R v Hernando
[2005] NSWCCA 59
•3 February 2005
CITATION: R v HERNANDO [2005] NSWCCA 59
HEARING DATE(S): 3 February 2005
JUDGMENT DATE:
3 February 2005JUDGMENT OF: Studdert J at 26; Hulme J at 1
DECISION: Appeal dismissed
PARTIES: Regina
Janian Roy HERNANDOFILE NUMBER(S): CCA 2004/2497
COUNSEL: Crown: E Wilkins
Applicant: R ButtonSOLICITORS: Crown: S Kavanagh
Applicant: S O'Connor
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/21/3049
LOWER COURT JUDICIAL OFFICER: Marien DCJ
2004/2497
Thursday, 3 February 2005STUDDERT J
HULME J
1 HULME J: On 20 February 2004 the above named applicant for leave to appeal was sentenced in respect to a number of offences. On a count of armed robbery and taking into account a further charge of armed robbery the applicant was sentenced to imprisonment for four years and seven months, including a non-parole period of two years and seven months, both periods dating from 11 October 2003.
2 Both offences were committed in company, one at about 3.50pm and the other at about 4.15pm on 22 August 2002. Each offence involved the placing of a knife against the side of a train passenger and the demanding of a mobile phone and wallet. The drivers licences of both victims were inspected and one victim was told that his address was an easy one to remember.
3 The plea of guilty in respect of the first of these matters and the applicant's agreement to the second matter being taken into account occurred during the course of the trial for these offences.
4 Another indictment contained further charges. There were two further offences of armed robbery and one of assault with intent to rob whilst being armed with an offensive weapon. These charges arising in respect of an incident when the applicant approached three persons in a carpark. The applicant produced a knife and grabbed one of the victims, pointed the knife at his stomach, threatened to stab him and demanded the victims' phones, watches and money. Again he looked at the licences of all three victims stating "don't do anything, I'll get youse because I know where you live now." These offences occurred at about 12.30am on 20 August 2002.
5 Another offence, the fourth on the second indictment, occurred at about 7.05pm on the same day when the applicant and a co-offender approached another victim and a third person sitting in a carpark. The applicant produced a knife, placed it against the victim's ribs saying "just give me your phone or I'll stab you." The victim then pushed the applicant's hand away before fleeing. The charge in respect of this incident was also of assault with intent to rob whilst armed with an offensive weapon.
6 In respect of these last four offences the applicant was sentenced to imprisonment for five years and six months, including a non-parole period of three years and six months, both such periods also to date from 11 October 2003.
7 At the time of these offences the applicant was on parole, having been sentenced in December 2001 to imprisonment for two years, including a non-parole period of six months, both such periods to commence on 6 September 2001. After the applicant was arrested on 27 September 2002 his parole was revoked effective 22 July 2002 and the revoked parole period extended to 11 October 2003, the date Judge Marien selected as the commencing date for the sentences he imposed.
8 During the hearing of the appeal the applicant was given leave to rely upon evidence which, while not fresh, was thought proper by the Crown to have before the Court which sets out the history of proceedings before the Parole Board. That history indicates that the applicant relapsed on one occasion on 26 June 2002. He was further directed by the parole authorities to remain at home at night unless otherwise instructed but on 17 and 18 July 2002 he seems not to have done so.
9 On 18 July the applicant was again warned he was to remain at home at night and he was to continue to contact the Wollongong Crisis Centre until his induction into what would seem to be a drug rehabilitation program. He was further directed to report on 22 July 2002 and he failed to do so. He then appeared to stabilise for the following two weeks, according to a report from the Probation and Parole Service, but after those two weeks ceased contact with his family and the service. It would seem that on 10 October 2002 his parole was revoked on the grounds of failure to abide all reasonable directions, fail to report to an officer of the Probation and Parole Service and fail to reside at an address agreed upon.
10 By that date of course the applicant had been arrested. The matter was adjourned to December for the results of the outstanding court matters and to set a parole consideration date but the Board does not seem to have embarked upon a full consideration of the applicant's situation until after he was sentenced.
11 Having regard to the grounds of appeal it is unnecessary for me to refer to all of the subjective matters which were raised or taken into account on the sentencing of the applicant. It should, however, be mentioned that he was born in January 1982 and prior to the sentencing with which this Court is concerned had a not insignificant record.
12 That record commenced in August 1998 when he was convicted of having goods in custody, robbery in company, in respect of which the applicant was charged on 11 June 1999 and in respect of which a community service order was imposed; robbery in company, in respect of which the applicant was charged on 10 September 1999 and in respect of which a recognisance was imposed; stealing from a person, and two counts of assault occasioning actual bodily harm, in respect of which the applicant was charged on 5 February 2001; and a further charge of robbery in company, in respect of which the applicant was charged on 6 September 2001.
13 In respect to these last four charges, and a further one of shop lifting, the applicant was sentenced to imprisonment for six months commencing 6 September 2001, that is to a period concurrent with the non-parole period of the two year sentence to which I have previously referred.
14 Thus, prior to committing the offences with which this Court is concerned, the applicant had previously been convicted of four offences of robbery in company, one of stealing from a person and two of assault occasioning actual bodily harm.
15 There are two grounds of appeal.
1. The learned sentencing judge has wrongly taken into account elements of the offences as aggravating features, contrary to the concluding words of section 21A(2) of the Crimes (Sentencing Procedure) Act.
2. The learned sentencing judge erred by not backdating the sentence so that it was at least partially concurrent with the expired balance of parole, especially in light of the fact that the breach of parole was taken into account as an aggravating feature.
Ground 1
16 Section 21A of the Crimes (Sentencing Procedure) Act identifies a number of aggravating and mitigating features which a Court in sentencing offenders should take into account to the extent they are known and relevant. Included in the aggravating features specified are that the offence involved the actual or threatened use of violence or a weapon. The concluding words of s 21 A (2) are:
- “The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”
17 It was pointed out that each of the offences in respect of which the applicant was sentenced had as an ingredient "being armed with an offensive weapon". Furthermore, each offence was of robbery or assault with intent to rob and robbery itself involves either violence or the threat of violence. What his Honour said in this regard was:
- “I am also required to take into account relevant aggravating and mitigating factors as are set out in s 21 A (2) and s 21 A (3) of the Act. All of the offences for which the offender is to be sentenced involved threatened violence and the actual use of a weapon namely a knife."
18 In this regard it shall be mentioned also that his Honour had earlier in his remarks directed attention to the courts' and communities attitude to those using knives in the commission of criminal offences and to the threats associated with the inspection of driving licences.
19 Thus I regard that ground of appeal as made out.
Ground 2
20 The Court was referred to a number of cases where the courts have referred to the revocation of parole consequent upon the commission of an offence and the imposition of a sentence for that offence as amounting to double punishment, at least in circumstances where the further punishment was not ameliorated by backdating its commencement. I am for the purposes of this appeal prepared to assume the correctness of those remarks, although I cannot forebear from observing that the imprisonment served consequent on the revocation of parole is a punishment which flows primarily from the commission of the offence in respect of which the parole was granted and an offender's failure to comply with the conditions of parole and upon which suspension of the earlier sentence was granted. However, I do not need to pursue this.
21 I should also observe that the authorities to which reference is made seem to envisage that the Court will also reflect upon whether the revocation of parole is, and if so to what extent, due to the commission of a further offence or other factors. Were I required to embark upon the exercise in this case I would take the view that I am by no means satisfied that the commission of the offences with which this Court is concerned were or would have been the primary reason, if indeed any reason at all, for the revocation of the applicant's parole.
22 I have identified the reasons for the revocation of the applicant's parole and the continuance of that revocation. I have referred to the reasons which the Parole Board gave at the time. It seems clear from the evidence which was before the sentencing judge that the applicant, having abandoned his obligations under parole, then embarked upon, or rather resumed, his heroin addiction. I should have thought there was plenty of reason for his parole being revoked and this revocation continuing, quite independently of the commission of the subject offences. Again, I need not come to any concluded view.
23 In the extent of concurrency ordered by the sentencing judge, here the effective sentence imposed on the applicant was in my view extraordinarily lenient. Although a deal more might be said, it is unnecessary for the purposes of this appeal to do more than refer to the guideline judgment in R v Henry (1999) 44 NSWLR 346 where the Chief Justice indicated, as a guideline, that sentences for an offence of the character identified by his Honour should generally fall within four and five years for the full-time period. "An offence of the character", described by his Honour involved a young offender with no or little criminal history. Here, the applicant's criminal history was extensive and not only generally but in respect of offences of a broadly similar nature to those the subject of this appeal. Furthermore, it is clear that the Chief Justice was not considering a situation of an offender the subject of conditional liberty, a matter regarded as seriously aggravating. Also, his Honour was considering a situation of an earlier plea. That was not the case in relation to one of the applicant's offences. In addition, the Chief Justice was considering the situation of one offence, not five or six, if the offence taken into account is counted, even if three of the offences here were committed at the one time.
24 It may be acknowledged that the applicant's offending was inspired by a heroin addiction and there was evidence before his Honour that the applicant had a genuine desire to make something of his life and to properly address his drug problem. However, when regard is had to the fact that the applicant had already had opportunities to do this and had apparently not learnt or learnt sufficiently from his prior appearances before courts for somewhat similar offences of the need to respect the rights of others, I am satisfied that no sentence less severe was warranted or should have been passed.
25 In those circumstances s 6 (3) of the Criminal Appeal Act requires the Court to dismiss the appeal. That is the order I propose.
26 STUDDERT J: I agree.
27 The order of the Court is that proposed by Mr Justice Hulme.
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