R v Johnson - [2001] NSWCCA 517

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Raymond JOHNSON [2001] NSWCCA 517

FILE NUMBER(S):
60722/00

HEARING DATE(S): 12/12/01

JUDGMENT DATE: 12/12/2001

PARTIES:
Regina
Raymond JOHNSON (Applicant)

JUDGMENT OF: Greg James J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0387

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
M C Grogan (Crown)
C B Craigie SC (Applicant)

SOLICITORS:
S E O'Connor
D J Humphreys (Applicant)

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave granted to appeal against the severity of the sentences
Appeal allowed in each case and sentences imposed in the District Court quashed
In lieu thereof, in respect of count 7 (being the armed robbery committed on 5 November 1999) the offender sentenced to a term of six years imprisonment, commencing on 2 April 2000. Non-parole period of four years and six months aspecified
First date upon which the offender will be eligible for consideration of release to parole is 1 October 2004
In respect of count 6 (the armed robbery offence committed on 5 December 1999) the offender sentenced to a term of six years imprisonment, commencing on 2 April 2000. Non-parole period of four years six months specified
The first date upon which the applicant is eligible for release to parole is 1 October 2004
In respect of count 5 (the armed robbery offence committed on 30 December 1999) the offender sentenced to a term of six years imprisonment, commencing on 2 April 2000
Non-parole period of four years and six months specified
First date upon which the offender will be eligible for consideration of release to parole would be 1 October 2004
In respect of count 4 (the armed robbery offence committed on 15 January 2000) the offender sentenced to a term of six years imprisonment, commencing on 2 April 2000
Non-parole period of four years and six months specified
The first date upon which the offender will be eligible for release to parole would be on 1 October 2004
In respect of count 1 (the armed robbery committed on 2 April 2000) the offender sentenced to a term of eight years imprisonment, commencing on 2 April 2003
Non-parole period of four and a half years specified commencing on 2 April 2003 in respect of that offence
The first date upon which the offender will be eligible of consideration for release to parole will be 1 October 2007
In respect of counts 2, 3 and 8, in each case the applicant is sentenced to a fixed term of four years imprisonment, to date from 2 April 2000
Those sentences will, in each case, expire on 1 April 2004

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60722/00

GREG JAMES J
BELL J

12 December 2001

REGINA v Raymond JOHNSON

Judgment

BELL J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the Sydney District Court on 6 October 2000. On 13 July 2000 the applicant adhered to pleas of guilty in respect of five counts of robbery whilst armed with an offensive weapon contrary to s 97 of the Crimes Act 1900 (“the Act”) and to three counts of robbery contrary to s 94 of the Act.
In respect of each count of armed robbery, the applicant was sentenced to a term of imprisonment for eleven years, commencing on 2 April 2000 and expiring on 1 April 2011. In each case, a non-parole period of seven years and six months, commencing on 2 April 2000 and expiring on 1 October 2007, was specified. In relation to the three counts of robbery, the sentencing judge imposed concurrent fixed terms of five years imprisonment, commencing on 2 April 2000.
Mr Craigie SC, who appears on behalf of the applicant, challenges the sentences contending the sentencing judge erred in that in each case he imposed sentences which reflected the global criminality of the series of offences. In this respect it is submitted that his Honour overlooked the principles enunciated in Pearce v The Queen (1998) 194 CLR 610.
Allied to this challenge is the submission that (in respect of each armed robbery offence) a sentence of eleven years with a non-parole period of seven and a half years was excessive. It was also contended that the sentences were, in the aggregate, manifestly excessive.
The applicant was aged twenty-eight years at the date of the commission of the subject offences. On 13 November 1992, he was sentenced in the Sydney District Court to a term of ten years imprisonment following his conviction on five counts of armed robbery. The sentencing judge on that occasion took into account a further twelve charges of armed robbery on a Form 2 document. The sentence comprised a minimum term of six years imprisonment to date from 24 January 1992, together with an additional term of four years. Subsequent to the imposition of this sentence, the applicant was sentenced to a fixed term of twelve months imprisonment following his conviction for the offence of maliciously inflicting grievous bodily harm. That sentence was expressed to commence on 4 January 1998 and to expire on 3 January 1999.
It appears that the applicant was released to parole around 23 January 1999. The subject offences occurred between 5 November 1999 and 2 April 2000. The applicant had, thus, been at liberty on parole for something less than a year at the date he commenced re-offending for like offences.
Each of the present offences was committed against staff employed at convenience stores in the Campsie, Lakemba, Stanmore, Hurlstone Park areas. Some of the offences were committed on the same premises. The pattern of offending was broadly similar. The armed robbery counts involved instances in which the applicant produced a knife and threatened staff with it in order to obtain the proceeds of the cash register. The robbery offences did not involve the use of a weapon. In each case, the victims of the robbery offences recognised the applicant as having previously robbed the store and in fear of him, handed over money taken from the cash register.
The applicant was arrested while fleeing from the scene of the offence committed on 2 April 2000. The facts of that offence were somewhat more aggravated than were the facts of some of the other offences. The applicant entered the Seven Eleven store at Hurlstone Park. He was wearing a brown stocking over his head. He approached an employee named Khan, who was twenty-two years old at the time. Mr Khan was a student working on a casual basis as the cashier. The applicant demanded of him, "Give the money." Mr Khan picked up a stick, which was located behind the counter. As he did so, a fellow employee named Azif approached the counter from the rear of the shop. The applicant pulled out a white handled knife and held it towards the man Azif, saying, "You come behind the counter."
The applicant approached both Mr Khan and Azif behind the counter, holding the knife close to Azif and demanding that he open the register. After the applicant obtained the contents of the till, he ran out of the store. Mr Khan followed him. The applicant removed the stocking from his head and saw that he was being followed. He endeavoured to stop Mr Khan by kicking him in the stomach. Mr Khan fell to the ground. He regained his feet and hailed to a passing police vehicle. That vehicle turned into a laneway in pursuit of the applicant. Mr Khan chased the applicant into the laneway. The applicant doubled back and again confronted Mr Khan with the knife.
Ultimately the applicant was arrested by police. He participated in an electronically recorded interview and made admissions.
The applicant pleaded guilty at the earliest opportunity to each of the offences.
The sentencing judge indicated that but for the plea of guilty, he would have imposed a sentence of fourteen years imprisonment in respect of the armed robbery offences. The discount that the sentencing judge allowed to take into account the early pleas of guilty was of the order of 25 per cent.
In his written submissions, Mr Craigie highlighted the subjective material which was before the sentencing judge. This comprised the contents of a pre-sentence report prepared by Mr Hallie of the Burwood District Office of the Probation and Parole Service, a report of Dr Ricardo Farago, consultant forensic psychologist, attached to the Corrections Health Service, and a handwritten letter by the applicant.
The applicant did not give evidence at the sentencing hearing.
The sentencing judge found that the applicant's background had been rather disturbed. His parents had separated when he was young and he had been substantially raised by his grandmother. She died in October 1999. She had been the significant figure in the applicant's life and her death caused him to become extremely depressed. It was as a result of this depression that he commenced using heroin. It was his addiction to heroin that led to the commission of the subject offences.
The sentencing judge noted that the applicant was a married man and the father of two young children, who had been conceived and born while he was participating in the work release program. The applicant's wife and sister were supportive of him.
The evidence before his Honour was that the applicant had withdrawn from heroin use while in custody on this occasion. He had declined to enter the methadone program because he did not wish to substitute one addiction for another. The evidence disclosed that the applicant had sought, and obtained, a place in a program at the Long Bay Complex directed to avoiding the repetition of violent offending.
His Honour considered that the applicant's supportive family and his motivation (evidenced while in custody) to become, and remain, drug free were special circumstances for the purpose of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. For this reason, he departed from the statutory proportion as between the sentence and the non-parole period.
In Pearce, McHugh, Hayne and Callinan JJ observed, at [45]:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality."
It does appear that the sentencing judge addressed his mind to the overall sentence which he considered it appropriate to impose in the light of the number of offences and the applicant's background, including as it did, that each offence was committed while he was on parole.
I accept that Mr Craigie has made good the challenge that this approach led to the imposition of sentences which were not appropriate to the circumstances of the individual offences.
In his written submissions, Mr Craigie sought to contend that, in the aggregate, the sentences were excessive. He put it this way:
"It is submitted that the approach to totality should, in effect, involve a two way process. This requires both a realistic assessment to punishment for a pattern of criminality in multiple offences, and also recognition of the need for some contraction or telescoping of what would otherwise be crushing sentences were a number of sentences not ameliorated in the totality principle. The offences under examination here took place in the face of that always difficult exercise of reintroducing a long term prisoner to the community.”
In the course of his oral submissions, Mr Craigie invited us to look at the lengthy sentence to which the applicant had been subject by reason of the first series of armed robbery offences, and to consider that an effective sentence of eleven years (with a non-parole period of seven and a half years) against that background, was one which was crushing. I am unable to accept that submission.
The offences charged pursuant to s 97 of the Act carry a potential maximum sentence of twenty years imprisonment. The robbery offences charged pursuant to s 94 of the Act carry a potential maximum of fourteen years imprisonment. It is a significantly aggravating circumstance that the offences were committed while the applicant was on parole in respect of a series of armed robbery offences.
To impose sentences which in the aggregate were any less severe than the eleven year sentence imposed on this applicant would fail to adequately reflect the need for deterrence specific and general and the community's expectation of retribution with respect to repeated violent offending.
It falls to this Court to re-sentence the applicant since he appeals against each of the sentences imposed on him, and viewed individually, I am persuaded that in each case a lesser sentence is warranted in law; s 6(3) of the Criminal Appeal Act 1912. Although as I have indicated, I am not of the view that the structure of the sentences should produce an effective term which is less than that imposed upon the applicant by the District Court Judge.
In coming to this latter view, I take into account that the applicant was aged twenty-eight years at the time of the current series of offences and the fact that these offences were committed while he was on parole for similar offences. I also take into account the contents of the applicant's affirmation made on 4 November 2001. That is confirmatory of the applicant's stated desire as at the time he stood for sentence in the District Court to undertake programs while in custody addressing issues of violent offending and anger management.
It is appropriate to reflect in the sentences to be imposed upon the applicant his pleas of guilty, which were entered in a timely way. The range proposed in Regina v Thomson &Houlton [2000] NSWLR 49 383 to reflect the utilitarian value of a plea of guilty is between 10 and 25 per cent. The early indication of a plea of guilty is a significant matter. Equally, consideration is given in assessing the utilitarian value of a plea of guilty to the likely length and complexity of the trial which has thereby been avoided. In my view, the appropriate discount is one of 20 per cent.
I consider that it is appropriate to impose a lengthier sentence upon the last armed robbery offence than upon the first four such offences. The last offence was committed after an interval, and the facts were, as I have noted of a somewhat more aggravated nature.
I consider that the sentences in respect of the first four armed robbery counts should be served concurrently. It is not appropriate that the sentence for the offence committed on 2 April 2000 should also be served wholly concurrently with the first mentioned sentences. Having regard to the principle of totality, I propose that the sentence in respect of that latter offence be made partly concurrent and partly consecutive with the earlier sentences.
In the light of the partial cumulation of sentences and in the light of the considerations which led the District Court judge to find special circumstances for the purposes of the Crimes (Sentencing Procedure) Act, I consider that these are special circumstances with respect to the non-parole period to be imposed for the offence charged in count 1, being the armed robbery offence committed on 2 April 2000.
I am of the view that each of the robbery offences should be dealt with by way of the imposition of concurrent sentences. I propose that these be fixed term sentences. In the light of the sentences to be imposed with respect to the armed robbery offences there is no utility in fixing non-parole periods for these offences.
The orders that I propose are as follows:
(i) Leave be granted to appeal against the severity of the sentences imposed upon the applicant.
(ii) Allow the appeal in each case and quash the sentences imposed in the District Court.
(iii) In lieu thereof, in respect of count 7 (being the armed robbery committed on 5 November 1999) sentence the offender to a term of six years imprisonment, commencing on 2 April 2000. Specify a non-parole period of four years and six months. The first date upon which the offender will be eligible for consideration of release to parole is 1 October 2004.
(iv) In respect of count 6 (the armed robbery offence committed on 5 December 1999) sentence the offender to a term of six years imprisonment, commencing on 2 April 2000. Specify a non-parole period of four years six months. The first date upon which the applicant will be eligible for release to parole is 1 October 2004.
(v) In respect of count 5 (the armed robbery offence committed on 30 December 1999) the offender be sentenced to a term of six years imprisonment, commencing on 2 April 2000. Specify a non-parole period of four years and six months. The first date upon which the offender will be eligible for consideration of release to parole would be 1 October 2004.
(vi) In respect of count 4 (the armed robbery offence committed on 15 January 2000) Sentence the offender to a term of six years imprisonment, commencing on 2 April 2000. Specify a non-parole period of four years and six months. The first date upon which the offender will be eligible for release to parole would be on 1 October 2004.
(vii) In respect of count 1 (the armed robbery committed on 2 April 2000) Sentence the offender to a term of eight years imprisonment, commencing on 2 April 2003. Specify a non-parole period of four and a half years commencing on 2 April 2003 in respect of that offence. The first date upon which the offender will be eligible of consideration for release to parole will be 1 October 2007.
(viii) In respect of counts 2, 3 and 8, in each case the applicant is sentenced to a fixed term of four years imprisonment, to date from 2 April 2000. Those sentences will, in each case, expire on 1 April 2004.
GREG JAMES J: I agree. The orders will be as proposed by Justice Bell.

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LAST UPDATED: 20/12/2001