R v Budd

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Budd [2002] NSWCCA 302

FILE NUMBER(S):
60393/01

HEARING DATE(S): 20 March 2002

JUDGMENT DATE: 14/08/2002

PARTIES:
Regina v Stuart James Budd

JUDGMENT OF: Dunford J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0012

LOWER COURT JUDICIAL OFFICER: His Honour Judge Kinchington QC

COUNSEL:
Applicant - C.B. Craigie SC
Crown - P. Ingram

SOLICITORS:
Applicant - D.J. Humphreys
Crown - S.E. O'Connor

CATCHWORDS:
Sentencing
appeal against alleged excessive sentences
one count of armed robbery with wounding
thirteen counts of robbery whilst armed with an offensive weapon
one count of assault with intent to rob
sundry offences on two Forms 1
consideration of whether sentences imposed exceeded the sentencing discretion available

LEGISLATION CITED:
Crimes Act 1900, s97(1) s98

DECISION:
Application for leave to appeal granted. Appeal allowed. Head sentence on count 13 reduced to ten years imprisonment to date from 19 April 2003 and expire on 18 April 2013. Non-parole period on count 13 reduced to five years and six months to date from 19 April 2003 and expire on 18 October 2008. All other sentences confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60393/01
DUNFORD J
CARRUTHERS AJ
Wednesday, 14 AUGUST 2002

R v Stuart James BUDD

Judgment

DUNFORD J: I agree with Carruthers AJ.
CARRUTHERS AJ: Stuart James Budd seeks leave to appeal against sentences imposed upon him by his Honour Judge Kinchington QC at the Sydney District Court on 21 June 2001.
His Honour sentenced the applicant in relation to one count of armed robbery with wounding pursuant to s 98 of the Crimes Act 1900 (the Act) (count 13) which carries a maximum penalty of twenty-five years imprisonment; thirteen counts of robbery whilst armed with an offensive weapon pursuant to s 97(1) of the Act (counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 14, 15), which also carries a maximum penalty of twenty years imprisonment; one count of assault with intent to rob whilst armed, pursuant to s 97(1) of the Act (count 9), which carries a maximum penalty of twenty years imprisonment. His Honour was also asked to take into account a further ten charges of robbery whilst armed, assault with intent to rob, and attempted robbery whilst armed on two Forms 1.
The various charges, dates of offences, brief facts, and sentences, including sentence commencement dates were helpfully set out in a table which was prepared by counsel for the applicant. That table, which I gratefully adopt (with one necessary amendment) is set out below:

Charge No	Date of Offence	Facts	Sentence	Commencement of Sentence
1	26.9.99	Applicant entered Island Food Store at Newtown and produced a “Stanley Knife” to the attendant, ordered the till to be opened and removed $75.	4 years fixed term	19.4.2000
2	7.11.99	Applicant returned to same store as above, the same attendant tried to run from the store, was intercepted by applicant who produced a “Stanley Knife” and ordered her to the till and removed $100.	5 years fixed term	19.4.2000
3	20.3.00	Applicant entered Cheesecake Shop in Marrickville, walked behind counter and produced a “Stanley Knife” to attendant and removed $140 from till.	6 years fixed term	19.4.2000
4	27.3.00	Applicant entered Addison Gourmet Store in Marrickville, held a knife at throat of attendant and said “give me all your money”, attendant opened cash drawer and applicant removed $100.	6.5 years fixed term	19.4.2000
5	4.4.00	Applicant entered the same store as 4 above, threatened the same attendant with a “Stanley Knife” and removed $150 from cash drawer.	7.5 years fixed term	19.4.2000
6	30.3.00	Applicant entered the Bridge Pharmacy at Epping approached attendant and held a “Stanley Knife” under her chin and said “open the till, don’t say anything, don’t scream”, forcing her to open the cash register, applicant removed approx $670.	6.5 years fixed term	19.4.2000
7	14.4.00	Applicant entered same premises and approached same attendant as in charge 6 above, waved a “Stanley Knife” in front of her face, took her by the arm, led her to the cash register, demanding that the till be opened. Applicant took $60 to $80 before being interrupted by proprietor of shop next door whereupon he threatened that person before being chased from the pharmacy. 5 Matters on Form 1 taken into account.	8 years fixed term	19.4.2002
8	14.4.00	Immediately after charge 7 above applicant entered the Endeavour Takeaway Shop at Epping, approached attendant and owner, threatened both with a “utility knife” before opening cash register and removing approx $500.	7 years fixed term	19.4.2002
9	4.3.00	Applicant entered Coffee Express at Artarmon, produced a “Stanley Knife” to two attendants and threatened them. Applicant said “if you’re closed, where is the money”, after being told there was none they showed him the empty till and he left.	5 years fixed term	19.4.2000

10	4.3.00	After leaving premises in charge 9 above, applicant entered the Amcal Chemist at Crows Nest, produced a knife to two employees, demanded they open the till and removed $250.	5 years fixed term	19.4.2000
11	9.3.00	Applicant entered Crows Nest Newsagency, produced a Stanley Knife to an attendant, demanded the till be opened and removed $250.	5 years fixed term	19.4.2003
12	15.3.00	Applicant entered Blue and White Dry Cleaners in Neutral Bay, produced a Stanley Knife to two employees, demanded the till be opened and removed $800.	5 years fixed term	19.4.2000
13	28.3.00	Applicant entered a supermarket in Waverton, produced a Stanley Knife to an employee, demanded the till be opened, obtained $700 from the employee. As applicant attempted to leave the premises the employee sought to detain him, applicant said “let me go, I’ve got a knife, I’ll cut you”. Shortly after the employee sustained a cut to his upper chest just below the throat and on the inner left bicep, which caused him to release the offender. The employee required medical attention. 5 matters on Form 1 taken into account.	12 years NPP 8 years	19.4.2003
14	31.3.00	Applicant entered St Leonard’s Pharmacy produced a Stanley Knife to an attendant, demanded the cash drawer be opened and removed $400.	6.5 years fixed term	19.4.2000
15	4.4.00	Applicant returned to same premises as in charge 14 above, approached the same employee with a Stanley Knife and demanded the till be opened and removed $400.	7.5 years fixed term	19.4.2000

Matters on Form 1 taken into account on charge no. 15:

Date of alleged offence	Alleged Offence (Brief Description)
06/03/2000	The accused attended the Select Stationery store in Crows Nest, armed with a Stanley knife. He made a demand to the employee of the store while brandishing the knife. Two employees of the store pushed the accused away before the accused left the store.
06/03/2000	The accused after leaving the Select Stationery store went to Dunns Pharmacy whilst armed with a Stanley knife. He approached a female employee brandishing the knife and demanded the till to be opened. While holding the knife to the side of the victim the till was opened and he removed $1,520 before leaving the store.
10/03/2000	The accused went to the WC Penfolds Stationers store armed with a Stanley knife. He approached an employee of the store at the till brandishing the knife. He said, “Give me the money or I will cut you”. The employee opened the till and the accused removed $314 before leaving the store.

15/03/2000	The accused attended the Cremorne Dry Cleaners armed with a Stanley knife. He approached the employee and placed the knife at the employee’s throat saying, “Bastard open the till, don’t be crazy”. The accused was pushed away by the employee and the accused left the store. No money stolen.
13/04/2000	The accused went to the Crows Nest Newsagency armed with a Stanley knife. He approached the employee of the store and said, “This is a hold up, give me your money. I’ll start slashing”. The employee opened the till and the accused removed $160 before leaving the store.

Matters on Form 1 taken into account on charge no. 7:

Date of alleged offence	Alleged Offence (Brief Description)
27 January 2000	Attempt Robbery Whilst Armed with an Offensive Weapon (Stanley knife) of MAI at MAIS Pharmacy.
11 April 2000	Assault with intent to rob s97(1). Assaulted Mona DEEB with intent to rob her whilst she was working at the mixed business store and whilst armed with a stanley knife.
22 February 2000	Robbery whilst armed with an offensive weapon (utility knife) s97(1) of SAKREZEWSKI of $350, property of Central Newsagency.
22 March 2000	Robbery whilst armed with an offensive weapon (stanley knife) s97(1) of Manh NGUYEN of $2000 at Mixed Business store.
21 March 2000	Robbery whilst armed with an offensive weapon (stanley knife) of Kristeen NGUYEN of $3000 at Allan’s Café.

It will be seen that count 13 attracts the longest sentence. Bearing in mind that such sentence is fixed to commence on 19 April 2003, three years after the applicant was taken into custody, it has a termination date of 18 April 2015 and the non-parole period which also dated from 19 April 2003 will expire on 18 April 2011.
Thus, overall the applicant was sentenced to spend eleven years in prison, with a parole period of four years.
For the sake of good order it should be noted that, when sentencing the applicant his Honour (because of difficulties with the committal papers) referred to some of the charges by different numbers to those in the indictment, but in the result nothing turns on this. The particulars of trial are consistent with the count numbers in the table set out above.
The following matters may be noted from his Honour’s remarks on sentence.
The moneys obtained as a result of these robberies could not be said to be great, to use his Honour’s expression. In the main the amount obtained in each robbery was in the vicinity of $100, $200, $300 or $400. His Honour noted that the psychological damage that the robberies did to the victims thereof cannot be estimated at the time of sentence. Particular reference was made to the physical injuries sustained by the shop assistant who was wounded in relation to count 13.
With regard to count 13, when the sum of $700 was taken by the applicant, the shop assistant, who was threatened by him, attempted to stop the applicant from leaving the premises and, in the struggle that ensued, sustained cuts to his upper chest, just below the throat, and on the inner left bicep, which caused him to release the offender, who then decamped. His Honour, of course, acknowledged this to be a serious charge and indeed the most serious charge. Of course, this whole episode of criminality was very serious indeed and demands salutary punishment, to adopt his Honour’s expression.
The subjective material before his Honour indicated that the applicant was a single man approaching his thirty-fifth birthday and living within a relationship with a lady in the Marrickville area. One could only describe his past life, his Honour said, as having been of a dysfunctional nature although he had every opportunity of a good education.
Until about 1995 he was in full time employment, however, he had an alcohol and drug problem which continued until the time of sentence. His Honour was satisfied that at the time of the robberies the applicant was addicted to heroin and that most of these robberies were committed either to feed that habit or to pay those persons who were supplying him with that illicit drug because of threats that were made to him for money.
The applicant has had a number of prior convictions for larceny, unlawfully obtaining goods, driving under the influence of alcohol and other driving offences. He has been subject to fines, bonds, community service orders and custodial sentences, however, he had never faced a court with respect to charges as serious as those with which his Honour dealt.
He was arrested on 19 April 2000, charged with a number of robbery offences, subsequently re-interviewed and charged with further robbery offences. His Honour came to the conclusion that, in the main, the applicant had co-operated with the investigating authorities and helped them to solve the robberies to which he pleaded guilty. Such pleas were recognised to be at an early time and attracted a discount.
He had also expressed, in his Honour’s opinion, some remorse and contrition for his criminal conduct in committing the twenty-five robberies. His Honour thought that was a good sign but did not know what the future would hold for the applicant.
His Honour had before him a report by W. John Taylor, clinical forensic psychologist, dated 11 April 2001. The opinions expressed by Mr Taylor in that report are as follows:
“Mr Budd’s assessed current level of intellectual functioning is within the average range. Neuropsychological test results indicate that he has significant impairment particularly within the areas of the higher attentional abilities involving working memory, short-term memory, constructional functioning, and abstract reasoning abilities. There are indications that he has suffered from some traumatic organic brain injury. The history obtained from him indicates that he has only ever suffered from one significant head injury in which he has been rendered unconscious and had a significant period of post-traumatic amnesia and that is the assault which he suffered on 15th February 2001. He stated that he had a period of post-traumatic amnesia of about 3 days. This must be considered to be a very significant head injury and one quite capable of producing cognitive impairment as a result of the traumatic brain injury. It is noted though that the injury only occurred about 4 or 5 weeks prior to the present assessment and it is therefore too early to state the extent to which he is going to suffer from permanent impairment. He will need to be reassessed in some 12 months. However, the assault that he has suffered still has a very significant impact on him in terms of his ability to attend in his memory. He continues to have his jaw wired because of the fracture to it.
Personality test results reveal that he has some instability in his personality functioning with some antisocial characteristics. It appears that he has suffered from dysthymia for many years and this is certainly suggested by the history obtained from him. The nature of his current personality adjustment was outlined earlier in this report. He is presently depressed and anxious and he does seem to have been depressed for a considerable period of time.
Mr Budd also has engaged in considerable substance abuse over the years and it appears to be his heroin addiction which is responsible for his present offences. He does seem to have been particularly vulnerable to developing an addiction to heroin because of both long-standing depression as well as pain associated with previous injuries. However, his behaviour in committing offences has resulted in a further decline in his self-concept and his level of self-esteem. He exhibited considerable remorse in relation to his behaviour and considers himself to be a ‘disgrace’.
It is clear that Mr Budd is in need of rehabilitation with regard to his substance abuse. It is felt that he will require a long-term drug rehabilitation program to achieve a drug-free status in the future. However, I feel that it would be quite pointless to deal with his drug abuse without at the same time considering his emotional disturbance. He needs to have considerable psychotherapy and psychiatric treatment for his depression. He also needs assistance to develop more adequate emotional and personality resources to assist him in coping better with his life.
I feel that if Mr Budd is motivated to enter into a psychiatric program as well as drug rehabilitation, and that his motivation is maintained once he has started these, then his potential for recidivism would be significantly lower than is currently assessed. The actuarial assessment of his potential for recidivism as measured by the Statistical Information on Recidivism Scale is quite high with only 1 in 3 offenders are (sic) not likely to reoffend in the future. However, with adequate ongoing psychiatric treatment and drug rehabilitation, I feel that this could be substantially reduced.”
In relation to the above report, his Honour expressed the view that it left a number of unanswered questions. His Honour accepted that the prisoner had at present resolved to try and change his ways but whether he could or not depended on him. He will have to come to grips with his drug addiction and dependence upon alcohol. He will have to settle down and lead a stable lifestyle. Whether he could do that or not only time would tell.
His Honour referred to the judgment of this Court (Beazley JA, Wood CJ at CL, Greg James J) in R v Bavadra, (2000) 115 A Crim R 252 and noted in particular the following passage from the judgment of the Chief Judge at Common Law with which the other judges agreed (at 158):
“When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: Morgan (1993) 70 A Crim R 368 at 372 per Hunt CJ at CL.”
For a recent discussion of this principle see R v Kay [2002] NSWCCA 286 at pars 49-56.
His Honour, of course, paid particular attention to this expression of principle when imposing the sentences for the offences which took into account the matters in the Forms 1.
His Honour allowed a discount approximating thirty per cent of sentences which would otherwise be appropriate for the criminal conduct, or his criminal behaviour, on these fifteen occasions. Nevertheless it seemed to his Honour he must subject the applicant to salutary sentences of an escalating nature.
His Honour made no particular reference to special circumstances with relation to the non-parole period.
The essence of the applicant’s case was that despite the seriousness of the various offences the overall sentencing regime was manifestly excessive. Specifically it was agreed that there was a need for a discrete allowance for the utilitarian factor. Further that there were very significant subjective factors which were not given sufficient weight. Reference was made here to the fact that the applicant had a depressive condition following long periods of unemployment The fact that he indulged in this remarkable display of serious criminal behaviour at the age of thirty-five could be explained by the addiction to drugs. Further there was evidence of rehabilitation. Importantly, however, the addiction to drugs was an explanation for the extraordinary outburst of criminality of such a serious nature. It was also submitted that when one looks at the Henry guidelines, and taking into account that the applicant was older than the Henry stereotype and there was a level of violence in one matter, it was submitted that nevertheless a question arises whether the sentences individually or in aggregate were not manifestly excessive.
The addiction, it was submitted, was both psychological and addictive.
It was further argued that a simple repetition of like offences does not necessarily represent an acceleration of a pattern of criminality.
The fact that the twelve years for the robbery with wounding was made cumulative upon other offences was a factor which led, it was contended, to the manifest excessiveness of the overall sentences.
Bearing in mind that the overall sentences amounted to fifteen years and taking into account the accumulation, his Honour clearly erred, it was submitted, in allowing a non-parole period of eight years which of course is necessarily accumulated upon the three years which will have been served by the time the commencement date of the non-parole period is reached.

In fairness Mr Ingram of counsel for the Crown effectively conceded (and in my view correctly) that some adjustment was required to the effective overall non-parole period. Mr Ingram submitted, however, that it should not be reduced below an effective nine years.
A helpful aspect of the submissions by senior counsel for the applicant related to the comparative sentences between the subject matter and Bavadra, bearing in mind that Bavadra was of course a Crown appeal and that when this Court re-sentenced it did so in accordance with the customary principles that the re-sentence should not exceed what was the minimum available to the sentencing judge at the time of sentence.
The sentences in Bavadra were an effective period of twelve years with a non-parole period of eight years. The offences in Bavadra were, it was contended, objectively more serious, far more professional and more premeditated than the subject offences. In Bavadra the respondent had been charged with two counts of robbery whilst armed with an offensive weapon, two counts of robbery in company and three counts of robbery whilst armed with a dangerous weapon, together with eleven matters on a Form 1. Some of the counts involved the use of a handgun and the robbery of $33,000 from the Commonwealth Bank where staff were threatened with both a knife and a handgun and forced to lie on the floor; the use of a handgun to rob a convenience store where the handgun was held to the head of the victim and where the victim was forced to walk to the rear of the store where his face was covered and the victim was stabbed in one hand and one leg by one of the co-offenders; the use of a shortened double barrelled shotgun to rob a bottle shop where an employee and a customer were taken to a storage room and made to lie on the ground; the use of a knife to rob another bottle shop, the knife being held to the neck of an employee of the store; the use of a meat cleaver to rob $16,195 from the Commonwealth Bank where one of the offenders patrolled the bank area with a meat cleaver; the robbery of a video store in company with three other males where a shotgun was pointed at an employee and his hands were then bound together with electrical tape.
Of course, the re-sentencing in Bavadra takes into account the double jeopardy principle.
Counsel for both parties provided the Court with a number of earlier authorities which it was suggested might be of some relevance for comparative purposes. There are three cases following the guideline judgment in Henry, [1998-1999] 46 NSWLR 346, which are of some assistance. They are, in chronological order: R v Merritt [2000] NSWCCA 365, a Crown appeal in which, on re-sentence, the respondent was sentenced to a head sentence of eighteen years with a non-parole period of thirteen years and six months; R v Itamua [2000] NSWCCA 502, again a Crown Appeal in which the sentence was increased to fourteen years cumulative on a fixed three year term, with a non-parole period of eight years and, finally, R v Karaman [2002] NSWCCA 48, a Crown appeal in which the applicant was re-sentenced to a head sentence of twelve years with a non-parole period of nine years.
Generally speaking, I think it would be fair to say that (with the possible exception of Karaman) overall the factual circumstances in each of these cases might be considered to be more serious than in the instant case. Albeit it is extremely difficult to make comparisons such as this, particularly bearing in mind the large number of offences committed by the present applicant. It must also be borne in mind that the present applicant on each occasion was armed with a Stanley knife and on a number of occasions robbed the same store twice.
Bearing in mind that his Honour allowed a discount of approximately 30% to take account of the utilitarian value, which was significant in this matter, I have ultimately concluded (balancing the objective and subjective factors) that the head sentence in all the circumstances exceeded the sentencing discretion available to his Honour and that the intervention of this Court is called for. His Honour’s starting point must have been to the order of an overall head sentence of approximately twenty-one years and five months, which I respectfully consider to be in all the circumstances too high.
As was the case in the original sentencing process, the re-sentencing process is not without difficulty. As has been pointed out in some detail by the Crown, the objective circumstances of each of the offences was serious indeed. I shall not repeat all that detail here.
Nor do I think any of the sentences at first instance, apart from that in relation to the thirteenth count, should be adjusted, albeit, we have heard argument that it did not comply with the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. I am inclined to agree, however, with the submission by Mr Ingram of Counsel for the Crown that to the extent that the sentences did not comply with Pearce they were favourable to the applicant.
Thus, so far as head sentences are concerned, I would confirm the sentences imposed on all counts with the exception of count 13. I would propose that the head sentence in relation to count 13 (and again, taking into account the Form 1 matters) be reduced to ten years imprisonment to date from 19 April 2003 and to expire on 18 April 2013.
Insofar as special circumstances are concerned, there was evidence before his Honour of attempts at rehabilitation on the part of the applicant. That evidence was supplemented by material put before this Court in the event that the Court would intervene. In addition the accumulation of sentences itself constitutes special circumstances.
Reference has already been made to the serious injury which the applicant sustained whilst in custody in February 2001 which required him to spend three months in hospital. His assailant has not been identified and the applicant is naturally constantly worried that he might be assaulted again.
His behaviour in custody has been very satisfactory and, despite what appears to have been a lack of facilities he seems to be furthering his desire to rehabilitate himself. He asserts a positive determination to overcome his prior addiction to heroin and contended that he has not taken heroin since his incarceration.
The applicant’s assault has left him with significant tinnitus in his left ear and significantly reduced his hearing. Both these conditions appear to be permanent. The applicant has been told by the authorities that he will be fitted with a hearing aid but as at the date of the hearing of the application, that hearing aid had not been provided.
The applicant has been prescribed medication for the tinnitus but it does not seem to help him very much and he contended that he suffers poor balance which he believes can be directly related to the assault.
Thus, it is clear that the period which the applicant will be left to serve in the custodial system will be served under difficulties. As yet, according to the material before this Court, the applicant has not sought to be placed on protection.
In the circumstances therefore I would propose that the non-parole period fixed by his Honour on count 13 be reduced to a non-parole period of five years and six months to date from 19 April 2003. Thus, the non-parole period would expire on 18 October 2008, upon which date the applicant would be eligible to apply for parole. Effectively this would mean that the applicant will serve eight years six months in custody if he were to be granted parole on the date which I have mentioned because of the accumulation of sentences and the non-parole period fixed in relation to the last of the head sentences to expire, namely count 13.
All other sentences are confirmed. It is not necessary in the circumstances to fix a non-parole period in relation to those offences.

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LAST UPDATED: 14/08/2002

[2002] NSWCCA 302

14 August 2002