R v Griffiths

[2001] NSWCCA 130

CITATION:	R v Griffiths [2001] NSWCCA 130
FILE NUMBER(S):	CCA 60847/1999
HEARING DATE(S):	11 April 2001
JUDGMENT DATE:	11 April 2001
PARTIES :	Regina Kevin Phillip Griffiths
JUDGMENT OF:	Wood CJ at CL at 1; Smart AJ at 18

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0142
LOWER COURT JUDICIAL OFFICER :	Job DCJ

COUNSEL :	M. Grogan (C) Self
SOLICITORS:	S E O'connor
CATCHWORDS:	CRIMINAL LAW - appeals - appeal against sentence - armed robbery in company - severity of sentence - delay in sentence - subjective circumstances - applicant at the crossroads - rehabilitation since sentence
CASES CITED:	Crimes Act 1900 s 97
DECISION:	Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

WOOD CJ at CL

SMART AJ

WEDNESDAY 11 APRIL 2001

Regina v Kevin Phillip GRIFFITHS

The applicant was convicted for the offence of armed robbery in company. He was sentenced to six years imprisonment with a non-parole period of four years.

The applicant seeks leave to appeal against the severity of the sentence on the grounds that (1) the sentencing Judge did not take into account the fact that the applicant was on bail for two years before being sentenced; (2) the applicant was addicted to heroin at the time of the offence; (3) neither psychological or pre-sentence reports were prepared; (4) the offence was out of character; (5) the complainant tainted her evidence; (6) the applicant was at the crossroads; (7) the applicant had rehabilitated since sentence.

HELD: (Leave to appeal granted. Appeal dismissed):

Ground 1: applicant was on bail for two years before being sentenced

The applicant did not point to any prejudice occasioned by the delay, or to any oppressiveness attributable to that fact or to the need to comply with strict bail conditions, that would justify mitigation of sentence.

Todd (1982) 2 NSWLR 517; Blanco (1999) NSWCCA 121 applied.

Ground 2: fact that applicant was addicted to heroin

Addiction to narcotics may provide a reason for the commission of an offence, but it does not excuse the criminality or provide any reason for mitigation of sentence.

Henry (1999) 46 NSWLR 346 applied.

Ground 3: Neither psychological or pre-sentence reports were prepared

The fact that the applicant chose not to place such material before the Court on sentence cannot be relied upon on appeal.

Ground 4: Offence was out of character

The applicant had an extensive prior record for offences of dishonesty and breaking into premises. This was not the case of a first offender.

Ground 5: complainant tainted her evidence

The complainant gave evidence before the jury which was obviously accepted. There is no basis for concluding that the verdict was unsupported.

Ground 6: Applicant at the crossroads

Where a person has reached the cross roads at the time of sentence this is a matter to be taken into account. The applicant had made some efforts at rehabilitation, however, this was not a case where the applicant was the ‘crossroads’.

Salemah NSWCCA, 9 June 1994; Dawson (2000) NSWCCA 433 applied.

Ground 7: Rehabilitation since sentence

Events occurring post-conviction, with a few limited exceptions are not normally to be considered by the Court of Criminal Appeal. That power is concerned with whether the sentence passed at first instance was correct according to law and whether it was excessive or not. The judicial power of the Court needs to be distinguished from the executive power available to deal with most circumstances which arise post- sentence.

Munday (1981) 2 NSWLR 177; Vachalec (1981) 1 NSWLR 351 applied.

ORDERS PROPOSED

(1) Leave to appeal granted.

(2) Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

060847/99

WOOD CJ AT CL

SMART AJ

WEDNESDAY 11 APRIL 2001

REGINA v KEVIN PHILLIP GRIFFITHS

JUDGMENT

1 WOOD CJ AT CL: On 9 December 1997 the applicant, who appeared this morning in person, was convicted at trial for the offence of robbery in company (s 97 of the Crimes Act). He was sentenced to six years imprisonment with a non-parole period of four years.

2   He now seeks leave to appeal against the severity of that sentence by relying on a number of grounds which were specified in his written application for leave to appeal.

Facts

3   The applicant, together with a female companion, entered the premises of the victim at Budgewoi both wearing balaclavas. The applicant was carrying a pistol which turned out to be a replica pistol and the female was carrying a nife. The victim was taken into the kitchen by the female with a knife held either against or close to her throat. In the kitchen her handbag was located and taken. She was then forced back into the bedroom where the applicant removed jewellery from her hands and neck. Both offenders then left the house and the police were summonsed.

4   When they arrived they found that a light bulb from the front porch had been removed. Fingerprints of the accomplice were found at the premises.

5   It was the applicant’s case at trial that he went to those premises for the purposes of obtaining amphetamines, and that while there he was threatened by another person with a pistol. He said that he became involved in a struggle, in the course of which the victim's handbag, in some fashion, became wrapped around his hand and was then accidentally taken away by him. The Crown case, as his Honour properly observed, was a strong case and it was not at all surprising that the applicant's version of events was rejected by the jury.

6   I turn then to the grounds of appeal which the applicant seeks to raise.

Ground 1. The applicant was on bail for two years before being sentenced.

7   There were some delays of an administrative kind before the matter was listed for trial. These related, in part, to the fact that on several occasions the matter was not reached. Additionally, as a result of the applicant having been granted bail pending trial, the listing of his case had relatively low priority.

8 The applicant has not pointed to any prejudice occasioned by the delay, or to any oppressiveness attributable to that fact or to the need for his compliance with strict bail conditions, that would justify mitigation of sentence for the reasons mentioned in Todd (1982) 2 NSWLR 517 and 519 and also in Blanco (1999) NSWCCA 121.

9 So far as the applicant asserts that there was a change in his attitude to his life, and a desire to rehabilitate himself over the period between arrest and trial, that is a matter which is hardly supported by the fact that he chose to go to trial in the face of a strong Crown case. In any event, this factor appears to have been fully appreciated by his Honour, and taken into account in imposing what he considered to be a lenient sentence in light of the judgment in this Court in Henry (1999) 46 NSWLR 346. The principles in Kavich (1993) NSWCCA 26 October 1993 do not therefore apply. This ground has not been made good.

Ground 2. The applicant should have received consideration for the fact that he was addicted to heroin, and to other narcotics, at the time of the offence.

10   For the reasons noted in Henry addiction to narcotics may provide a reason for the commission of robbery type offences but it does not excuse such form of criminality, nor does it provide any reason for mitigation of sentence. The present offence was particularly serious so far as it involved the use of a replica pistol and a knife, so far as it occurred in the victim's home at night, and so far as it involved planning in the course of which the offenders disguised themselves with balaclavas and disabled a porch light. This ground is not made good.

Ground 5. Neither psychological nor pre-sentence reports were prepared.

11   The applicant was legally represented at the trial, and during the sentencing proceedings a report from Dr Orgas, as to his progress while on methadone, was tendered. The applicant also gave evidence. He had the opportunity of placing any further material of relevance before the Court. The fact that he chose not to do so cannot now be relied upon, since the sentencing judge was obliged to sentence him on the material which was tendered. This ground is not made good.

Ground 7. The offence was totally out of character.

12   The applicant had an extensive prior record for offences of dishonesty and breaking into premises. He had repeatedly been given the benefit of non-custodial sentences but by persistently reoffending he had demonstrated an attitude of disregard for the law. This is not a case of a first offender or of someone who had previously had a record of little moment. This ground is not made good.

Ground 9. The complainant tainted her evidence.

13   This appears to involve the submission that the victim gave untrue evidence, by reason of the fact that the applicant allegedly owed her money. The jury obviously believed her evidence and rejected that of the applicant. There is no basis for concluding that the verdict was unsupported, or that her Honour misunderstood or incorrectly determined the facts appropriate for sentence. This ground has not been made good.

Grounds 3 and 10. Applicant at the crossroads.

14 The applicant submitted that as a result of the birth of his son his focus and attitude to life had changed, and that he had reached the crossroads at the time he appeared for sentence. Where a case answers that description, then it clearly is a matter to be taken into account: Salemah NSW CCA 9 June 1994, and Dawson (2000) NSWCCA 433. His Honour in fact accepted that the applicant had made some efforts to rehabilitate himself and, based upon that conclusion, found that there were circumstances justifying a reduction of the non-parole period. Although the applicant claimed that he had stayed out of prison for ten years before the offence, that is not an entirely accurate statement of his rehabilitation since he has, since 1990, appeared in Court on nine separate occasions for a variety of offences, including offences of dishonesty, malicious damage, and larceny, for which non-custodial sentences had been imposed.

15   The applicant, who is 37 years of age, did not show himself convincingly to be at the crossroads and the sentence imposed was entirely within a proper exercise of sentencing discretion, particularly since he had failed to respond to the more lenient options that had been made available to him in the past. This ground is also not made good.

Grounds 4, 6 and 11. Rehabilitation since sentence.

16 Under these grounds the applicant seeks to raise several matters arising post-conviction, including the fact that he has rediscovered his mother and that he has completed various courses, including a methadone programme, while in custody. Events occurring post-conviction, with a few limited exceptions, are not normally the province of this Court when it exercises its appellate judicial power. That power is concerned with the question whether the sentence passed at first instance was correct according to law, and relevantly here whether it was excessive or not (see Munday (1981) 2 NSWLR 177 at 178 and Vachalec (1981) 1 NSWLR 351. The judicial power which this Court possesses needs to be distinguished from the executive power which is available to deal with most circumstances which arise post-sentence. In any event, it seems to me that the progress made by the applicant does no more than show that he is doing what was expected of him by the rehabilitative phase of sentencing. This ground is also not made good.

17   For all these reasons I would accordingly grant leave to appeal but I would dismiss the appeal.

18   SMART AJ: I agree.

19   WOOD CJ AT CL: The order of the Court then is as I have proposed.

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