R v Duma

[2000] NSWCCA 132

CITATION:	R v Duma [2000] NSWCCA 132
FILE NUMBER(S):	CCA 60220/99
HEARING DATE(S):	13 March 2000
JUDGMENT DATE:	19 April 2000
PARTIES :	REGINA (Respondent) Paul DUMA (Applicant)
JUDGMENT OF:	Simpson J at 1; Smart AJ at 20

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/3142; 99/11/0046
LOWER COURT JUDICIAL OFFICER :	Ford DCJ

COUNSEL :	C K Maxwell QC (Crown/Respondent) A Barrie (Applicant)
SOLICITORS:	S E O' Connor (Crown/Respondent) George Sten & Co. (Applicant)
LEGISLATION CITED:	Criminal Procedure Act 1986 Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Henry (1999) 46 NSWLR 346
DECISION:	On the first count; (i) leave to appeal be granted, the appeal allowed and the sentence imposed be quashed; (ii) in lieu thereof, the applicant be sentenced to imprisonment for four years, with a non-parole period of two years and six months, the sentence to commence on 12 March 1999; The earliest date on which the applicant would be eligible for release on parole would be 11 September 2001; On the remaining counts leave to appeal granted but the appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60220/99

SIMPSON J
` SMART AJ

Wednesday 19 April 2000
REGINA v Paul DUMA

Judgment

SIMPSON J :

1 On 15 March 1999 the applicant appeared in the District Court and entered a plea of guilty to a charge of robbery with corporal violence, an offence he committed on 21 November 1997. He adhered to pleas of guilty formerly entered to three additional charges, one of aggravated robbery (the circumstances of aggravation being deprivation of liberty); of being carried in a conveyance without the consent of the owner; and of assaulting a police officer in the execution of his duty. Each of these offences was committed on 2 November 1998. The applicant asked that two further offences, of common assault, be taken into account pursuant to s 21 of the Criminal Procedure Act 1986. These offences were committed in association with the offence of robbery with corporal violence on 21 November 1997.

2    Each of the charges of robbery carries a maximum penalty of penal servitude for twenty years; each of the other charges carries a maximum penalty of penal servitude or imprisonment for five years.

3    Acting Judge Ford sentenced the applicant as follows:

1. on the charge of aggravated robbery: a total term of penal servitude for four years, divided conventionally into a minimum term of three years and an additional term of one year, commencing 12 March 1999;

2. on the charge of robbery with corporal violence: a fixed term of one year, commencing 12 March 1999;

3. on the charge of assaulting a police officer in the execution of his duty: a fixed term of imprisonment for one year, to be served partly cumulatively upon the term imposed for the offence of robbery with violence, and to commence 12 March 2000;

4. on the charge of being carried in a conveyance without the consent of the owner: a fixed term of six months, to be served concurrently with the earlier sentences, commencing 12 March 1999.

The effective sentence was therefore one of four years, with a minimum term of three years. Although commencement of the sentence on the third charge was partly deferred, and accumulated (in part) upon the major sentence, it was in truth completely subsumed in the longer sentence.

4    The applicant seeks leave to appeal against the sentences imposed.

5    The circumstances of the offences can be briefly stated. The first, the offence of robbery with corporal violence, was committed late in the evening of Friday 21 November 1997 in a park at Hurstville. The applicant was in the company of two other males and a female, all of whom were under eighteen years of age. The applicant was then eighteen years of age. All four approached a nineteen year old man and tore two gold chains from his neck. The victim said he did not have anything else but was kicked in the rib area by one of the group and fell to the ground. He was then punched and kicked by members of the group and tried to protect himself with his arms. The punching and kicking continued for two to three minutes. One of the offenders removed from the victim’s pocket his wallet and a packet of cigarettes and a cigarette lighter.

6    The victim suffered a bruised forehead, very sore ribs and pain to the right side of his face and for a time was spitting blood. He seems to have recovered from his injuries. His wallet was retrieved by a friend who found it at the park. The assaults the subject of the Form 1 counts were committed on two other victims who were in the vicinity.

7    The second set of offences were all committed during the afternoon of Monday 2 November 1998. The applicant and his co-offenders drove a stolen vehicle to a bank at Dee Why which they entered and directed the staff and customers to lie on the floor. One of the customers who refused to comply with that direction was subsequently knocked unconscious from a blow to the back of his head. It is not clear who of the offenders inflicted the blow.

8    The statement of facts suggests that there were a number of others involved in the enterprise but does not identify how many were present, or who they were. Three of the offenders jumped the counter of the bank and stole almost $40,000, whilst others remained in the foyer area of the bank controlling the customers and staff.

9    The applicant and co-accused ran from the bank, entered the stolen vehicle and drove off at high speed. About half an hour later police saw the applicant driving his own vehicle in Roseville in the company of two co-accused. He attempted to evade police in a high speed chase. On one occasion the applicant rammed the police vehicle, and shortly after lost control of his vehicle and collided with the police car and then a brick wall. He attempted to escape and jump a fence but was apprehended, and continued to struggle. A police officer suffered minor injuries as a result. From the applicant and another accused a sum of $15,600 was recovered.

10    The applicant gave evidence in the sentencing proceedings. He was born on 22 June 1979. He was therefore aged eighteen at the time of the first offence, nineteen at the time of the second. He was born in Poland, at the age of nine went to Germany for one year with his parents, and at ten moved with his family to Australia. After a short time at primary school, but with no English language, he was sent to an intensive language unit where he learned English, and then he went to a number of high schools in the Sydney district. It was during his time at high school that he started to get into trouble with police. He said he had met the wrong people and was mixing with the wrong crowd. He said on the evening of the first offence he and his companions were drunk, they started fighting and it got out of hand. He had been working, and had saved some money, but had developed a gambling problem and had lost all of his savings. He became involved in the bank robbery in order to replenish the savings he had gambled and thus conceal his habit from his parents. He said that his time in custody (he had been in custody on these and other matters from 12 November 1998 and was sentenced on 30 April 1999) had taught him a lesson. He had undertaken some courses and had plans with his father to commence a small business.

11    The applicant’s father also gave evidence and said that he thought that the applicant had changed dramatically in a positive way, had matured rapidly and was becoming a normal person. He said that the applicant always had had and always would have family support. He reinforced the intention of the applicant to complete his education and obtain appropriate qualifications for employment. He said that the applicant accepted responsibility for his involvement in the offences. His father attributed some of the applicant’s problems in mixing with bad company to the family’s frequent moves due to their low economic status. This transient quality of their existence made it hard for the applicant to establish good long term peer relationships.

12 It is obvious that the offences are very serious. As far as the bank robbery is concerned, although there was no evidence that either the applicant or any of his companions had been armed, the actual violence inflicted, the threats to which members of the staff and customers were subjected and the circumstances surrounding the offences, mean that the guideline promulgated by this court in R v Henry (1999) 46 NSWLR 346 is relevant. It is to be observed that the applicant has a criminal history which commenced in March 1996 with a charge of malicious damage, dealt with in the Children’s Court, and includes offences of stealing, break enter and steal, take and drive conveyance, malicious wounding and conceal serious offence and dangerous driving. The last three resulted in terms of imprisonment of four and three months, to be served concurrently.

13    The principal complaint made on the application was that a factual error infected the sentencing process.

14    The description of his attacker given by the bank victim who was assaulted established that it was not the applicant who actually inflicted the violence. But in his remarks on sentence the judge said:

“The identity of the person who struck him has not been made clear so I do not know whether it was you or someone else but nonetheless it was something that happened in the course of that robbery.”

15    Counsel for the applicant submitted that while his Honour did not find that the applicant had committed the violent act, he nevertheless left open the real possibility that it may have been the applicant. The Crown submitted that his Honour sentenced on the basis that the striking was something that occurred in the course of the bank robbery and for which the applicant and all participants had to accept responsibility.

16    In my opinion it was appropriate for his Honour to treat the striking as incidental to the offence in which the applicant participated. No error has been demonstrated in this respect. No other error in the assessment of the total sentence has been demonstrated.

17    It was conceded that in sentencing the applicant, his Honour took into account a number of factors including the plea of guilty, his youth and general background, his educational and employment record as well as the matters raised in the pre-sentence report. The influence the applicant’s peers had over him was particularly unfortunate, although evidence from his father concerning his improving maturity since his incarceration provided some ground for optimism concerning his prospect of rehabilitation, as did the positive family environment into which he will return upon his release. Further, he has had full time employment, being described by his employer as being “a very bright young man who gets on with co-workers and clients.”

18    One troubling feature is the absence of any reference in the remarks on sentence to the possible variation of the sentencing ratio envisaged by s 5(2) of the Sentencing Act 1989. There is authority to the effect that failure to refer to that question may provide the foundation for an inference that it was overlooked. This was a case in which there was material relevant to that question and, although it was not such as dictated an extension of the additional term at the expense of the minimum term, it was such as would have permitted some variation. In my opinion the circumstances show that consideration was not given to this question, and this represents error in the sentencing process. It will therefore be necessary to re-sentence the applicant on the first count only on the evidence.

19    Re-sentencing is to be in accordance with the requirements of the Crimes (Sentencing Procedure) Act 1999. Because I am satisfied that, if his rehabilitation on his release is to be effected, the applicant will require an extended period of supervision and assistance, I am satisfied that special circumstances exist justifying departure from the statutory ratio now provided by s 44(2) of the Crimes (Sentencing Procedure) Act I propose the following orders:

On the first count:

(i) leave to appeal be granted, the appeal allowed and the sentence imposed be quashed;
(ii) in lieu thereof, the applicant be sentenced to imprisonment for four years, with a non-parole period of two years and six months, the sentence to commence on 12 March 1999.
The earliest date on which the applicant would be eligible for release on parole would be 11 September 2001.


On the remaining counts leave to appeal granted but the appeal dismissed..

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20    SMART AJ: I agree with Simpson J.
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