R v Locke

[2000] NSWCCA 19

CITATION:	R v Locke [2000] NSWCCA 19
FILE NUMBER(S):	CCA 60233/99
HEARING DATE(S):	Monday 21 February 2000
JUDGMENT DATE:	21 February 2000
PARTIES :	Regina v Shane Morris Locke
JUDGMENT OF:	Grove J at 1; Greg James J at 10

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0139
LOWER COURT JUDICIAL OFFICER :	Nader ADCJ

COUNSEL :	M. Grogan (Crown) J.C. Nicholson SC (Appellant)
SOLICITORS:	S.E. O'Connor (Crown) Many Rivers Aboriginal Legal Service (Appellant)
CATCHWORDS:	Criminal Law and Procedure - Sentence - No Special Point of Principle
CASES CITED:	R v Fernando 76 A Crim R 58
DECISION:	Appeal Allowed ; Resentenced.

IN THE COURT OF
CRIMINAL APPEAL

60233/99

GROVE J
GREG JAMES J

Monday 21 February 2000

REGINA v SHANE MORRIS LOCKE

JUDGMENT

1 GROVE J: This is an application for leave to appeal against severity of the sentence following a plea of guilty by the appellant to aggravated robbery dealt with by Nader A/DCJ in the Newcastle District Court. On that occasion his Honour also took into account three offences on a Form 1. Those offences were a mid range driving with the prescribed concentration of alcohol and driving whilst cancelled and an offence of failing to appear. It is convenient to mention that the first and second of those offences on the schedule related to driving a motor car in association with the subject matter of the indicted offence, or, to be more accurate, the offence for which the appellant was committed for sentence pursuant to s 51A of the Justices Act.

2    So far as the offence of failing to appear, it appears that his Honour accepted the explanation of the appellant that he had not on an occasion attended at court because his son had been involved in a very serious motor car accident and he had gone to see him in Queensland.

3    The appellant is a 39 year old man of aboriginal background. His Honour sentenced the appellant to a total sentence of three and a half years penal servitude which he divided into minimum and additional terms of two years and one year and six months.

4    I propose to deal with the matter in relatively short form. The learned sentencing Judge described the events in his Remarks on Sentence and I do not propose to materially repeat them save to refer to some very unusual circumstances of this case.

5    It appears that the victim offered the appellant a lift in his motor car, the appellant having missed the last train of the evening. The appellant, however, had a duty to look after his 11 year old nephew and eventually the three were in the car when the victim said that, rather than transporting them, he would offer them overnight accommodation. He took them to a house where the electricity was not connected and at the house made remarks clearly and understandably taken by the appellant to indicate that the victim, as he became, was interested in a sexually predatory manner in the 11 year old boy. This upset the appellant. It may be, as his Honour found, that the vulnerability of the appellant to upset was enhanced by his prior ingestion of intoxicating liquor. Be that as it may, the reaction of the appellant was to defend his nephew from perceived future misconduct by the victim and, as a result the appellant attacked him, and afterwards robbed the victim and took his motor car. The evidence before his Honour showed that the reason for the robbery and the taking of a motor car was very much provoked by a perceived need for the appellant to take his nephew away from the danger, or, in short terms, to escape.

6 The learned sentencing judge took into account the matters to which I have made brief reference. It was argued, however, by Mr Nicholson SC that while his Honour recognised the appellant's aboriginality and the well-known approach to be taken by sentencing Courts along the lines delineated in R v Fernando 76 A Crim R 58 he had not perceived that the close kinship with the nephew would culturally inspire the appellant to go to the defence of his nephew. In my view there is substance in Mr Nicholson's submissions.

7    The learned Judge dealt with the appellant very promptly after his arrest. This was enabled because of the ready concession by the appellant of his guilt of the offence charged and the absence of any necessity for extended court hearing. This was a matter that the appellant was entitled to have taken into account and his Honour said he would take into account time in custody prior to sentence. The appellant had in fact been in custody since 2 March 1999 and sentence was imposed to date from his appearance on 30 April 1999. Whilst I do not express any hesitation about accepting his Honour's indication that he had taken into account the pre-sentence custody, it is desirable that there be patent manifestation that it has been taken into account. It was fairly conceded by the Crown that the approach of backdating the sentence to the first day in custody would have been appropriate and I agree with that concession.

8    In my view this is a case where Court should intervene and proceed to resentence. I have commented in passing that the appellant may have been affected by intoxicating liquor on the occasion of this crime. Information before the sentencing Judge indicated there is a desirability for the appellant to have assistance in overcoming what might be broadly described as an alcohol problem. In my view a total sentence of less than three years would be appropriate in this case. By virtue of the Sentencing Act that will mean that the parole of the prisoner will be ordered by the Court rather than resting within the discretion of a Parole Board. In those circumstances the court is empowered to give directions as to the conditions of parole and in this, what I have described as most unusual, if not unique case, I regard that as highly desirable.

9    Accordingly, I propose the following orders: That the application for leave to appeal be granted; the appeal allowed; the sentence in the District Court quashed and in lieu thereof the appellant is sentenced taking into account the Form 1 offences, to a total of two and a half years imprisonment. I would adopt, for the reasons expressed by the sentencing judge, his finding of special circumstances and I would order that total sentence be served in a Minimum Term of 18 months to date from 2 March 1989 and to expire on 1 September 2000 together with an Additional Term of 12 months to date from 2 September 2000. I would order that the appellant be released to parole on 1 September 2000 and whilst on parole he be subject to the supervision of the Probation and Parole Service and in particular obey any instructions they give him in relation to the attending of rehabilitation courses in connection with alcohol indulgence.

10    GREG JAMES J: I agree.

11    GROVE J: The orders of the Court, therefore, will be as I have proposed.

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