R v Lyndon

[2003] NSWCCA 152

CITATION:	Regina v Lyndon [2003] NSWCCA 152
HEARING DATE(S):	30 May 2003
JUDGMENT DATE:	30 May 2003
JUDGMENT OF:	James J at 25; Smart AJ at 1
DECISION:	(1) Leave to appeal against sentence granted (2) Appeal allowed in part (3) Dismiss the appeal against the sentence of imprisonment for five years commencing on 15 November 2002 (4) Quash the non-parole period of three years nine months and in lieu thereof fix a non-parole period of three years six months expiring on 14 May 2006, on which day the applicant will be eligible for release on supervised parole.
CATCHWORDS:	Sentencing - need to allow for cumulation of sentences - no question of priciple
LEGISLATION CITED:	Sentencing Act 1989 Crimes (Sentening Procedure) Act 1999
CASES CITED:	Clarke (1995) 78 ACR 226 Henry (1999) 46 NSWLR 346 Simpson NSWCCA 18 June 1992
PARTIES :	Regina v Brett Ralph Lyndon
FILE NUMBER(S):	CCA 60096/03
COUNSEL:	(A) A Francis (C) D M L Woodburne
SOLICITORS:	(A) D J Humphreys (C) S E O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0150
LOWER COURT JUDICIAL OFFICER :	Armitage DCJ

IN THE COURT OF
CRIMINAL APPEAL

JAMES J

Friday, 30 May 2003

Regina v Brett Ralph LYNDON

JUDGMENT

1. SMART AJ: Brett Ralph Lyndon seeks leave to appeal against the asserted severity of a sentence of imprisonment of five years with a non-parole period of three years five months for attempted armed robbery with an offensive weapon to be served cumulatively upon a nine months non-parole period which he was serving at the time of sentence for driving offences.

2. The applicant complained that the effect of the sentences was that he would be in custody continuously for a period of four years six months with a parole period of one year three months. The normal ratio of three to one was not observed. For an overall sentence of effectively five years nine months the usual non-parole period absent special circumstances would be four years three and three quarter months.

3. The judge said:

“In my view there are no special circumstances which would justify me in altering the usual relationship between the length of the sentence and the length of the non-parole period”.

4. The applicant contended that the accumulation of the sentences was a special circumstance which in the instant case warranted a lesser non-parole period being fixed in the sentence for the attempted armed robbery. The applicant sought more than the adjustment of the sentence to bring it into line with what is usually described as the three to one ratio contending that an even greater non-parole period should be allowed because of the need for supervised rehabilitation.

5. At 3.18am on 2 February 2002 the applicant entered a mobile service station at Greta. The only person there was the female console operator. The applicant tendered cash for a purchase. As she opened the till, the applicant produced a small silver pistol, pointed it at her head from close range and said, “don’t close the drawer I want the cash”. As she closed the drawer a customer drove into the service station. The applicant walked to the door, not having taken any money, told her not to press the (alarm) button and ran towards the New England Highway.

6. The applicant was identified by the police from security footage. On his arrest on 16 February 2002, on unrelated matters, his appearance differed from that on the day of the offence in that he had shaved off a small amount of facial hair. When first interviewed by the police the applicant denied any knowledge of the offence saying that he was in Sydney at the time. At a later interview on 26 February 2002 he again denied any knowledge of the offence. The applicant entered his plea of guilty on 10 May 2002 which the judge held was at the first available opportunity.

7. The applicant was born on 29 January 1964. He has a lengthy criminal record stretching back to 1977. There were no convictions from April 1990 to July 1996. His convictions include dishonesty offences, serious traffic offences and minor drug offences. In late 2000 he was imprisoned for three months for driving whilst disqualified and on 20 February 2002 he was sentenced to imprisonment for twelve months with a non-parole period of nine months. These latter offences were apparently committed after the attempted armed robbery, according to the criminal history records.

8. As the judge remarked, the applicant’s record does not assist him. However, there was no offence in his past approaching in gravity attempted armed robbery. The applicant gave evidence that the facts set out in the report of Ms S Freeman, psychologist, were correct. The applicant was one of a large family; both his parents were alcoholics and separated when the applicant was very young. The children remained with their mother but they were often left alone. Family discipline was poor. At age fourteen years he began to associate with older youths. He began to truant and steal cars with the group. At the age of fifteen he began to inject heroin on “paydays”. By the age of eighteen he was fully addicted to the drug. In 1991 he met his wife and for the first time in his life he was happy. In October 1995 they married. In 1996 he was diagnosed with Hepatitis C and was very ill for a long time. He had regular employment and his wife worked as a nurses aid. For eight years his drug use lessened considerably.

9. During 1999 and 2000 he began mixing with the wrong crowd and he returned to heroin usage. He was sent to gaol for three months. His wife left one week before his release in March 2001. In shock he sold everything they owned including the house they had bought in Lithgow and paid off all debts. Since that time he has been in receipt of the disability support pension and lived with various friends. He felt his life had fallen apart. He grieves for his wife and their lost relationship.

10. The applicant said that at the time of the current offence he was trying to get off methadone and had returned to heroin usage. At the time of sentencing he was on methadone treatment. As to the circumstances of the offence he said that on buying an ice cream he saw the till open and pulled out a “silver pistol” and said “I’ll have the rest of that thanks”. He was scared when the drawer shut and then he saw the “poor frightened look” on the shop assistant’s face. He walked out saying, “Don’t hit the button”.

11. He said that he “did not know what I was doing” and he was “so stupid”.

12. He expressed sorrow for his actions and concern for the victim. He expressed remorse and guilt. The psychologist reported:

“Brett’s profile indicates his defensiveness, he is very low and he experiences a great deal of emotional pain. He has a tendency to be overly self centred, has very low self esteem and is depressed. He feels worthless and hopeless”.

13. The psychologist described the applicant as having a vulnerable and dependent personality due to the circumstances in which he was raised. She noted the seriousness and extent of his drug and alcohol abuse. She wrote:

“Undertaking the latter part of his sentence under a work release program may provide Brett with appropriate readjustment to the community before his release. Upon his release he requires an intensive drug and alcohol program provided by residential rehabilitation and further monitoring and support by the Probation and Parole Service to sustain his abstinence from drugs and alcohol. He has little family support apart from his youngest sister”.

14. The judge while taking into account the applicant’s evidence that his life fell apart when his wife left him said that this was not a matter which was capable of having any great impact on the length of the sentence. I agree. The judge did not accept that the offence was committed on the spur of the moment. The judge found that the applicant made up his mind before entering the service station store that he would commit the offence but that not much planning went into the commission of the offence. The judge accepted that the weapon was a toy pistol. The judge was not satisfied beyond reasonable doubt that the applicant was aware that a motor vehicle had driven into the service station but he was satisfied beyond reasonable doubt that the applicant did not walk out merely because of the look on the victim’s face. Notwithstanding some doubt, the judge accepted that the applicant was contrite.

15. The judge reviewed the facts and the relevant principles. He applied the principles set out in Henry. He noted that the victim was in a very vulnerable position. He held that there were no special circumstances justifying altering the usual relationship between the length of the sentence and the length of the non-parole period.

16. The applicant submitted that the judge erred by failing to discount the non-parole period having regard to the principle of totality and the accumulation of sentences. The applicant pointed out that although at the time of sentencing he was serving a sentence for twelve months with a non-parole period of nine months and this sentence was brought to the attention of the judge he made no mention of it or the accumulation of sentences when considering special circumstances. It was further submitted that failing to consider the accumulation of sentences in determining whether a finding of special circumstances should be made was productive of error. Clarke (1995) 78 ACR 226 and Simpson NSWCCA 18 June 1992, Both these decisions were delivered when the Sentencing Act 1989 applied and not s 44 of the Crimes (Sentencing Procedure) Act 1999, (“the Act”).

17. The judge must have been well aware of the sentences which the applicant was serving because although the instant sentence was imposed on 16 August 2002 it was to commence on 15 November 2002, that is upon the expiry of the non-parole period of the earlier sentences.

18. The Crown also pointed out that under s 44 of the Act there was no prescription against parole periods being shorter than one quarter of the sentence. Reasons are only required where the parole period is more than one quarter of the sentence; the special circumstances should be specified.

19. The thrust of the applicant’s submission was that while the judge was aware of the earlier sentences he overlooked the effect of the accumulation and making an adjustment for them. The Crown submitted that the non-parole period was not manifestly excessive because

(a) the three traffic sentences which the applicant was serving were totally unrelated to the attempted armed robbery. The unrelated offences were serious particularly having regard to the applicant’s record for various similar offences;

(b) the offence of attempted armed robbery is very serious;

(c) the cumulation of the non-parole periods did not result in an overall sentence disproportionate to the totality of the criminality involved;

(d) to achieve the normal ratio of a non-parole period being three quarters of the effective sentence of sixty nine months the non-parole period would only have to be reduced marginally, that is from three years nine months to three years six and three quarter months, that is two and a quarter months. Overall, the result produced by the judge could not be regarded as disproportionate.

20. It is a pity that the question of accumulation was not addressed in the remarks on sentence. In the address of the legal representative for the applicant it was accepted that a full time custodial sentence would be imposed and that the offence was “most serious”. That address emphasised the emotional turmoil of the applicant after his wife left him but it did not even mention the question of special circumstances or the accumulation. The submissions were directed to the length of the head sentence.

21. The Crown Prosecutor, as often happens, did not deliver a final address. In his opening remarks he drew the judge’s attention to the sentences for the traffic convictions and that the non-parole period expired on 15 November 2002.

22. The impression which the materials leave is that at the hearing no attention was paid to the question of cumulation. It was never put to the judge in address that the applicant would probably need to go to a full time residential drug rehabilitation institution on his release from gaol and thereafter be supervised by the Probation and Parole Service. The evidence pointed to that being necessary.

23. This is a case where the sentence imposed by the judge should be adjusted to allow for the cumulation but not otherwise. I would round off the non-parole period to three years six months. The extension of the parole period will prove an advantage in view of the supervision which the applicant will need on his release. It will be a matter for the parole authorities in the light of the material then available to them to consider whether the applicant should be encouraged or required to undergo an intense full time residential drug and alcohol rehabilitation course.

24. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal allowed in part.

3. Dismiss the appeal against the sentence of imprisonment for five years commencing on 15 November 2002.

4. Quash the non-parole period of three years nine months and in lieu thereof fix a non-parole period of three years six months expiring on 14 May 2006, on which day the applicant will be eligible for release on supervised parole.

25. JAMES J: I agree with the judgment of Smart AJ. The orders of the Court will be as proposed by his Honour.

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Last Modified: 06/17/2003