R v Quarta - [2000] NSWCCA 406

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Quarta [2000] NSWCCA 406

FILE NUMBER(S):
60837/99

HEARING DATE(S): 4 October 2000

JUDGMENT DATE: 04/10/2000

PARTIES:
Crown/Respondent
Justin QUARTA/ Applicant

JUDGMENT OF: Simpson J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0529, 99/11/0476

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
R A Hulme - Crown
G P Meakin - Solicitor

SOLICITORS:
S E O'Connor - Crown
Neil J O'Connor & Associates

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Criminal Procedure Act 1986

DECISION:
Leave to appeal granted - appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60837/99

SIMPSON J
HIDDEN J

4 October 2000

REGINA v Justin QUARTA

Judgment

SIMPSON J :

This is an application for leave to appeal against the asserted severity of sentences imposed upon the applicant on 9 December 1999 by Judge Woods in the District Court following the applicant's plea of guilty to an indictment containing two counts. Count 1 was a charge of being an accessory after the fact of robbery in company. Pursuant to s 97(1) and s 349 of the Crimes Act 1900, offenders convicted under the former section are liable to a maximum penalty of penal servitude for fourteen years. Count 2 was a charge of aggravated dangerous driving causing grievous bodily harm. Pursuant to s 52A of the Crimes Act, the applicant was liable in respect of this offence to imprisonment for eleven years. The circumstance of aggravation was that the applicant was driving the vehicle to escape pursuit by a police officer.
As well, the applicant asked that offences of possession and supply of a prohibited drug, of having on premises goods reasonably suspected of having been stolen, and unlicensed driving, be taken into account pursuant to s 21 of the Criminal Procedure Act 1986.
Judge Woods sentenced the applicant on count 1 to a fixed term of penal servitude for two and a half years. On count 2, and taking into account the s 21 matters, he imposed a total term of penal servitude for five years, made up of a minimum term of three years and an additional term of two years. He specified that the sentences were to be served concurrently, to commence on 16 April 1999, the date the applicant was taken into custody, which was also the date the two offences on the indictment were committed.
The applicant contends that the sentences imposed are manifestly excessive. Particular grounds of the application are that the sentences failed to conform with guideline sentences promulgated by this court in respect of offences against s 52A (R v Jurisic (1998) 45 NSWLR 209) and s 97 (R v Henry [1999] NSWCCA 111; 46 NSWLR 346); that his Honour failed to give adequate weight to certain subjective factors, specifically "the applicant's mental age and psychological difficulties" and that his Honour failed to give adequate benefit to the applicant's pleas of guilty.
At the hearing of the application, the question of a comparison of the applicant's sentence with that imposed on a co-offender was also raised.
The Facts
On 16 April 1999 the applicant, with two co-offenders (David Walsh and Matthew Crowe) as passengers, drove a stolen motor vehicle to a post office in Hunters Hill. While he remained in the car, the other two offenders entered the Post Office, (Crowe masked with a black beanie and wielding a screwdriver), and demanded money of Mr Barry Frost, the postal officer on duty. Crowe held a screwdriver at Mr Frost's throat, and Walsh removed cash from the drawers of the post office. Crowe complained that there was not enough money and, being told that the money was in a time controlled safe, he kicked the safe in an unsuccessful attempt to open it.
Crowe and Walsh then left the Post Office with the money they had been able to take and rejoined the applicant in the waiting vehicle. The applicant drove off.
The events had been observed and the number plate of the vehicle taken by two passers by. They quickly reported the vehicle's number to police who communicated it, presumably, by police radio. Very shortly after, the vehicle was observed by highway patrol police and was pursued at high speed through a number of streets in the area. The applicant ignored signals by police to stop. He crossed unbroken separation lines, drove the wrong way on a roundabout, accelerated away from police, reaching speeds of between ninety and one hundred kilometres per hour in a residential street in which the applicable speed limit is sixty kilometres per hour. He drove through a stop sign failing to stop, disobeyed a give way sign and almost collided with another vehicle. When he could proceed no further because of traffic stopped at a red light, he crossed to the incorrect side of the road where he travelled for about four metres. He then slowed, turned against another traffic light, causing other vehicles to brake suddenly, changed lanes in such a manner as almost to collide with a motor cyclist, again crossed to and travelled on the incorrect side of the road and collided head on with a small sedan driven by Ms Hilma Finch. Ms Finch, aged seventy-four, suffered serious injury and was taken to and remained in Royal Prince Alfred Hospital for three days. She suffered a punctured lung and injuries to the right shoulder and chest area.
The applicant and his two companions were arrested at the scene and taken to hospital. A search of the vehicle produced a black beanie similar to that which Crowe had been wearing as disguise, two screwdrivers, a wheel brace, a black hood with a mesh front and two pairs of gloves. The applicant was found to be in possession of $500.
After treatment the applicant was discharged and taken to Newtown Police Station. He refused to answer questions and declined to be interviewed.
The applicant was, this court was told, initially charged with robbery, or with robbery in company. The charge of accessorial involvement came as a result of negotiations with the prosecution. The relevance of this is that it was contended on his behalf that he entered a plea of guilty at the first reasonable opportunity after the charge was so formulated. This is not disputed by the Crown. This court was also told that he entered a plea to the s 52A charge at the arraignment.
There is not a great deal of information about the s 21 offences. The two drug offences are said to have been committed on 21 December 1998. The supply offence involved a trafficable quantity (10.3 grams) of methyl amphetamine. The possession offence involved a small quantity of cannabis leaf.
The offence of unlicensed driving is said to have been committed on 16 April 1998, but I take this to be an error and should be 1999, being committed as part of the offences on the indictment.
Subjective features
The applicant gave evidence in the sentencing proceedings. Further evidence of his subjective circumstances was put before Judge Woods in the form of a pre-sentence reported and a psychological report. From these sources the following may be derived:
The applicant was born on 8 July 1979. He was therefore not quite twenty years of age at the time of the offences. He had a relatively lengthy criminal history, although his record contains only one charge approaching the seriousness of the present charges. His first contact with the law appears to have been to do with the use of motor vehicles, but in 1996 he was found guilty in the Children's Court of attempting to steal a motor vehicle and of having house breaking implements in his possession. In the same year and still in the Children's Court he was found guilty of robbery in company and a nine month control order was imposed. There were also two charges of escaping lawful custody and one of larceny in 1998.
The psychological report paints a bleak picture of the applicant's early life and goes some way perhaps to explaining his criminal behaviour. His biological father was a heroin addict who displayed some violence to the applicant's mother. The applicant's relationship with his father was never good. His mother also became heroin addicted. His home life was therefore unstable and disrupted. When he was about eight he found his father in the bathroom after a heroin overdose. Although his father survived the overdose, the applicant at first believed that he was dead. His mother confirmed that this event profoundly disturbed the applicant.
About a year later the applicant's mother separated from his father and commenced a methadone programme and ceased using heroin. The applicant continued to see his father on occasions and there was one occasion when his father refused to return him to his mother after a visit. After a week he was able to escape and return to his mother. He continued to be caught in the hostility between his parents. From the age of ten he developed a habit of running away from home and staying with friends until forced to return to his mother. Whilst he was at school his mother was advised to have him tested for Attention Deficit Disorder, but she neglected to follow this up. The psychologist who reported confirmed that the evidence warrants further investigation for this disorder.
Eventually the applicant's mother formed a relationship with her current de facto partner, who does not use drugs and who is now able to provide work for the applicant. Initially, however, the applicant did not develop a good relationship with this man. At about the age of seventeen the applicant, who was then living with his girlfriend and who had employment as a labourer, began using cocaine and ecstasy. After using these drugs he used Rohypnol and marijuana. He progressed to heroin, to which he eventually became addicted. He recognised that this caused his life to go downhill. About a week prior to the present offences, he gave up heroin, but began to use Rohypnol and marijuana to counter the effects of his withdrawal. He told the psychologist, and he said in his evidence, that he had used Rohypnol prior to committing the offences. He said that while in custody on remand he had ceased using drugs, without any organised help from prison authorities.
The psychologist administered a series of tests which disclosed that the applicant had some measure of personality disorder, low self-esteem and has difficulty in establishing relationships. His intellectual functioning is well below average. His literacy level is low.
All of this was before Judge Woods and was referred to by him in his comprehensive remarks on sentence. As it is not suggested that any error, other than those to which I have alluded, can be identified in the remarks on sentence, it is unnecessary to refer to them in detail.
The grounds of the application are that the sentences themselves fall outside the ranges promulgated in the two guideline sentence decisions I have mentioned and of themselves indicate insufficient recognition of the applicant's psychological difficulties and mental age and his pleas of guilty.
There was also the comparison with the sentence imposed on Walsh and it is worth mentioning now the circumstances of that sentence. Walsh pleaded guilty to a single charge of robbery in company. He was sentenced to a total term of five years penal servitude, made up of a minimum term of three years and an additional term of two years. It is to be observed that the applicant's sentence in relation to the accessorial offence was a fixed term of penal servitude for two and a half years.
The guideline sentence in Jurisic was concerned with offences against s 52A. The guidelines pronounced were not directed to the aggravated offence. The judgment explicitly recognised that aggravating factors would justify an increase in the sentence imposed, just as the existence of mitigating factors would justify a reduction.
The fact that the applicant was driving the vehicle in order to escape police pursuit, took the offence into a category different from the category to which the guidelines were directed - a category that increases the maximum sentence available from seven to eleven years. The fact that on his own claim the applicant was driving under the influence of a drug is also a relevant factor, although as the applicant was not charged with aggravation in this sense, the principles of R v De Simoni (1981) 147 CLR 383 would operate to prevent an increase in sentence as a direct result of this factor.
In Jurisic the court declared that for an offence of dangerous driving causing grievous bodily harm, where there was present to a material degree any aggravating factor involving the conduct of the offender, a sentence of less than two years in total should be exceptional. In my view the reference to "aggravating factor" was not intended to incorporate the separate offence of aggravated dangerous driving causing grievous bodily harm. Separate provision is made for that offence. The guideline promulgated was in respect of the offences in their non-aggravated form, but sometimes having regard to aggravating features, for which the maximum penalties are prescribed in s 52A subs (1) and (3). The relevant guideline was promulgated against a prescribed maximum penalty of seven years where, as here, because the offence was a different offence with a prescribed maximum penalty of eleven years, the sentencing starting point must be adjusted to take account of that circumstance.
Moreover, once his Honour had decided, as he did, to impose concurrent sentences, it was necessary for him to have regard to the applicant's total criminality. It is quite artificial to suggest that the guideline in Jurisic defines the upper limit of sentences available, when this offence was part of an ongoing criminal episode. It may be that in strict terms, application of the principles stated in R v Pearce (1998) 194 CLR 610 would require the imposition of separate sentences for the two offences, and considerations of totality require an elaborate balance between concurrence and accumulation.
That may be necessary in some cases where the offences in respect of which sentences are to be imposed, are not as closely intertwined as here. I don't think Pearce demands that exercise in the circumstances of this case. Even if it did, it would result only in an adjustment of the sentences without interference in the overall end result.
In my opinion the sentence imposed in respect of the dangerous driving charge alone was not excessive. If it had been the case that this was the only offence for which the applicant was being sentenced, it would be proper to regard it as at the upper end of the available range, but that was not the case. It has to be remembered that the circumstance the applicant was attempting to escape police pursuit was a seriously aggravating factor in the commission of the offence. Moreover, the length of time during which the applicant drove as he did and the number of lives put at risk cannot be ignored. The account of the facts shows that the dangerous driving took place over a prolonged period of time and involved the commission of a variety of driving offences.
A similar approach was taken on behalf of the applicant to the sentence imposed in relation to the offence of being an accessory to robbery in company. R v Henry is the guideline judgment directed to this offence. The applicant's argument was based on the proposition that a person guilty of the accessorial offence is liable to a lesser penalty than a person convicted of the substantive offence. In Henry, after setting out the various relevant factors, the Chief Justice promulgated in respect of the substantive offence of armed robbery, a total term of between four and five years. I have, on a previous occasion, suggested that an offence of robbery in company should be treated as not dissimilar to the offence of armed robbery: R v Murchie [1999] NSWCCA 424. I adhere to the view I there expressed.
Even accepting that accessorial involvement carries in general a penalty somewhat less than the penalty for the substantive offence, I do not think it can be said that a fixed term of two and a half years for the offences committed by this applicant was excessive. It is of no small significance that the applicant has on his record a previous offence of robbery in company. This fact alone would deprive him of any real claim to leniency. I am satisfied that no error has been demonstrated by reference to these two guideline judgments.
The next argument was that the sentences failed to take account of what was described as the applicant's "mental age and psychological difficulties". It is well established that intellectual or mental dysfunction may operate to warrant leniency in reducing the attention that must be given in sentencing to principles of general deterrence, and in the overall assessment of the offender's culpability; see R v Murchie; R v Fahda (1999) NSWCCA 267; R v Scognamiglio (1991) 56 ACrimR 81; R v Letteri, unreported, NSWCCA 18 March 1992; R v Engert (1995) 84 ACrimR 67; R v Campion (1992) 64 ACrimR 244; R v Wright (1997) 93 ACrimR 48.
However here, as the Crown has pointed out, there is no evidence of the applicant's mental age. He is described as functioning intellectually at below average level and as being immature, but this does not amount to evidence of mental age such as to bring into play the principles stated in the authorities which I have mentioned.
It is true that the evidence of the applicant's psychological difficulties was stronger, and certainly the detailed account of his early history provides some explanation for the path his life has taken. However, the evidence does not amount to evidence of a disorder such as was referred to in the authorities mentioned that would reduce the applicant's culpability or justify a reduction in the relevance of principles of general deterrence.
The final matter raised was that inadequate recognition was given to the applicant for his pleas of guilty. In R v Thomson and Houlton [2000] NSWCCA 309 this court suggested a plea should generally be accorded a discount for its utilitarian value alone, in the range of ten to twenty-five per cent depending upon, inter alia, its timing. I have already observed the matters that were put to this court in relation to the timing of the applicant's pleas of guilty. It may be accepted that they were timely pleas. Judges are, post Thomson, encouraged to quantify the effect of the plea and explicitly to state that it has been taken into account. Here the sentencing judge did make the statement but, sentencing pre-Thomson, he did not quantify the extent of the discount he accorded.
Nevertheless, I see no reason to conclude that the sentences were not discounted within the range proposed in Thomson. The sentences are within orthodox limits, assuming a discount of the range promulgated in Thomson.
The argument that was described as a comparison, not a parity argument, I have already dealt with so far as the factual matters are concerned. It seems to me that Walsh was sentenced to a proportionately greater term of imprisonment in respect of the robbery in company offence and his Honour adequately recognised the difference between the two offences and the maximum penalty guiding the exercise of sentencing discretion in relation to the two offences.
In my opinion, no error has been demonstrated. I would grant leave to appeal, but dismiss the appeal.
HIDDEN J: I agree.
SIMPSON J: The orders of the court will accordingly be as I proposed.

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LAST UPDATED: 17/10/2000