R v Page (No 2)

[2012] NSWDC 308

District Court

New South Wales

Medium Neutral Citation:	R v Page (No 2) [2012] NSWDC 308
Decision date:	25 May 2012
Before:	Cogswell SC DCJ
Decision:	For the offence of robbery in company a sentence of 4 years imprisonment. Non-parole period 2½ years.
Catchwords:	CRIMINAL LAW - Sentence - particular offence - robbery in company - relevant factors - nature of offence - threatened use of weapon aggravating factor - gravity of offence - opportunistic crime - response to charges - no plea of guilty - parity not applicable - co-offender sentenced for different offence - time spent in custody - protective custody - nature of offender - negligible criminal record - respectable employment history - young, acknowledges drug and alcohol problem - special circumstances found - sentencing procedure - sentencing guideline judgment - Henry.
Legislation Cited:	Crimes Act 1900 (NSW) s 94, 97. Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10, 12.
Cases Cited:	R v Henry [1999] NSWCCA 111; 46 NSWLR 346; 106 A Crim R 149.
Category:	Sentence
Parties:	Regina (Crown) Harley Page (accused)
Representation:	Counsel: GW Coles (Crown) S Corish (accused)
File Number(s):	DC 2011/00026212

SENTENCE

1. Harley Page was charged by the police with robbery in company. He denied that he was guilty and the Director of Public Prosecutions found an indictment against him for that crime and it was presented before a jury in Newcastle earlier this year. I presided over the trial and at the end of trial, on 17 February 2012, the jury found Mr Harley Page guilty of robbery in company. What I am doing this morning is sentencing Mr Page for that offence.

1. I need to say something about what happened that brought about the charge and I also need to make reference to his personal circumstances, as well as to the arguments which have been presented to me this morning by his representative, Mr S Corish of counsel, and by Mr GW Coles, the solicitor advocate who appears for the Director of Public Prosecutions.

1. The offence occurred in the streets of Newcastle at night time on 20 January 2011. A group of four young people had spent the evening together and were making their way home. Two men approached the group. One was Mr Harley Page. The other was his brother, Levi Page.

1. One of the young men was Mr Jordan Smith. He gave a description of what happened personally to him. Harley Page, I accept beyond reasonable doubt, was carrying something in his hand which was something like an iron bar or steel bar. He confronted Jordan Smith and was, I accept, about an arm's length away from Jordan Smith. Jordan Smith backed away towards a laneway and at some stage Harley Page was joined by his brother, Levi Page, in this confrontation. Jordan Smith describes both men as being an arm's length away from him. He took some extra steps while he was walking back, he missed a step or two and then Levi Page broke away and focused his attention on one of the other group. Jordan Smith gave an estimate of about 30 seconds to a minute that he was confronted by both men, including Harley Page.

1. I am not satisfied beyond reasonable doubt that that estimate is an exact estimate of the period of time of the confrontation. I say that because there was a lot going on for Jordan Smith at the time and making estimates of the period of time over which such events occurred must be very difficult. However, I am satisfied beyond reasonable doubt that for at least a few moments - which involved a period of time that Jordan Smith was walking backwards and taking several steps - he was confronted by both men, one of whom, Harley Page, was carrying something threatening like an iron bar.

1. Jordan Smith said that he had "hardly any money". He pulled his wallet out sensibly and readily. In fact he had some coins in his wallet which he made available to Harley Page. Harley Page took the coins. That completed the robbery in company.

1. There was, I accept, no threat of violence uttered in words by Harley Page towards Jordan Smith but Harley Page's behaviour in confronting Jordan Smith was clearly designed, successfully, to secure compliance with Harley Page's demand for money. I accept that is was done, as Mr Coles said, in a calculated way in the sense that the iron bar was obviously meant to assist in compelling the victim to comply with the demand.

1. Harley Page and his brother got away but were arrested a short time later.

1. I should add that I take into account as an aggravating factor of the robbery in company the fact that it involved the threatened use of a weapon. I accept that the iron bar was in Harley Page's hand and was being moved around, not in any directly threatening way but it was clearly there and had a threatening effect. I do not take into account as an additional aggravating factor that the offence involved actual or threatened use of violence. To my mind the aggravating feature of the use or threatened use of a weapon covers that in the circumstances of this case.

1. It was an opportunistic crime. Harley Page and his brother had been drinking for a long time and were well affected by alcohol.

1. Levi Page pleaded guilty to an assault with an attempt to rob one of the other young men. That crime is an offence against s 94 of the Crimes Act 1900 (NSW) and carries a maximum of 14 years imprisonment.

1. The crime that I am sentencing Harley Page for, namely robbery in company, is a more serious offence. It is a crime against s 97(1) of the Crimes Act and carries a maximum of 20 years imprisonment.

1. When Levi Page pleaded guilty, I sentenced him to imprisonment for 2 years but suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Mr Corish acknowledged that the principle of parity does not strictly apply because I sentenced Levi Page for a different offence which carried a different maximum but, as he observed, Harley Page's crime arose out of the same facts.

1. Harley Page, when he was tried earlier this year, was already in custody, bail refused, charged with other offences. He has been in custody since 26 August 2011 and I will date my sentence from that date. Although he has been in custody between 26 August 2011 and my refusal of bail on 17 February 2012 when he was found guilty, I am going to take that other period into account because I am advised by Mr Corish he has not yet been tried for those other offences. There is obviously the possibility that he could be acquitted of the other offences and that period in custody would never be taken into account. If I do take it into account in this sentence and he is convicted and sentenced for one or other of the other offences then the sentencing judge can take into account the fact that I have backdated this sentence.

1. Harley Page has a criminal record, but I regard it as negligible. There are some offences involving use of a car and a malicious damage to property and a resist arrest. He was fined for all of those offences. I do not take into account at all two offences which occurred in 2009 for which he received a good behaviour bond under s 10 of the Crimes (Sentencing Procedure) Act because there was no conviction involved.

1. A pre-sentence report has been prepared by a Probation and Parole Officer for Mr Harley Page. He has been taking cannabis and alcohol since his mid-teen years and has, as the Probation Officer described, "a history of drug and alcohol use from his teenage years which has developed into a significant AOD problem". I do not agree that his employment history, described as "negligent" (which I assume should read "negligible") by the Probation and Parole Officer should be so described. His employment history is respectable having been in employment for some 6 months before he was arrested for this offence. Harley Page has recently turned 23.

1. Mr Coles in his written and oral submissions reminded me of the guideline judgment for armed robbery which also applies to robbery in company. The guideline judgment that he was referring to was of course R v Henry [1999] NSWCCA 111; 46 NSWLR 346; 106 A Crim R 149. Most of the factors which are referred to in the guideline judgment are relevant to Mr Harley Page. I do take into account, as Mr Corish has said, that the weapon held by his client, namely the iron bar, was slightly less serious than a knife and was not expressly used in a threatening way. However, the distinction is not great. The weapon was still capable of inflicting serious injury as the Court of Criminal Appeal said in Henry. The significant difference of course between Mr Harley Page's case and the guideline judgment is that Mr Harley Page has been convicted by me - which I do so now in case I have not before - after being found guilty by a jury. That does not make his penalty any more severe at all, but it means that he does not have the benefit which is accorded to those who plead guilty and that benefit is taken into account in the guideline judgment.

1. I have had regard also to the statistics from the Judicial Commission which have been made available to me by Mr Coles which became MFI 1.

1. I have also taken into account that, as Mr Corish pointed out this morning, his client is serving his period in custody in protective custody. Were it not for that factor, I would have regarded an appropriate sentence as one of 4½ years in custody but I propose to fix a sentence of 4 years in custody. It is not below the range in Henry which Mr Corish agitated me to impose. The reason for that is that Mr Harley Page does not have the significant benefit of a plea of guilty.

1. He is still a young man and, as Mr Corish says, acknowledges his drug and alcohol problem which is a good start. I propose to consider that as a special circumstance for adjusting the normal ratio between a non-parole period and a full sentence. Normally, a non-parole period is three quarters of a full sentence, so in this case Mr Harley Page should serve a non-parole period of 3 years. I propose to reduce that to 2½ years. As I have said, I propose to backdate the sentence to when he first went into custody on 26 August 2011. So the sentence that I will impose in a moment will be from 26 August 2011 to 25 August 2015. The non-parole period will be from 26 August 2011 to 25 February 2014.

1. I convict you of the offence Mr Page and I set a non-parole period of 2½ years to commence on 26 August 2011 and to expire on 25 February 2014. The balance of the term will be 18 months commencing on 26 February 2014 and expiring on 25 August 2015. The overall sentence is 4 years. The first date on which you will be eligible for parole is 25 February 2014.

HIS HONOUR: Two things gentlemen. One is any factual issues could be dealt with now; and the second is the mathematics.

CORISH: No your Honour.

HIS HONOUR: Because the sentence is over 3 years I don't give an order for parole.

CORISH: You don't order that he be released to parole, that's not up to you now your Honour, that's up to the Parole Board - Parole Authority they now call themselves or Parliament now calls them.

HIS HONOUR: Yes, alright.

1. Harley Page, you have received a 4 year sentence. I backdated it for the reasons that I said when you were first arrested for other matters on 26 August 2011. Your sentence expires 4 years from then, so your sentence expires on 25 August 2015. The non-parole period is a bit less than it should be. Normally it would be 3 years for a 4 year sentence but I have made it 2½ years. It starts as well on when you were arrested first up and it will expire on 25 February 2014. As Mr Corish and I just said, I do not order your release on that day. The Parole Authority will deal with whether you get parole on 25 February 2014 or not. It depends on all sorts of factors.

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Decision last updated: 25 July 2014