R v Hoschke

[2001] NSWCCA 317

CITATION:	R v Hoschke [2001] NSWCCA 317
FILE NUMBER(S):	CCA 60154/00
HEARING DATE(S):	21/8/01
JUDGMENT DATE:	21 August 2001
PARTIES :	Regina Andrew Peter Hoschke
JUDGMENT OF:	Beazley JA at 1,37,39; Wood CJ at CL at 38; Carruthers AJ at 2

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S) :	00/11/0808
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

COUNSEL :	R D Cogswell SC (Crown) B Baker (Crown) J Fliece (Respondent)
SOLICITORS:	S E O'Connor (Crown) Ross Hill and Associates (Respondent)
CATCHWORDS:	Sentencing - Crown appeal - alleged inadequacy of sentence - young offender - robbery in company - sentencing judge finds respondent half as culpable as co-offender - whether exceptional cricumstances within the meaning of Henry's Case.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Children (Detention Centres) Act 1987 Crimes Act 1900 Criminal Appeal Act 1912 Justices Act 1902
CASES CITED:	Regina v Blackman and Waters [2001] NSWCCA 121 Regina v Govinden (1999) 106 A Crim R 314. Regina v Henry (1999) 46 NSWLR 346
DECISION:	1. Appeal Allowed;; 2. Sentence of Shadbolt DCJ set aside;; 3. Re-sentence: imprisonment for 2 years and 9 months, to begin 24 February 2001 and to expire 23 November 2003.; 4. Non Parole period of 16 months, to begin 24 February 2001 and to expire 23 June 2002.; 5. Prisoner to serve this sentence in a Juvenile Detention Centre, in accordance with s 19 Children (Criminal Proceedings) Act 1987.; Recommendation: That the Minister give consideration to making an order under s 10 of the Children (Detention Centres) Act 1987, for the transfer of the prisoner from the present place of custody to a Juvenile Detention Centre for the duration of the sentence imposed on 24 May 2001 at Windsor Local Court.

- 13 -IN THE COURT OF

CRIMINAL APPEAL

60154/01

Beazley JA
Wood CJ at CL
Carruthers AJ
Tuesday 21 August 2001

Regina v Andrew Peter Hoschke

JUDGMENT

1    BEAZLEY JA: I will ask Mr Justice Carruthers to give the first judgment.

2    CARRUTHERS AJ: The Director of Public Prosecutions appeals to this Court pursuant to s 5D of the Criminal Appeal Act 1912 against the alleged inadequacy of a sentence imposed upon the respondent, Andrew Peter Hoschke, by his Honour Shadbolt DCJ at the Sydney District Court on 15 February 2001, for one count of robbery in company under s 97(1) of the Crimes Act 1900, which offence carries a maximum penalty of twenty years imprisonment.

3    The offence was committed on 3 July 2000, on which date the respondent was arrested and taken into custody. The respondent was then 18 years of age, however he remained in adult custody until he was granted conditional bail on 18 September 2000. This represented a period of 78 days in full time custody.

4 The respondent pleaded guilty to the offence on 24 October 2000 at the Downing Centre Local Court and was committed to the District Court for sentence pursuant to s 51A of the Justices Act 1902. His Honour sentenced the respondent to two years imprisonment with a non-parole period of eighteen months to be served by way of periodic detention to commence on 24 February 2001 with the head sentence to expire on 23 February 2003, and the periodic detention to expire on 23 August 2002.

5    The Director signed a Notice of Appeal on 14 March 2001 and that Notice was served on the respondent on 16 March 2001.

6    The respondent's co-offender, David Dimitrios Sharpe, was sentenced by Judge Shadbolt on 14 December 2000, also on one count of robbery in company, to four years imprisonment with a non-parole period of two years to date from 3 July 2000. Mr Sharpe has lodged an application for leave to appeal to this Court against the severity of that sentence (Appeal proceedings No 60037/01), which application has been adjourned to 24 September 2001 for further mention before the Registrar. It was apparently not possible to arrange for Sharpe's application to be listed on the same day as this appeal.

7    On 24 May 2001 the respondent appeared at Windsor Local Court in relation to charges of maliciously inflict grievous bodily harm, contravene an Apprehended Domestic Violence Order, and assault. On that occasion he was sentenced to an aggregate of eight months imprisonment with a non-parole period of six months, such non-parole period to expire on 30 September 2001. Thus, the respondent is therefore presently in full time custody in relation to those offences, and being held in an adult Corrective Services Centre. These sentences relate to offences which were committed after the subject offence. The offence of maliciously inflict actual bodily harm was committed on 8 February 2001. The other two offences were committed on 1 April 2001.

8    The respondent was born on 3 May 1982 and Sharpe was born on 2 March 1981. There is thus about fourteen months difference in age. Both offenders have bad records, particularly bearing in mind their age. It is common ground that Sharpe's record is worse than that of the respondent, which is bad enough.

9    It is convenient to note that when Judge Shadbolt sentenced Sharpe his Honour summarised the facts as follows:

"The circumstances of this offence were that on 3 July in the year 2000 the prisoner and a man called Hoschke robbed a young boy of Fifteen dollars. The boy who was fifteen years old was waiting at a bus station at Eddy Avenue, apparently to be picked up by his mother. The prisoner threatened to stab him. That threat and the threat that after he had hit him once that he would hit him with his closed fist induced the boy to part with the money. CCTV operators alerted police. The robbers were chased and apprehended. The prisoner was interviewed and admitted the interchange but claimed the fifteen dollars was a gift".

10    It is clear from the above that Sharpe was sentenced on the basis that it was he who threatened to stab the victim and that after that threat Sharpe had struck the victim.

11    When the present respondent came before his Honour the Crown tendered, by consent, a Statement of Facts. Relevantly, that statement provided:

"About 4.20 pm on Monday 3rd July, 2000 Andrew Peter Hoschke, the defendant and David Sharpe, the co-offender were at Belmore Park, Eddy Avenue, Sydney. At this time both males approached Adam Clifford, the victim who is fifteen years of age. The victim was seated on a seat at a bus stop at the edge of the park facing Eddy Avenue. The defendant said to the victim, 'Give me all your money'. The victim replied, 'Here's twenty cents'. The co-offender said, 'Not that kind of money, I mean Fifty dollar notes'. The victim said, 'I don't have any'. The defendant said, 'I'll pull my knife out of the back of my pants and I'll stab you in the chest'. The victim said, 'I haven't got any'. The co-offender said, 'Show me your wallet'. The victim took a five and ten dollar note from his pants pocket and attempted to separate the bills. The co-offender then struck the victim across the right side of his face with an open hand. This caused immediate pain to the victim. The co-offender then said, 'If you don't give me the money I'll use my fist the next time'. The victim handed over the money and the defendant and co-offender stood facing the victim. The males were approached by a female not connected with this matter who asked for some money. The defendant and the co-offender then walked across Eddy Avenue to a vehicle access ramp to Central Railway Station. Police were directed to this area by CCTV operators and police radio and stopped and arrested the defendant and co-offender at this time. Both were cautioned and searched with a negative result. Both were handcuffed and led towards the City East Transit police station along Eddy Avenue.

Both were placed in separate docks and both agreed to participate in an electronically recorded interview. The defendant made admissions to having been with the co-offender whilst asking for money from the victim, Clifford but denied any physical violence or demanding money. The co-offender made admissions to having asked for some money from this victim but denied striking the victim or threatening to stab him. Both were then charged with the matter now before the Court. The incident and subsequent arrest was recorded by Closed Circuit Television cameras run by the Sydney City Council".

12    His Honour also had before him statements of the victim dated 3 July 2000, a witness, Jonathan Stavdal, dated 4 July 2000 and Constable Davis, the arresting officer, dated 5 July 2000.

13    When sentencing the respondent his Honour summarised the facts as follows:

"The circumstances of this offence were that on 3 July 2000 the prisoner and a man called Sharpe robbed a boy of $15. The boy was fifteen years old[and] was waiting at a bus station in Eddy Avenue, apparently to be picked up by his mother.

Sharpe threatened to stab him. That threat and the threat after he had hit him once, that he would hit him with his closed fist, induced the boy to part with the money. CCTV operators alerted police. The present prisoner, and Sharpe, were chased and apprehended. The prisoner was interviewed and admitted the crime."

Later his Honour said:
"I have also been assisted by very helpful submissions made on behalf of the prisoner by Mr Walsh, his solicitor. Mr Walsh has pointed out in his submissions that the prisoner played a subordinate role in the robbery, it was not he who hit the victim, nor threatened him, that was all done by Sharpe. The prisoner was merely there and apparently he was under some form of persuasion by Sharpe, who is older than he is".

14    Later, his Honour said:

"As far as parity with Sharpe is concerned, on the face of it Sharpe was the principal proponent of this offence. It was Sharpe who carried the offence out, and it might well be that the present prisoner could be regarded as a person who was only half as culpable as Sharpe was. Had he the same criminal record it might well be that a period of imprisonment of two years might be appropriate."

15    In its written submissions to this Court, the Crown made out a cogent case that his Honour made two significant errors of fact, namely, that the respondent played a subordinate role in the robbery, and that he was only half as culpable as Sharpe. They flow from the fact (it was submitted) that his Honour mistakenly believed that it was Sharpe who originally demanded money from the victim, and that it was Sharpe who threatened the victim that he would produce a knife.

16    Mr Fliece of counsel for the respondent, who has argued the respondent's case with much determination before us, pointed out that no attempt was made by the representatives of the Crown at the sentence proceedings to correct his Honour with regard to those significant misapprehensions.

17    After reconsideration, Mr Cogswell of Senior Counsel for the Crown, with his customary frankness and fairness, accepted the situation and indicated to this Court that the Crown no longer sought to rely upon the asserted misstatements of fact by his Honour. The Crown relies principally on the submission that his Honour erred in the sentence which he imposed by failing to take into account the fact that the subject offence was committed whilst the respondent was enjoying conditional liberty. Further, that his Honour erred in imposing a period of imprisonment which was far too short, and finally, his Honour erred in ordering the sentence to be served by way of periodic detention.

18    Insofar as the factual matters are concerned, it is, in my view, sufficient to notice the fact that the criminal law has always looked with great disfavour upon robbery in company. If two persons agree to perform a joint criminal enterprise, such as in the instant case of robbery of an unarmed, innocent bystander, then it is inappropriate to attempt to assess with any degree of precision the role which each played in the consummation of the criminal enterprise.

19    As English trial judges tend to say: the question is “Were they in it together?” In this case the answer must be a resounding “yes”, and viewed from an objective point of view, the participants should bear equal responsibility for the commission of the offence. Each was there to assist the other.

20    It is now necessary, however, to consider the subjective circumstances of the respondent. He first came before a court on 5 November 1996 when he was fourteen years of age. On this occasion an eighteen month’s probation order was made in relation to four offences: robbery, malicious damage, possess offensive implement, and receiving. This set the pattern for regular returns to the Children's Court, both in New South Wales and Victoria. Over this period he has been dealt with by the exercise of a remarkable degree of leniency.

21    On 30 August 1999 a two year’s probation order was made in relation to one count of aggravated robbery by the Cobham Children's Court. The respondent was subject to this order at the time of the commission of the subject offence. Further, on 22 June 2000 the respondent was ordered to serve 100 hours Community Service on two counts of break, enter and steal by the Lidcombe Children's Court, and he was serving this sentence at the time of the subject offence. The sentences at the Windsor Local Court, of course, were of no relevance to the present sentencing process.

22    His Honour correctly, if I may respectfully say so, observed that the respondent's record is not one which would permit the Court, on the face of it, to extend to the respondent any particular leniency.

23    His Honour referred to a number of Juvenile Justice reports and a report from the Probation and Parole Service which highlighted the disturbed upbringing of the respondent. His Honour further noted a claim by the respondent that when he was approximately fourteen years of age he was diagnosed as having an attention deficit disorder for which medication was prescribed. However, the respondent claimed that his mother would not obtain the medication for him. This material was all provided to the judge via reports which were before him in which the authors of those reports relied, to a considerable extent, upon material which had been provided to them by the respondent.

24    The respondent elected not to give evidence before the sentencing judge in relation to either the subjective circumstances or the objective circumstances of the subject offence.

25    His Honour noted that whilst under the supervision of the Department of Juvenile Justice the respondent was placed in the Blacktown Intensive Programs Unit which he regularly attended for counselling and appeared to be responding positively. This program ceased when the respondent was placed in custody for the subject offence. His Honour referred to the fact that the partner with whom the respondent was living had recently borne a child of whom the respondent is the father.

26    Addressing the question of proportionality, his Honour referred to the sentence which he imposed upon Sharpe and specifically noted that in the period from 26 September 1999 up to the commission of the subject offence, Sharpe had committed some thirty-three criminal offences, some of which were of considerable magnitude. His Honour then observed, as I have already indicated:

"As far as parity with Sharpe is concerned, on the face of it Sharpe was the principal proponent of this offence. It was Sharpe who carried the offence out, and it might well be that the present prisoner could be regarded as the person who was only half as culpable as Sharpe was".

And further,

"Had he the same criminal record it might well be that a period of imprisonment of two years might be appropriate. That would have to carry with it a non-parole period of eighteen months and when terms of imprisonment of this nature be considered, I think it is the duty of the Court to see if it is impossible to avoid full time prison altogether".

27    His Honour then appropriately referred to the guideline judgment of this Court in Regina v Henry (1999) 46 NSWLR 346. His Honour commented that Henry did allow for "exceptional circumstances" and concluded that the incident was "just such a case". His Honour categorised the asserted "exceptional circumstances" as follows:

"I think the prisoner was very young at the time. He was probably under the persuasion of Sharpe. He comes from a very chequered background, and it is important to note that there was this long period where he committed no offences and there has been a long period since the commission of this offence where he has not re-offended. The Court must regard that as evidence of his capacity to rehabilitate himself within the community".

28    It is not necessary for present purposes for me to repeat the criteria set out at paragraph 162 of Henry which are of sufficient gravity to necessarily attract a full time custodial sentence. However, when one looks at these criteria, the respondent comes out very badly indeed. It is true that the offenders were not armed with a knife, although they instilled fear in the victim with the threat of the use of a knife.

29    As well as being in company, there was a striking. The victim, as the presiding judge has pointed out during the course of argument, was in a vulnerable position; a young lad of fifteen years of age standing on his own at a bus stop, waiting to be picked up by his mother. It is true that only a small, or relatively small amount of money was taken. This was, of course, not due to any goodwill on the part of the respondent.

30    On the positive side, the respondent is young. He was not in fact armed and there was obviously a limited degree of planning. There was, of course, a plea of guilty, albeit in light of an overwhelming strong Crown case. It is quite impossible, however, in my respectful view, to conclude that the matters which his Honour categorised as constituting “exceptional circumstances” fell within that phrase as explained in Henry.

31    There was some evidence of rehabilitation, but it was not of sufficient significance to justify the departure from Henry which was undertaken by the sentencing judge. Reference may conveniently be made here to Regina v Blackman and Waters [2001] NSWCCA 121 (at para 49) and Regina v Govinden (1999) 106 A Crim R 314.

32    Giving full weight to the concessions which were made by learned counsel for the Crown in relation to the asserted factual errors on the part of his Honour, sufficient has already been said to demonstrate clearly that the intervention of this Court is called for. In the re-sentencing process one must, of course, make allowance for the double jeopardy principle.

33    Allowance must be made for the subjective factors, including the plea of guilty. There is, unfortunately, no demonstrated evidence of remorse. During the course of argument Mr Fliece drew our attention to the fact on three occasions there has been a notation on a report to the effect that the respondent is vulnerable to self harm and is subject to emotional volatility. They are matters which must receive appropriate consideration. However, the case cannot be taken out of the parameters set by Henry and in my view the imposition of a full time custodial sentence, albeit at this late stage, is inevitable.

34    There are, however, special circumstances insofar as the non-parole period is concerned flowing from the youth of the respondent and such attempts at rehabilitation as there are. I would propose the following orders:

1. That the appeal be allowed.
2. The sentence imposed by Shadbolt DCJ be set aside.
3. In lieu thereof the respondent be sentenced to imprisonment for two years and nine months to date from 24 February 2001 and to expire on 23 November 2003.

4. That a non-parole period of sixteen months be fixed to date from 24 February 2001 and to expire on 23 June 2002, on which latter date the respondent is to be released to parole.

35 In view of the subjective matters to which I have referred, and difficulties which the respondent has incurred whilst in custody with adults, I would propose that this Court recommend pursuant to s 10 of the Children (Detention Centres) Act 1987, that the Minister give consideration to transferring the respondent from the present custody in which he is held to a Juvenile Detention Centre for the completion of the sentence imposed upon him on 24 May 2001 at Windsor Local Court.

36 Finally, I would propose that the Court make an order under s 19 of the Children (Criminal Proceedings) Act1987 that the sentence imposed by this Court be served by the respondent in a Juvenile Detention Centre.

37    BEAZLEY JA: I agree.

38    WOOD CJ AT CL: I also agree.

39    BEAZLEY JA: The order of the Court will be as proposed by Carruthers AJ.

oOo