R v Crowe

[2011] NSWCCA 251

Court of Criminal Appeal

New South Wales

Case Title:	R v Crowe
Medium Neutral Citation:	[2011] NSWCCA 251
Hearing Date(s):	5 August 2011
Decision Date:	05 August 2011
Jurisdiction:
Before:	McClellan CJ at CL at [1] Simpson J at [44] Fullerton J at [48]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL APPEAL - s 97(1) Crimes Act 1900 (NSW) - Crown inadequacy appeal - error in assessment of objective gravity - s9 bond inadequate - exercise of Court discretion not to intervene - demonstrated rehabilitation - appeal dismissed.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Children (Criminal Procedure) Act
Cases Cited:	Hoare v R [1989] HCA 33; 167 CLR 348 R v JW [2010] NSWCCA 49 R v Majstrovic [2000] NSWCCA 420
Texts Cited:
Category:	Principal judgment
Parties:	The Crown (Appellant) Richard Crowe (Respondent)
Representation
- Counsel:	V Lydiard (Crown/Appellant) R J Jankowski (Respondent)
- Solicitors:	Solicitor for Public Prosecutions (Crown/Appellant) Meehan Solicitors (Respondent)
File number(s):	2010/147591
Decision Under Appeal
- Court / Tribunal:
- Before:	Finnane DCJ
- Date of Decision:	19 October 2010
- Citation:
- Court File Number(s)	2010/147591
Publication Restriction:

JUDGMENT

1. McCLELLAN CJ at CL: The respondent pleaded guilty to one count of armed robbery in company contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 20 years.

2. The sentencing judge sentenced the respondent to a 12 month bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. The Director of Public Prosecutions has appealed that sentence pursuant to s 5D of the Criminal Appeal Act 1912.

3. On 5 August 2011 the court made orders that the appeal be dismissed. These are my reasons for joining in that order.

The facts

1. The primary judge's sentencing remarks are brief and he makes no findings of fact. However, the relevant facts have been summarised in the Crown's submission.

2. On the evening of 11 June 2010, the respondent met up with a co-offender, Nicholas Antunovich, at the respondent's father's home at Leumeah. The respondent consumed four bottles of beer and left with Antunovich to pick up three other co-offenders, DT, MP and Daniel Case. The group were driven by Antunovich to an address in Ingleburn and Antunovich left the vehicle, returning openly holding a replica handgun which he placed in a compartment in the dashboard.

3. The group decided to go to Kings Cross and the respondent sat in the front passenger seat while Antunovich drove. On the way, the respondent consumed a further three to four bottles of beer.

4. At about 1 am on 12 June 2010 Antunovich stopped the vehicle in Woolloomooloo near the victim who had been walking home after dinner and drinks in Darlinghurst. The respondent exited the front passenger side of the vehicle in possession of the black replica handgun. The firearm was being held in his right hand in a vertical position and pointed directly at the victim. The victim felt immediate fear upon seeing the firearm. The respondent demanded the victim's wallet and the victim replied that he did not have one. The respondent demanded the victim's mobile phone and the victim replied that he did not have one. The respondent then said "I need money" and the victim replied "I don't have much", before removing a $5 note from his pocket and throwing it to the ground. The victim lifted his arms up in a pacifying fashion before backing away slowly from the respondent and the vehicle.

5. The co-offender, MP, picked up the $5 note, and the respondent and MP both got back into the vehicle and drove away. It was decided by the group that MP should have the money as he had earlier paid for a pair of pliers to fix the vehicle. The victim called police and the respondent and his four co-offenders were apprehended at 1.30 am on 12 June 2010 in Potts Point.

6. Antunovich was identified as the owner of the vehicle and he was present whilst the police searched the vehicle. During the search a black replica firearm, a black flick knife and a large kitchen knife were located within the stereo compartment of the dashboard.

7. The respondent participated in an electronically recorded interview during the course of which he admitted to being in the vehicle, having possession of the firearm and pointing it at the victim.

Subjective circumstances

1. The respondent gave evidence at the sentencing hearing. Two psychiatric reports from Mr Ted Cassidy and Ms M Schweikle were tendered as were a number of testimonials favourable to the respondent.

2. The respondent was born in 1992 and had just turned 18 at the time of the commission of the offence. He is the only child of an Australian born father and a Fijian mother. The respondent said that his parents separated shortly after his birth but continued to reside together until 2005. The respondent said that he had been raised primarily by his father and at the time of sentencing his mother was residing in Fiji. The respondent by this time was living with a family friend.

3. The respondent left school after completing Year 10. At the time he was sentenced he had obtained part time employment at McDonalds where he has worked since leaving school. He was also attending a pre-apprenticeship course at TAFE in automotive vehicle body work.

4. The respondent reported to Dr Cassidy that on the day of the offence he was distressed because a relationship of two years duration had just ended. The Probation and Parole officer Alison Lowe reported that the respondent said to her that "he could not account for his behaviour, although stated it was 'maybe to forget' the recent breakdown in his relationship with his girlfriend."

5. The respondent reported to Dr Cassidy that he had had 12 drinks and was intoxicated by the time he met his co-offenders. The statement of agreed facts indicated that he had consumed 4 bottles of Toohey's Extra Dry Beer whilst at his father's house between 6.30 pm and 7.30 pm on 11 June 2010 and a further 3-4 bottles of Toohey's Extra Dry before 1 pm on 12 June 2010 when the robbery occurred.

6. The respondent reported to Dr Cassidy a pattern of "binge" drinking two to three times a month when he consumed between 4 to 6 standard drinks. He told the Probation and Parole officer that he had "a minimal history with alcohol."

7. Since the date of the offence the respondent reported that he had largely abstained from alcohol. Ms Lowe said that he "maintained that he has not consumed alcohol to the point of excess since the commission of the offence."

8. The respondent reported depressive symptoms as well as stress arising from the court proceedings. He has been prescribed anti-depressant medication by Dr Cassidy and has been undergoing cognitive behavioural therapy with the psychologist, Ms Schweikle.

Co-offenders

1. This Court was informed that the sentencing proceedings in relation to the co-offenders, Antunovich and Case have been adjourned pending the resolution of this appeal. Two of the co-offenders have been dealt with in the Children's Court.

2. The Director advanced four grounds of appeal.

Ground 1: His Honour erred in failing to give proper reasons.

Ground 2: His Honour erred in the assessment of the objective gravity of the offending behaviour.

Ground 3: His Honour erred in failing to have any regard to the purposes of sentencing as set out in s 3A of the Crimes Sentencing Procedure Act and in particular his Honour failed to have regard to the principle of general deterrence.

Ground 4: His Honour erred in imposing a sentence that is manifestly inadequate.

1. It is unnecessary to resolve ground one of the appeal. However, as I have already indicated his Honour's remarks on sentence were brief, failed to indicate relevant findings of fact and contained little guidance as to how his Honour had concluded that the guideline judgment in Henry was inappropriate.

2. Ground two raised his Honour's assessment of the objective gravity of the respondent's behaviour. His Honour said:

   "This case would have to be rated as one of the most minor cases that has come before me of an alleged robbery."

3. This Court is not aware of the range of cases which may have come before his Honour. However, if by this remark, his Honour intended to indicate that this was a case at the "most minor" end of the scale of objective gravity of offending behaviour involving armed robbery I cannot share his conclusion. The offence occurred at about 1 am when the victim was making his way home on foot in the public street. He was accosted by the respondent who plainly had others in support and was challenged with a gun. The victim would not have known that the gun was a replica and given the hour of the night must have been put in considerable fear. His Honour said that the offence was minor because amongst other reasons no violence was offered.

4. Although the sentencing judge acknowledged that a replica pistol was produced he appears to have downplayed its significance. His Honour said of the gun:

   "This induced the person to believe perhaps it was real and he gave them five dollars."

5. In making this finding his Honour appears to have ignored the statement of agreed facts. The statement makes plain that the respondent exited the vehicle holding the gun in his right hand and pointed it directly at the victim. The statement records, and this would come as no surprise, that the victim felt immediate fear upon seeing the firearm. The respondent then demanded the victim's wallet and mobile phone. He was ultimately given five dollars which the victim threw on the ground.

6. Although when sentencing his Honour was obliged to have regard to the fact that the proffered gun was a replica he nevertheless was required to sentence recognising that it was the crime of armed robbery which had been committed. This issue was discussed in R v Majstrovic [2000] NSWCCA 420 where Hulme J said:

   "In light of the material which was before his Honour and this Court, the matter should have been, and must be, approached upon the basis that the weapon used by the applicant in the robbery was a toy. It thus imposed no physical risk to his victim or victims, or members of the public. In this respect the applicant's offence was less serious than those where a weapon such as a loaded gun, or a knife, is used, and the applicant was fairly entitled to have this difference taken into account.

   On the other hand, it must still be recognised that the applicant's use of the weapon was no doubt designed to strike fear in his victim or victims and, given that they apparently complied with his demands, did so. Although there was no evidence before the court of their subsequent reaction to this fear, it must be recognised that not all members of the public readily recover from such traumatic incidents."

7. It is apparent from his Honour's remarks that the sentencing judge was mindful of the judgment of this Court in Henry but considered it to be irrelevant to the respondent's circumstances saying that "when one looks at it carefully (it is dealing with) robberies of service stations, all night grocery stores, corner shops, chemists shops and places like that." I do not believe his Honour is correct.

8. The offender contemplated by Spigelman CJ in Henry at [162] was described by his Honour as "a young offender with little or no criminal history with a weapon like a knife, capable of killing or inflicting serious injury." His Honour identified the relevant offence as having a limited degree of planning and limited if any actual violence but a real threat of violence. The Chief Justice said that he had in mind a victim in a vulnerable position, his Honour giving the illustration of a shopkeeper or taxi driver. The offence which the Chief Justice contemplated involved a small amount being taken together with a plea of guilty.

9. To my mind many of the characteristics identified in Henry were present in the present case. The respondent is young with no criminal history. A weapon, albeit a replica was used and there was a limited degree of planning. There was no actual violence although the threat was real. The event must have been stressful if not traumatic for the victim. There was a small amount taken and the respondent pleaded guilty. Although the Chief Justice referred to a person in a vulnerable position identifying a shopkeeper or taxi driver it seems to me a person walking alone on a public street in the early hours of the morning is equally if not more vulnerable. They are isolated without any separation from their assailant and without recourse to any alarm or other security or protective facility. A person who is confronted at gun point is in many ways more vulnerable than someone challenged by an offender holding a knife. Any attempt to escape from the thief with a gun may be met by the discharge of the weapon.

10. Spigelman CJ was of the opinion that the sentence for the offence and offender which he characterised should generally fall between 4 and 5 years imprisonment for the full term. However, the Chief Justice recognised that the individual circumstances of the offender and his or her crime must be the ultimate determining factor in the sentence which is imposed. His Honour said that in relation to the offence of armed robbery a number of circumstances are of particular relevance being the nature of the weapon used, the vulnerability of the victim, position on the scale of impulsiveness/planning, intensity of threat, or actual use of force, number of offenders, amount taken and the effect on the victim.

11. In the present case the sentencing judge recognised that the respondent was just over the age of 18 at the time of the offence. He was travelling with a group of juveniles in a car in which there was a replica black pistol. It was not the offender's. It is clear that the respondent had consumed large amounts of alcohol and was probably significantly intoxicated at the time of the offence. His Honour identified the fact that the respondent had had a troubled upbringing but had good references from people he had worked with.

12. It would seem that his Honour was significantly influenced by the fact that the amount of money taken was very small and no violence was offered beyond the presentation of the replica pistol. His Honour said that in his opinion "the circumstances of the case are well below those that call for sentences of imprisonment and I declined to impose one." It would seem that his Honour recognised that the view which he had come to may not be accepted by this Court saying: "if the court of Criminal appeal wants to impose one, they can impose one but I am not going to."

13. His Honour concluded that "when someone is young, foolish and addicted to alcohol and commits a single error on a night impulsively he does not deserve to go to gaol and I decline to send him there." If his Honour meant this as a general response irrespective of the crime committed and the circumstances of its commission it could not be accepted. For example, if violence had actually been inflicted as opposed to merely threatened the circumstances of this offence would have taken on a quite different character.

14. One of the characteristics of a civilised society is the capacity of citizens to walk the streets without concern that they may be put in fear of their lives and robbed. Although the real risk to the victim is obviously much greater when the weapon is itself real and loaded a victim is not to know this when a replica or unloaded gun is presented. The judgments in Henry accepted that this type of crime was of increasing prevalence in the community making a consideration of general deterrence of greater significance than it may be for some other types of crime.

15. In my opinion the circumstances of this offence required a more significant penalty than a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act. At the hearing before the sentencing judge the prospect of a sentence of imprisonment which was to be suspended was discussed. His Honour rejected this possibility saying that "this does not warrant imprisonment therefore s 12 does not come into the question."

16. The sentencing judge determined that any form of prison sentence was inappropriate, the respondent being young, foolish and addicted to alcohol. I accept that he is young and foolish and acted at the urging of his companions. However, he committed a serious crime for which the maximum penalty is imprisonment for twenty years. The sentencing judge was required to impose a penalty which was sufficient to ensure that the respondent was suitably punished and ensured that others like him appreciate that this type of offence will not be tolerated in the community. To my mind a Section 9 bond was quite inadequate to achieve these objectives. The respondent should at the least have been sentenced to a term of imprisonment of 18 months but suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act.

17. The respondent drew attention to the sentence which, since he was sentenced, has been imposed upon a co-offender who was aged 16 years and 8 months at the time of committing the offence. The young person was released on probation for 18 months under s 33(1)(e) of the Children (Criminal Procedure) Act with conditions.

18. To my mind the age difference between that young person and the respondent is of some significance. Furthermore, although it was at his companion's urging, it was the respondent who produced the replica weapon and effected the robbery. The sentence I would impose would not be disproportionate to the sentence imposed on the young person.

19. Although I am of the opinion that a suspended sentence should have been imposed by the sentencing judge I recognise that my colleagues have a different view.

20. Evidence tendered to this Court indicates that the respondent has recently completed the first year of his pre-apprenticeship in a vehicle painting course at Campbelltown TAFE. The course was completed on 24 June 2011. Although the respondent has gained some employment in that industry he has not yet been able to secure full time employment. In the meantime he has continued working with McDonalds where he works 4 or 5 days a week. He is actively seeking work in a spray painting business.

21. Evidence was also given of the treatment which the respondent has received for his depression. He also gave evidence that he has abstained from taking alcohol in recent months and has participated in a program of treatment from Dr Cassidy a consultant forensic psychiatrist. Dr Cassidy has structured a program which requires the respondent to have his position reviewed on a 4 to 6 week basis.

22. These matters persuade me that the respondent has recognised the seriousness of his offending and has taken steps to put his life in order. Although the sentence I would have imposed would not have required his incarceration, unless he transgressed further, in the circumstances I am satisfied that in the exercise of its discretion this Court should not intervene ( R v JW [2010] NSWCCA 49 at [98]). He deserves the opportunity to continue on the path which he appears to have set for himself.

23. For these reasons I joined in dismissing the appeal.

24. SIMPSON J: I joined in the orders made on 5 August 2011. Since McClellan CJ at CL has indicated that he favoured a more severe penalty than that imposed, but that the other members of the Court did not, it is appropriate that I express briefly my reasons for concluding that the Crown appeal ought to be dismissed.

25. It is unnecessary to restate the facts of the offence. It was obviously serious. Nor is it necessary to review the deficiencies in the Remarks on Sentence.

1. Notwithstanding those deficiencies, I concluded that the Crown appeal ought to be dismissed. That is for a number of reasons, as follows:

   (1) although the respondent was an adult at the time of the offence, he was barely so - by just one month. He was 18 years and 1 month old. Had he committed the offence one month earlier, he would have been dealt with in a Children's Court under the special provisions of the Children (Criminal Proceedings) Act 1987. His co-offenders were sentenced in that jurisdiction. It is scarcely conceivable that, in that jurisdiction, for a first offence, he would have been sentenced to any form of imprisonment, certainly not in an adult facility.

   Of course, the law must provide for cut-off points, and 18 years is the age at which the law decrees that offenders lose the benefit of the special protective jurisdiction. But that does not meant that those protections are to be put aside as entirely irrelevant.

   Moreover, the respondent had no previous criminal history, and had not experienced the Children's Court, where he would undoubtedly have been warned, as he approached 18 years of age, that he faced the rigours of the adult sentencing process. This was his first experience of the criminal law;

   (2) the offence was impulsive, entirely unpremeditated, and undertaken by the respondent at the behest and instigation of his younger co-offenders;

   (3) there was strong evidence of rehabilitation. In a psychiatric report, Dr Cassidy said that the respondent had commenced a course of psychiatric treatment, to which he had made an excellent response. He had (at the time of the report) ceased alcohol use. By the time the respondent gave evidence, he said that he had decreased his alcohol use and, at that time (April 2011) he had not had a drink since Christmas. He has commenced a pre-apprenticeship course at TAFE and has attended every day. He has also taken employment on a part-time basis.

2. For these reasons, I consider that this was an exceptional case that did not, notwithstanding the seriousness of the offence, call for a sentence of full-time imprisonment, even if suspended.

3. FULLERTON J: I was also of the opinion that the Crown appeal should be dismissed and joined in the orders made on 5 August 2011. I am also of the opinion that despite the seriousness of the offending a sentence of imprisonment (even if suspended) was not warranted in the particular circumstances of this case. In addition to the matters Simpson J has identified as persuading her to that conclusion, I would add that s 5(1) of the Crimes (Sentencing Procedure) Act mandates that imprisonment is a sanction of last resort, and that the sentencing court makes a positive finding that no other penalty than imprisonment is appropriate if a sentence of imprisonment is to be imposed. This is consistent with a related and basic principle of sentencing law that a sentence of imprisonment not exceed what is appropriate or proportionate to the gravity of the crime ( Hoare v R [1989] HCA 33; 167 CLR 348 at 354).

4. In his relatively brief sentencing remarks the sentencing judge made express reference to the fact that the Crimes (Sentencing Procedure) Act stipulates that imprisonment is a sentence of last resort. He considered that supervision under a 2 year s 9 bond was, in effect, an alternative to imprisonment he could not exclude as an appropriate sentence for a young man who was encountering the criminal law for the first time and who, subject to peer pressure and the effects of alcohol, had acted foolishly and impulsively.

5. While I accept that this case has some of the features of the offender the subject of the guideline judgment in Henry , and for that reason the sentencing judge had no legitimate basis for considering it as irrelevant to the sentencing exercise, I do not consider that his Honour's sentencing discretion miscarried.

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