R v Cross - [2002] NSWCCA 172

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Cross [2002] NSWCCA 172

FILE NUMBER(S):
60926/01

HEARING DATE(S): 13/5/02

JUDGMENT DATE: 15/05/2002

PARTIES:
Regina v Edward Morgan Cross

JUDGMENT OF: O'Keefe J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

COUNSEL:
Mr P G Berman SC - Applicant
Mr G I O Rowling - Respondent

SOLICITORS:
D J Humphreys, Sydney - Applicant
S E O'Connor, DPP - Respondent

CATCHWORDS:
Criminal law
Appeal
Leave to appeal
Extension of time
Attempted robbery with offensive weapon
Error in sentencing
Sentence imposed for wrong offence
Application of guideline judgment for different offence
Enlargement of term of sentence for purposes of extended parole
Drug addiction
Rehabilitation
Special circumsances

LEGISLATION CITED:
Criminal Appeal Act 1912 s.6(3)

DECISION:
1. Extension of time within which to apply for leave to appeal granted. 2. Leave to appeal against the severity of the sentence imposed on the applicant in respect of attempted armed robbery with an offensive weapon granted, otherwise application dismissed. 3. Appeal against the sentence imposed in respect of such offence allowed and sentence quashed. 4. In lieu of the sentence imposed in the District Court in respect of such charge, the applicant is sentenced to a term of imprisonment for four years to commence on 20 July 2000 and to end on 19 July 2004. 5. Non-parole period fixed at 2 years to commence on 20 July 2000 and to end on 19 July 2002, on which date the applicant will become eligible for parole.

JUDGMENT:

- 8 -

IN THE COURT OF
CRIMINAL APPEAL

60926/01
O’Keefe J
Smart AJ
15 May 2002

Regina v EDWARD MORGAN Cross

Judgment

O’KEEFE J:
INTRODUCTION

Edward Morgan Cross (“the applicant”) has applied for an extension of the time within which to make an application for leave to appeal against the severity of a sentence imposed on him in the District Court on 19 April 2001.
Having pleaded guilty in the Local Court to a charge of attempted robbery whilst armed with an offensive weapon and a charge of taking and driving a conveyance without the consent of the owner, the applicant was committed for sentence. The applicant adhered to his pleas before the District Court and asked the sentencing judge to take into account an offence of break, enter and steal. The Judge imposed a sentence of imprisonment for a term of six years to commence on 20 July 2000 and expire on 19 July 2006. He set the non-parole period at two years and five months to expire on 19 December 2002. This sentence took into account the offence of break, enter and steal which had been included on the Form 1 Schedule. On the charge of taking and driving a conveyance without consent, the applicant was sentenced to imprisonment for a fixed term of nine months to commence on 20 July 2000 and expire on 19 April 2001.
The application presently before the Court was filed on 21 December 2001; that is some eight months after the date on which the sentence was imposed and some seven months after the date fixed for the making an application for leave to appeal had passed.
FACTS
At about 8.30am on 28 November 1999, the applicant went into a newsagency at Matraville armed with a syringe which was filled with a red fluid presumed to be blood. At the time, he was wearing a long blonde wig, a dark coloured beanie pulled down over his head and dark sunglasses. He had with him an empty white plastic shopping bag. The applicant approached a female who was standing behind the sales counter and told her to put money in the bag or he would stab her. Instead of doing so, the victim yelled out her husband’s name whereupon the applicant ran from the shop without any proceeds from his criminal endeavour. As it happened, the lady’s husband was not present on the premises at the relevant time.
Having left the newsagency, the applicant made his escape in a red 1983 Mazda 626 sedan, registered number RSR 648. This vehicle had been stolen from Maroubra some two weeks prior to the attempted robbery at the newsagency. At about 8.55am - that is, some 25 minutes after the attempted robbery - a police patrol car sighted the red Mazda 626 in a carpark which formed part of a shopping complex at Pagewood. The vehicle was stationary, with the driver’s door slightly open. The applicant was the sole occupant of the vehicle, and was occupying the driver’s seat. The applicant was arrested. At the time he was wearing a pair of dark sunglasses. A search of the vehicle revealed a blonde wig, a dark coloured beanie, a white plastic shopping bag, a syringe filled with a red substance and a grey wallet containing credit cards and other documents in the name of the applicant.
The investigating police interviewed the owner of the vehicle, who identified the blonde wig and the grey beanie worn by the applicant as belonging to him and made a statement that those items were in the boot of his car at the time he last saw it on 14 November 1999.
Prior to the offences the subject of the present appeal, the applicant had no convictions for any serious criminal matters. His only prior convictions were for driving offences, including a high range PCA. These offences were committed in 1995 and were dealt with by way of fine.
GROUNDS OF THE APPLICATION
In support of the application for an extension of the time within which to appeal, and for a grant of leave to appeal, counsel for the applicant relied on a number of errors into which, it is said, the Judge fell. These were that the he:
(i) Sentenced the applicant for an offence with which he had not been charged, and to which he had not pleaded guilty, namely armed robbery rather than an attempted armed robbery.
(ii) Misapplied the decision in Regina v Henry (1999) 46 NSWLR 346.
(iii) Enlarged the term of the sentence so as to allow for an extended period on parole for the purposes of supervision of the applicant.
(iv) Gave insufficient weight to the circumstances in which the appellant became addicted to drugs.
As to (i) above
At the sentence hearing, the Crown Prosecutor informed the Court that the applicant had pleaded guilty at Central Local Court on 12 January 2001 “to one count of robbery whilst armed with an offensive weapon” and other offences (AB 12). A little later in the hearing, in the course of submissions concerning the effect on sentence of the matter to be taken into account, the following occurred:
“Counsel for the Applicant: … it’s a pretty standard break and enter.
His Honour: So what he was charged with … was robbery whilst armed, was it, with a dangerous weapon?
Counsel for the Applicant: Yes, it was, and then it was changed, amended to offensive weapon.
His Honour: Robbery whilst armed with offensive weapon, that brings the maximum to 20 years. The other one is 25 years, I think, is that right?
Counsel for the Appellant: Yes …” (AB 14)
The discussion between both counsel and the Judge reinforced an error in the charge cover sheet. It showed that the applicant had been charged with “robbery whilst armed with ~~dangerous~~ offensive weapon”.
In his Remarks on Sentence, His Honour stated at the outset that the applicant had pleaded guilty to two charges, the first being “robbery whilst armed with an offensive weapon which carries a maximum penalty of 20 years”. This was clearly an error. Furthermore, it was an error of a kind that was fundamental to the sentencing process involving the applicant. The error was the more serious since it was inter-related with the second ground relied upon by Counsel for the Applicant. . It is not an error of a kind that would fall within s 6(3) of the Criminal Appeal Act 1912.
As to (ii) Above
In address, reference had been made to the guideline judgment in Regina v Henry (supra). It had been used to fix the datum for the sentence to be imposed. In the course of the submissions on sentence, 4 to 5 ½ years was referred to in this context, and in the course of the Remarks on Sentence, His Honour expressed the view that the syringe used by the applicant was “more serious than the use of a knife” and that there had been a “degree of planning” in the instant case which was greater than the limited degree of planning referred to in Regina v Henry (supra). However, as counsel for the applicant rightly pointed out, the guideline judgment was concerned with a completed offence rather than an attempt. It was thus a case which established a datum in respect of an offence for which the Judge was in fact sentencing the applicant, but it was an offence which he had neither committed nor pleaded guilty to.
There was thus error in two regards arising out of the use made of Regina v Henry (supra).
As to (iii) Above
In the sentencing process engaged in by the Judge he appears to have to determined the sentence to be imposed by reference to the date on which the applicant should become eligible for parole. This date was fixed as December 2002 - effectively a non-parole period of 2 years and 5 months (AB 28). He then fixed the length of the sentence at 6 years, but appears to have done so by reference to the relationship of that period to the non-parole period already determined. In short, the way in which he approached the sentence was to increase its term so as to allow for an extended period on parole. This is an approach to sentencing which is not permitted, and constitutes an error (Regina v Carrion (2000) 49 NSWLR 149 at 152).
As to (iv) Above
The applicant was undoubtedly addicted to heroin at the time of the offences the subject of the appeal, and at the time of a later offence of steal from the person committed by him whilst on bail. In his Remarks on Sentence, the Judge referred to the circumstances which, it is said, led to the addiction of the applicant to heroin, namely the death by accidental drowning of his then girlfriend. His Honour accepted that there was “some truth” in the submission that such event had “shattered (the applicant’s) life” and that “having very little in the way of coping skills, he descended into the area where he now finds himself”.
This reference, allied with the Judge’s observation that the applicant seemed to be “a decent young man who, having been a person of good character, has gone off the rails…” demonstrates that the Judge did have regard to the circumstances in which the applicant became addicted to drugs.
In view of the fact that the errors identified above are an adequate basis for extending the time within which to appeal, granting leave to appeal and for this Court consider for itself the appropriate sentence to be imposed upon the applicant, it is unnecessary to consider further this fourth ground on which the application is based.
SUMMARY
An examination of the Remarks on Sentence demonstrates error in the sentencing process of the kinds referred to in grounds (i), (ii), and (iii) above. They are, to an extent, inter-related. The first ground of itself constitutes a powerful ground on which to review the sentence imposed. When taken in conjunction with grounds (ii) and (iii), I am of opinion that the case for allowing the sentence to be reviewed, and in fact reviewing it, is a strong one.
RE-SENTENCING
I accept the finding of fact by his Honour that the life of the applicant was shattered by the tragic drowning of his girlfriend. Prior to that time, he had no record at all. He was a young man who was of good character, in stable employment, actively involved in sport and progressed along the course of acquiring a trade qualification as a plumber. A report from a consultant psychologist, Carmelita Simonato, identifies him as a person who had poor coping skills as a young man, and that this led to an association with another female who was a drug addict, and in turn to his own addiction and his acquiring hepatitis C.
At the time when he committed the offences the subject of the appeal, the evidence suggests that he was at his nadir. The offences were atypical. The fact that he ran away from the scene as a result of the shout from the female in the shop supports a conclusion that he was easily deterred from the course on which he had embarked, because it was essentially a course contrary to his character.
There was some planning involved in the criminal enterprise. The use of the wig, beanie and the syringe filled with red liquid, apparently blood, indicates this. However, his acquisition of the wig and of the beanie were an unforseen consequence of his stealing the car. Their acquisition does not betoken any long term or detailed planning of the attempted robbery. There is nothing to suggest that the wig and/or the beanie, or for that matter a syringe, had been used by him prior to 28 November 1999 for any unlawful purpose of the kind now before the Court. The wig and beanie had been in his possession for two weeks. His possession of the syringe in question, and the other syringes found in the car at the time he was arrested are more likely to be the consequence of his then drug addition than indicative of plans to carry out a robbery.
In prison, the applicant has proved to be a “trusted inmate”. According to the consultant psychologist, “he has rehabilitated himself virtually unaided”. The range of courses that he has undertaken for self-betterment is commendable. He has been working as a plumber at Parklea, and has expanded his skills by commencing a computer skills course which would assist in fitting him for employment as a plumber, or even perhaps in some supervisory or clerk of works position.
The Judge quoted verbatim, and appears to have adopted, part of the report from the consultant psychologist which states:
“It is my opinion that Mr Cross is essentially a person of good character whose judgment was clouded by issues associated with drug addiction and negative peer influences. His personal and employment history describe a basically stable young man. His hopes for the future are solid and conventional.”
The view adopted by the consultant psychologist is amply supported by the objective evidence in relation to the applicant’s background. Rehabilitation, therefore, is a major factor to take into account when re-sentencing the applicant, bearing in mind nonetheless the need for the protection of the community from such offences by, inter alia, having a proper regard to the general deterrence of sentences.
In Regina v Blackman [2001] NSWCCA 121, Wood CJ at CL adopted what had been said by King CJ in Yardley v Betts (1979) 22 SASR 108:
“The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of, and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits… If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm…” (supra at 112 – 113; emphasis added)
The stealing of the car and the events of 28 November 1999 should not be glossed over. Those offences, particularly the latter, are objectively serious and this Court ought not by its sentence to be thought or seen to be condoning them. A custodial sentence is necessary, but it should not be such as to crush the applicant, or to impede the process of rehabilitation upon which the applicant has embarked with a great deal of success to date. However, the sentence imposed in the District Court, in my opinion, was in excess of that which was appropriate for an attempted robbery as opposed to an actual robbery with an offensive weapon. Attempted crimes, in the main, attract sentences which are lower, and often significantly lower, than the sentences that would be imposed for a completed offence. The circumstances of each case must be considered.
Having regard to the age and personal circumstances of the applicant, his excellent attempts at and success in rehabilitation, the indications for his future, the pleas of guilty entered at an early time and the other matters adverted to above - but at the same time recognising the seriousness of the principle offence to which the applicant pleaded guilty - I am of opinion that a sentence of four years imprisonment would be appropriate.
The circumstances to which I have adverted above are sufficient to constitute special circumstances. I am satisfied that special circumstances exist and that accordingly it is appropriate to change the statutory ratio of non-parole period to sentence.
A period of supervision and encouragement would be appropriate for the applicant when he returns to the word outside prison. In my opinion, a period of two years of such supervision and encouragement would be appropriate. Accordingly, I am of opinion that the ratio of non-parole period to sentence should be adjusted from three quarters to one half, with a resulting non-parole period of two years from 20 July 2000 to 19 July 2002. The period between the date of this judgment and the date on which the applicant becomes eligible for release on parole will enable proper pre-release procedures to be carried out and give a period of time during which the applicant can look forward to a return to the community and to being a productive member of that community.
ORDERS
I propose the following orders:
1. Extension of time within which to apply for leave to appeal granted.
2. Leave to appeal against the severity of the sentence imposed on the applicant in respect of attempted armed robbery with an offensive weapon, otherwise application dismissed.
3. Appeal against the sentence imposed in respect of such offence allowed and sentence quashed.
4. In lieu of the sentence imposed in the District Court in respect of such charge, the applicant be sentenced to a term of imprisonment for four years to commence on 20 July 2000 and to end on 19 July 2004.
5. Non-parole period fixed at 2 years to commence on 20 July 2000 and to end on 19 July 2002, on which date the applicant will become eligible for parole.
SMART AJ : I agree.

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LAST UPDATED: 17/02/2003