R v Guy Pierce Gardener
[2003] NSWCCA 2
•11 April 2003
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Guy Pierce Gardener [2003] NSWCCA 2
FILE NUMBER(S):
60441/02
HEARING DATE(S): 4/12/02
JUDGMENT DATE: 11/04/2003
PARTIES:
Regina
Guy Pierce GARDENER (Respondent)
JUDGMENT OF: Ipp JA Hulme J Bell J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 02/21/0040
LOWER COURT JUDICIAL OFFICER: Tupman DCJ
COUNSEL:
DC Frearson (Crown)
GF Jauncey (Respondent)
SOLICITORS:
SE O'Connor
Macquarie Lawyers (Respondent)
CATCHWORDS:
LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
DECISION:
Appeals allowed
Sentences imposed in the District Court quashed and, in lieu thereof, sentence the respondent
(i) on count 1 - to a term of eight years and six months imprisonment to date from 5 March 2002. That sentence will expire on 4 September 2010. Specify a non-parole period of five years and six months. Save for the sentences to be imposed on counts 2 and 3, the first date on which the respondent would be eligible for consideration of release on parole would be 4 September 2007
(ii) On count 2 - to a term of six years and nine months imprisonment to date from 5 March 2004. That sentence will expire on 4 December 2010. Specify a non-parole period of four years. Save for the sentence to be imposed with respect to count 3, the first date upon which the respondent would be eligible for release to parole is 4 March 2008
(iii) On count 3 - to a term of six years and nine months imprisonment to date from 5 September 2004. That sentence will expire on 4 June 2011. Specify a non-parole period of four years and dating from 5 September 2004. The first date upon which the respondent will be eligible for consideration for release to parole is 4 September 2008
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60441/02
IPP JA
HULME J
BELL JFriday 11 April 2003
REGINA v Guy Pierce GARDENER
Judgment
IPP JA: I agree with Bell J.
HULME J: In this matter I have had the advantage of reading in draft form the Reasons for Judgment of Bell J. I agree with her Honour that the appeal by the Crown should be allowed and with her Honour’s reasons for that conclusion. The sentence under appeal reflected neither the criminality of the Respondent, judged by the statutory provision against which he offended, nor this Court’s decision in R v Henry (1999) 46 NSWLR 346.
However, I disagree with her Honour as to the disposition of the appeal. In my view the effective sentence to be imposed on the Respondent should, despite the restraints in a Crown appeal, be substantially higher than her Honour proposes. Because mine is a minority view, I can state my reasons shortly.
I regard her Honour’s suggested head sentences of 8½, 6¾ and 6¾ years imprisonment (after allowing the sentencing judge’s 15% discount for a plea) as appropriate. I should record that in reaching that conclusion, I have been conscious that some of the Respondent’s criminality on 4 and 5 September is reflected in the offences taken into account in relation to the first count and it would be wrong to punish the Respondent twice for the same conduct. The fact that there is a difference of only 2 years in the starting point for the sentence on the first count and those on the other two counts, notwithstanding the taking into account of the attempted robbery on the Commonwealth Bank on 4 September and the offence against Miss Kerr on 5 September, is a recognition of this fact.
However, except insofar as it may be required or inspired by an accumulation of sentences, I do not see any basis for a finding of special circumstances or for a reduction of the non-parole periods below 75% of the head sentences – in round figures, 6 years and 4 months, 5 years and 5 years. Furthermore, I would fix the starting point of the sentences on the second and third counts so that the effective non-parole part of the Respondent’s overall sentence was extended by 12 months for each of these offences.
I am influenced to these conclusions by a number of factors. One is that there should both be, and be seen to be, a substantial increase in punishment for the second and third offences with which the Respondent was charged. Otherwise persons, including the Respondent, who have committed one offence receive little discouragement from committing more. A second is the Respondent’s record.
That I have found a very troubling aspect of this case. For it seems clear that matters over which the Respondent has had little or no control are major contributors to his offending. Demonstrably, he is someone whose past evokes sympathy and argues for opportunity to reform. In an endeavour to see whether there was any argument for leniency based on the Respondent’s subjective circumstances, I prepared a table from his antecedent history. I have not included all offences but the pattern is regrettably clear.
Consideration for others is a two-way street and not only does the Respondent’s record show a refusal to adhere to the standards necessary for any civilised society but it shows nothing to indicate any prospect of, or even desire for, change.
The Respondent was born in January 1981. By the beginning of 1997 he was subject to at least 8 control orders imposed on a number of occasions for a variety of offences including break, enter and steal, stealing a motor vehicle and driving while disqualified. The severest order included a minimum term of 6 months commencing on 16 October 1996 and an additional term of a further 6 months commencing on 15 April 1997. A condition of the additional term was that on his release the Respondent be subject to the supervision of the Juvenile Justice authorities. Charges brought after the beginning of 1997 and in respect of which the Respondent was sentenced include the following:-
| Charge Date | Offence/Event | Sentence/Order |
| 13.01.97 | Disqualified driver | |
| 04.04.97 | Goods in custody | 6 months probation from 10.11.97 |
| 17.04.97 | Revocation of parole | Returned to former custody |
| 24.05.97 | Attempting to escape from lawful custody | 6 week control order from 24.5.97 |
| 16.06.97 | Attempting to escape from lawful custody | Rising of the court |
| 16.06.97 | Possess prohibited drug | $50 fine |
| 23.08.97 | Robbery in company | 6 months control order from 4.11.97 |
| 10.10.97 | Robbery | Control order for 9 months from 25.5.98. Additional term 15 months from 25.2.99 with release subject to supervision |
| 10.10.97 | Steal motor vehicle (x4) Enter building with intent; Use weapon to avoid apprehension | (On appeal in 3 matters) control order for 9 months from 25.5.98 with additional term of 9 months from 25.2.99. (It appears the release was subject to supervision of Juvenile Justice authorities) |
| 04.11.97 | Attempting to escape from lawful custody | 2 months control order from 3.5.98 |
| 04.11.97 | Take/drive conveyance w/o consent of owner; Driving whilst disqualified; Drive in a manner dangerous; Resist officer in execution of duty | 6 months control order from 4.11.97 |
| 07.11.97 | Robbery in company (x2) | 6 months control order from 4.11.97 |
| 03.12.97 | Maliciously destroy/damage property | 1 month control order from 25.5.98 |
| 17.12.97 | Assault (x2) | 1 month control order from 25.5.98 |
| 27.12.97 | Maliciously destroy/damage property | 1 month control order from 25.5.98 |
| 05.01.98 | Assault (x3) | 1 month control order from 25.5.98 |
| 21.01.98 | Assault | 2 months control order from 25.5.98 |
| 03.02.98 | Assault officer in execution of duty; Maliciously destroy/damage property | 3 months imprisonment 3 months imprisonment |
| 26.03.98 | Assault occasioning actual bodily harm | 1 month imprisonment |
| 16.10.98 | Assault | 4 weeks imprisonment from 29.4.99 |
| 09.03.99 | Drive conveyance taken w/o consent of owner; Driving whilst disqualified; Driving in a manner dangerous; Driving under influence of drug (not alcohol) | 3 months imprisonment from 21.7.99 |
| 23.07.99 | Attempt escape from lawful custody Assault officer in execution of duty Larceny; | 18 months imprisonment from 28.5.01 6 months imprisonment from 28.5.01 Taken into account |
| 05.01.00 | Enter enclosed lands w/o lawful excuse; Maliciously destroy/damage property | Fine $50 Fine $150 |
It may be acknowledged that some of the sentences of imprisonment may have taken that form because the Respondent was already in custody. However the table and what has been said indicates that the only significant periods he had not been in custody since October 1996 may have been for some 4 months after about 5 July 1997 and 2 months from about 24 February 1999. It also appears that in these periods he committed, or at least was charged with, offences as early as 23 August 1997 and 9 March 1999
It must also be mentioned that on 12 December 2000 the Respondent was sentenced in respect of 4 counts of robbery in company. The sentence imposed was imprisonment for 5 years with a non-parole period of 2 years and 6 months, both periods commencing on 23 August 1999. The Respondent’s conviction on these offences was quashed and accordingly they are not to be held against him. What is significant however is that on 17 August 2001 the Respondent was released to bail pending his appeal. Thus although the seriousness of robbery offences must have been brought home to the Respondent, within 5 days of his release he had resorted again – I have in mind his 1997 charges - to this type of offence.
Against this background and with no indication of any prospect of reform, it is pointless to give the Respondent any leniency (beyond that normally given in a Crown appeal) or extended period of supervision. Furthermore his history demonstrates that he is someone from whom the community needs the maximum degree of protection consistent with the proper application of the principles of sentencing – Veen v R (No 2) (1987-1988) 164 CLR 465 at 472-3. To recognise he is a recidivist is not, of course, to punish him again for past offending.
I agree that the sentence imposed on the Respondent’s co-offender, Foster senior was, given his record, light. But leniency was extended to him, inter alia because, in the opinion of the sentencing judge, the age at which he would be released from prison – sixty-five – gave him a somewhat greater chance of rehabilitation. This reason does not apply to the Respondent. Principles of parity do not require that offenders whose circumstances are different be treated similarly – Lowe v R (1984) 154 CLR 606; Postiglione v R (1998) 189 CLR 295.
As I have said, mine is a minority view. In those circumstances it is unnecessary that I formulate the precise sentences that seem to me appropriate.
BELL J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the leniency of sentences imposed on the respondent in the District Court at Parramatta on 20 June 2002.
On 27 May 2002 the respondent pleaded guilty to an indictment containing three counts:
(i) On 22 August 2001 at Eastwood when armed with an offensive weapon did rob the Westpac Banking Corporation of $22,349.50 in cash the property of the Westpac Banking Corporation;
(ii) On 4 September 2001 at Winston Hills when armed with an offensive weapon did rob Kyung Ja Kim of $350 in cash, the property of Kyung Ja Kim, Robyn Menkes of $200 cash, the property of Robyn Menkes and Carmen Green of $10, the property of Carmen Green;
(iii) On 5 September 2001 at Turramurra in the State of New South Wales, when armed with an offensive weapon, did rob the ANZ Bank of $1,577 in cash, the property of the ANZ Bank.
The respondent asked the sentencing judge to take into account a further two offences in accordance with the provisions of s 32 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”). These offences were associated with counts two and three in the indictment respectively. They comprised one charge of attempted robbery while armed with an offensive weapon. This related to an attempt to rob the Commonwealth Bank at Winston Hills on 4 September 2001 on the occasion when the respondent robbed several of the customers of the bank (count 2). The second offence set out in the Form 1 document was the armed robbery of Michelle Kerr on 5 September 2001. Ms Kerr was robbed during the course of the robbery of the State Bank branch at Turramurra on 5 September 2001 (count 3).
Each of the counts in the indictment charged the respondent with an offence under s 97(1) of the Crimes Act 1900 (“the Act”). The maximum penalty provided for this offence is one of twenty years imprisonment. The offences set out in the Form 1 document were also brought under s 97(1) of the Act.
On 20 June 2002 the respondent was sentenced to a fixed term of two years to date from 5 March 2002 and to expire on 4 March 2004 in respect of the conviction on count 2. A fixed term of two years to date from 5 March 2003 and to expire on 4 March 2005 was imposed with respect to the conviction on count 3. A sentence of three years and nine months to date from 5 March 2005 and to expire on 4 December 2008 was imposed with respect to the conviction on count 1. A non-parole period of eighteen months dating from 5 March 2005 was specified. That non-parole period will expire on 4 September 2006. The two offences recorded on the Form 1 document were taken into account in sentencing the respondent for the offence charged in the first count.
The overall sentence imposed for these three offences of armed robbery (taking into account the two further offences) was one of six years and nine months imprisonment dating from 5 March 2002 with an effective non-parole period of four years and six months.
The notice of appeal is dated 30 August 2002. The respondent was served with a copy of that notice on 2 September 2002. We were informed that the respondent was advised on 2 July 2002 that the Crown was considering an appeal against the inadequacy of the sentences imposed on him. No point has been taken concerning any delay in the decision to bring this appeal.
The facts upon which the sentencing judge proceeded are set out in the learned judge’s remarks on sentence as follows:
“The facts on which I sentence in relation to count 1 are that at about 3pm on 22 August 2001 the prisoner and a co-offender, Thomas John Foster, entered the Westpac Bank in Rowe Street, Eastwood. The co-offender was armed with a sawn-off rifle. The prisoner jumped the counter and squeezed between the gap in the screens. As it transpired, he left his fingerprint on the screen in doing so. He jumped down behind the counter into the staff area. The co-offender, Thomas John Foster, remained on the customer side and brandished the firearm ordering customers to the ground. Amongst those customers was an elderly woman aged 82 years who had trouble getting down to the ground because of her arthritis. The co-offender during the course of this robbery pointed the sawn-off rifle at her head to force her to do so. He continued to order the other customers to the ground whilst brandishing the firearm. At this time the prisoner was fashioning has (sic) hands into the shape of a gun and threatening bank staff behind the counter. He told staff he had a gun and forced them onto the ground. He took money out of the cash drawers of several tellers and then demanded the keys to the safe. The co-offender at that stage then said there was not enough time and the prisoner left the staff area through the entrance door. Both offenders then ran from the bank, still each of them threatening staff and customers, in the case of the co-offender with the firearm and in the case of the prisoner with his hands in the shape of a gun. They removed the sum of approximately $22,349.50 during the course of this robbery.
There were several members of the public in the customer area of the bank threatened and put in fear during this robbery and also a number of tellers and other bank staff behind the counter. It was 3 o’clock on a Wednesday afternoon when it was likely that quite a number of people would be present in the bank. Each of the persons present and witnessing the robbery was put in fear and was distressed. Looking at the photograph of the co-offender holding a sawn-off rifle to the head of the elderly woman encapsulates the aura of fear and anxiety that I accept must have been caused during this robbery. I accept that it is likely that each of the bank staff and customers have some ongoing psychological sequelae as a result of this robbery, although there is nothing in the nature of victim impact statements before me.
The facts in relation to the second count are that at about 3.30pm on 4 September 2001 the prisoner, together with two offenders, Thomas John Foster and Thomas Darren Forster, entered the Commonwealth Bank in Winston Hills shopping centre. One of the co-offenders, not this prisoner, was armed with a sawn-off rifle. The prisoner attempted to jump the counter again by squeezing through the security screens but the security screens were activated before he could do so and he was not able to gain access to the staff area of the bank. The other two offenders were ordering customers to lay on the floor. One of the co-offenders held onto one of the customers by their shoulder whilst carrying the firearm in his other hand and, threatening and demanding money, he pointed the barrel of the rifle at this customer whilst making such demands. The customers were ordered by all of the offenders including the prisoner to get down onto the ground and to give up their money, all the while with the sawn-off rifle being brandished by the co-offender Thomas John Foster. As a result, many of the customers handed over wallets, which one or other of the three offenders went through, or gave over money which similarly was removed. Three hundred and fifty dollars was stolen in these circumstances from Kyung Ja Kim, $200 from Robyn Menkes and $10 from Carmen Green. All of these women in their thirties and forties were customers of the bank, there to do their banking at 3.30 on a week day afternoon. Once the money had been taken by the offenders, they all left the bank.
This set of facts constitutes the facts in relation to the attempted armed robbery constituting the first of the two offences in the additional offences to be taken into account by me on sentence.
Similarly to the first matter before me for sentence, this offence was committed whilst there was a large number of customers and staff present in the bank at 3.30 on a week day afternoon when it would easily be anticipated that that would be the case, in circumstances where the prisoner was in company and was committed with a degree of aggression and with the threat of the firearm being used by the co-offender.
Similarly to the earlier offence, I accept that each of the customers, in particular once the screens were activated, was in extreme fear and anxiety and a state of distress at being victimised in the way he and she was by the prisoner. Again whilst there is nothing in the nature of victim impact statements before me, I accept more likely than not each of them has suffered a degree of ongoing psychological sequelae as a result of this offence.
The facts in relation to the third count are that at about 3.10pm on 5 September 2001 the prisoner and Thomas John Foster went into the ANZ Bank in Turramurra. They had in fact been seen by a witness in a car in a lane behind the bank shortly beforehand. The number plate had been obscured by tape. When they went into the bank the co-offender was carrying the same sawn-off rife. Similar to the first of the charges before me, this prisoner climbed through the gap in the perspex screen and entered the staff area. The co-offender Thomas John Foster stayed on the customer side. On this occasion when the prisoner jumped into the staff area he pushed one of the female staff, Miss Kerr, a 53 year old bank officer, causing her to fall to the ground and hit her face. He yelled out for the money and opened cash drawers. He demanded keys to the safe. He did that aggressively and whilst making threats. At the same time the co-offender Thomas John Foster was immediately outside the counter area telling staff to hand over the keys and also telling them that he had a gun which indeed he did. The prisoner took the sum of one thousand five hundred and seventy seven dollars from the cash drawers in the bank and also, I accept, during the course of this robbery, rummaged through Miss Kerr’s wallet whilst she was pushed over on the ground. He removed the sum of $107 from that wallet, discarding it on the ground before he left the area and he and the co-offender left and were seen driving away from the scene in the same green car. On this occasion, too, the prisoner left a fingerprint on the teller’s side of the perspex screen during the course of the robbery which was subsequently identified to be his.
These facts also cover the second of the two additional offences to be taken into account, namely the armed robbery of Miss Kerr and the removal from her of the sum of $107.
On 5 September 2001 police came into possession of fingerprint identification evidence in relation to the armed robbery occurring on 26 August 2001 at the Westpac Bank at Eastwood. That was identified to be a fingerprint of this prisoner and he was arrested that evening on 5 September when he was reporting on bail given in relation to other offences. He was interviewed in relation to the matter and denied any knowledge. He was bail refused and has remained in custody ever since. Not all of that custody has been in relation to these matters alone and I will come to that shortly.”
The sentencing judge noted that the respondent had pleaded guilty to each of the charges. She observed that the pleas were entered on the date set for trial. Against that background she assessed the utilitarian value of the pleas as entitling the respondent to a fifteen percent discount on the sentences that she would otherwise have imposed. She found the Crown case in each instance to have been a fairly strong one. Her Honour took this consideration into account in her assessment of the extent to which the pleas of guilty evidenced contrition.
The judge assessed the three offences as falling in the top of the range for offences under s 97(1) of the Act. In coming to this view she took into account the following matters. Each offence was committed by the respondent while he was in company with at least one other person. The co-offender, Thomas John Foster, was armed with a rifle that he used to threaten staff and customers in the banks. Numbers of people were present and put at risk. The offences evidenced a degree of planning; thought had been given to the means of gaining access to the staff areas of the banks, the offenders had been allocated roles and a getaway car with concealed number plates had been used on at least one occasion. The offence charged in count 1 involved the theft of a substantial sum of money.
Significantly, a further matter that aggravated the commission of these offences was that the respondent was on bail at the time of their commission. The bail was granted by this Court some four or five days prior to the commencement of this criminal spree. The respondent had been convicted in the District Court of offences of robbery in company. He successfully appealed against his conviction on those counts relying on the decision of the High Court in Smith v The Queen [2001] HCA 50. A new trial was directed and bail allowed. The respondent was released on that bail on or about 17 August 2001. Subsequently the Director of Public Prosecutions determined not to proceed further with the charges of robbery in company.
In determining the date upon which the sentences were to commence the sentencing judge noted that the respondent had been in custody since his arrest on 5 September 2001. She took into account that he had been dealt with in the Local Court for two offences in respect of which he was sentenced to fixed terms of imprisonment that were expressed to commence on 5 September 2001. Those sentences expired on 4 March 2002. Thereafter the applicant’s custody was solely referable to the subject offences.
Her Honour gave detailed reasons for sentence. She took into account the following subjective features of the case made by the respondent. He was aged twenty-one at the date of the commission of the offences. He had a “long, depressing and serious criminal record” (ROS13). His offending commenced when he was aged ten years. He was first sentenced to a control order at the age of eleven years. Thereafter he had been dealt with in the Children’s Court on many occasions for offences that escalated to include robbery in company and numerous assaults. The latter included assaults on police officers and other persons in authority. As an adult offender the respondent had been convicted of a number of serious offences, including robbery and escaping from lawful custody. Her Honour found that the respondent had spent the majority of his life, from the age of eleven years, in custody.
The respondent is an Aborigine. The judge found that he had a very poor and disrupted background characterised by physical abuse by his father. He witnessed episodes in which his father dealt violently with his mother. This pattern continued until he was aged about thirteen years. At around this time his mother was no longer able to care for him and he was made a ward of the State. He spent periods of time in residential group homes and foster placements. He gave a history of observing sexual assaults in various of these institutions.
Her Honour took into account the contents of a number of reports. She accepted that the respondent had early significant learning and behavioural difficulties. Testing indicated that he had a low average, to average range of intelligence. He had not attended school regularly. He had been diagnosed with attention deficit hyperactivity disorder, but not been treated for it.
There was a deal of material before her Honour which she found established that the respondent had a history of violence directed towards youth workers and, more recently, to those within the adult prison system. She found that it was probable that his psychological or psychiatric condition played some part in his inability to control his anger and, thus, in his tendency to come into conflict with persons in authority. The evidence of the respondent’s mental condition was linked to his lengthy history of addiction to illegal drugs. In this latter respect the judge found that he had commenced using heroin at about the age of sixteen. He had also used cocaine and large quantities of cannabis, ecstasy and LSD.
Her Honour commented on the report of Dr Daniels, a medical officer with the Aboriginal Medical Service. Dr Daniels found the respondent was suffering an acute psychotic illness when he saw him in custody in August 1999. He prescribed anti-psychotic medication with a favourable result. Thereafter the respondent continued well and was not psychotic while in prison. Dr Daniels concluded that the psychotic illness had been drug induced.
Her Honour also referred to the report of Dr Nielssen, a psychiatrist, who saw the respondent in November 2000. Dr Nielssen could not find any evidence of a psychotic illness as such, but he diagnosed the respondent as suffering from a severe personality disorder with possible psychotic illness.
The judge found it likely that the respondent suffers from a severe personality disorder that becomes a psychotic illness, or at least exhibits psychotic symptoms, when he is free in the community and uses illicit drugs. She accepted Dr Nielssen’s opinion that the prognosis for the respondent is an extremely guarded one. She found his prospects of rehabilitation to be very poor. She took into account that any mental disorder or illness to which the respondent is subject is complicated by his long-term abuse of illegal drugs, social deprivation, background of family dysfunction and his institutionalisation over the past eleven years. Her Honour found that he represents a significant risk of re-offending. She considered that he would require very close supervision in the community upon his release.
In written submissions the Crown identified three errors said to have vitiated the exercise of the sentencing judge’s discretion:
(i) Her Honour is said to have credited the respondent with seven months custody that was referable to the robbery in company offences which were ultimately not proceeded with;
(ii) Her Honour failed to approach the sentencing in respect of the three offences in conformity with the principles enunciated in the joint judgment in Pearce v The Queen (1998) 194 CLR 610 at [45].
(iii) The sentences are manifestly inadequate.
I do not consider there is any substance to the first ground of challenge. In written submissions the Crown contended:
“Her Honour was mindful to credit the respondent with seven months custody referable to the no billed matter (T p36 5/6/02). There was no requirement to take that matter into account and it was inappropriate to do so. R v Niass (unreported) NSWCCA, 6 November 1988; R v Webster and Jones (unreported) NSWCCA, 3 August 1992.”
The Crown went on to refer to an exchange between the sentencing judge and the Prosecutor during the course of submissions on sentence. Nothing in the present circumstances justifies a resort to the exchanges between counsel and the Bench in seeking to identify error. Her Honour’s reasons for imposing the sentences that she did are as set out in her careful and lengthy remarks on sentence. It is from the orders made for the reasons given that the Crown brings this appeal. There is nothing in the structure of the sentences, or in her Honour’s reasons, to suggest that she allowed a discount to reflect the fact that the respondent had served seven months custody referable to offences for which he had not been convicted.
The Crown’s submissions with respect to grounds (ii) and (iii) raise questions of substance.
Her Honour referred to the decision of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 and went on to observe:
“In relation to this prisoner it seems to me that those guidelines are a starting point, given this prisoner’s significant criminal history and the objective seriousness of these particular offences.”
Her Honour found that, absent any discount for the pleas of guilty, appropriate sentences would have been (i) five years imprisonment (count 1), five years imprisonment (count 2) and (iii) six years imprisonment (count 3). With respect to count 3 her Honour took into account an additional circumstance of aggravation, namely the physical contact between the respondent and Ms Kerr (ROS 20). Next the judge considered the question of totality, again, absent the pleas of guilty. This led her to conclude that an overall term of eight years would be an appropriate one. She reduced this to a term of six years and nine months to give the respondent the benefit of the fifteen percent discount for his pleas of guilty. She made a finding that there were special circumstances arising out of this respondent’s need for a longer than usual period of supervision in the community and to take account of the conditions of his custody. This produced an effective non-parole period of four years and six months.
The Crown contends that the judge erred in the application of the principles enunciated in the joint judgment in Pearce in that she did not fix the appropriate sentence for each offence and then go on to address considerations of totality in the structure of the sentences in terms of concurrence, cumulation or partial cumulation. In written submissions the Crown sought to support this challenge by pointing to the fact that in the course of her reasons the judge indicated that an appropriate starting point for the sentence to be imposed on count 1 (absent the plea of guilty) was one of five years imprisonment. The appropriate starting point for the sentence to be imposed on count 2 was also assessed as five years imprisonment (ROS 20). Count 1 involved the robbery of a very substantial sum of cash and was aggravated by the treatment meted out to the 82 year old customer of the bank. In the Crown’s submission to have assessed the objective gravity of the offence charged in count 1 as of the same order as that of count 2 is demonstrative of error. Further, the Crown contends that the findings, differentiating the objective seriousness of the three offences, was not reflected in the judge’s sentencing order.
In the result, the sentences imposed do assign the greatest degree of objective seriousness to the offence charged in count 1. The offences charged in counts 2 and 3 were the subject of like sentences, reflecting a view that they were broadly comparable. It appears that in stating her reasons for distinguishing the objective seriousness of one offence from the two other offences her Honour, wrongly, referred to count 3 when she intended to refer to count 1. It is clear that there was a degree of confusion and that this was not a mere slip of the tongue in that she referred to the physical contact between the respondent and Ms Kerr as amounting to additional aggravation with respect to count 3. This alone would not to my mind demonstrate error of the kind identified by the Crown. The judge’s detailed reasons were delivered ex tempore. It is clear that she did assess the gravity of each offence individually and that she imposed sentences that she considered appropriate to each offence. That she intended, rightly, to categorise the offence charged in count 1 as the most serious of the three offences is apparent from order in which she pronounced sentence.
However, there is force to the contention that the judge did not approach this sentencing exercise by application of the principles set out in the joint judgment in Pearce. After discussing the sentence for each offence (without reference to the discount for the pleas of guilty) she indicated an appropriate overall sentence by reference to considerations of totality and then proceeded to discount that sentence by fifteen percent. It was after this exercise, that she settled on the term of the sentences such that, in each case, the sentence pronounced was less than the sentence that had earlier been nominated as the appropriate one (before applying the discount). The correct approach was to fix the appropriate sentence for each offence, and then to consider the question of concurrence, cumulation or partial cumulation; Pearce at [45]. It was in this context that her Honour should have addressed consideration to the totality of the sentences. Her failure to approach the matter in this way can be seen to have contributed to the principal error of which the Crown complains namely that the sentences are manifestly inadequate. I turn now to a consideration of that ground.
The guideline promulgated in Henry was expressed to apply to that category of armed robbery offences falling within the criteria set out in the judgment of Spigelman CJ at [162]. Each of these offences was of a different order to those with which the Court was concerned in Henry. That observation is especially true of the offence charged in count 1. Although the respondent was a young man, he had a very lengthy history of criminal offending characterised by offences of violence. The subject offences were significantly aggravated by the circumstance that he was on bail at the time of their commission. These were armed robberies of banks involving a degree of planning.
On the respondent’s behalf it was contended that:
“Although the sentences are at the lower end of the appropriate range that they are not manifestly inadequate in light of the surrounding features concerning the respondent.”
Mr Jauncey submitted that the respondent is a young man who will have served some six and a half years of his adult life in custody at the conclusion of the current sentences. This is to be viewed against the deprived background to which the sentencing judge referred, including his lengthy periods of custody in institutions for juvenile offenders.
In Mr Jauncey’s submission the evidence of the respondent’s mental condition told against the contention that her Honour erred. In this respect he adverted to the well-known principles relating to the sentencing of offenders suffering from mental disorders; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported) NSWCCA, 18 March 1992; R v Engert (1995) 84 A Crim R 67. At the same time Mr Jauncey sought to contend that the principles discussed in Veen (No.2) v The Queen (1988) 164 CLR 465 as to the protection of the community were not of application to the present appeal.
In this case the sentencing judge did not approach her task on the basis that the respondent was suffering from a mental condition such as to make it appropriate to place less weight on considerations of deterrence in the exercise of her discretion. She found that the psychological/psychiatric difficulties from which the respondent suffers were complicated by his long-standing drug addiction. She accepted that he probably has a severe personality disorder that becomes a psychotic illness (or at least exhibits psychotic symptoms) when he is free in the community and using illegal drugs. She accepted Dr Nielssen’s opinion that the prognosis for the respondent is extremely guarded. She considered that he represented a significant risk of re-offending and that his prospects for rehabilitation were very poor. Those findings, all amply justified by the material before her, do not support Mr Jauncey’s submission that her Honour was within the exercise of discretion, having regard to the respondent’s mental condition, in imposing the markedly lenient sentences that she did.
It is in this context that it is appropriate to refer to the judgment of Gleeson CJ (with whom Allen and Sully JJ agreed) in Engert at [68]:
“Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set out by the High Court in Veen (No. 2) (1988) 164 CLR 465 at 476; as follows:
‘… protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.’
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen (No.2 ). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.”
To approach the matter upon the basis that the appropriate starting point for the offence charged in count one, absent the plea of guilty, was one of six years (as I am satisfied that her Honour did notwithstanding the observations at ROS 20) was an error. The maximum penalty for this offence is imprisonment for twenty years. Her Honour assessed the offence as being towards the top of the range of seriousness for s 97(1) offences. Whether she was correct to characterise it in that way or not, a sentence of considerably greater severity than the sentence of three years and nine months imprisonment was required.
The offences charged in counts 2 and 3 were serious offences aggravated by the fact that each was committed while the respondent was on bail. The suggested starting point of a five-year sentence for these offences (absent the plea of guilty) was to my mind inadequate. The sentences in fact imposed, namely, two years in each case were manifestly so.
I am satisfied that the Crown has established error, it is necessary to turn to the separate question of whether this Court should intervene.
Mr Jauncey, who appears on behalf of the respondent, relied upon the joint judgment in Everett v The Queen (1994) 68 ALJR 875 submitting that this case raised no matter of principle. In Everett, Brennan, Deane, Dawson and Gaudron JJ observed at p 877 - 878:
“Section 401(2)(c) of the Tasmanian Criminal Code confers upon the Court of Criminal Appeal jurisdiction to grant leave to the Attorney-General to appeal against sentence. Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognise that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence. That being so, a:
‘court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified’ (Malvaso v The Queen (1989), 168 CLR 227, at pp 234-235.’
In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen ((1977) 137 CLR 293, at p 310):
‘An appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’
The reference to ‘matter of principle’ in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting ‘error in point of principle’ (Griffiths at 310)”.
I am also mindful of the observations of Spigelman CJ in R v Baker [2000] NSWCCA 85 who observed at [19]:
“The authorities make in clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.”
In R v Bragias (1997) 92 A Crim R 330 at 331 Sheller JA said:
“Before this Court can intervene there must be shown to be at stake some matter of principle with which the Court should deal. The reference to “matter of principle” encompasses “what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards” which constitute “error of principle”: Everett (1994) 181 CLR 295 at 300.”
I consider that the sentences in this case fail to reflect the objective gravity of the offences to such an extent as to amount to error of principle. Notwithstanding the restraint with which this Court approaches Crown appeals I consider that in this case it is necessary to allow the appeal and to re-sentence the respondent.
Each of the offences the subject of this appeal were committed by the respondent in company with Thomas John Foster (“Foster senior”). The offence committed on 4 September 2001 (and the offence of that date included in the Form 1) was committed with both Foster senior and his son, Thomas Darren Foster (“Foster junior”). Her Honour sentenced each of the co-offenders. Foster junior was sentenced on 25 March 2002. The transcript of her remarks on sentence was before the judge at the time of sentencing the respondent. Foster senior was sentenced later on the same day as the respondent.
Foster junior was sentenced on four counts of aggravated armed robbery contrary to s 97(2) of the Act. The overall sentence imposed on him was six years imprisonment with an effective four-year non-parole period. For the Winston Hills offences of 4 September 2001 Foster junior was sentenced to terms of four years imprisonment to date from 13 September 2003 with a non-parole period of two years.
The judge found Foster junior’s role to be of a lesser order than that of his father or the respondent. With respect to the Winston Hills offences, her Honour noted that Foster junior’s role had been assigned as that of being the “lookout”. There were a number of subjective features that served to distinguish him from his co-offenders. He was aged twenty-five years at the date of sentence and had little criminal record. He had very strong community support available to him on his release.
Foster senior pleaded guilty to seven charges of aggravated armed robbery and one charge of attempted aggravated armed robbery contrary to s 97(2) of the Act and to one charge of escape lawful custody contrary to s 310D of the Act. Additional charges of possession of a shortened firearm, and unlawful use of a motor vehicle were taken into account on a Form 1 document pursuant to s 32 of the Sentencing Procedure Act.
A total effective sentence of thirteen years and six months dating from 13 January 2002, when his existing sentence expired, was imposed on Foster senior. He was sentenced to a fixed term of two years and three months to date from 13 January 2002 on the charge of escape lawful custody. On each of the aggravated armed robbery counts he was sentenced to a term of eleven years and three months to date from 13 April 2004. A non-parole period to date from 13 April 2004 of eight years was specified.
The Crown has not sought to challenge the sentences imposed upon Foster senior. The Crown acknowledges the objective facts in respect of these offences were very serious. At the time of their commission he was an escapee from custody. A shortened firearm was carried by him in all of the robberies. In total $31,936 was stolen. Numbers of people were put in fear in the course of the commission of each of the offences.
Foster senior was fifty-two years of age at the date of sentence. He had a lengthy criminal record dating back to 1962. That record disclosed numerous convictions for armed robbery and for escape from lawful custody. He had little in the way of an employment history and was institutionalised having served lengthy custodial sentences. The judge considered that he had a greater chance of rehabilitation at this stage in his life than he had in the past. That was based upon a consideration that he would be aged sixty-five on the first occasion when he was eligible for consideration of release on parole. Foster senior (like Foster junior) pleaded guilty before the Local Court. He made admissions of his involvement in each of the offences.
The question of parity was not addressed in the written submissions filed by either of the parties prior to the hearing of the appeal. At the conclusion of the hearing the Court invited the parties’ attention to this issue and to the approach that the Court should adopt, taking into account considerations of parity, to the re-sentencing of the respondent should it be necessary to do so. The parties were given the opportunity to file supplementary written submissions in this respect. At Mr Jauncey’s request the respondent was allowed until 20 December 2002 in which to file his supplementary submissions.
In the Crown’s submission there were substantial differences between the respondent and the co-offenders and accordingly “the question of parity arises only in a very general way in this appeal”. It seems to me that that proposition has force with respect to Foster junior but that different considerations apply to Foster senior. As I have noted, the judge considered Foster junior’s culpability to be less than that of the respondent. His subjective features were significantly different, and more favourable, than can be said of the respondent. Only the offences of 4 September 2001 were in common. However all the offences to which the respondent pleaded guilty were committed with Foster senior. The latter was sentenced for a greater number of armed robbery offences. The armed robbery offences to which he pleaded guilty were aggravated offences attracting a twenty-five year maximum in each case. He was a great deal older than the respondent and his criminal record was far more extensive. He was an escapee when he committed the offences.
The Crown relied upon the decision of this Court in R v Diamond (unreported) NSWCCA, 18 February 1993. Diamond was an appeal against the severity of sentence. The applicant contended that he was entitled to have his sentence reduced in the light of the markedly lenient sentence imposed upon his juvenile co-offender. Hunt CJ at CL (in a judgment with which James J agreed) emphasised that the decision facing an appellate court when asked to reduce a sentence otherwise proper in itself by reason of an inadequate sentence imposed upon a co-offender remains a discretionary one (p 8). His Honour went on to say at p 10:
“The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one.”
To my mind somewhat different considerations are brought into play when the Crown appeals against the inadequacy of sentence for one offender but not a co-offender where issues of parity are relevant. In this respect our attention was drawn to the judgment of Grove J (with whom Sheller JA and Simpson J agreed) in Regina v Guthrie [2002] NSWCCA 77. The Court allowed a Crown appeal in that case and re-sentenced the respondent. The circumstance that a co-offender had received a lenient sentence that was not the subject of appeal was taken into account as justifying a further degree of restraint [18]. I consider that to be the appropriate approach to take in this case.
In approaching the re-sentence I take into account the subjective circumstances that I have noted above. The respondent’s life has been a tragic one characterised by considerable deprivation. However, notwithstanding this consideration and his youth, it remains necessary that the sentences reflect the objective gravity of the offences and that considerations of the protection of the community and deterrence are not overlooked in giving weight to the respondent’s subjective circumstances.
I am of the view that there are special circumstances within the meaning of s 44(2) of the Sentencing Procedure Act such as to justify a departure from the statutory proportion as between the non-parole period and the head sentence in each case. The special circumstances arise not only by reason of the fact that the sentences in respect of counts 2 and 3 involve partial accumulation, but also because of the need for the respondent to be supervised for a longer period than the application of the statutory proportion would allow.
I propose to discount the sentences in each case by fifteen percent in order to reflect the respondent’s pleas of guilty. The sentences that I propose are less than the sentences that I consider should have been imposed at first instance in order to reflect the element of double jeopardy inherent in a Crown appeal and an element of restraint taking into account the sentences imposed on Foster senior. The effect of the sentences that I propose is to produce an overall sentence of nine years and three months to date from 5 March 2002 with an effective non-parole period of six years and six months.
For these reasons the orders that I propose are as follows:
1. allow the appeals;
2. quash the sentences imposed in the District Court and, in lieu thereof, sentence the respondent;
(i) on count 1 - to a term of eight years and six months imprisonment to date from 5 March 2002. That sentence will expire on 4 September 2010. Specify a non-parole period of five years and six months. Save for the sentences to be imposed on counts 2 and 3, the first date on which the respondent would be eligible for consideration of release on parole would be 4 September 2007;
(ii) On count 2 - to a term of six years and nine months imprisonment to date from 5 March 2004. That sentence will expire on 4 December 2010. Specify a non-parole period of four years. Save for the sentence to be imposed with respect to count 3, the first date upon which the respondent would be eligible for release to parole is 4 March 2008;
(iii) On count 3 - to a term of six years and nine months imprisonment to date from 5 September 2004. That sentence will expire on 4 June 2011. Specify a non-parole period of four years and dating from 5 September 2004. The first date upon which the respondent will be eligible for consideration for release to parole is 4 September 2008.
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LAST UPDATED: 11/04/2003
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