R v Mannering - [2001] NSWCCA 275

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Mannering [2001] NSWCCA 275

FILE NUMBER(S):
60633/2000

HEARING DATE(S): 9 July 2001

JUDGMENT DATE: 09/07/2001

PARTIES:
Crown - Respondent
Rodney Mannering - Applicant

JUDGMENT OF: Simpson J Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0434

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
P G Berman SC - Crown
P R Boulton - Applicant

SOLICITORS:
S E O'Connor
D J Hunphreys

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted, appeal allowed, sentence quashed - in lieu thereof, the applicant sentenced to imprisonment for three and a half years to commence on 13 April 2000 with a non parole period of two years and three months.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60633/00

SIMPSON J
SPERLING J

9 July 2001

REGINA v Rodney MANNERING

Judgment

SIMPSON J :

The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 11 August 2000 following his plea of guilty to a charge of robbery brought under s 94 of the Crimes Act 1900. Such an offence exposed him to a maximum penalty of imprisonment for 14 years. The District Court judge sentenced the applicant to imprisonment for five years with a non-parole period of three years.
The facts of the offence are, unfortunately, unremarkable. It was committed during the morning of 10 January 2000. The applicant entered a mixed business store in Stanmore, selected a bottle of Coca Cola and asked the attendant, a 69 year old woman, for a packet of cigarettes. He then produced a spray which was a capsicum spray, and directed this towards her. She, naturally, feared for her safety. The applicant opened the cash register and took between $50 and $100 from it. He left the shop and was chased by some witnesses. He drove off in a motor vehicle which was registered in his mother's name. His mother had died in November 1999.
The applicant sprayed the substance into the eyes of the victim which caused them to sting and itch for some time.
The applicant was arrested on 13 April 2000 in relation to a different incident. He had been identified as a suspect in the robbery because of the registration number of the motor vehicle in which he drove off. He was interviewed after his arrest but made no admissions. He agreed to participate in a line up but this did not occur through no fault of the applicant. He entered a plea of guilty in the Local Court.
The applicant gave evidence in the sentencing proceedings and the sentencing judge had available to him a presentence report and a comprehensive psychological assessment. The applicant was born on 1 November 1960 and was therefore just 39 years of age at the time of the offence. He has a criminal record which the sentencing judge described as "of a relatively minor nature going back to juvenile days". This was a rather generous assessment on the part of the judge, but not unavailable to him and is not challenged. The record shows that the applicant's history has involved repeated use of drugs, generally amphetamines or marijuana. He does not appear to have served any previous terms of imprisonment.
The applicant had, however, become involved in the use of heroin. The evidence he gave was that he initially began using heroin to enable him to cope with pain he was suffering as a result of a serious motorcycle accident in 1988. He had been introduced to heroin by a woman with whom he had an association and with whom he had four children, and who was, herself, a heroin user. Indeed, one of the four children born to the applicant and this woman died shortly after birth and the applicant believed that the death was or may have been attributable to the woman's drug use.
The association with the woman had ceased in about 1989 but the applicant continued to use heroin.
He was living with his mother with whom he had close attachment. She died of cancer in November 1999, having had the disease for many years. The applicant asserts that he had difficulty coping with her death which increased his heroin use. It was for this reason that he committed the offence, that is, to obtain money to provide himself with heroin. He claimed to the psychologist that he had not planned to rob the store and that he had only taken enough money to purchase one dose of heroin.
He expressed remorse for the offence, both to the psychologist and in the evidence he gave to the sentencing judge.
There was evidence that the applicant had taken steps towards overcoming his drug problem. He had in fact entered a detoxification unit at Rozelle Hospital and been assessed favourably by the Salvation Army for entry into its similar programme.
Sentencing the applicant the judge cautioned himself against committing error of the kind identified in R v De Simoni (1981) 147 CLR 383. He was conscious that the charge with which he was dealing was a charge under s 94 of the Crimes Act 1900, that is, an offence of robbery. He gave himself this caution because the circumstances of the offence in fact established that the applicant could have been convicted of an offence under s 97, that is, robbery with an offensive weapon. Such an offence would carry a maximum penalty of imprisonment for 20 years.
Although his Honour did not mention it, the sentence he in fact imposed was at the upper limit of the guideline promulgated in R v Henry [1999] NSWCCA 346. That is, his Honour imposed a sentence promulgated as appropriate for offences of armed robbery that carry the larger maximum. The applicant was, of course, entitled to be sentenced in accordance with a sentencing regime that had a significantly lower starting point.
It may also be observed that on a number of counts, the applicant does not fit neatly into the profile to which the guideline in R v Henry is directed. Further, it is apparent from the remarks on sentence that the use of the capsicum spray - an offensive weapon - played a significant part in his Honour's assessment of the gravity of the crime. He made a number of remarks about the effect or potential effect on the victim of this fact.
The Crown has conceded that an error of this kind has been established in the sentencing process and that it is therefore necessary for this Court to re-sentence. In written submissions provided today, however, the Crown maintains that the error is limited and that while this Court must re-sentence, if there is any reduction in sentence at all, it should be modest. Indeed the Crown has submitted that, in re-sentencing, this court could impose the same sentence as was imposed at first instance.
In earlier submissions the Crown conceded that as his Honour took into the account the use of an offensive weapon in sentencing for an offence of which use of an offensive weapon is not an element, he transgressed the principle stated in De Simoni.
There is a level artificiality in the exercise the judge was required to perform. Plainly the use of the capsicum spray is a serious aspect of the event. However, it was not part of the offence charged and De Simoni makes it plain that it was not open to be taken into account. Accordingly, it is, as conceded, necessary that the applicant be re-sentenced.
This court received additional material to be used for the purpose of re-sentencing. It has received an affidavit affirmed by the applicant on 5 July 2001 and another affirmed by Miss Calomeris, his solicitor, on the same day. Annexures to the latter affidavit and the content of the applicant's affidavit demonstrate that he is working towards his rehabilitation whilst in custody and is described as a very committed inmate and a hard working one. Reports are generally very favourable.
There was some argument about the extent to which this court should give additional weight to the applicant's early plea of guilty, which was acknowledged to have been entered at an earlier stage, and his demonstrated contrition which appears to have been accepted as genuine by the sentencing judge.
The argument on the part of Crown was that he had already received the benefit of these circumstances from the sentencing judge and that any reduction given by this Court should not give additional weight to those factors but should be, in effect, a proportional reduction in the sentence to allow for the De Simoni error. I think it would be appropriate to specify the reduction that this Court would allow for the plea of guilty. The Crown case was strong, but there is, nevertheless, a utilitarian benefit in the applicant's plea. It was entered at an early stage and it does appear to have been accompanied by real contrition for the offence.
I would, before discount for the plea of guilty, impose a head sentence of four years, but by reason of the plea of guilty, I would reduce that to three and a half years. I would adopt the sentencing judge's finding that special circumstances exist justifying departure from the statutory proportions between the head sentence and the non-parole period.
The orders I propose are:
1. Leave to appeal be granted.
2. The appeal be allowed; the sentence quashed.
3. In lieu thereof, the applicant be sentenced to imprisonment for three and a half years to commence of 13 April 2000 with a non-parole period of two years and three months.
SPERLING: I agree.
SIMPSON J: The orders will be as I have proposed.

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LAST UPDATED: 16/07/2001