R v M H

[2004] NSWCCA 400

CITATION:	R v M H [2004] NSWCCA 400
HEARING DATE(S):	17/11/2004
JUDGMENT DATE:	17 November 2004
JUDGMENT OF:	Bell J at 19; Buddin J at 1
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal law - appeal against severity of sentence - larceny - worst category of case - discount for plea of guilty and assistance to the authorities
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Gallagher (1991) 23 NSWLR 220 R v Thomson & Houlton (2000) 49 NSWLR 383
PARTIES :	Regina M H
FILE NUMBER(S):	CCA 2004/2529
COUNSEL:	G Rowling (Crown) P Bodor QC (Applicant)
SOLICITORS:	S Kavanagh (Crown) M Rumore (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0360
LOWER COURT JUDICIAL OFFICER :	Ellis DCJ

2004/2529

BELL J
BUDDIN J

WEDNESDAY 17 NOVEMBER 2004

REGINA v MH

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court following his plea of guilty to an offence of larceny. That offence attracts a maximum penalty of 5 years imprisonment. The applicant also asked that two offences of goods in custody, which appeared on a Form 1 document, be taken into account. The applicant was sentenced to 2½ years imprisonment with a non-parole period of 15 months. The sentence was fixed to commence on 28 March 2004 and accordingly the non-parole period will expire on 27 June 2005.

2 The offence to which the applicant pleaded guilty related to the theft of $83,000 which was the property of Brambles Pty Limited. Because the facts of the matter were put in issue by the applicant at the sentencing hearing it will be necessary to set out the findings which the sentencing judge made as they provide the relevant framework for an assessment of the applicant’s grounds of appeal. His Honour said:

I am satisfied beyond reasonable doubt that during the early part of 1997 discussions took place between M H and a person by the name of S S who was then employed as a security guard by Brambles. I am satisfied that those discussions related to, in essence, a sham robbery and that as a consequence of those discussions, M H recruited a number of people to assist in such an illegal enterprise.
I accept that this prisoner was involved heavily in the planning which included surveillance of the movement of the Brambles armoured vans, further liaison with S S and in the delegation of tasks to the various individuals who ultimately took part, those persons being M G, I Z and S A, this prisoner and the person S S.
At about 10.30 am on 27 May 1997 a Brambles armoured van crewed by S S, J C and S W was driven to the Commonwealth Bank at Waterloo. S S was in possession of a Brambles bag containing eighty-three thousand dollars in cash. J C was his escort to the bank. S W remained in the vehicle. I find beyond reasonable doubt that this offender and the man M G approached and made a demand for the money of S S which was part and parcel of the sham arrangement. I find that the prisoner was armed with a sawn off shotgun and that as a result of seeing these two persons approach S S, the other security guard, J C, drew his revolver and fired two shots at the offender and M G. Those shots missed and the offender and M G sought cover. It is difficult to determine precisely what happened thereafter but it is clear that S S either threw the bag to or gave the bag to M G or placed it on the ground where M G was able to grab it. In any event, the bag was taken by M G and he and the offender left the area and ran to a nearby area where I Z and S A were waiting with motor vehicles.
A police investigation commenced and those who participated met at the offender’s flat where a further discussion took part. Within a few days the offenders all travelled to Victoria where they attended the Crown Casino and gambled some of the proceeds of the offence. It is clear that S S received a significant portion probably in the vicinity of fifty per cent of the funds. I am also satisfied that the offender received a substantial quantity of funds, certainly more than the amount that he claims now and at least unlikely to have been more than the twenty-three thousand dollars that he previously indicated he had received. In any event the precise break up in terms of the proceeds need not be determined as it is clear that this offender received a large amount of money as a consequence of this robbery and that each was in fact responsible for the theft of eighty-three thousand dollars from Brambles.
During 1999, M G made admissions as to his part and he also implicated his co-offenders. During the year 2000 all the offenders with the exception of this offender were arrested and all, except for the man S S who made no admissions, implicated the offender. The offender was not arrested until well after the others, that is until 28 May 2001 but I do note that on 28 May 1999 a covert recording was made of a conversation between the offender and a M S. That was a conversation which was in Hindi and which included a number of significant admissions by the offender.
Following his arrest in May of 2001, the offender was interviewed electronically and it is clear that during the course of that interview he lied to police until a portion of the listening device tape of his conversation with M S was played to him. Thereafter he indicated that he was simply big noting himself and that he had known about the offence although he had not participated. He was subsequently charged. No money has been recovered.
In relation to the two Form One matters, the facts are set out in the Form One document and they relate to the possession of the offender of New South Wales driver’s licences, credit cards and other documents which might reasonably be suspected of being stolen or otherwise unlawfully obtained so far as the first of the two matters on the Form One is concerned and so far as the second, relates to New South Wales driver’s licence and proof of age card which again might reasonably be suspected of being stolen or otherwise unlawfully obtained.

3 It is convenient at this point to refer briefly to the course which proceedings took in relation to the various co-offenders. I Z was dealt with first. He pleaded guilty to armed robbery and was sentenced to a term of 3 years imprisonment with a non-parole period of 12 months. His role was to drive the getaway car for M G. He was young and was treated as having no prior convictions. He received a discount of 50% on sentence for his early plea of guilty and for his assistance to authorities, which included an offer to give evidence. M G was acquitted at a trial by judge alone of the offence of armed robbery but convicted of the offence of larceny, to which he had earlier offered to plead guilty. His plea of guilty, his contrition and his offer to assist the authorities by giving evidence and his other favourable subjective features led to his receiving a sentence of periodic detention. This was despite the sentencing judge (Judge Sides) having found that the offence fell into the worst category of offence. This finding was made even though that particular offender did not initiate the plan or carry the gun. S A, who drove the getaway car for the applicant, received a suspended sentence of 15 months. His role was a subsidiary one. He pleaded guilty to larceny at the earliest opportunity and also had undertaken to assist the authorities by giving evidence. S S was acquitted at trial. It was hardly surprising in the circumstances that the applicant did not seek to claim that he entertained a justifiable sense of grievance in respect of any of those sentences.

4 The applicant was born in Fiji into a family of Indian descent. At the age of 5 his family went to live in New Zealand and when he was aged 12, the family moved to Australia and settled in Sydney. The applicant is a permanent resident of this country. When he was aged 17, his father was murdered. His killer has not been brought to justice although for a number of years his mother remained a suspect in the killing. The death of his father and its aftermath unsettled the applicant to a significant degree. He became dependent upon alcohol and also became heavily involved in gambling. He has a child with whom he has little contact. He was married in 2003 to a Korean woman who apparently knew nothing of these proceedings. The sentencing judge heard evidence that the applicant had, for various periods of time, been employed. At the time of sentence he had been working as a factory manager for nearly 12 months. The applicant was aged 24 at the time of the offence and was 31 at the time of sentence. The sentencing judge specifically took into account in the applicant’s favour that there had been a significant period of delay in bringing the matter to finality.

5 The applicant did not have the advantage of a clear criminal record. Nevertheless apart from having on one occasion spent several months in custody pending an appeal to the District Court, he had never previously been to gaol. He had however acquired a number of previous convictions including convictions for offences of dishonesty. He had convictions for stealing; break, enter and steal; attempting to obtain money by deception, as well as several convictions for stealing or unlawful use of a motor vehicle.

6 The sentencing judge allowed a discount “in the order of 10 – 15%” for the utilitarian aspect of the applicant’s plea of guilty and a further discount “in the order of 30%” for the assistance which the applicant had provided to the authorities. His Honour then made a finding of “special circumstances” because of the applicant’s need for ongoing counselling in relation to his gambling addiction and because this was his first substantial sentence of imprisonment.

7 The first ground of appeal asserts that the sentencing judge erred in assessing the offence as “approaching the worst class category”. I have already referred to the factual findings at which the sentencing judge arrived. The applicant’s role in this offence amply justified his Honour’s finding that he was a principal offender. The offence was committed as the result of careful planning and was thus clearly premeditated. It was also executed, as the sentencing judge found, in a professional manner. The possession of the firearm, which was intended to give the sham robbery a greater degree of authenticity, clearly enough had the potential to give rise to a highly dangerous situation. The fact that the applicant was armed and that shots were fired, albeit by one of the victims of the offence, indicated that the offence was committed without any regard for the safety of the bank officers, security personnel or members of the public who were involved in, or who observed the incident. The sentencing judge was nonetheless alive to the need to approach this issue with appropriate circumspection. His Honour said:

It is clear to me that the only relevance of the possession of the firearm is not that it was possessed for the purpose of the offence per se as it would be for the offence of armed robbery but rather it was possessed to simply give the sham robbery a more realistic appearance to any onlookers.

8 Nevertheless the sentencing judge took into account the fact that no substantial injury or harm was occasioned to any person. It was submitted that the amount of money taken was, in the scheme of things, not particularly large and was of itself a sufficient reason to remove the case from being in the worst category. Neither of those considerations could, in my view, be regarded as matters which disentitled the sentencing judge from characterising the objective gravity of the offence in the way in which his Honour did. I would reject this ground of appeal.

9 The second ground of appeal is that the sentencing judge erred in giving insufficient weight to the plea of guilty. Whilst it was recognised that the discount allowed for this aspect of the matter fell within the range identified by this court in R v Thomson & Houlton (2000) 49 NSWLR 383, it was submitted that a more generous discount was called for in the circumstances of the case.

10 The applicant was presented upon an indictment on 22 May 2003 which contained a count for armed robbery and an alternative count for larceny. His plea of guilty to the larceny was accepted by the Crown in full satisfaction of the indictment. The applicant was first charged with the larceny offence in the Local Court in November 2002 during the course of the committal hearing at which he had legal representation. Although the Crown had indicated as early as December 2002 that a plea to that offence would be accepted in full discharge, it was not until six months later that the plea was actually entered. The matter was adjourned on a number of occasions in the interim. It is not necessary in my view to descend into the details of what occasioned the various adjournments. I am content to proceed upon the basis that they were not all at the behest of the applicant. In those circumstances however, the sentencing judge found, as he was entitled to do, that the plea was not entered at the first available opportunity. The timeliness of the plea is of course a key ingredient in any evaluation of the extent of the discount to be allowed. Furthermore, this was not a case in which the applicant could claim that he had admitted his involvement in the matter when interviewed by police. Indeed the case against him depended upon the contents of a listening device which captured a conversation between him and another person as well as evidence from his co-offenders In those circumstances I am not persuaded that this Ground of Appeal has been established.

11 In any event, this question ought not to be considered in isolation from the question of the discount allowed for assistance to the authorities. In R v Gallagher (1991) 23 NSWLR 220 this Court said:

“an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical” (at 228).

12 The final Ground of Appeal is that the sentencing judge “erred in failing to recognise the rehabilitation of the applicant”. This ground takes as its starting point the fact that the applicant received a 30% discount for his assistance to the authorities. It was submitted that that discount did not accurately reflect the significance of the assistance which the applicant had provided. It was pointed out that more generous discounts have been allowed in other cases.

13 The sentencing judge described the assistance which the applicant had provided in the following terms:

Since his arrest in relation to these matters, he attended voluntarily at the Australian Crime Commission and thereafter provided what has been described as significant information to that Commission in relation to a number of different areas. Those matters are set out in a letter of assistance provided by Mr Robert McDonald, a Director of the National Operations of the Australian Crime Commission dated 29 March 2004. The content of that letter was expanded upon by investigator Stephen Emes who gave evidence before me today in relation to the assistance. The assistance has been by way of information rather than by way of the giving of any evidence in any proceedings. The information provided has been significant according to the Australian Crime Commission in a number of areas in relation to fraud prosecutions and joint investigation of the Australian Taxation Office and the Australian Crime Commission in relation to a number of accountants regarding a number of credit card frauds and in relation to information which was provided which was significant [in] that it involved information regarding a threat being made to an officer of the Australian Crime Commission. That threat was subsequently substantiated by the investigations of the Commission and safeguard steps were taken in response to the offender’s assistance. The offender also provided information which has not as yet but may well involve a new investigation being undertaken by the Australian Crime Commission in relation to key ring firearms. The information which has been provided has been described as significant.

14 The sentencing judge was aware that the weight to be attributed to this factor was to be evaluated in light of the considerations set out in s 23(2) of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge had regard to the matters therein identified. His Honour observed that the applicant had indicated that he was not prepared to give evidence in relation to any of the matters about which he had provided information because of fears of retribution which the evidence revealed that he quite reasonably entertained. Furthermore, as the sentencing judge observed, because the applicant was not prepared to sign an undertaking to give evidence, he was not amenable to a Crown appeal if he failed to honour that undertaking. There was also an absence of any evidence before the sentencing judge to the effect that the applicant would, by reason of his assistance to authorities, be obliged to endure the more onerous conditions of protective custody whilst serving his sentence.

15 His Honour also noted that the information which the applicant had provided concerned matters that were unrelated to the present offences. His Honour was also aware that the applicant was to be registered as an informer and that there was some prospect that he would, in that capacity, continue to provide assistance to the authorities. Finally, as the sentencing judge observed, he was constrained, by reason of s 23(3) of the Act, not to allow a discount for assistance that had the effect of producing a penalty that was disproportionate to the nature and circumstances of the offence.

16 I referred earlier to this court’s decision in Gallagher. The combined discount which the sentencing judge extended to the applicant for his plea of guilty and for his assistance to the authorities was in the order of 40% - 45%. On any view of the matter that was a generous discount. In all those circumstances I am not persuaded that error has been established.

17 An allied submission was made that the assistance which the applicant provided was a powerful indicator of his ongoing rehabilitation, a matter which ought to have been reflected in the sentence. The sentencing judge observed that he was “unable to positively reach [the] conclusion” that the applicant had “good prospects of rehabilitation”. In arriving at that conclusion, his Honour made specific reference to the fact that he had found that the applicant was “a very unimpressive witness” when he gave evidence during the course of the sentencing hearing. His Honour said that the applicant was not prepared to admit the full extent of his involvement in the offence, a fact which bore upon the question of whether he was remorseful and also whether he had good prospects of rehabilitation. Nor, it may be observed was the applicant completely candid with the author of the pre-sentence report about his role in this offence. His Honour was certainly not bound, in light of all that evidence, to arrive at a positive finding upon the issue of rehabilitation. Moreover it is to be observed that the applicant had committed further offences subsequent to the one which is presently under consideration. In my view the applicant has failed to establish that error of the relevant kind was made by the sentencing judge.

18 I would reject this Ground of Appeal. That being so, I propose that leave to appeal be granted and the appeal be dismissed.

19 BELL J: I agree. The order of the Court will be as Buddin J proposed. I direct that the exhibit in the sealed envelope be resealed and not opened without further order of a judge of this Court.

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Last Modified: 11/29/2004