is more susceptible presumably to reason. I can see that in other circumstances there may well be some force in the argument that the Applicant's intellectual functioning level might well make him a poor example to use by way of general deterrence but his Honour's findings that the Applicant had no problem in knowing the difference between right and wrong and that he was able to perceive the consequences of his acts leads me to the view that the argument has no, or negligible, weight here.

13    In any event, this is a case where if the Applicant's actions are to be explained on the basis of his low intellectual level, the protection of the community would argue for a higher sentence than in many other cases. There is nothing in the first ground of appeal which, of itself, causes me to think that His Honour erred in the sentence he imposed.

Grounds 4 and 5

14    On 1 September 1994 the Applicant was sentenced to imprisonment for a minimum term of four years and six months and an additional term of 18 months on a charge of robbery whilst armed. This offence was committed while he was on a recognizance. He had been released to parole on 28 December 1998 at the expiration of the minimum term. He was arrested in relation to the subject offence on 11 April 1999. On 25 May 1999 he was sentenced to imprisonment for 1 year 2 months 30 days from 13 April 1999 for breach of parole. Thus the minimum term of 8 years imposed by Judge Coolahan would follow five and a half months of this sentence and, apart from the Applicant's liberty between December 1998 and April 1999 follow the earlier period of four and a half years imprisonment.

15    Taking the view that the Applicant, given his previous offence and that he had been on parole for some four months or so, must have understood that a conviction would result in a very lengthy custodial sentence, his Honour made the remark quoted above that deterrence must feature strongly in any sentence imposed.

16    It should also be recorded that Miss Robilliard opined that when the Applicant was ultimately released from custody "he would benefit from a period of supervision through the Probation and Parole service". His Honour remarked that it was not argued on the Applicant's behalf that His Honour should find special circumstances and declined to do so.

17    There can be no doubt that the sentence totalling 11 years imposed on the Applicant was severe although it should be recognised that it commenced some four and a half months prior to the expiration of the sentence for breach of parole, or in substance, the balance of the prior sentence imposed on the Applicant for his prior robbery. But his offence was also very serious. It was for example far more serious than that contemplated in the guideline judgment in R v Henry. The Applicant was not young, he was 35. This was a second offence. He had thus a significant criminal history more serious than that contemplated in R v Henry. There were children present at the scene of his offence and the evidence of Mr Chalmers not surprisingly indicates that at the time they were traumatised. The weapon used, a rifle, is as a general proposition in my view more serious than a knife. It is certainly so when, as His Honour found, it was loaded. There is I think only one legitimate inference to be drawn from the presence of a loaded weapon namely that someone carrying it in these circumstances is prepared to discharge it. It must also be recognised that the maximum penalty for the offence of which the Applicant was convicted of twenty-five years is higher than that contemplated in the example guideline judgment of R v Henry. However although I think the Applicant merited a long period of imprisonment and perhaps in other circumstances I would not have regarded this one as too long, following as closely as it did the Applicant's prior period of incarceration, the view I have formed is that in the sentence imposed His Honour erred. While I appreciate that the fact that the subject offence was committed on parole is an aggravating feature and I do not underestimate the weight to be given to the fact the weapon was loaded, eight years minimum term for this offence following so closely after a previous four and a half years of incarceration might, I think, fairly be described as crushing and manifestly excessive in the particular circumstances. Given that overall period of incarceration and notwithstanding the intervention of the short period when the Applicant was at large, I think also that a period of greater than two years should have been imposed by way of additional term when subject to the views of the parole authorities the Applicant could be admitted to parole.

18    In my view the court should grant leave to appeal against sentence, quash the sentence imposed, sentence the Applicant to imprisonment for a period of eight years from 30 September 1999, direct that of this period 5 years be served before the Applicant becomes eligible for parole.

19    BARR J: I agree with the reasons given by the presiding judge for the allowance of this appeal and I agree with the orders proposed.

20    HULME J: The orders of the court will be as I have outlined.