R v Carter

[1999] NSWCCA 376

CITATION:	R v Carter [1999] NSWCCA 376
FILE NUMBER(S):	CCA 60444/98
HEARING DATE(S):	24 November 1999
JUDGMENT DATE:	24 November 1999
PARTIES :	Kevin Carter (Applicant) Regina (Respondent)
JUDGMENT OF:	Dunford J at 1 & 29; Sperling J at 28

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/71/0109
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ

COUNSEL:	RJ Button (Applicant) CK Maxwell QC (Crown/Respondent)
SOLICITORS:	TA Murphy (Applicant) SE O'Connor (Crown/Respondent)
CATCHWORDS:	CRIMINAL LAW - sentencing - delay - due to applicant - whether ground for leniency; CRIMINAL LAW - sentencing - parity - sentence of co-offender - material differences.
ACTS CITED:	Crimes Act 1900, s 97
CASES CITED:	Lowe v The Queen (1994) 154 CLR 586; R v Todd [1982] 2 NSWLR 517; Mill v The Queen (1988) 166 CLR 59; R v Harrison (1990) 48 A Crim R 197; R v V (1998) 99 A Crim R 297; R v King (unreported - CCA - 24 February 1998); R v Blanco [1999] NSWCCA 121; R v Fahda [1999] NSWCCA 267; R v Henry [1999] NSWCCA 111, 46 NSWLR 346.
DECISION:	Leave to appeal against sentence granted, appeal dismissed, sentence confirmed.

IN THE COURT OF
CRIMINAL APPEAL

60444/98

DUNFORD J
SPERLING J

WEDNESDAY, 24 NOVEMBER 1999

R v Kevin CARTER
JUDGMENT

1 DUNFORD J: This is an application brought by Kevin Carter for leave to appeal against the sentence of penal servitude for a minimum term of 2 years with an additional term of 2 years, imposed on him by his Honour Judge Twigg QC in the District Court at Sydney on 7 August 1998, following his plea of guilty to a charge of robbery in company contrary to s 97, Crimes Act 1900, which offence carries a maximum penalty of 20 years penal servitude. 2 The facts as found by his Honour were as follows. In the early hours of the morning of 14 February 1996 the victim was assaulted and robbed of $150 cash in a park in Hay, by three young men, one of whom was the applicant. The victim was subsequently admitted to hospital with numerous facial cuts requiring stitches, with extensive facial bruising and with bruising and soreness to his torso. 3 The victim was on his way from Perth to Queensland and was forced to stay in Hay because of mechanical difficulties with his car. He was drinking at the Commercial Hotel there and later accompanied some young men, including one of the co-offenders, Simon Haigh, the applicant and some girls to a house apparently belonging to the applicant in Hay. There they all, including the victim, consumed alcohol and the victim himself indicated that he drank ten Bourbon and Cokes. In due course the victim left the house accompanied by two of the girls. In Hay Park the two girls left him and he was assaulted and robbed. 4 The applicant punched the victim with his closed fist in the face. He hit him about eight times and demanded money. The victim threw his wallet containing $150 cash at the prisoner, and the three males including the prisoner and the co-offenders, Simon Haigh and Frederick Johns, assaulted the victim, punching him and kicking him in the ribs whilst he was on the ground. 5 That assault and robbery was all done pursuant to a plan made at the applicant's house by the applicant and his co-offenders, whereby one of the girls would lead the victim into the park, and the other males would assault and rob him. In a recorded interview on 16 February 1996 at Hay Police Station the applicant admitted the plan and that he punched the victim in the mouth and again on the nose, but claimed that the victim begged him to take his money. The applicant said both the co-offenders assaulted the victim by pulling his hair and punching him and claimed that the amount taken was only $70, of which he received $10. 6 His Honour correctly described the offence as "a serious assault on a defenceless victim" and noted that he had been set up by three males pursuant to a plan to rob him. The offence was committed late at night and the victim sustained serious injuries requiring stitches and treatment. 7 The applicant was born on 27 March 1976 and was aged almost 20 at the time of the offence. He is now aged 23½ years. He is single but has a 3 year old daughter who lives with her mother in Melbourne. The child has suffered from a brain tumour and the applicant visits her regularly. He has generally lived in Hay with his parents or on properties in that area where he has been working. He has for a number of years had an estranged relationship with his father, but shortly before sentencing the relationship had improved to a degree. He left school in Year 7 and when employed he has engaged in farm or seasonal work, but there have been significant periods of unemployment. 8 Some of the adjournments to which I will shortly refer were to enable him to obtain, or to demonstrate an ability to maintain, employment. At the time of sentencing he had been working as a timber cutter for some three months and it appeared that his employer was prepared to continue to employ him. 9 He had a history of alcohol abuse and use of illegal drugs, particularly cannabis, and was affected by both on the night of the offence. It appears that he had made some effort to curb this substance abuse but he was still inclined to binge drink about once a month. 10 He had a number of previous convictions going back to 1992 for offences such as dishonesty, larceny, make and use false instruments, break enter and steal. On 11 May 1994 at the Hay Local Court he had been sentenced to perform 40 hours community service for break, enter and steal and enter land with intent. On 18 August 1994, in the same Court he had been placed on a recognizance to be of good behaviour for 18 months on charges of break enter and steal and attempt to break enter and steal. He was brought back before the Court for breach of this recognizance relating to supervision and non payment of compensation on 24 August 1995 when the recognizance was renewed for a further period of 12 months. Consequently, this recognizance was current at the time of the instant offence. 11 Then, on 7 August 1995, he was sentenced to a fixed term of 4 months imprisonment on a number of charges; namely escape police custody, two counts of larceny, three counts of make false instrument, eight counts of use a false instrument and goods in custody. He had completed that sentence prior to the commission of the offence. After the commission of this offence but before he was sentenced, he had further convictions in the Hay Local Court; on 19 June 1996, for low range prescribed concentration of alcohol, on 8 April 1997, for four counts of make false instrument, four counts of use false instrument and stealing, and on 15 June 1997, for malicious damage. 12 Two grounds of appeal were argued on the applicant's behalf. It is convenient if I take them in reverse order, and so I deal firstly with the submission that his Honour imposed a sentence which demonstrated erroneous disparity with the sentence imposed upon the co-offender, Simon Haigh. I interpose that the other alleged co-offender, Frederick Johns, had not been apprehended or dealt with at the time the applicant was sentenced. 13 Simon Haigh pleaded guilty in the Local Court, was committed for sentence and dealt with by his Honour Judge Nash in the District Court at Deniliquin on 7 November 1996. His circumstances were very different to those of the applicant. The sentencing judge on that occasion found that Haigh was not involved in the planning of the offence and did not initiate the attack on the victim, and that he was not the person who actually took the money from the victim, although he was involved in the vicious physical assault whilst he was on the ground and he did share in the proceeds. Moreover, although Haigh had a previous record, it was much less than the applicant's; his only convictions being for stealing, which charge had been dismissed pursuant to s 565A of the Crimes Act, and a drink driving conviction. He pleaded guilty at the first opportunity, whereas the applicant, having been arrested on 16 February 1996, did not plead guilty at committal in December 1996 and only did so when arraigned on 25 March 1997 in the Hay District Court. Haigh promptly offered to give evidence against the co-offenders and did in fact give evidence against this applicant at the committal. Judge Nash sentenced Haigh to 400 hours community service, and it is submitted that the applicant's sentence was disproportionate to that and such as to lead to a justifiable sense of grievance on his part, having regard to the principles laid down in Lowe v The Queen (1994) 154 CLR 586 and other cases. 14 Having regard to the significant differences to which I have drawn attention in relation to their respective degrees of involvement in the planning and commission of the offence, their prior records, Haigh's offer to give, and actually giving, evidence in the committal, and his much earlier plea of guilty, I am not satisfied that there is such a discrepancy as should give rise to a justifiable sense of grievance and this ground is not made out. 15 The other ground of appeal is that his Honour erred in not taking into account "the inordinate delay" between the entry of the plea of guilty and the imposition of the sentence. To put this ground in context it is necessary to refer to the history of the matter. The offence was committed on the night of 13/14 February 1996 and the applicant was arrested and charged on 16 February, and released on bail. On 5 September 1996 he was arrested on other matters and refused bail but again released on bail on 2 October 1996. The committal hearing was heard on 5 December 1996 and he was committed for trial. He was arraigned at Hay District Court on 25 March 1997, and pleaded guilty. The facts were tendered and the applicant gave evidence. The matter was then adjourned until later that week, so that witnesses could be called on the applicant's behalf. On 27 March, further evidence on behalf of the applicant was called including an affidavit tendered by the applicant offering to co-operate with police in relation to one of the females allegedly involved. The matter was stood over so that the police in charge could consider the offer to co-operate. On that occasion the applicant's solicitor indicated that he would be seeking a Griffiths remand but his Honour indicated that he considered it a matter for a full time custodial sentence, and although he was prepared to grant an adjournment, he would not impose terms which might indicate that he was contemplating a Griffiths remand. It was adjourned to the end of the year at Wagga Wagga, but was ultimately re-listed at Albury in November 1997. 16 On 17 November 1997, Detective Semple gave evidence concerning the offer that had been made by the applicant to assist police. His evidence was to the effect that there had been no attempt by the applicant to assist in ascertaining the whereabouts of the co-offender Johns until that morning, and in the meantime the police had received information the previous week of the latter's whereabouts from another source, and that in relation to the offer to give evidence against one of the females involved, that evidence was not regarded as useful as it was not corroborated by the victim. The matter was adjourned, primarily it would seem, on the application of the applicant so that he could complete the order for community service that he had been given some 3½ years earlier in May of 1994, and in respect of which there was still 14½ hours outstanding. Mr Button on behalf of the applicant submitted that all the applicant's solicitor was seeking was an adjournment to the end of that week so that this could be completed, but in the meantime the applicant had been charged with assault which was to be heard on 1 December in the Local Court and not unnaturally his Honour felt it desirable to await the outcome of that case before proceeding to sentence him. 17 The matter was accordingly adjourned until 6 March 1998 at Albury. On this occasion, further evidence was given on behalf of the applicant but he was not at that time in employment and the matter was adjourned so that he could adduce further evidence to show his bona fides and his ability to find and hold a job. It was adjourned to 17 June 1998 at Dubbo. On that occasion an up-to-date Pre-Sentence Report which the applicant's solicitor wanted was not available and the applicant sought an adjournment so that such updated report could be obtained. The Crown opposed the adjournment, as it had in March 1998, but it was granted. Later that day an inadequate Pre-Sentence Report was received. The matter was adjourned to 7 August 1998 at Sydney, on which occasion the applicant was sentenced. 18 It follows that from plea to sentence a period of 16½ months elapsed. No reliance is placed on the delay from arrest to sentence which was nearly 2 years and 6 months. During the whole of that period the applicant was on bail except for one month (September / October 1996), when bail was refused, apparently in relation to other matters. All adjournments were either at the request of the applicant's solicitor to call additional evidence, to enable him to complete community service or to demonstrate his ability to hold employment and obtain further Pre-Sentence Reports so that such reports would be more favourable, whilst that of 27 March 1997 was to ascertain the views of the police as to his offer to give evidence against a possible co-offender. There were other issues raised at times such as the unavailability of updated Pre-Sentence Reports and matters of that nature, and on one occasion the exhibits were lost for some time but then found, but overall, it can fairly be said that all the adjournments were to aid the applicant's case on sentence and to enable him to present himself in a better light to the sentencing judge. 19 We were referred to the well known and often quoted passage from R v Todd [1982] 2 NSWLR 517 at 519 where Street CJ said that:

" ... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - "

and that,
" ... at times these considerations can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

To the same effect are passages in Mill v The Queen (1988) 166 CLR 59 at 64 to 66 and R v Harrison (1990) 48 A Crim R 197, but they were cases where the delay was due to the prisoner being sentenced in another state for similar offences.

20    On the other hand, it was pointed out in R v V (1998) 99 A Crim R 297 at 300 that Todd has not been viewed as an authority for the proposition that whenever there is a stale offence or substantial delay leniency should necessarily be extended. In R v King (unreported - CCA - 24 February 1998), the principle of Todd was held to be not applicable in relation to the sentencing for murder at a time when there could be no uncertainty as to the sentence the prisoner would receive if found guilty because of the provisions of s 19 of the Crimes Act as it then stood. 21    The subject was further considered in R v Blanco [1999] NSWCCA 121 at [16] where Wood CJ at CL said:

"The reason why delay is to be taken into account in sentencing an offender relates first to the fact of the uncertain suspense in which the person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach."

22    That was not a case where the applicant had been arrested and spent a long time awaiting sentence, nor was it a case where he had shown any commitment to rehabilitation, but was a case where there had been an inordinate delay of 4½ years between the time of the commission of the offence to the time he was charged. 23    Finally, in R v Fahda [1999] NSWCCA 267, the offence (wounding with intent to commit grievous bodily harm) had been committed on 4 October 1995, and the sentencing proceedings had commenced on 20 February 1998. There were a number of delays, partly due to the unavailability of the applicant's counsel on one day and an application by the applicant to withdraw his plea of guilty. The sentence was imposed on 11 September 1998. Simpson J said at [21]:

"The delay between the commencement and sentencing is therefore somewhat unusual. While the principles stated in Todd do not purport to vary according to the proper allocation of responsibility for the delay, it is more difficult for an applicant who properly bears that responsibility to call them in aid."

24    In that case the Court considered there was merit in the ground when taken in conjunction with other grounds, but it may not have been sufficient by itself. 25    In the present case, the applicant's rehabilitation in the meantime was taken into account by the sentencing judge, and he was not left in any suspense because his Honour made it clear from the first day that he was contemplating a full time custodial sentence and the applicant should not expect anything less notwithstanding the various adjournments. That only leaves the third relevant factor; namely, the need for understanding and flexibility. Unlike Blanco, there was no delay in the arrest, the delay was not nearly as substantial as in Todd, Mill, V or King and, as the applicant bears the substantial responsibility for the delay, it is more difficult for him to call in aid the principle in Todd. As he enjoyed the benefit of the delay by being able to demonstrate a significant degree of rehabilitation in the meantime and received credit for such rehabilitation, I am not satisfied that he was in the circumstances of this case entitled to any further credit on account of the delay itself, and this ground is not made out. 26    The sentence in my view is well within the guidelines laid down in R v Henry [1999] NSWCCA 111, 46 NSWLR 346 at [162]-[165]. That was a case of armed robbery, whereas this is a case of robbery in company, but both offences arise under the same section and carry the same maximum penalty. There are variations from the criteria set out in that guideline judgment but, some of those variations are favourable to the applicant and some are unfavourable, and they balance each other out. 27 In my view, the sentence was within the permissible range. I would therefore, grant leave to appeal against sentence but dismiss the appeal and confirm the sentence. 28 SPERLING J: I agree. 29 DUNFORD J: The order will be as I have indicated.

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