R v Cook

[1999] NSWCCA 234

CITATION:	Regina v Cook [1999] NSWCCA 234
FILE NUMBER(S):	CCA 60835/98
HEARING DATE(S):	23 July 1999
JUDGMENT DATE:	27 August 1999
PARTIES :	Regina David COOK
JUDGMENT OF:	Studdert J at 1; Simpson J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0636
LOWER COURT JUDICIAL OFFICER:	Mahoney DCJ

COUNSEL:	A: S R Norrish QC R: C K Maxwell QC
SOLICITORS:	A: Heenan & Co R: S E O'Connor
CATCHWORDS:	CRIMINAL LAW; robbery; aiding and abetting attempted robbery; attempting to use an offensive weapon to prevent lawful apprehension; application for leave to appeal sentence; error as to maximum applicable sentence; s5(2) Sentencing Act 1989; sentence backdated; appeal allowed.
ACTS CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Sentencing Act 1989
CASES CITED:	R v Close (1992) 31 NSWLR 743 R v Fernando (1992) 76 A Crim R 58 R v Hickey, unreported, NSWCCA, 27 September 1994 R v Kingsbeer & Zanze, unreported, NSWCCA, 11 June 1997 R v Leon, unreported, NSWCCA, 13 November 1994 R v Parker & Parker, unreported, NSWCCA, 28 August 1996 R v Simpson (1992) 61 A Crim R 58
DECISION:	Leave to appeal sentences granted; appeals allowed, each sentence quashed; in lieu thereof, in relation to each count, and taking into account the Form 1 offences, the applicant be sentenced to a total term of penal servitude for 6 years, made up of a minimum term of 3½ years commencing on 29 March 1998 and expiring on 28 September 2001; and an additional term of 2½ years commencing on 29 September 2001 and expiring on 28 March 2004.

IN THE COURT OF
CRIMINAL APPEAL

60835/98

STUDDERT J
SIMPSON J

Friday 27 August 1999

REGINA David COOK
Judgment
STUDDERT J :

1    I agree with Simpson J.

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IN THE COURT OF
CRIMINAL APPEAL

60835/98

STUDDERT J
SIMPSON J

Friday 27 August 1999

REGINA David COOK
Judgment

SIMPSON J

2    On 10 September 1998 the applicant pleaded guilty in the District Court to an indictment containing three counts. The first count was of robbery, the second of aiding and abetting an attempted robbery, and the third of attempting to use an offensive weapon to prevent lawful apprehension. The applicant was indicted with a co-accused, Michelle Liddicoat.

3 Pursuant to s94 of Crimes Act 1900 the offence of robbery carries a maximum penalty of penal servitude for 14 years; pursuant to s94 together with s344A and s346, the maximum penalty applicable to the second charge was also 14 years; and pursuant to s33B(a), the third offence is punishable by penal servitude for 12 years.

4    In addition to these offences the applicant asked that four further counts be taken into account pursuant to s21 of the Criminal Procedure Act. These were one offence of driving whilst unlicensed, one of take and use a motor vehicle without the consent of the owner, one of using a weapon to avoid apprehension, and one of driving in a manner dangerous.

5    On 11 December 1998, Judge Mahoney QC sentenced the applicant and Ms Liddicoat. On the first and second counts he sentenced the applicant to concurrent terms of penal servitude for 5 years. These he divided conventionally into minimum terms of 45 months and additional terms of 15 months. He specified that the minimum terms were to commence on 11 December 1998 (the day the sentences were pronounced) and expire on 10 August 2002, and the additional terms were to commence on 11 August 2002 and expire on 10 November 2003.

6    On the third charge his Honour imposed a total sentence of penal servitude for 3 years, again conventionally divided, but he specified that this sentence was to be served cumulatively upon the sentences already mentioned. His Honour stated that this sentence was to commence on 11 August 2002 and expire on 10 November 2004.

7    It will be seen that a mathematical error crept into the calculation of the date of expiration of the minimum terms imposed in relation to the first and second counts, and that this error continued and infected the specification of the dates thereafter. Correction of the error is a minor matter and can readily be effected. The expiration date of the minimum terms applicable to counts one and two (stated as 10 August 2002) should be corrected to read 10 September 2002; the commencement of the additional terms in relation to those offences (stated as 11 August 2002) should read 11 September 2002; and the expiration date in relation to that sentence is not 10 November 2003 as stated, but 10 December 2003.

8    The minimum term of the 3 year sentence, to give effect to his Honour’s intention, should have been specified to commence on 11 September 2002, and expire on 10 December 2004; the additional term should have been specified to commence on 11 December 2004 and expire on 10 September 2005. When the dates specified are so corrected the combined minimum terms imposed on the applicant are of 6 years; the additional term is one of 9 months.

9    His Honour expressly rejected a submission that he should find that, pursuant to s5(2) of the Sentencing Act 1989, special circumstances existed justifying departure from the statutory ratio.

10    Judge Mahoney heard evidence on sentence on Friday 11 December 1998. He adjourned for a short time to consider the evidence and the submissions that had been put to him, and the sentences were imposed late that afternoon. On Monday 14 December his Honour re-listed the matters, in the absence of the applicant, his co-accused and their legal representatives (but having contacted the legal representatives and obtained their agreement to the course he was about to take), specifically for the purpose of noting that, while he had made no mention of it in his remarks on sentence, he had taken into account periods of pre-trial custody. In the applicant’s case the period was 8 months and 12 days. When that period is added to the sentences imposed (as it must be, properly to reflect the real sentences imposed) the effective combined minimum terms were terms of 6 years, 8 months and 12 days.

11    It is convenient now to state the facts of and surrounding the offences. All were committed on 29 March 1998. At about 11.30 that morning the applicant and Ms Liddicoat took, and the applicant drove, a previously stolen motor vehicle from near Stanmore railway station. The applicant did not hold a driver’s license. These events constituted the first and second offences on the Form 1.

12    The applicant drove to a bus stop, left the vehicle and approached a young woman seated with her baby in a bus shelter. The baby was playing with the woman’s handbag. The applicant seized the bag from the baby with sufficient force to cause one of the handles to break. Another woman who was nearby chased the applicant and temporarily retrieved the bag. The applicant pushed her and regained possession of the bag. He re-entered the car and drove off. These events were the foundation of the first charge on the indictment, that of robbery. The bag contained $50 in cash, a jewellery pouch, and other personal items.

13    When sentencing, Judge Mahoney accepted the applicant’s denial of an assertion that prior to robbing the victim, he had sat beside her and engaged her in conversation. However, he rejected the applicant’s denials that he knew the baby was present.

14    The applicant and Liddicoat drove on, and stopped near Petersham fire station. A middle aged woman was about to enter the building for a ceremonial occasion. Liddicoat approached her, grabbed hold of her shoulder bag and demanded the victim give it to her. In the struggle that followed the bag was damaged. The applicant shouted to Liddicoat to return to the car, which she did, without the bag. The applicant’s participation in this offence constitutes the second count in the indictment, that of aiding and abetting an attempted robbery. The victim sustained cuts to her thumb and index finger.

15    A little later the vehicle was observed by police in Enmore, its registration number having been taken both by the victim of the attempted robbery, and by the young woman bystander at the first offence. Police approached the vehicle and told the applicant and Liddicoat to alight. The applicant drove the vehicle on the footpath for a distance. Police pursued the vehicle and it collided with another car, forcing the driver off the road. This was the dangerous driving that constituted the fourth offence on the Form 1. The applicant drove the vehicle at a marked police car, which moved to the left to avoid collision, but the applicant drove the vehicle into the police car. This was the offence of using a weapon to avoid apprehension that is the foundation for the third count on the Form 1.

16    Other police joined in the pursuit. Two constables travelling in an unmarked police car activated its lights and siren. The applicant drove the stolen car on the incorrect side of the road directly towards the police vehicle, swerving at the last moment and colliding with a parked car. This constitutes the third offence on the indictment, of attempting to use an offensive weapon to avoid apprehension. The judge accepted that there was no actual injury, but was conscious of the very real potential for injury.

17    The applicant was then arrested. When interviewed, he claimed that a friend had given him the car at Stanmore station but admitted that he did not have the owner’s permission; he admitted taking the handbag from the first victim, but said she was not holding it, and that he did not realise that the baby was present; he admitted that he let Liddicoat out of the car at Petersham fire station, but said that he did so because he believed she was going to buy some cigarettes; and he admitted driving away from police to avoid arrest for the bag snatch and said he recalled colliding with one car but not with the police car.

18    The applicant was born on 3 June 1968. He was a little under 30 at the date of the offences, 30 at sentencing. He has a record that commenced in 1982, when he was 14 years of age, with a charge of break enter and steal. Thereafter he was convicted of a number of offences of dishonesty of various kinds, of possession and supply of drugs, robbery with striking (1987), and, in 1993, three counts of armed robbery. In all there are 16 entries on his record.

19    Before his Honour were a pre-sentence report from the Probation and Parole Service, and a comprehensive psychological report prepared by Ms K Barrier. These reports disclose a history of deprivation and mal-adjustment from an early age. The applicant is of aboriginal decent. His parents separated when he was very young and his four younger siblings were placed in institutions. He remained with his mother. They moved constantly to avoid contact with the applicant’s father. His mother became involved with another man who was violent and unreasonable and who asked the applicant to leave the home when he was about 12 years of age. This was said to be because of the applicant’s aboriginal heritage. For the next two years he lived around Sydney in the Kings Cross area. He began drinking alcohol at about age 13, and progressed to cannabis, amphetamines and LSD, and by the age of 15, heroin. He has made a number of attempts to overcome his addiction, in residential rehabilitation centres and on methadone programs. He has suffered epilepsy since the age of 14, possibly as a result of amphetamine use. He has been diagnosed with Hepatitis C, but at the time of reporting, did not exhibit symptoms. His intelligence level has been assessed as in the below average range.

20    Ms Barrier reported that, during his early years, the applicant’s family life was marked by significant pathology. She said that his father was imprisoned for seven years following an attack upon his step-father who was himself physically and emotionally abusive towards the applicant. It is clear that the applicant has had no opportunity to develop normal relationships or a normal sense of responsibility.

21    Psychological testing indicated a self image of worthlessness, “a well entrenched dispirited and discouraged quality, a sense of permanent hopelessness”, with fatalistic attitudes and an acceptance of criminal behaviour. Ms Barrier thought he had a multitude of problems that need addressing, and will require long-term therapeutic intervention and a full-time intensive drug rehabilitation programme. He has become institutionalised.

22    Evidence was given on the applicant’s behalf by Ms Karen Shaw, who was described as his half-sister, but who is probably more accurately described as the step-daughter of his father.

23    Ms Shaw said that, initially after the family went their separate ways, she lost touch with the applicant but regained contact during a period when he was in prison. After his release the applicant lived with her for a time, during which she had no problems with his behaviour. However, she was under pressure from her own family, had limited accommodation, and was of the opinion that it was time for the applicant to become independent. She encouraged, or even pushed, him to find his own accommodation. She is now willing to offer him a home and support and guidance on his eventual release.

The Remarks on Sentence

24    His Honour expressly observed that as he was sentencing the applicant late on Friday afternoon, his remarks would be briefer than would otherwise have been the case.

25    He set out the facts and circumstances of the offences relating both to the applicant and Ms Liddicoat. He recorded that the maximum sentence provided for in respect of the robbery and aid and abet robbery offences is penal servitude for 20 years. This was an error; the maximum penalty for each offence is penal servitude for 14 years.

26    His Honour then noted that the sentencing process required recognition of three criteria; punishment, rehabilitation and deterrence. He expressed serious reservations about the applicant’s realistic prospects of rehabilitation. He considered that the applicant had a distinct need for both personal and general deterrence, with particular reference to the bag snatching offences. In relation to the applicant he referred to the totality principle and expressed his intention of applying that principle.

27    He acknowledged the applicant’s early plea of guilty but considered (correctly) that the benefit to which the applicant was entitled as a result of that was limited by the circumstances in which he was apprehended and the consequent inevitability of conviction.

28    He turned then to the applicant’s personal history which he described as “abysmal”. He found the applicant to be:

“somebody on the ocean of life with absolutely next to nothing by way of family support or backup since he was 12 years of age."

29    He accepted that this was “a very very serious feature” and said that it had operated extremely strongly on his mind as a subjective feature on the question of the imposition of penalty. He noted the applicant’s aboriginality. He set out in some detail his criminal record. He referred to a suggestion in the evidence that the applicant had suffered some brain damage as a result of drug use, but does not appear to have made a finding of fact in relation to that claim. He rejected a submission based on the evidence of Ms Shaw that the applicant was not beyond redemption and was susceptible to rehabilitative processes. He declined to find special circumstances justifying departure from the sentencing ratio contained in s5(2) of the Sentencing Act.

30    There can be no argument that the offences were serious and called for significant penalties both by way of punishment and by way of specific and general deterrence. It was, however, argued that the remarks on sentence disclose error in a number of respects and that the sentences themselves were manifestly excessive and thereby disclose error.

The Grounds of Appeal

31    The first asserted error is in the mathematical error I have already mentioned. It is unnecessary to say more about this. Although it was argued that, even after correction, the sentences actually imposed did not give effect to his Honour’s stated intention, I would reject that proposition.

32    It was then argued that his Honour misdirected himself in relation to the maximum sentence applicable to the offences of robbery and aiding and abetting an attempted robbery. His Honour was under the misapprehension that the maximum provided for is a sentence of 20 years. It was conceded by the Crown that this was an error. However, the Crown argued that such a misunderstanding will not necessarily lead to a reduction in the sentences, and will not do so where the sentence imposed is within the available range: R v Parker & Parker, unreported, NSWCCA, 28 August 1996. The Crown submitted that, notwithstanding the error, the sentences were not manifestly excessive, and were within the appropriate range.

33    I am of the view that, in the circumstances of this case, the error made by his Honour as to the maximum applicable penalty was of such proportion that it requires the intervention of this Court. This is consistent with the approach taken by this Court in R v Kingsbeer & Zanze, unreported, NSWCCA, 11 June 1997. I have reached this view independently of the additional views expressed below.

34    Having recorded the applicant’s criminal history, the judge said:

“in the light of those matters, such ameliorating factors as might have been relied upon to advantage in his favour as were adumbrated by Woods J in Fernando’s case seemed to me with respect to have gone out the window. I think the name of the case I have in mind is the Court of Criminal Appeal decision in Hickey .”

35 While it is not entirely clear what his Honour intended in this passage, it seems to me that he took the view that the applicant’s criminal record, and perhaps the gravity of the offences, overwhelmed the subjective features and excluded considerations of the principles stated by Wood J (as his Honour then was) in R v Fernando (1992) 76 A Crim R 58 at 62 - 63. The reference to Hickey is a reference to a decision of my own (R v Hickey, unreported, NSWCCA, 27 September 1994) with which Finlay and Abadee JJ agreed. It is not authority for the proposition that the subjective features referred to in Fernando (where they exist) which may be treated as mitigating factors or as factors reducing criminal culpability are to be discarded when found in conjunction with other adverse features. All relevant factors on both sides of the register must be taken into account and given their full weight. In this case as the judge noted, the objective criminality was of a high order, but so also (as he accepted) were the subjective features that classically fall within the pattern identified in Fernando. In my view his Honour allowed the applicant’s admittedly very bad record to override the equally compelling, but balancing, mitigating factors. This appears to have had two consequences. First the total of the accumulated minimum terms that resulted is greater than is properly available to meet the total criminality. These were indeed serious offences, but an effective minimum term of six years and eight months exceeded the penalty appropriate to meet the totality of the criminality. Second - and this overlaps with another of the applicant’s arguments - in excluding the Fernando principles, his Honour erroneously declined to find special circumstances. I have already alluded, in a somewhat curtailed way, to the extensive evidence of the applicant’s life to date. Two paragraphs from Ms Barrier’s report will suffice to illustrate the point:

“David has a multitude of problems which need addressing. Whilst he remains in prison, he needs strong encouragement to attend drug and alcohol courses and counselling. Individual counselling to address issues of identity and self-image is also clearly indicated. Long term therapeutic intervention would be necessary to effect significant and long-term changes in attitudes.
Institutionalisation has also become an issue in David’s case. He may be best served by as short a sentence as possible with provision for a full time intensive drug rehabilitation program to provide the opportunity for developing coping skills to avoid drugs relapse, as well as addressing the multiple problem issues underlying his behaviour.”

36    These paragraphs are consistent with the whole of the evidence in this regard. This was the case that demanded a finding of special circumstances. To decline so to find was, in my view, an erroneous exercise of discretion.

37    That conclusion is reinforced by the consequence of the decision to accumulate the sentence imposed in relation to the third count. By reason of s9(1) of the Sentencing Act, the accumulated sentence had to be specified to commence at the expiration of the minimum terms of the previous sentences. The end result is an overall total sentence that is quite disproportionate, made up of a minimum term of 6 years (and, taking into account pre-trial custody, 6 years and 8 months) and an additional term of 9 months. That circumstance also required that particular consideration be given to the determination of the question of special circumstances. In this case it is an additional reason for concluding that it was not properly open to the Judge to conclude other than that special circumstances existed justifying departure from the statutory ratio: R v Simpson (1992) 61 A Crim R 58.

38    Challenge was made to the judges decision to accumulate in preference to imposing concurrent sentences, given that all offences were part of a single escapade committed within a few hours on the same day. Accumulation or concurrence is generally a matter for the sentencing judge, but the decision must take into account consequences such as the imbalance between minimum and additional terms that can sometimes follow that decision. While the conclusions in that case cannot be elevated into a proposition that accumulation of sentences must automatically give rise to a finding that special circumstances exist (R v Leon, unreported, NSWCCA, 13 November 1994), in this case all the circumstances point to a finding of special circumstances.

39 The final argument related to the judge’s decision to specify the commencement of the sentences as the date on which they were imposed, notwithstanding that the applicant had been in custody for more than 8 months. There is authority in this Court that, other than in exceptional circumstances, sentences should be backdated to the commencement of the continuous custody referable to the offences in relation to which the sentences are imposed: R v Close (1992) 31 NSWLR 743 at 748. There were here no exceptional circumstances warranting departure from that general rule.

40    In the light of what I have written above I am of the view that the sentencing exercise miscarried in a number of ways and that the sentences must be quashed and the applicant re-sentenced. I would find that special circumstances pursuant to s5(2) of the Sentencing Act exist for the reasons already given.

41    I propose the following orders:

1. leave to appeal sentences granted;

2. appeals allowed, each sentence quashed;

3. in lieu thereof, in relation to each count, and taking into account the Form 1 offences, the applicant be sentenced to a total term of penal servitude for 6 years, made up of a minimum term of 3½ years commencing on 29 March 1998 and expiring on 28 September 2001; and an additional term of 2½ years commencing on 29 September 2001 and expiring on 28 March 2004.

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