R v CAMPBELL

[2000] NSWCCA 157

CITATION:	R v CAMPBELL [2000] NSWCCA 157
FILE NUMBER(S):	CCA 60007/00
HEARING DATE(S):	3 May 2000
JUDGMENT DATE:	3 May 2000
PARTIES :	Crown (Appellant) Scott John CAMPBELL (Respondent)
JUDGMENT OF:	Dunford J at 1; Foster AJA at 33; Smart AJ at 34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0208
LOWER COURT JUDICIAL OFFICER :	Nader DCJ

COUNSEL :	CK Maxwell QC (Crown) P Winch (Respondent)
SOLICITORS:	SE O'Connor (Crown) TA Murphy (Respondent)
CATCHWORDS:	CRIMINAL LAW - sentencing - Crown appeal - robbery whilst armed with a dangerous weapon with wounding - application of guideline judgment.
LEGISLATION CITED:	Crimes Act 1900, s 98 Criminal Appeal Act 1912, s 5D
CASES CITED:	R v Henry [1999] NSWCCA 111, (1999) 46 NSWLR 346 R v Readman (1990) 47 A Crim R 181 R v Allpass (1993) 72 A Crim R 561
DECISION:	Crown appeal allowed, sentence quashed. Respondent re-sentenced (see para 32).

IN THE COURT OF
CRIMINAL APPEAL

60007/00

DUNFORD J
FOSTER AJA
SMART AJ

Wednesday, 3 MAY 2000

R v Scott John CAMPBELL
JUDGMENT

1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on the respondent by Acting Judge Nader QC in the District Court at Newcastle on 22 October 1999 following his plea of guilty to a charge of robbery whilst armed with a dangerous weapon with wounding, contrary to s 98 of the Crimes Act 1900, which offence carries a maximum penalty of twenty-five years. The respondent also pleaded guilty to a charge of common assault contrary to s 61 of the said Act, but after he had been sentenced (apparently only in respect of the offence under s 98) he was permitted to withdraw his plea to the common assault charge, on the ground that the preferring of the two charges was duplicitous. 2 His Honour sentenced the respondent to a sentence of six and a half years penal servitude consisting of a minimum term of four and a half years and an additional term of two years. 3 The notice of appeal was signed on 24 December 1999 and was served on the respondent on 5 January 2000. 4 At about 12.30 am on 10 February 1999 the respondent and his co-offender, Natalie Jane Davies, travelled to premises at 18 Wilton Road, Awaba. The co-offender knocked on the door and spoke with one of the victims, Mr Leslie Wellard, asking him for some water because her car had broken down. He gave her some water. She returned to the car and appeared to put water in the radiator. She then got into the front passenger seat and the car was driven away. 5 At about 1.15 am the same night Mr Wellard was watching television when he heard his dog barking. He opened the front door and saw the co-offender, who told him that her car had broken down again and asked if she could use the telephone to ring the NRMA. Mr Wellard turned towards the phone, which was in the lounge room, and gave the co-offender permission to use it. As he turned back towards the front door he saw the respondent standing about a metre away from him, holding a sawn-off shotgun to his left shoulder, pointed at Mr Wellard's head. The respondent's finger was on the trigger. He told Mr Wellard to lie face down on the floor, which he did, and the respondent then sat on his back and placed the barrel of the gun to the back of his head. Mr Wellard believed that he was about to be shot in the head. 6 The respondent demanded money. Mr Wellard told him that he only had $1, so the respondent then taped his hands with duct tape behind his back. His legs were taped together as well and tape was placed around his mouth. He then told the co-offender to steal the video recorder from the television cabinet. 7 At that time Mr Wellard's brother, Allyn Wellard, was in his bedroom. He heard raised voices and opened the bedroom door. The respondent pointed the shotgun at Mr Allyn Wellard and told him to lie down or he would shoot him. Mr Allyn Wellard replied that he would go back to his room, which he did, and closed the door. As Mr Allyn Wellard stood behind his bedroom door with his left hand extended holding the door shut by the door handle the respondent discharged the shotgun. The shot penetrated the door and Mr Allyn Wellard was struck in the upper chest and chin by a number of pellets. 8 The respondent and the co-offender then left the premises and drove away in a silver-coloured Camira sedan. Later police and ambulance arrived and Mr Allyn Wellard was taken to hospital and treated for his injury; namely, three puncture wounds to the right pectoral region and one puncture wound to the right side of his chin and some grazes. 9 On about 6 March the respondent and the co-offender were arrested and taken to Cessnock police station where the co-offender was interviewed. Later police interviewed the respondent and he denied any knowledge or involvement in the crime, and also denied pawning the stolen video recorder. 10 Whilst he was being interviewed police executed a search warrant on premises belonging to the respondent's mother and located a sawn-off 12 gauge shotgun. They then informed the respondent what they had found and conducted a further interview with him in which he admitted that he had gone with the co-offender to the victim's premises with the intention of stealing money and cannabis. He stated that when they went there he was in possession of a shortened shotgun and cartridge. 11 The respondent said that when the co-offender was allowed into the premises he loaded a single cartridge into the shotgun and approached the first victim, pointing the shotgun at him. He said he tied the victim up with duct tape and looked under the lounge for money and cannabis. He said at that stage the second victim came out of the bedroom and he asked him to lie on the floor but when the victim closed the door and returned to his bedroom he swung around and the shotgun went off which passed through the door. He said that he did not intend to discharge the firearm, but his Honour expressly found that he fired it deliberately. 12 The respondent said that the co-offender had stolen the video recorder from the lounge room at his request and he also admitted pawning it for the sum of $50, which was spent on food, and he said that after the incident he secreted the shotgun in the washing machine in his mother's garage.
13    The respondent was born on 23 April 1971 and was, accordingly, aged twenty-eight at the time he stood for sentencing. He was the eldest of three children. His parents separated when he was young and both his father and grandfather were heavy drinkers and prone to violence. He was raised principally by his mother and stepfather, but he felt the latter never accepted him and flogged him so that he often ran away to his grandparents' home. 14    The respondent told the psychologist, Ms Barrier, that he played up at school but did not have a lot of trouble with school work. He completed Year 10 but was not awarded the School Certificate on account of disciplinary reasons. Since leaving school he has generally been in employment but shortly before the offence, due to a back injury and retrenchment, he became unemployed with the result that he and his co-offender, who was his de facto wife, lost the rented premises in which they were living; and at the time of the offence they were living in a tent in a caravan park. He had known his de facto wife for fifteen years and been in a relationship with her for six. There is one child of the union, aged three. 15    He said that he used alcohol to excess and also used amphetamines and cannabis but was not addicted to either. 16    The psychologist concluded that he suffered a personality disorder with paranoid features with the result that he would be wary and distrustful of others and felt characteristically embittered and resentful and tended to be over-sensitive and defensive.
17 The respondent has a criminal record going back for many years, involving assault and robbery as a juvenile, whilst as an adult he has a number of relevant offences including eight convictions for assault, including assault police, four for malicious damage, two for assault occasioning actual bodily harm, two for malicious wounding and one for stealing. He has served a number of terms of imprisonment. The longest was a minimum term of nine months with an additional term of three months in 1993 to a charge of malicious wounding and most recently, three months on two counts of assault police in 1994. Although his record showed a bad and very alarming propensity to violence, there was only one previous stealing offence as an adult and nothing which, on the face of it, indicated a prior use of firearms, although it may be expected that the charges of malicious wounding probably involved a weapon of some nature. 18 This was the first time he had committed an offence which was dealt with on indictment, and after his prison sentence in 1994 for assaulting police he did not return to prison until apprehended for the present matter. 19 He pleaded guilty at the first opportunity and was originally committed to the District Court for sentence pursuant to s 51A of the Justices Act 1902 but the Crown presented an indictment containing reframed counts. 20    In his favour it can be said that he was not a drug addict committing armed robberies on a regular basis as a means of supporting a drug habit and, notwithstanding his propensity to violent criminal behaviour, he had generally been in honest and regular employment and in a stable domestic relationship. 21    As his Honour correctly acknowledged, the starting point in a matter such as this is the guideline judgment in R v Henry [1999] NSWCCA 111, (1999) 46 NSWLR 346, although his Honour correctly acknowledged that that was a case under s 97(1); namely, robbery armed with an offensive weapon or in company and it carries a maximum of twenty years imprisonment, whereas this offence is under s 98 and carries a maximum of twenty-five years imprisonment. It also involves the additional elements of assault or wounding a person and, therefore, generally the range of penalties should be higher than the penalties for offences under s 97(1). 22 In Henry at paras [161] to [165] this Court laid down a guideline penalty of four to five years for the full term in cases under s 97(1) involving:

(1) Young offender with little or no criminal history.
(2) Weapon like a knife capable of killing or inflicting serious injury.
(3) Limited degree of planning.
(4) Limited, if not actual, violence but a real threat thereof.
(5) Victim in a vulnerable position such as a shopkeeper or taxi driver.
(6) Small amount taken.
(7) Plea of guilty, the significance of which is limited by a strong Crown case.

In relation to these criteria I note the following:
(1) This respondent was not a young offender but was twenty-nine years old and he had a considerable criminal history including many offences involving violence.
(2) The weapon was not a knife or a similar weapon, but a loaded shotgun, much more dangerous than a knife and much more readily capable of causing death or grievous bodily harm. Indeed, a loaded shotgun is probably the most dangerous weapon available on a personal basis in the community. In addition, a shotgun, even if not loaded, is prone to cause panic and fear in the minds of victims, and this was in fact the case in the present instance.
(3) There was here more than a limited degree of planning. His co-offender was used to case the premises and entry was gained by the subterfuge of requesting to use the phone.
(4) This is not a case of limited violence but of quite substantial violence; two persons were assaulted, one had the gun held to the back of his head whilst tied up and gagged, and then a shot was fired at random through a door which caused actual wounding but which could have caused fatal injuries.
(5) Although the victim was not in an isolated position at night such as a shopkeeper or taxi driver, these were two pensioners, not particularly elderly, whose home was invaded in the middle of the night; and the community has a right to feel safe, particularly in their own homes at night: compare R v Srey (Court of Criminal Appeal - 1 November 1996) at p 4.
(6) There was only one item taken, the video recorder, which was pawned for the paltry amount of $50, but that is not why the respondent and his co-offender were there. They had heard that there was $2,000 and a supply of cannabis in the premises. I hasten to add that there is no suggestion that there was, but it was because of this belief that the offenders went there.
(8) There was a plea of guilty but its significance was limited by a strong Crown case.

23    In Henry at para [170] Spigelman CJ referred to a number of aggravating features including, in particular, the nature of the weapon, the scale of planning, the intensity of the threat or actual use of force and the effect on the victims. 24 I also refer to R v Readman (1990) 47 A Crim R 181 at 185 where the ascending seriousness of armed robberies involving the use of a firearm is discussed, and I note the situation here is at the top of the range. That case also emphasises the need for specific and general deterrence in cases of armed robbery, particularly where there is the use of a loaded gun. 25 These considerations all indicate that there should have been a total sentence considerably higher than the range indicated in Henry. His Honour acknowledged this fact and the sentence of six and a half years is, of course, higher than the range suggested in Henry and, accordingly, the Crown cannot point to any specific errors of judgment in his Honour's reasoning.
26    However, as pointed out in R v Allpass (1993) 72 A Crim R 561 at 562, where the error does not appear in the reasons given by the sentencing judge the sentence itself may be manifestly excessive or inadequate and thus disclose error. 27 In my opinion, that is the position here. I consider that although his Honour imposed a sentence greater than the guideline indicated in Henry, the sentence imposed should have been much higher and, having regard to the matters I have referred to, I consider that a total sentence of at least eight or nine years was called for. 28    However, as Allpass points out, when in response to a Crown appeal the Court decides to re-sentence an offender it ordinarily gives recognition to the element of double jeopardy by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance, and does so in the light of all the facts and circumstances available to it at the time of sentencing, including events which have occurred after the original sentence. 29    In the present case reports from the gaol authorities and the certificates which have been tendered indicate that the respondent has been addressing drug and alcohol issues, has completed an anger management program and has been working in the prison industries. Not surprisingly, in view of his pre-sentence work history, he is described by his supervisor as a good and reliable worker. Provided he continues in this way his prospects for rehabilitation are good. 30    Before leaving the matter I should refer to the question of the statistics kept by the Judicial Commission. The use and limitations of such statistics have been described in a number of cases, including Bloomfield (Court of Criminal Appeal - 15 July 1998). The sentence imposed in this case was within the range indicated by those statistics. However, those statistics, both in respect of offenders and those with prior offences of a different type, cover a period 1990 to 1999 and, in my opinion, their use needs to be qualified by reference to the guidelines set in Henry. Those guidelines were set because the Court concluded that there had been a pattern of systematic leniency in relation to offences of this and a similar nature, and so when considering statistics relating to the period before Henry it is necessary, to have regard to that factor. 31    For these reasons, I am satisfied that the sentence imposed was manifestly inadequate. Having regard to the principles to which I have referred dealing with Crown appeals, and so as not to interrupt any more than is necessary the respondent's progress towards rehabilitation I propose that the appeal be upheld but a sentence be imposed which is somewhat less than I consider should have been imposed at first instance. 32    I would, therefore, allow the Crown appeal, quash the sentence imposed by his Honour and in lieu thereof order that the respondent be sentenced to imprisonment for a minimum term of five and a half years to date from 11 March 1999 and to expire on 10 September 2004, with an additional term of two years. The earliest date on which the respondent would be eligible to be released on parole would be 10 September 2004. 33    FOSTER AJA: I agree. 34    SMART AJ: I also agree. 35    DUNFORD J: The order of the Court will, therefore, be as I have indicated. The exhibits may be returned.

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