R v Lesi

[2010] NSWCCA 240

New South Wales
Court of Criminal Appeal

CITATION:	R v Lesi [2010] NSWCCA 240 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14/10/2010
JUDGMENT DATE:	28 October 2010
JUDGMENT OF:	McClellan CJatCL at 1; Kirby J at 2; Hoeben J at 3
DECISION:	The Crown appeal in respect of the sentences for counts 1, 2, 3 and 4 is allowed. The sentence in respect of count 1 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 6 years to date from 10 November 2007 and to expire on 9 November 2013 with a balance of term of 4 years to expire on 9 November 2017. The sentence in respect of count 2 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 4 years to date from 10 November 2010 and to expire on 9 November 2014 with a balance of term of 3 years to expire on 9 November 2017. The sentence in respect of count 3 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 4 years to date from 10 November 2011 and to expire on 9 November 2015 with a balance of term of 3 years to expire on 9 November 2018. The sentence in respect of count 4 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 5 years to date from 10 November 2012 and to expire on 9 November 2017 with a balance of term of 4 years to expire on 9 November 2021.
CATCHWORDS:	CRIMINAL LAW - Crown appeal against sentence - pleas of guilty to two offences of robbery armed with a dangerous weapon and two offences of attempted robbery armed with a dangerous weapon - sentences failed to reflect objective seriousness of offences - failure to take into account offences on a Form 1 document - failure to apply the principles in Pearce v The Queen (1994) 194 CLR 610 - excessive attention paid to offender's subjective case - need to re-sentence.
LEGISLATION CITED:	Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	C-P v R [2009] NSWCCA 291 Everett and Phillips v The Queen (1994) 181 CLR 295 Pearce v The Queen (1994) 194 CLR 610 R v Hamieh [2010] NSWCCA 189 R v Henry (1999) 46 NSWLR 346 Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146
PARTIES:	Regina - Crown Isaac Lesi - Respondent
FILE NUMBER(S):	CCA 2007/17517; 2008/172835
COUNSEL:	Ms JA Gidham - Crown Mr R Button SC - Respondent
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions - Crown S O'Connor Solicitor or the Legal Aid Commission of NSW - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/00009129
LOWER COURT JUDICIAL OFFICER:	Judge Finnane RFD QC
LOWER COURT DATE OF DECISION:	07/05/2010

2007/17517
2008/172835

McCLELLAN CJ at CL
KIRBY J
HOEBEN J

Thursday 28 October 2010

REGINA v Isaac LESI

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 KIRBY J: I agree with Hoeben J.

Offences and sentence
On 25 June 2009 the respondent pleaded guilty to two offences of robbery armed with a dangerous weapon in contravention of s 97(2) of the Crimes Act 1900 and two offences of attempted robbery armed with a dangerous weapon in contravention of s 97(2) and 344A of the Crimes Act 1900. Each offence attracted a maximum penalty of imprisonment for 25 years. Nine matters on four Forms 1 were also taken into account.

4 On 14 May 2010 the respondent came before his Honour Judge Finnane RFD QC for sentence. The sentences imposed by his Honour were:

Count 1 (plus five matters on Form 1) - robbery of Bendigo Bank at Bexley, 2.10.2007 ($129,053) - imprisonment for a non parole period of 4 years commencing 10 November 2007 and expiring 9 November 2011 with a balance of term of 3 years to expire 9 November 2014.

Count 2 (plus one matter on Form 1) - attempted robbery of Bendigo Bank at Homebush 19.10.2007 – imprisonment for a non parole period of 4 years commencing 10 November 2008 and expiring 9 November 2012 with a balance of term of 3 years expiring 9 November 2015.

Count 3 (plus two matters on Form 1) - attempted robbery of NAB Bank at Silverwater 25.10.2007 – imprisonment for a non-parole period of 4 years commencing 10 November 2009 and expiring 9 December 2013 with a balance of term of 3 years expiring 9 December 2016.

Count 4 (plus one matter on Form 1) - robbery at Cash Stop at Auburn on 9.11.2007 ($3,400) – imprisonment with a non-parole period of 4 years commencing 10 November 2010 and expiring 9 November 2014 with a balance of term of 4 years expiring on 9 November 2018.

5 The effect of those sentences was imprisonment for a total non-parole period of 7 years commencing 10 November 2007 and expiring 9 November 2014 with a balance of term of 4 years expiring 9 November 2018.

6 The Crown has appealed against those sentences on the following grounds:

Ground 1 – The sentences imposed failed to reflect the objective seriousness of the respondent’s crimes.

Ground 2 – His Honour erred by failing to appropriately take into account the offences on the Form 1 document when imposing the sentence in relation to Count 1.

Ground 3 – His Honour erred in failing to impose sentences in accordance with the principles enunciated in Pearce v The Queen (1994) 194 CLR 610.

Ground 4 – His Honour erred by giving undue emphasis on youth.

Ground 5 – His Honour erred by giving undue emphasis to the respondent’s drug addiction.

Ground 6 – His Honour erred by giving undue emphasis to the fact that the subject offences were not committed whilst the respondent was subject to parole.

Ground 7 – Error in the imposition of sentences which are manifestly inadequate.

Factual Background
Count 1:

7 At about 11am on Tuesday, 2 October 2007 three offenders including the respondent entered the Bendigo Bank at Bexley. All three offenders were disguised and armed – one with a black pistol, one with a silver pistol and one with sledgehammer. CCTV footage showed the respondent to be carrying the black handgun.

8 As the three offenders entered the bank, the hold-up screens were activated. On seeing this, one of the offenders jumped onto the service counter and using a crowbar forced his way through the false ceiling so that he was able to get into the staff service area. That offender was then able to provide access to the other two offenders to the teller area.

9 While one offender held a pistol pointed towards the tellers, the other offenders demanded money and required the tellers to open their drawers with keys. The offender holding the pistol paced the chamber whilst bank staff remained under the counter.

10 One of the offenders demanded the keys to the bank safe which were produced by a female staff member. The female staff member was then required to open the safe. Money was taken from the safe and placed in carry bags. All three offenders left the bank and got into a stolen VW Golf. The amount stolen was $129,053.

11 The following five matters were included on a Form 1 which was to be taken into account when the respondent was sentenced in respect of count 1. These matters were:

(i) Take and drive a conveyance without consent on 10 September 2007.

(ii) Accessory after the fact to robbery while armed with a dangerous weapon on 10 September 2007 (Taverners Hill Hotel).

(iii) Accessory after the fact to robbery while armed with a dangerous weapon on 10 September (National Australia Bank, Campsie).

(iv) Attempted robbery armed with a dangerous weapon on 2 October 2007 (Bank of Queensland, Flemington).

(v) Carried in conveyance without consent of owner on 2 October 2007.

12 Of those matters the two robberies and one attempted robbery were the most serious. In relation to the Taverners Hill Hotel, three offenders entered the hotel while a fourth remained in a vehicle. Those entering the hotel wore balaclavas. One carried a sawn-off shotgun, one a knife and one a blue crowbar. The manager and another staff member were confronted and ordered to lie on the floor. The manager was then taken to the office and ordered to open a safe. $38,000 was stolen.

13 In relation to the National Australia Bank at Campsie, three offenders armed with a shotgun, a mallet and a crowbar entered the bank at about 10.40am. The offender holding the shotgun held the gun up to the customers in the service area while the other two offenders entered the staff area by climbing through the ceiling. After emptying the tellers’ tills into a bag, the sum of $27,000 was stolen.

14 In relation to the Bank of Queensland at Flemington, the respondent was armed with a black pistol and was wearing an earpiece connected to a scanner radio. Another offender was armed with a silver pistol and a co-accused was armed with a small sledgehammer. The respondent and the co-offender pointed their pistols towards the customer service counter. The respondent pointed the black pistol at a staff member who was sitting behind the service counter. When the security screens were activated, a co-offender tried to squeeze through the screens separating customers and staff. This was unsuccessful. The respondent and another co-offender used the sledgehammer to smash through the security door but this also was unsuccessful. All of the offenders then ran from the bank without having obtained any money.

Count 2:

15 At about 2.15pm on Friday 19 October 2007 the respondent and two other offenders entered the Bendigo Bank, Homebush and approached the customer service counter. There were no customers in the bank. The respondent told the teller not to move. Another offender produced a black, long barrelled pistol from his bag and pointed it towards two other tellers. At this point the security screens were activated and one of the offenders jumped onto the service counter and tried to remove a section of the false ceiling in order to get to the tellers. The respondent assisted this offender in doing so by “boosting” him up to the ceiling. This attempt was unsuccessful and the three offenders left the bank.

16 The Form 1 matter in relation to this count was take and drive a conveyance without the consent of the owner.

Count 3:

17 At about 3.10pm on Thursday 25 October 2007 four offenders got out of a stolen car and entered the National Australia Bank at Silverwater. One of the offenders was armed with a pump action shotgun and one with a crowbar. The other two offenders, including the respondent, were not armed. After the offenders had entered the bank, one of them who was armed with a crowbar stood directly behind a staff member who was serving a customer while seated at a desk in the public area of the bank.

18 That offender demanded that the staff member let him in through an internal door. She said that she did not have the code. Two other offenders then ran towards a row of counters used by the tellers where two customers were being served. One of the offenders used a crowbar to cut into the roof. The respondent assisted him to do so by lifting him up.

19 While this was occurring, the offender with the shotgun pointed it in the direction of the two customers at the far end of the row of counters and told them to lie down. The other customer and the staff member were also ordered to lie down. The offender with the shotgun then paced up and down and from time to time pointed the shotgun in the direction of the customers and the staff member lying on the floor.

20 When the attempt to enter the teller area through the roof was unsuccessful, money and valuables were demanded from the customers. A wallet containing $390 cash was taken from one customer. The wallet itself was worth $300. The offenders then left the bank.

21 The Form 1 offences relating to this count were:

(i) Carried in a conveyance without the consent of the owner.

(ii) Armed robbery with a dangerous weapon.

This armed robbery related to the taking of the wallet and money from the customer in the bank.

Count 4:

22 At about 6.08pm on Friday 9 November 2007 the female victim was working alone in the Cash Stop offices in Auburn. Cash Stop is a money lending institution. As the victim approached the front sliding door to shut the premises to the public, the respondent suddenly appeared and forcibly pushed the sliding door open. He then entered the premises and using his left hand produced a black pistol. Using his right hand, the respondent grabbed the victim around the chest and forced her into the secure area behind the service counter.

23 The respondent maintained his hold on the victim and pushed her to the ground. He then straddled the victim and pointed the pistol directly at the victim’s head. The muzzle of the pistol was placed next to the victim’s neck for about four seconds. Using his right hand the respondent started opening the cash drawer in the reception desk and moving things around in the drawers looking for money. On occasions he stepped over the victim with her still lying on the floor. As he did so the respondent continued to point the pistol at her and talk to her in an intimidating manner.

24 The respondent next handed the victim a plastic bag and demanded that she give him all the money on the premises. The victim complied with this demand and placed money into the plastic bag. Throughout this period the respondent was standing within two metres of the victim and continued to point the pistol at her. The respondent then demanded that the victim open the safe, but she replied that she was unable to do so. The proceeds of the robbery amounted to $3,400. The Cash Stop premises were fitted with high quality CCTV cameras which recorded the entire incident. It can be seen that the victim was fearful and scared. By comparison with the respondent, who was large and fit, the victim was a small woman and was clearly being intimidated by him over a substantial period of time. On a number of occasions the pistol was pointed directly at the victim’s head, only centimetres away from it.

25 The Form 1 matter attached to this count was aggravated assault with intent to take a motor vehicle. In this offence the respondent and a co-offender grabbed the owner of a motor vehicle by the arm and pushed her to the ground causing her to scream. The co-offender produced a black pistol from his jacket which he pressed into the chest of the victim while using his other hand to grab the car keys from her. The respondent and the co-offender entered the vehicle and drove away.

Remarks on Sentence

26 His Honour’s remarks on sentence took place over two days, 7 and 14 May 2010. On the first day his Honour noted that the Form 1 in respect of count 1 included offences of the same sort of seriousness as that for which the respondent was to be sentenced. Having heard submissions, his Honour accepted the Forms 1.

27 His Honour described the offences as very serious matters and referred specifically to the CCTV footage relating to count 4. His Honour described that video as follows:

“That film was certainly a dramatic one. I looked at it again this morning. It shows the offender confronting a small woman in charge of this Cash Stop with a big gun, holding it right at her head and terrifying her; something that she showed by her body language. It shows him pointing it at her head when she is standing up, pointing it at her head when she falls to the ground and continuing to point it at her head.” (ROS 3.6, 7.5.10)

28 His Honour reviewed the respondent’s previous convictions and noted that they had started in 1996 when he was aged 13 or 15. There is apparently some doubt as to the date of the respondent’s birth with dates of 1981 and 1983 appearing in his papers. His Honour’s review of his criminal record showed 16 previous offences of either robbery in company or robbery armed with a dangerous weapon. There were also assaults, demanding money with menaces and car stealing offences. His Honour noted that having been treated somewhat leniently in the Children’s Court, the respondent first appeared as an adult in the District Court on robbery charges in 2003 where he was sentenced to a period of imprisonment with a non-parole period of 3 years 9 months and a balance of term of 2 years and 3 months.

29 His Honour then dealt with the subjective features of the respondent’s case. His Honour had specific regard to a psychological report of Dr Katie Seidler of 14 August 2009 and the evidence which the respondent had given before him on 19 November 2009.

30 The respondent had come from Fiji when he was young and was one of six brothers all of whom had been in trouble with the law and had served periods in juvenile detention. The respondent became a heroin addict when he was about 14. He had never undergone rehabilitation for this addiction.

31 The respondent had never been employed and had spent 10 of the last 14 years in custody. The respondent said that he would like to participate in a rehabilitation program. He said that he was ashamed of his crimes, he took full responsibility for them and that is why he had pleaded guilty. He had one child whom he had not seen while he was in custody.

32 His Honour noted that the respondent was not on parole at the time when these offences were committed. In relation to his drug addiction his Honour said:

“The fact that the offender is a drug user is a factor that obviously has to be taken into account. He is not someone who has become involved in armed robberies purely for the purpose of making money and he is in reality a sick man. Anybody affected by drug addiction is someone who has an illness, it can be treated. But he is the one that has got to decide if he wants the treatment. The problem with drug addiction as spoken of constantly by psychologists and psychiatrists and other experts, is that no-one can compel a drug addict to cease to be a drug addict. The drug addict himself has to decide if he wishes to live otherwise than as a drug addict and then has to seek the appropriate help and then has to take the necessary steps.” (ROS 6.6, 14.5.2010)

33 His Honour found that none of the offences should be regarded as more serious than the other and in that regard he referred specifically to the armed robbery of the Cash Stop. His Honour said:

“It may have looked a lot worse but in fact in each of the other matters people were threatened and more than one, and significant sums of money were either obtained or sought to be obtained. Because of the need to ensure that no sentence is out of all proportion in an overall sense, some of the sentences are lesser than others. This does not mean that I think that those particular offences were lesser offences, it means that the principles of totality require that there be adjustments to reflect the need to ensure that somebody does not get too long in gaol. I have also made the sentences partly concurrent and partly cumulative, to do otherwise would be to impose sentences that would be far too big.” (ROS 8, 15.5.2010)

34 His Honour backdated the commencement of the respondent’s sentences to 10 November 2007, being the date on which he was arrested.

The Appeal
Grounds of Appeal 1, 2 and 3:

35 These grounds of appeal raise the failure to assess the objective seriousness of the offences, the failure to take into account the offences on the Form 1 document in respect of count 1 and the failure to award proper sentences in respect of each count.

36 There are a number of problems with the Remarks on Sentence (ROS). The most obvious is their failure to adequately reveal his Honour’s reasoning process. It is clear from the transcript of argument that the guideline judgment in R v Henry (1999) 46 NSWLR 346 was discussed. Similarly, it is clear from his Honour’s reference to C-P v R [2009] NSWCCA 291 and to the offences included on the Form 1 in respect of count 1, that his Honour was aware of the decision in Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146. It is also clear that his Honour was conscious that the respondent’s plea of guilty entitled him to a substantial discount on his sentence. What is not clear is how his Honour gave effect to those relevant considerations. He made no reference to the discount in his ROS, nor did he refer to R v Henry, nor did he indicate how, if at all, he proposed to give effect to the very serious matters on the Form 1. There are other difficulties of a similar kind. Other than referring in a general sense to the fact that the offences were very serious but that no single offence was more serious than the other, there was no attempt to analyse the objective seriousness of any of the offences.

37 The problem created by remarks on sentence in such a form was recently restated in R v Hamieh [2010] NSWCCA 189 at [29]:

“The principal purpose of remarks on sentence is to provide an oral explanation to the offender, the victim(s) and persons in Court at the time when sentence is being passed: R v Bottin [2005] NSWCCA 254 at [12]; Curtis v R [2007] NSWCCA 11 at [30]-[31]; R v Hersi [2010] NSWCCA 57 at [7].

30 Remarks on sentence serve other purposes as well, including informing the community and an appellate court of the reason for imposition of the sentence: R v Duffy [1999] NSWCCA 321 at [11]; R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 394-395 [42]-[44]; R v JCE [2000] NSWCCA 498; 120 A Crim R 18 at 21 [19]; Thomas v R [2006] NSWCCA 313 at [16]. “

38 An analysis of the objective seriousness of counts 1 and 4, together with the application of the principles in R v Henry, would have made it clear that the objective seriousness of those offences was greater than that in counts 2 and 3. A proper application of Pearce v The Queen (1994) 194 CLR 610 would have led to there being a significant differentiation between the sentences passed for those offences and the sentences passed in respect of counts 2 and 3.

39 Looking just at counts 1 and 4, it is obvious that they involved offences of a much more serious kind than were referred to in R v Henry. Whilst this offender was young, he had a substantial criminal history which included serious matters of a like kind. The weapon in these offences was a pistol. In respect of count 1 the level of planning included the collection of weapons and tools, the gathering of other offenders and the stealing of a car. The actual level of violence was greater as was the threat of violence. Finally, the amounts taken were significantly greater, i.e. $129,053 in relation to count 1 and $3,400 in relation to count 4. The only similarities with Henry were his youth, the vulnerability of the victims and the pleas of guilty.

40 His Honour’s characterisation of all the counts as involving the same level of objective seriousness was simply wrong. Had his Honour properly applied R v Henry and looked at the offences individually as required by Pearce, this would have been obvious.

41 Although his Honour referred to the serious nature of the five matters on the Form 1 in respect of count 1, it is not apparent that he gave any effect to this when passing sentence. In the Attorney-General’s Application under s 37, Spigelman CJ said at [42]:

“42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences … for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters, which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.”

42 The clear inference from his Honour’s remarks and the form of the sentences passed is that his Honour failed to observe the first limb of Pearce by fixing an appropriate sentence for each offence. His Honour appears to have been concerned primarily with the issue of totality and the overall effect of the sentences. It is also clear that his Honour did not have regard to the Form 1 matters when sentencing in respect of count 1.

43 I am satisfied that the Crown has made out its first three grounds of appeal.

Ground of Appeal 4:

44 The respondent had a powerful subjective case. This particularly related to his having become addicted to heroin at a very early age. His age per se played little part in that subjective case. An age of 24 or 26 is not such as would entitle the respondent to leniency. While it is clear that the respondent’s age played an important part in his Honour’s determination of the head sentences, his Honour never explained in what way his age impacted on or was relevant to the commission of the offences. There was no finding that the respondent’s crimes were impulsive or the product of immaturity. Before he committed these offences, the respondent had already been involved in at least 16 robbery-related offences.

45 This ground of appeal has been made out.

Ground of Appeal 5:

46 As previously indicated, the respondent’s early addiction to heroin formed part of a powerful subjective case available to him. It clearly provided an explanation for his involvement in serious criminality over many years. It explained why he had spent 10 of the previous 14 years in custody. He had not yet undergone a proper rehabilitation program and in evidence expressed a willingness to do so.

47 The question of drug addiction was carefully considered in Henry and in particular the extent to which it could be taken into account in the sentencing process. Spigelman CJ said:

“196 It was submitted that the degree of moral culpability of a particular offender is diminished by addiction. Evidence was put before the Court that there is, at least in some cases, a genetic predisposition to addiction and that addiction generally is not simply a state of mind but has a neurobiological or physiological base. It was put that an addict's decision to perform a criminal act was not “a completely free choice”.

197 In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.

…

202 There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money.

…

204 It was also submitted that the principle of general deterrence should be given less weight in the context of offenders who commit their crimes for the purposes of assuaging a drug addiction. In this submission, reliance was placed on the often expressed doubts about the direct effect on potential offenders of increases in penalties imposed. Particular reliance was placed on the driven nature of drug addicts, many of whom engage in high risk activity, like exchange of needles notwithstanding the risk of HIV infection. This kind of submission has been made many times before and I have quoted a few instances above. It has always been rejected. This Court should do so again.”

48 Wood CJ at CL said:

“268 While it may be accepted that the rehabilitative aspect of sentencing is not an unimportant consideration: R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394; R v Douglas (CCA, 4 March 1997, unreported); R v Eastway (CCA, 19 May 1992, unreported), R v Fabian (1992) 64 A Crim R 365; R v Halewyn , I am not persuaded that the offender, whose criminality was directly influenced by drug addiction, should be placed into a special category for sentencing purposes.

269 The objective of rehabilitation is but one aspect of sentencing. It needs to be taken into account along with the objectives of retribution and deterrence.

…

273 In my view the relevant principles are as follows:

(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:

(i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);

(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c) it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:


(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported);

(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R v Talbot ); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;

(iii) justify special consideration in the case of offenders judged to be at the “cross roads”: R v Osenkowski (1982) 30 SASR 2125 A Crim R 394.”

49 Simpson J said:

“349 I entirely agree with the proposition that the bare fact that an offence is motivated by a need for money to support a drug habit does not, alone, mitigate the offence or operate to reduce the sentence to be imposed.
350 Counsel who appeared for some respondents also argued, by analogy with the sentencing of mentally abnormal offenders, that, in sentencing drug addicted offenders, it may be appropriate to afford less weight to the principle of general deterrence. This argument cannot be accepted. …”

50 As the above statements of principle make clear, while the age at which the respondent became addicted to heroin was a matter which his Honour could properly take into account, it should not have been his Honour’s primary consideration around which he formulated the individual sentences and the extent of their cumulation. It is of significance that nowhere in his ROS does his Honour refer to general or specific deterrence.

51 This ground of appeal has been made out.

Ground of Appeal 6:

52 The Crown submitted that his Honour had erred by giving undue emphasis to the fact that the respondent was not on parole when the offences were committed. I do not read his Honour’s judgment in that way. He referred to that fact as one of a number of surrounding circumstances but otherwise did not appear to give it any weight in his reasoning process.

53 This ground of appeal has not been made out.

Ground of Appeal 7:

54 This ground of appeal raised the second limb of Pearce to the effect that a sentencing judge, having passed a series of sentences each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, is required to review the aggregate sentence and to consider whether the aggregate is just and appropriate. The Crown submission is that not only were the individual sentences in respect of counts 1 and 4 inadequate, but that the end result, ie a non-parole period of 7 years with a balance of term of 4 years, offended the principle of totality in that it was patently inadequate.

55 The Crown submitted that there was insufficient cumulation and that the objective seriousness of the criminality involved was such that a substantially longer overall sentence than that awarded was required. The Crown submitted that in effect his Honour allowed the respondent’s subjective case to overwhelm the objective circumstances of the offending and failed to properly take into account matters such as general and specific deterrence in the overall context of objectively very serious offences.

56 It was on this question that the respondent joined issue with the Crown. While implicitly conceding that his Honour may not have properly taken into account the objective seriousness of the offences in counts 1 and 4, and may not have given proper effect to the Form 1 matters in respect of count 1, the respondent submitted that the aggregate sentence properly reflected his criminality. He stressed that sentencing was essentially a discretionary matter and although the individual sentences in respect of some counts may have been somewhat lenient, the total effect of the sentences was well within the range of sentences available to his Honour.

57 The respondent pointed to various aspects of the offences which made it clear that he was under the influence of heroin at the time. He submitted that his early addiction was a matter which was exculpatory and that otherwise his untreated drug addiction was relevant as providing an explanation for his previous record of serious criminal offences and of these offences. In particular, the respondent submitted that the age at which he became addicted to heroin made it clear that his addiction should not be regarded as a matter of personal choice but was attributable to circumstances for which he was not primarily responsible. His ability to exercise appropriate judgment or choice at the age of 14 was patently incomplete.

58 In summary, the respondent submitted that while the sentences were lenient they were not manifestly inadequate. He submitted that taken with his previous periods of imprisonment they represented a substantial additional punishment. The respondent submitted that in accordance with the sentences passed by his Honour, upon his release at the conclusion of the non-parole period of 7 years, he would have spent 17 of the last 21 years in custody. The respondent submitted that to impose any greater sentence for these offences would impose a crushing burden upon him.

59 The respondent submitted that even if there were error in his Honour’s approach to sentencing, the head sentence and non-parole periods were within the appropriate range and that this Court ought in the exercise of its discretion not intervene to re-sentence. Alternatively, the respondent submitted that if the Court were minded to intervene, it should have regard to the material in his affidavit to the effect that he had recently commenced a methadone program which may well be the first step in breaking the cycle of addiction which has blighted his life over the years. The respondent submitted that under those circumstances in the exercise of its discretion, this Court should exercise restraint by not substantially increasing the aggregate non-parole period.

60 I am satisfied that the Crown has made out this ground of appeal. Not only did his Honour’s sentencing discretion miscarry in the manner previously indicated in respect of the individual sentences for counts 1 and 4, but his Honour’s aggregate sentence and its structure offend the principle of totality. Even allowing for appellate restraint in Crown appeals, there is a need to re-sentence.

61 As McHugh J said in Everett and Phillips v The Queen (1994) 181 CLR 295 at 306:

“The jurisdiction to hear a Crown appeal against sentence is conferred on a Court of Criminal Appeal so that that Court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the Courts to play their part in deterring the commission of crime. To permit the Crown, as well as convicted person, to appeal against sentences assists in maintaining confidence in the administration of justice.”

Conclusion

62 In re-sentencing the Court has to have regard to the matters to which the Crown has referred in its grounds of appeal but must also not lose sight of the 25 percent discount to which the respondent was entitled because of his early plea of guilty. I have also had regard to matters raised in the respondent’s affidavit.

63 The effect of the sentences which I propose is imprisonment with a non-parole period of 10 years, to date from 10 November 2007 and to expire on 9 November 2017, with a balance of term of 4 years to expire on 9 November 2021.

64 The orders which I propose are as follows:

(1) The Crown appeal in respect of the sentences for counts 1, 2, 3 and 4 is allowed.

(2) The sentence in respect of count 1 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 6 years to date from 10 November 2007 and to expire on 9 November 2013 with a balance of term of 4 years to expire on 9 November 2017.

(3) The sentence in respect of count 2 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 4 years to date from 10 November 2010 and to expire on 9 November 2014 with a balance of term of 3 years to expire on 9 November 2017.

(4) The sentence in respect of count 3 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 4 years to date from 10 November 2011 and to expire on 9 November 2015 with a balance of term of 3 years to expire on 9 November 2018.

(5) The sentence in respect of count 4 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 5 years to date from 10 November 2012 and to expire on 9 November 2017 with a balance of term of 4 years to expire on 9 November 2021.

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20/03/2014 - After delivery of the Court of Criminal Appeal judgment on 28 October 2010, on 17 March 2014 attention was drawn to an error in those reasons in par [64](4) which is amended to read as follows:"64(4) The sentence in respect of count 3 is quashed and in lieu thereof the respondent is sentenced to a term of imprisonment with a non-parole period of 4 years to date from 10 November 2011 and to expire on 9 November 2015 with a balance of term of 3 years to expire on 9 November 2018." - Paragraph(s) coversheet and [64](4)