R v Dwight

[2000] NSWCCA 164

CITATION:	R v DWIGHT [2000] NSWCCA 164
FILE NUMBER(S):	CCA 60066/99
HEARING DATE(S):	14 April 2000
JUDGMENT DATE:	14 April 2000
PARTIES :	Regina Rodney John DWIGHT
JUDGMENT OF:	Hulme J at 1; Dowd J at 24

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/1022
LOWER COURT JUDICIAL OFFICER :	Luland DCJ

COUNSEL :	Crown: M Grogan Appellant; C Lyons
SOLICITORS:	Crown: SE O'Connor Appellant: TA Murphy
DECISION:	Leave to appeal granted; Appeal dismissed

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IN THE COURT OF
CRIMINAL APPEAL
No: 60066/99


HULME J
DOWD J

Friday, 14 April 2000
REGINA -v Rodney John DWIGHT
JUDGMENT

1    HULME J: On 12 February 1999, Rodney John Dwight was sentenced by Judge Luland in respect of four counts of robbery whilst armed with a dangerous weapon. Under s.97(2) of the Crimes Act, each offence carried a maximum penalty of twenty-five years imprisonment.

2    His Honour was asked to take into account the number of matters on a Form 2. These included eight further offences of armed robbery, some with a dangerous weapon and others with an offensive weapon, one count of breaking, entering and stealing and two counts of stealing a motor vehicle. The first of the offences charged occurred on 2 August 1998 and the last on 8 September 1998 and involved a liquor outlet, two newsagencies and an RSL Club. The property stolen in each offence was $7,000, $18,300, 88 cartons of cigarettes and some $12,500 respectively. It was in the course of leaving the scene of the last of these offences that the applicant was arrested.

3    The offences taken into account occurred between 24 June 1998 and 3 September 1998. In these offences over $34,000 in cash and $13,000 worth of cigarettes were stolen together with other property. Both in the case of the offences taken into account and those charged, the applicant was always in the company of at least one other offender.

4    At the time he appeared before the sentencing judge the applicant was twenty-three years of age, single, engaged in part-time work and studying. He was receiving an Austudy allowance.

5    He had been a difficult child and it would seem that his father had been physically and emotionally abusive towards him. His relationship with his mother was, however, close. His antecedents record the commission of his first offences in June 1992, these being possession and self-administration of a prohibited drug. Thereafter, up until September 1994 he committed numerous offences of dishonesty and assault, penalties imposed including a number of control orders and terms of imprisonment. The longest of these included a minimum term of eleven months imposed in October 1994.

6    Thereafter, the applicant seems to have made serious attempts at rehabilitation. He commenced a TAFE course and his mother and girlfriend gave evidence to the effect that he seemed to have turned his life around and all was going well. In the light of that evidence, one assault charge arising from an incident in January 1997 and on which the applicant was placed on a recognisance can itself be ignored.

7    At the end of 1997 the applicant was involved in a pushbike accident and was knocked unconscious. Hospital tests did not indicate that there was any brain damage but it seems clear that after the accident, the prisoner was different. He seems to have become paranoid and become depressed and that he was hearing voices. He attended upon the Wentworth Area Mental Health Service and notes from that organisation confirmed indications of paranoia. He saw a psychiatrist although does not seem to have maintained medication which was prescribed. For the purposes of the sentencing proceedings the applicant saw Dr Westmore who concluded that the applicant did suffer from a paranoid disorder of some type and was psychiatrically unwell at the time Dr Westmore saw him. In the light of the totality of evidence on the topic, the applicant was probably also psychiatrically unwell at the time of his offending behaviour.

8    Nevertheless, Dr Westmore took the view that the applicant was probably aware of the wrongness of his behaviour at the time he was offending. His Honour said that he was not satisfied that any disorder the prisoner may have had played any significant part in his criminality in respect of the matters for which he stood sentenced. His Honour also noted that Dr Westmore also recorded - and there was other evidence to like effect - that the applicant was greatly troubled by feelings of guilt and shame.

9    The applicant pleaded guilty at the first opportunity.

10    It should be recorded that the applicant does not appear to be addicted to drugs but seems to have spent all of his share of the proceeds of his crimes on gambling. His habits in this regard were unknown to his girlfriend at the time.

11    The sentences which his Honour imposed were as follows: In respect of the first count and taking into account the matters on the Form 2, the applicant was sentenced to a minimum term of imprisonment of eight years commencing on 8 September 1998 and an additional term of four years commencing on 8 September 2006. In respect of each of the other offences the applicant was sentenced to a fixed term of eight years' imprisonment commencing on 8 September 1998. His Honour indicated that he fixed those terms because of the first sentence he had imposed. In adopting the approach which he did in respect of these other offences his Honour did not follow the course which in the light of the decision of the High Court in R v Pearce he should have. However, in the circumstances of this case, that approach has no practical significance and no argument during the course of the appeal was based upon it.

12    Although the sentence imposed on the first count included a minimum term of eight years and an additional term of four years, his Honour seems not to have made a finding of special circumstances. The grounds of appeal are:

Ground 1 - his Honour erred in failing to take the applicamental(sic) into account when assessing his criminality and the degree to which deterrence was a required ingredient.

Ground 2 - his Honour erred in that he did not give the appropriate discount for the pleas of guilty and admissions of guilt made by the applicant.
Ground 3 - The sentence imposed was manifestly excessive.

13    When regard is had to the sentences imposed and the magnitude of the applicant's criminality and the maximum provided for by s.97 the last two of these propositions have only to be stated to be rejected. As has been stated above, Parliament prescribed as the maximum penalty for offences of the nature of each of those charged, imprisonment for twenty-five years. None of the applicant's offences came close to being a worst case into which one might put, for example, some bank or payroll robberies. On the other hand, the offences were also a long way from being at or near the bottom of the scale.

14    In Regina v Henry & Barber & ors (1999) 46 NSWLR 346 this Court laid down a guideline for armed robberies having seven characteristics, viz (at 380)

(i) Young offender with no or little criminal history;
(ii) Weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.

15    The guideline was that an appropriate penalty would generally fall between four and five years imprisonment (total term). The Court went on to indicate that other factors would commonly also have to be taken into account. Among those specifically mentioned was the nature of the weapon, the position on the scale of impulsiveness or planning, the intensity of any threat or force, the number of offenders, the amount taken and the effect on victims.

16    Each of the applicant's offences were worse than those characterised by the guidelines. Firstly, they involved a dangerous weapon rather than merely an offensive one which only renders an offender liable to imprisonment for twenty years. Secondly section 97(1) envisages that the presence of either an offensive weapon or another participant is sufficient to bring a robbery into that sub-section rather than s.94 which deals with simple robbery and where the maximum penalty is fourteen years. In the case of the Applicant, there has been, as I have indicated, both a weapon and more than one offender were present. The amount taken in each of the cases charged, could not be described as "small". Thus putting aside any mental illness from which the applicant may have suffered, the appropriate penalty for one offence quite apart from the additional offences which the sentencing judge was taking into account, significantly exceeded the four to five years guideline referred to in R v Henry.

17    In Regina v Morgan (1993) 70A Crim R 368 at 372 Hunt CJ at CL, with the concurrence of Allen J and Loveday AJ said:

"It is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charged when another offence is taken into account pursuant to s.21 of the Criminal Procedure Act, 1926."

18    Indeed, subject to the limits imposed by that Act, it seems to me, that there is no basis in the statute, or in logic, for imposing a lesser penalty for such offences if they are taken into account than would have been imposed had they been the subject of additional counts in the indictment. Here, as I have indicated, there were four counts of robbery with a dangerous weapon and another eight offences of armed robbery, some of which were with a dangerous weapon and others with an offensive weapon. There were twelve offences in all at least equal to, or more serious, than those for which in R v Henry a four to five years term was indicated as a guideline.

19    Any suggestion that the penalty imposed on the applicant, putting aside for a moment his mental condition, was excessive, let alone manifestly excessive, must be rejected. Indeed, I think it is appropriate to say that still putting aside the question of mental incapacity, had I been the sentencing judge, the sentence imposed for twelve offences of that nature would have been substantially in excess of that which it was.

20    The reasons why Parliament has legislated, as it has, in respect of these offences, quite apart from the right of victims to go about their affairs as they see fit, lies in the danger which is created by the presence of commonly or not uncommonly lethal weapons and the trauma sometimes lifelong which is suffered by victims threatened with imminent death.

21    I turn to the first ground of appeal. There is, as I have indicated, no doubt that the applicant subsequent to his accident was different and suffering from some mental abnormality. But that of itself provides him with little to rely on in mitigation. One has still to consider the relevance or significance of that abnormality to his offences. If they were solely or principally the cause of the offences or possibly even had a substantial operation in leading the applicant to commit the offences that he did, they would have had a significant mitigating effect. However, his Honour's finding was that he was not satisfied that any disorder the prisoner may have had played any significant part in his criminality. This finding was attacked by Mr Nicholson during the course of his submissions upon the basis that, clearly, the abnormality existed and his Honour quoted a statement from the prisoner in a letter to the judge saying: that as a result of his belief in the horrible things people were going to do to him, he broke loose and this led to his offences. Although his Honour cited from that letter, it is quite clear that his finding in the following paragraph, which I have referred, was despite what was contained in that letter. His Honour's finding accorded substantially with that of Dr Westmore where the latter said that he was uncertain of the significance of the head injury and it would seem that while the applicant was committing the offending behaviour he was aware of the wrongness of his behaviour and that he ought not to act in such a way.

22    In these circumstances, there is nothing shown to demonstrate that his Honour's finding which I have quoted was wrong and having regard to the severity of the penalties to which the applicant laid himself open, and the extent of his offending, nothing to suggest that his Honour did not adequately take into account the mental condition from which the applicant was suffering.

23    Because of the length of the sentence I would give leave to appeal but dismiss the appeal.

24    DOWD J: I agree with the proposed orders of his Honour the presiding judge and the reasons therefor.

25    HULME J: The order of the Court is that leave to appeal is granted but the appeal is dismissed.

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