R v Lesi

[2005] NSWCCA 63

CITATION:	Regina v Lesi [2005] NSWCCA 63
HEARING DATE(S):	15 February 2005
JUDGMENT DATE:	1 March 2005
JUDGMENT OF:	Grove J at 1; Bell J at 40; Buddin J at 41
DECISION:	Appeal dismissed

CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - PARITY CO-OFFENDER INVOLVED IN ONE ONLY OF TWO MAJOR CRIMINAL ACTIONS BUT FOR ADDITIONAL OFFENCE RELATIVE TO IT - GUIDELINE IN R v HENRY APPROPRIATELY USED FOR OFFENCE OF ROBBERY IN COMPANY - SEPARATE CHARGE CONCERNING PARTICULAR VICTIM - OFFENDER NOT DOUBLY SENTENCED - TEST OF EXCEPTIONAL CIRCUMSTANCES NOT APPROPRIATE FOR DEPARTURE FROM GUIDELINE - IN OVERALL CIRCUMSTANCES LESSER SENTENCE NOT WARRANTED
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s6(3) Criminal Appeal Act 1912
CASES CITED:	R v Henry 1999 46 NSWLR 346 R v Murchie 1999 108 A Crim R 482 Pearce v The Queen 1998 194 CLR 610 R v Smith 2004 144 A Crim R 577 R v Stanley [2003] NSWCCA 233
PARTIES:	Regina v Billy Lesi
FILE NUMBER(S):	CCA 2004/2561
COUNSEL:	W. Dawe QC ( (Crown) P. Boulten SC (Applicant)
SOLICITORS:	S. Kavanagh (DPP) Galloways (Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0316; 03/21/0138
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ

2004/2561

GROVE J
BELL J
BUDDIN J

1 March 2005

REGINA v BILLY LESI

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed in the District Court by Sorby DCJ.

2 The applicant had pleaded guilty to a number of charges when presented in the Local Court and he was committed for sentence. Due to technical irregularities some matters were the subject of re-presentment on indictment but the applicant had effectively admitted his guilt at the earliest opportunity.

3 The first set of charges dealt with on committal for sentence arose out of his participation in a robbery at the Victoria Hotel, Annandale shortly after 1 am on 24 February 2002. The substantive charges were robbery in company (the victim being Mr Colin Hindmarch) and assault (the victim being Mr Alan McIlveen). Taken into account on a Form 1 were four further charges namely robbery in company of Mr McIlveen, assault with intent to rob Leslie Brock; assault with intent to rob Kate Brock, and assault of Leslie Brock.

4 The applicant and an unidentified co-offender entered the hotel, which was closed, but there were then present staff members and some friends of theirs. The offenders claimed to be armed with a gun but it does not appear that a gun was produced. Nevertheless, under the constraints of such representation, Mr Hindmarch was forced to hand over cash holdings of the hotel amounting to over $40,000.

5 The assault of Mr McIlveen followed his compliance with a direction to empty his pockets, during which he produced a set of car keys. The applicant repeatedly asked him where the car was and Mr McIlveen responded on each occasion that it was at Randwick. These responses were met by the applicant punching him about the head and in the face with a closed fist.

6 On the Form 1 matters, the charge of robbery in company of Mr McIlveen involved taking his watch and about $100 in cash. The assaults with intent to rob each of Leslie and Kate Brock involved corporal violence and demands that the victims give up everything they had. It would appear that before taking anything, the offenders became distracted by the larger loot available from the cash holdings of the hotel, which included poker machine receipts and the contents of an automatic teller machine.

7 The assault on Leslie Brock scheduled in the Form 1 occurred as the applicant punched and slapped him and then kicked him in the stomach, extracting a response that he would say nothing to police. Mr Brock was a barman employed at the hotel.

8 The second set of charges arose out of events shortly after 10 pm on 3 June 2002 at the Smithfield Tavern, Smithfield. The first count charged armed robbery of Nadene Heaphy. She was an assistant manager at the tavern. The weapon involved was a replica pistol and the amount taken was just over $4,250. The charge alleging that the applicant allowed himself to be carried in a stolen car related to his escape from the scene. Pursuant to the Form 1 procedure a further charge of armed robbery at the same place and on the same date was asked by the applicant to be taken into account. The victim in that case was Mr Sommer Lewis and the amount involved $129.70. Mr Lewis was employed at the tavern as a gaming attendant and he performed bar service and cash payment of poker machine winnings to patrons.

9 The applicant, one Ricardo Fisher and an unidentified third male entered the tavern. The applicant was armed with the replica firearm and Fisher had a 30 cm bladed knife.

10 Unsurprisingly, the events thereafter became somewhat confused as one of the customers had been able to make an exit from the tavern and waved down a passing police officer. This was Senior Constable Abernathy whose ordinary duty was as a police dog handler but, commendably, he entered the tavern in response to the request for help. The applicant and Fisher had removed a quantity of cash but the appearance of Senior Constable Abernathy caused Fisher to flee to a car park. By this time the third male also armed with a knife was waiting. The stolen motor vehicle in which the applicant rode was there.

11 While the constable was seeking to deal with Fisher and the third offender, the applicant, armed with the pistol, had forced two employees into a rear office and obtained money from a safe. He then proceeded to the area where they had no doubt left the car for the purpose of enabling escape. The struggle between police officer and offenders was not static and at one stage the unidentified male threw a knife, which Senior Constable Abernathy evaded by moving himself out of the path of the weapon. In the meantime, other police had been summoned and Fisher was taken into custody but the applicant and the unidentified offender escaped in the stolen motor vehicle.

12 In the course of time police received information from members of the public identifying the applicant as one of the offenders and scientific investigation of the getaway car, which had been abandoned, located a fingerprint of the applicant.

13 The applicant was arrested on 20 November 2002 and execution of a search warrant at his home located a number of items which could be connected with the robbery at the tavern. Upon interview the applicant made full admissions regarding his and Fisher’s involvement in the offence. The applicant has remained in custody since 20 November 2002.

14 The learned sentencing judge structured his impositions as follows:

(a) On the first charge, robbery in company at Annandale, and taking into account the offences on both the Forms 1, imprisonment for seven years and six months commencing on 20 November 2003 with a non parole period of five years commencing on the same date and expiring on 19 November 2008;
(b) On the charge of assaulting Mr McIlveen to a fixed term of imprisonment commencing on 20 November 2002 (the date on which the applicant was taken into custody) and expiring on 19 November 2003.
Thus the sentence on the first charge commenced at the conclusion of the sentence imposed on this charge;
(c) On count 1, the robbery at Smithfield Tavern, to a fixed term of imprisonment for five years commencing on 20 November 2003 and expiring on 19 November 2008. This term is therefore concurrent with the non parole period set in relation to the first charge abovementioned;
(d) On the second count of the indictment for being carried in a stolen conveyance, to a fixed term of imprisonment for six months commencing on 20 November 2002 and expiring on 19 May 2003. This term is hence concurrent with the first six months of sentence imposed for the assault of Mr McIlveen.

15 The effective sentence for all these matters became a total of eight years six months imprisonment with a non parole period of six years, dating from 20 November 2002. The argument in support of the application was presented under four grounds. Ground 1 was expressed:

“His Honour erred by failing to set a non parole period in relation to the charge of armed robbery upon the Smithfield Tavern”.

16 As senior counsel for the applicant pointed out, his Honour did not record his reasons for declining to set a non parole period in respect of the count of armed robbery at Smithfield Tavern as required by s 45(2) of the Crimes (Sentencing Procedure) Act 1999. Such omission does not invalidate the sentence: see s 45(4).

17 As the fixed term is exactly the same as, and to be served concurrently with, the non parole period set in respect of the sentence for the robbery at the hotel in Annandale, it is difficult to perceive what is sought to be achieved by the suggestion in the written submissions that “a non parole period was essential not just for appearances sake”. There can be no practical benefit to the applicant unless that non parole period is varied.

18 Touched upon in the written submissions and the specific thrust of oral submission was an argument based on parity with sentence received by Fisher. Fisher was involved with the applicant only in offences at Smithfield. He was sentenced by Armitage DCJ after pleas of guilty to three offences with one further offence taken into account on a Form 1. In common with the applicant he was charged with armed robbery of Mr Sommer Lewis (the Form 1 matter when the applicant was dealt with), and on his Form 1, a charge of armed robbery of Mrs Heaphy (a principal charge against the applicant). The two further charges against Fisher were armed robbery of John Mangarelli from whom a mobile telephone was taken during the incursion into the tavern and threatening injury to Senior Constable Abernathy with intent to avoid lawful apprehension.

19 The remarks on sentence of Armitage DCJ have been provided. There is recorded a sentence of two years imprisonment for the offence of using an offensive weapon to prevent lawful apprehension (which is not suggested to refer to something different from the charge first described in the remarks as threatening injury with intent to prevent lawful apprehension). That sentence was specified to commence on 3 June 2002 and expire on 2 June 2004. On each of the offences of armed robbery imprisonment for five years cumulatively upon the sentence of two years but concurrent with each other and both commencing on 2 June 2004 were imposed. His Honour further stated that he set an overall non parole period of four years and that, subject to the provisions of the Crimes (Sentencing Procedure) Act 1999 Fisher would be released to parole on 2 June 2006. He added that in imposing “those sentences” he had taken the matter on the Form 1 into account.

20 Thus the argument on behalf of the applicant proceeded on the basis that Fisher received an effective sentence which might be regarded as imprisonment for seven years with a non parole period of four years.

21 It was contended, however, that as the applicant faced no charge in relation to avoiding apprehension by Senior Constable Abernathy, the term of two years received by Fisher should be notionally excised for the purpose of contrast, and comparison made between the sentence of five years with a “balance” non parole period of two years thus received by Fisher against the fixed term of five years received by the applicant.

22 That approach is tainted by artificiality in that it ignores that each sentencing judge was required to assess an appropriate sentence for each offence upon which conviction was entered and then, having regard to overall criminality, determine whether those sentences should be served concurrently or wholly or partly cumulatively: Pearce v The Queen 1998 194 CLR 610. A proposition that Fisher received a sentence of five years imprisonment with a two year non parole period for the two offences of armed robbery ignores the structure of overall sentence determined by Armitage DCJ.

23 The applicant, on the respective current constructions of sentences, will be kept in custody for two years longer than Fisher before becoming eligible for parole. Viewed from that perspective, the two year span represents a very lenient term to reflect the criminality of the offences at Annandale in which Fisher was not alleged to be involved. That perspective is not altered by the circumstance that the applicant was not involved in any crime arising out of an intent to prevent lawful detention by Senior Constable Abernathy.

24 Sorby DCJ was aware of the sentence imposed upon Fisher and specifically concluded that “parity is not relevant here”. His conclusion demonstrated no error.

25 Grounds 2 and 3 were:

“2. His Honour erred by having regard to the guidelines laid down in R v Henry 1999 46 NSWLR 346 when sentencing the applicant in relation to the robbery upon the Victoria Hotel at Annandale.
3. His Honour erred by accumulating the sentence in relation to the Annandale robbery upon the sentence for the assault upon the employee of that hotel”.

26 As the submissions revealed, ground 3 focussed upon the assault on Mr McIlveen who was not, as described, an employee of the hotel but was present in the company of his girlfriend (Edith) who was such an employee. Nothing turns upon Mr McIlveen’s precise status.

27 In his remarks on sentence Sorby DCJ said:

“The robbery offences fit some of the factors within the guideline judgment of Henry and I intend to apply that guideline for the robbery offences, as a starting point in determining the sentencing”.

28 The essence of complaint is that his Honour should not have “formally fixed himself” to the guidelines in Henry when making comparisons with the facts in the case. It was submitted that the guidelines in that case do not apply to robbery in company even though the maximum penalty for armed robbery is identical. This submission was said to be supported by R v Smith 2004 144 A Crim R 577. In the judgment of Howie J, (Sperling and Hidden JJ agreeing) there appears:

“The guidelines laid down in the Court of Criminal Appeal in R v Henry are not to be extended outside the range of cases in circumstances to which it was directed …..
It should, however, be said that it was unnecessary and unhelpful for his Honour to refer to a guideline judgment in respect of one specific offence in relation to dealing with an offender for a completely different offence”.

29 Smith was a case where the offender had pleaded guilty to demanding money with menaces whilst the specific offence dealt with in Henry was armed robbery. Howie J’s remarks should be understood in that context and I do not perceive that his Honour was suggesting departure from the observation of Sully J (Spigelman CJ and Hidden J agreeing) in R v Stanley [2003] NSWCCA 233:

“….. there is, in my opinion, no reason either of principle or of logic why the considerations which are enumerated by the Chief Justice in paragraph 162 of his Honour’s judgment in Henry should not apply mutatis mutandis to the s 97 offence of assault in company with another and with intent to rob”.

30 A similar view was expressed by a two judge bench (Simpson J and Smart AJ) in R v Murchie 1999 108 A Crim R 482.

31 There was no error committed by his Honour in having reference to the guidelines articulated in Henry.

32 The next argument asserted that:

“his Honour determined that the sentence (for robbery in company at Annandale) should be aggravated for, amongst other reasons, the fact that the applicant assaulted several witnesses. He specifically referred to the fact that one of these assaults was the subject of a separate charge. It seems plain enough that the applicant was sentenced twice, at least in part, for his assault upon Mr McIlveen”.

33 The passage in his Honour’s remarks upon which this submission is founded in fact appears as a recitation of submission by the Crown concerning the level of the applicant’s culpability. In any event, the reference by his Honour to the specific charge and the Form 1 matters show that he was alert to the discriminate situation of nominated victims as distinguished from other witnesses. It is not the case that all people present in the hotel were nominated in the various charges. The material before the Court included a statement by Leslie Brock, which mentions that he was sitting at a table with “Anna, Edith, Cindy and Adam”. The lastmentioned can be identified as Mr McIlveen and the statement shows that all of those present reacted as they were being put in fear by the offenders even though all of them did not suffer physical interference.

34 There is no basis for concluding that the appellant was doubly sentenced by reason of the separate charges.

35 The third asserted error was submitted to be discernible in his Honour’s dealing with the submission that the head sentence should be set below that specified in the Henry guideline when he said:

“In my opinion, although the subjective features reveal considerable hardship and family dysfunction, they do not constitute exceptional circumstances sufficient for me to take the course she submitted that I should”.

36 It was erroneous to seek to identify exceptional circumstances for the submitted purpose. “Exceptional” indicates the application of too high a test and this argument is made good.

37 It remains, however, for the Court to determine whether intervention to reduce sentence should occur. Although the lastmentioned point is determined in favour of the applicant, the power of this Court to intervene is to be exercised only when a less severe sentence is warranted in law: s 6(3) Criminal Appeal Act 1912.

38 A less severe sentence is, in my opinion, not warranted in all the circumstances. The effective imposition lies well within the bounds of sound exercise of discretion. It follows that I would not sustain the fourth ground which asserts that the sentences were manifestly excessive.

39 I would grant leave to appeal against sentence but dismiss the appeal.

40 BELL J: I agree with Grove J.

41 BUDDIN J: I agree with Grove J.

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