R v Crocker - [2000] NSWCCA 79

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v CROCKER [2000] NSWCCA 79

FILE NUMBER(S):
60737/98

HEARING DATE(S): 14 March 2000

JUDGMENT DATE: 14/03/2000

PARTIES:
Gordon James Crocker - Appellant
Crown - Respondent

JUDGMENT OF: Sheller JA Dowd J Barr J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70069/97

LOWER COURT JUDICIAL OFFICER: Hulme J

COUNSEL:
P Byrne SC - Appellant
M Grogan - Crown

SOLICITORS:
Ross Hill & Associates - Appellant
S E O'Connor - Crown

CATCHWORDS:
CRIMINAL LAW - Appeal against sentence - Sentencing Act 1989 s5 - Whether 'statutory norm' - Minimum term - Relationship between minimum and additional terms - Whether statutory requirement to give reasons for so-called departures from conventional sentencing structure - where additional term less than minimum term - Sentencing statistics - Mitigating effect on sentence of guilty plea and absence of past violence where crimes horrific - Regard to enormity of criminal conduct

LEGISLATION CITED:
Crimes Act 1900
Sentencing Act 1989

DECISION:
Grant leave to appeal
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60737/98

SHELLER JA
DOWD J
BARR J

Tuesday, 14 March 2000

REGINA v Gordon James CROCKER

JUDGMENT

SHELLER JA: This is an application for leave to appeal against the severity of sentence. On 7 August 1998 the applicant, Gordon James Crocker, was sentenced by Hulme J on four charges to which he had pleaded guilty. Three of the charges related to offences committed on 3 June 1997. The fourth charge was that, on or about 13 June 1997, the applicant murdered Robert William Campbell. For that offence under s18 of the Crimes Act 1900, the maximum penalty is penal servitude for life, or twenty-five years.
The offences committed on 3 June 1997 at Fairy Meadow were, first, that in company with two others the applicant robbed Barry Raymond Thompson of cash, keys and a wallet and, immediately before, inflicted grievous bodily harm on him. Under s98 of the Crimes Act, the offence charged carries a maximum penalty of twenty-five years penal servitude.
The second charge was that the appellant stole Mr Thompson's motor vehicle. Under s154AA of the Crimes Act, the maximum penalty for that offence was ten years penal servitude.
The third charge was that the applicant maliciously destroyed the vehicle by fire. Under s195 (b) of the Crimes Act, the maximum penalty for that offence was ten years penal servitude.
The sentences Hulme J imposed were as follows: for the offence of robbing and inflicting grievous bodily harm, fifteen years penal servitude, comprising a minimum term of twelve years, commencing on 17 June 1997 and ending on 16 June 2009, and an additional term of three years. For each of the offences of stealing and maliciously destroying Mr Thompson's motor vehicle, his Honour imposed a fixed term of fifteen months penal servitude, commencing on 17 June 1997. For the offence of murder, his Honour imposed a total term of imprisonment of fifteen years, comprising a minimum term of ten years, commencing on 17 June 2009 and concluding on 16 June 2019, and an additional term of five years.
In his remarks on sentence, his Honour said that the aggregation of sentences and the period during which the prisoner will be institutionalised constituted special circumstances justifying the additional term forming a longer than usual proportion of the sentence. In the result, the effective term of imprisonment was one of twenty-two years by way of minimum term and a further five years by way of additional term.
Objectively, the charges of murder and robbery in company and having causing grievous bodily harm are serious, as the maximum statutory penalties indicate - indeed extremely serious.
The circumstances in which the applicant perpetrated the offences charged were horrific. They are set out in detail in Hulme J’s remarks on sentence. What his Honour said about them has not been challenged on this application.
On the night of 3 June 1997, the applicant drove to a park with two friends with the intention of mugging someone. The applicant carried, as a weapon, a steering lock. One of the three having engaged the victim Mr Thompson in conversation, the applicant attempted to grab him and then hit him with the steering lock around the face. He repeatedly hit the victim to keep him quiet and continued to do so when the victim was on the ground. He hit the victim between ten and sixteen times and desisted only when pushed away by one of the others. The offenders took the victim's keys and opened his car and took his wallet, the contents of which they shared amongst themselves. Later, they returned and took the car to an isolated place and burnt it. They left the victim in the park to his fate. It is hard to imagine a more cowardly and brutal attack.
The sentencing Judge said the offences, objectively considered, fell well within the upper range of seriousness, although not at the extreme end of that range. The offence was planned and the harm at the high end of the range. His Honour said the offences of stealing and maliciously destroying Mr Thompson's vehicle were committed after further thought and, in one case, a conscious attempt to avoid the consequence of what had previously occurred.
The victim was found later that night in the park and, fortunately, survived. He was taken to hospital unconscious. He had multiple jagged lacerations, mainly over the left side of his scalp, with a single laceration over the right side. He had an extensive skull fracture running from front to back over the vertex of the skull. A CT scan showed extensive subarachnoid blood over the left hemisphere, with cerebral contusions.
Mr Thompson's condition deteriorated over a number of days, until it appeared to be hopeless. Despite that, his condition improved over a period. About three weeks after the attack, he had to be re-admitted to intensive care. He returned to a normal ward on 3 July. By 2 August, he was able to walk a few metres with the help of a frame and two people. He was starting to produce occasional intelligible words. A report of 16 June 1998 from his treating neurosurgeon said he had made an amazing recovery. His speech was almost normal and his memory for recent events reasonable. He still had problems with fine movements of his right upper limb. There was mild weakness of his right lower limb. He could not fully straighten his right knee and had no motor function around his right ankle. Mr Thompson was not able to be left on his own and was still residing at a halfway house, going home on weekends.
The neurosurgeon's view was that it would be impossible for Mr Thompson to resume his former occupation and, while he might be able to gain some employment, it would be limited to fairly simple tasks that do not require any complex mental processes.
Mr Thompson previously worked for the Commonwealth Bank and, at the time he was assaulted, he was aged fifty.
When arrested on 17 June 1997, at his recorded interview, the applicant denied the offences involving Mr Thompson and his car. However, later on that day he admitted his involvement.
On the afternoon of 13 June 1997, having consumed quantities of tablets he described as “like Valium” and beer, the applicant decided to go and rob someone because he needed some speed. He armed himself with a screwdriver and went to a park where he came upon Mr Robert Campbell at about 11.30pm. He spoke to and had some drinks with Mr Campbell. They talked for some time, amongst other things, about credit cards. One can infer that the applicant was trying to find out the pin numbers of Mr Campbell's credit cards. Mr Campbell gave him some information then stood up to go. The applicant grabbed Mr Campbell and pulled out the screwdriver. He put it to Mr Campbell's throat and demanded his cards and PIN numbers, threatening to kill him if he did not comply. One card was produced, otherwise Mr Campbell refused to comply. The applicant pushed the screwdriver harder against Mr Campbell's throat until it went in. The applicant then went into a frenzy and stabbed Mr Campbell about the throat, face and head forty-seven times. He then removed a card which had a paper slip with a PIN number on it and went to a bank and withdrew $200 from Mr Campbell's account at an ATM. An attempt to use another card failed.
The applicant went home, dropping the cards and some of Mr Campbell's other personal possessions in a drain.
Arriving home at about 2.30am, the applicant washed his hands and the screwdriver in an attempt to remove Mr Campbell's blood, returning the screwdriver to the kitchen drawer. He changed and rinsed his clothes, which had blood on them, and left them in the laundry to soak. He then took a taxi to Port Kembla and used part of Mr Campbell's money to buy speed. He then returned home.
When questioned on 18 June 1997 the applicant freely admitted his involvement in Mr Campbell's murder.
At the hearing on sentence, the sentencing Judge was provided with a number of psychiatric and psychological reports. From these it appears that the applicant came from a dysfunctional family. He alleged that he had been sexually assaulted when at an age between nine and eleven. He left school at the age of fifteen and had been unemployed since the age of seventeen. His substance abuse began when he was about nine or ten. The sentencing Judge said that he seemed to have been a heavy drug user by the time of the offences with which we are now concerned. Hulme J said:
“With some variation in type, the prisoner seems to have been a heavy user of the drugs which I mentioned until the commission of the subject offences. He seems not to have used heroin or LSD, except at times when he has been in gaol.”
The medical reports also suggest that the applicant suffered from a personality disorder of significant severity. At the time of commission of these offences, he was, it appears, disinhibited by alcohol and benzodiazepines. Hulme J said:
“There is nothing to suggest that the prisoner will not revert to a life of drug-taking on his release….”
At the time of sentencing the applicant was aged twenty-seven. His criminal history began when he was about twelve. The sentencing Judge observed that, until 1992, the offences for which he had been found guilty were of a minor nature in the scheme of things.
From the remarks on sentence it is difficult to assess, and indeed the sentencing Judge found it difficult, the prison history of the applicant with any degree of certainty. His Honour said:
“The pattern is clear. For years the prisoner's life has been dominated by drug-taking, and he has supported it by crime, although he has largely eschewed violence. The more serious of the instant offences were uncharacteristic in that respect.”
His Honour referred to a victim impact statement which was before him from the Thompson family. The sentencing Judge carefully set out in his remarks the principles on sentencing to be applied. He said that the applicant's chances in life from an early age had been far less than those of most people. He acknowledged the applicant's pleas of guilty. He acknowledged that the applicant was still moderately young. His Honour did not regard the fact that the offences were committed under the influence of drugs as a mitigating factor. He stressed the need for general deterrence. He found that on both occasions, the surrounding facts and circumstances suggested that the applicant, at the time of committing them, was in considerable possession of his faculties. His Honour paid particular attention to the cases which demonstrate that, in imposing sentence on offences of the sort here in question, regard has to be had to the gravity of the offences, looked at objectively. His Honour also took into account the principle of totality.
When his Honour came to impose sentence in respect of the offences of stealing and maliciously destroying Mr Thompson's motor vehicle, he said:
“These offences were committed after further thought and, in one case, in a conscious attempt to avoid the consequences of what had previously occurred. By the terms of the legislation, they are themselves deserving of significant penalty. However, I think the appropriate way of dealing with the prisoner's criminality on 3 June is to impose, in respect of the robbery charge, a penalty which reflects the overall criminality on that day and, in respect of the lesser charges, sentences concurrent with that imposed on the robbery charge. In these circumstances, the length of those sentences is probably insignificant.”
On this application Mr Byrne SC appeared for the applicant. He developed in oral submissions what had already been before the Court in the applicant's written submissions. The nub of those submissions was that the overall sentence was excessive and the sentence imposed in relation to the robbery was excessive. Expressly no challenge was made to the sentences for 3 June and the sentence of murder being cumulative, nor was any challenge made to the sentence imposed for murder.
Mr Byrne submitted that the s98 sentence for the robbery was excessive, standing alone, and in the course of that submission made the further point that, whereas the minimum sentence was twelve years, the additional sentence was three. In that regard, an argument was advanced related to what used to be referred to as the statutory norm of sentencing under s5 of the Sentencing Act 1989. It is perhaps important immediately to refer to what this Court said in R v GDR (1994) 35 NSWLR 376. In the course of that judgment and by reference to s5(2), their Honours said:
“The language of the provision is clear. The additional term must not exceed one-third of the minimum term unless the Court considers there are special circumstances. The statute does not provide that the additional term must be less than one-third of the minimum term.”
It is also worth observing, whereas the statute requires reasons to be given if the additional term is to exceed one-third of the minimum term, or if a fixed term is to be imposed, there is no such statutory requirement in relation to reasons if the additional term to be imposed is less than the minimum term.
In support of the submission that the s98 sentence was excessive, we were taken to statistics produced by the Judicial Commission of New South Wales for the period from 9 January 1990 to July 1999. Those statistics related to s98. It was pointed out that out of the full terms of all offenders for 105 cases, only three of those terms exceeded the fifteen years here imposed by Hulme J. It was also pointed out that, for the same number of offenders, only one of the minimum fixed terms exceeded the minimum of twelve years imposed by Hulme J.
Finally, in statistics showing full terms (one count priors, different type, plead guilty) only one case out of thirty-one in the statistics was above the term of fifteen years. The trouble with those statistics in regard to the sentence imposed here is that, as Hulme J made plain in the passage that I have quoted from his remarks on sentence, the sentence imposed took account of the total criminality of the 3 June 1997 offence, which included not only the s98 offence but also serious crimes after further thought of stealing Mr Thompson's car, and then burning it, offences which, as I have said, carry maximum penalties of ten years penal servitude.
I do not regard the statistics produced as having any useful significance in the circumstances of this application.
Before coming to the various matters specifically that were raised by way of subjective considerations, I should refer to what was described as a surprising omission from the remarks on sentence, namely, any reference to the evidence given by the applicant on sentencing. In this regard, we were taken to the following passage in the applicant's evidence in chief. He was asked:
“Q. Do you want to say anything to the relatives of these people? A. That I’m sorry. I really didn't know what I was doing. I'm sorry for, like the victim and their families, and my family too. Because I thought they went through a lot of - everyone is involved. I've put them through heaps, even myself. It's almost weekly I'm seeing people getting bashed and stabbed and it's just horrible. Especially when you're just seeing it.”
Earlier, the applicant had been asked as follows:
“Q. Plainly, one factor that his Honour will consider as well, if you are shown any leniency, will this sort of behaviour happen again? A. Never. It can never happen again. I can assure you.”
In the course of his cross-examination he was asked:
“Q. In response to your counsel you indicated that in the future you thought this could never happen again; why do you say that? A. Because I got off the drugs. I wouldn't be in that position to do it ever again. I'm not like that at all. I wouldn't do it.”
Mr Byrne referred to the fact that the additional term for the s98 offence was three years, as compared with a twelve-year minimum term. It was suggested that in the absence of any reasons or explanation in his Honour's remarks, this could be simply a mistake. Similarly, the point was made that the total sentence effectively involved a term of twenty-two years full-time custody and an additional term of only five - again, without any acknowledgment or reason for what was said to be a departure from the conventional sentencing structure. I do not accept that there was any such possibility. As I have indicated, there was no statutory requirement that his Honour give reasons and indeed when I come to examine the sentence as a whole, it will be apparent that I do not regard these so-called departures as of any significance at all.
The subjective matters were dealt with in the written submissions filed. They were matters to which his Honour, in the course of his remarks, gave attention. The first that was referred to in the written submissions was the plea of guilty to all offences. It was submitted that this was a case where the plea of guilty should have been given greater weight by virtue of its representing a degree of remorse on the part of the applicant.
There is then reference to the first of the passages from the transcript evidence to which I have referred and also evidence of a passage in a report prepared by Katherine Barrier where she recorded the applicant as saying:
“I can't believe it, he didn't deserve it, he should not have died, I could have just punched him.”
His Honour observed the applicant had been honest with the psychiatrist and psychologist.
In The Queen v Kalache 2000 NSW CCA 2, Sully J said at para 38 in relation to the utilitarian benefits that derive from the guilty plea:
“…that there will inevitably be cases where the sheer enormity of the criminal conduct involved is such as to require that the proper protection of the public, and the maintenance in every other proper way of the rule of law, will entail that the utilitarian principle must, albeit exceptionally, yield to considerations of greater weight.”
In the balance, it has to be remembered that when first spoken to, the applicant denied any involvement in the crimes against Mr Thompson. There is, to my mind, little to be gained from a statement that he could have just punched the murder victim. The fact that the sentencing Judge accepted the applicant as honest with the psychiatrist and the psychologist does not particularly lead to a conclusion that the appellant was remorseful. His Honour had the benefit of what the applicant said in evidence and there is no reason to suppose that his Honour did not take that into account. I am not persuaded that his Honour, in any way, gave less than due account to the guilty pleas from the applicant.
Next, the applicant relied on the absence of violence in his prior criminal history. No doubt in many cases this would be a matter of significance but, in respect of the offences for which the applicant has here been convicted, it seems to me to be of little significance in terms of mitigation.

As I have already said, these crimes were horrific. They demonstrated a degree of violence on two quite separate occasions of, as I have said, a most brutal sort. In my opinion, there is nothing to be taken from the applicant's prior criminal history to which his Honour referred which would in any way contribute to a reduction of the sentence imposed.
Part of the argument was that that history might suggest a lesser likelihood that the offences would be committed in the future. I do not regard that background in the light of these offences as contributing to that conclusion.
Thirdly, reference was made to the significantly deprived background of the applicant. His Honour gave weight to those matters in his reasons for judgment. No doubt these are factors to be recognised but again, in a case of offences as serious as the ones with which the Court is here concerned, it is of very, very substantial importance that the sentences reflect the denunciation of the crimes and the moral outrage of the community towards them.
It is to be remembered Mr Thompson is a victim who happened to be exercising his right to go for a walk and found himself in the wrong place at the wrong time.
With Mr Campbell, who was possibly a more vulnerable member of society because of alcoholism, there is an even more valid argument for a punishment to reflect considerable community outrage and to contain a significant deterrence element. I do not think that his Honour gave any less than appropriate account to the applicant's background.
Fourthly, reference is made to drug use as a contributing factor and passages were extracted from the various reports made by Doctor Westmore, Ms Barrier, Doctor Nielssen and the psychologists, Mr Webster and Ms Webber. In their opinions, or in the opinions of some of them, the offences would not have occurred but for the applicant's addiction, that the risks of re-offending relate to drug use and that drug and alcohol had played a dominant part in the applicant's life, both as an adolescent and as an adult. However, as the Crown pointed out in its written submissions, there was also evidence of a serious personality disorder.
Reference was made to the evidence, which I have already quoted, in regard to the applicant's intentions about his future behaviour. There is no reason to suppose that his Honour did not take this evidence into account but I am not persuaded that his Honour was not entitled to conclude, as he did, that there was nothing to suggest that the applicant would not revert to a life of drug taking on his release. In that regard, some mention was made of his continuing drug use after he was arrested, although Mr Byrne rightly pointed out that there was evidence that he was successfully on a methadone program.
The applicant relied upon the disproportion of the sentence, to which I have already referred, and I will return to say something more about that.
In the Crown's submissions, emphasis should be placed on the total effective sentence of twenty-seven years that Hulme J imposed. It was submitted that that was primarily what this Court had to look at in determining whether or not it would interfere. I have already set out in summary form the nature of the offences for which the applicant was being sentenced. I am not persuaded that that total sentence was outside the range of an appropriate sentence for those offences. In my opinion, that sentence must, and does, have regard to the enormity of the applicant's criminal conduct. Nor am I persuaded that it was inappropriate that that sentence be divided, as it was, between a minimum sentence of twenty-two years and an additional sentence of five.
The Crown submitted that even if in the structure of the s98 sentence some error emerged, the appropriateness of the total effective sentence would dissuade the Court from interfering. However, I am not persuaded by the able advocacy of Mr Byrne that the sentence for robbery and inflicting grievous bodily harm, in the context in which it was imposed and bearing in mind what Hulme J said at the time he fixed it, in any way did other than reflect the overall criminality of what occurred on that day and is itself outside the appropriate range.
Again, the challenge was principally directed to the length of the minimum sentence and the length of the additional sentence. I do not, as I have said, accept that there was any mistake made by an experienced Judge in approaching the matter without regard to s5 of the Sentencing Act. I have no doubt in my own mind that his Honour was appropriately conscious of the seriousness of the offences but equally, as his remarks on sentence amply demonstrate, he was conscious of the subjective factors that were advanced before him and have been advanced to this Court.
In all the circumstances, in my opinion, the applicant has failed to demonstrate any error in the sentencing process which would enable, or require, this Court to interfere. Accordingly, I would grant leave to appeal but dismiss the appeal.
DOWD J: I agree with the proposed orders of the presiding Judge and his reasons therefor.
BARR J: During the hearing of this application it was submitted this Court should infer error from the mere facts that the sentence for the offences of robbery with the infliction of grievous bodily harm carry minimum and additional terms in the ratio of four to one and that his Honour gave no reasons for choosing that ratio.
There is no statutory norm whereby, in the absence of special circumstances, the additional term of a sentence may not be less than one-third of the minimum term - R v GDR. Of course, it is normal and proper for the sentencing Judge to provide for an appropriate period of time on parole after the expiry of the custodial portion of a sentence. In practice, the result is often that, where there are no special circumstances justifying the imposition of an additional term that exceeds one-third of the minimum term, the additional term imposed is equivalent to one-third of the minimum term. However, there is nothing about the present case that dictates that the proportion of the sentence for the first count allocated to the additional term should not be less than one-third of the minimum term, or that the additional term should exceed three years. As the facts recited in the remarks of the presiding judge show, this was one of the worst cases of this kind.
Neither, in my opinion, is there any reason why the overall additional of a term of five years was insufficient.
I agree with the orders proposed by the presiding Judge for the reasons his Honour has given.
SHELLER JA: The orders will be as I have announced them.

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LAST UPDATED: 29/03/2000