R v Ridgeway - [2000] NSWCCA 286

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v D B K Ridgeway [2000] NSWCCA 286

FILE NUMBER(S):
60203/00

HEARING DATE(S): 04/08/00

JUDGMENT DATE: 24/08/2000

PARTIES:
Regina
Daniel Brent Kenneth Ridgeway

JUDGMENT OF: Beazley JA Grove J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/21/1215

LOWER COURT JUDICIAL OFFICER: Backhouse DCJ

COUNSEL:
L M B Lamprati/S Piedade (Crown/App)
R Burgess (Resp)

SOLICITORS:
S E O'Connor (Crown/App)
D J Humphreys - LAC (Resp)

CATCHWORDS:
CRIMINAL PRACTICE & PROCEDURE
Crown appeal against inadequacy of sentence
Sentencing guidelines - armed robbery
If departure from guidelines, reasons should be given
Whether double jeopardy justifies not altering non-parole period

LEGISLATION CITED:
Criminal Appeal Act, 1912 - s5D
Crimes Act, 1900 - s97(1): s114: s188: s195
Drug Misuse & Trafficking Act, 1985 - s25

DECISION:
Ref para 52

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60203/00

BEAZLEY JA
GROVE J
KIRBY J

Thursday 24 August 2000
REGINA v Daniel Brent Kenneth RIDGEWAY
JUDGMENT

BEAZLEY JA: I agree with Kirby J.
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GROVE J: I have had the advantage of reading the judgment of Kirby J in draft form. Save the specification of a non-parole period exactly equivalent to the minimum term imposed by Backhouse DCJ, I agree with that judgment.
It seems to me that the conclusions that the sentences in the District Court were manifestly inadequate and that the case was not one for the exercise of the residual discretion of this court to dismiss a Crown appeal could not stand consistently with a resentence in which the mandatory period of custody did not vary, and necessarily vary upwards.
For the reasons given by Kirby J there is cause for optimism about the respondent’s future which I share but in my opinion the very least non parole period should be one fixed at two and one half years.
I would allow the Crown appeal and quash the sentences below and in lieu thereof sentence the respondent on each count to imprisonment for four years with a non parole period of two and one half years, sentence and non parole period commencing on 1 June 1999. Sentences to be served concurrently and earliest date of eligibility for parole specified as 30 November 2001.
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KIRBY J: This is a Crown appeal against sentence (s5D Criminal Appeal, Act 1912). The Director of Public Prosecutions appeals against the sentence imposed by her Honour Judge Backhouse QC upon Daniel Brent Kenneth Ridgeway on 11 February 2000.
Mr Ridgeway pleaded guilty to two counts of robbery whilst armed with an offensive weapon (s97(1) Crimes Act, 1900). He also asked her Honour to take account of a number of offences which were included on Form 1. There were ten such charges, as follows:

two charges of malicious damage to property (s195 Crimes Act)
five charges of stealing
a charge of receiving (s188 Crimes Act)
a charge of possessing without lawful excuse implements capable of being used to enter a conveyance (s114 Crimes Act)
possessing a prohibited drug (s25 Drug Misuse & Trafficking Act, 1985)

Taking account of the matters on Form 1, Backhouse DCJ imposed a sentence of three years imprisonment on each charge. The sentences were concurrent. Her Honour found special circumstances. She fixed, in respect of each charge, a minimum term of two years, with an additional term of one year.
The Circumstances of Each Charge
Each robbery displayed some planning, although not much. Mr Ridgeway, on both occasions, was in company. The crime was, in each case, captured on film by surveillance cameras. In neither case did Mr Ridgeway attempt to alter his appearance by disguise. When the surveillance films were viewed by police, Mr Ridgeway was immediately recognised.
The first robbery took place on 18 May 1999. Money was demanded from a female attendant in a video store in Liverpool. The offence occurred at 7.50 pm. The circumstances were described in a document placed before her Honour, which was in these terms:
“Upon entering the store the prisoner looked around whilst the co-accused Smith and two further unidentified co-accused kept watch at the front of the store. At this point in time the prisoner approached the store attendant, Jean Mulheron, and handed her a $5.00 note requesting change. The victim Mulheron opened the cash register with the view of giving change when all of a sudden the prisoner produced a hypodermic syringe which he pointed towards the victim and demanded, ‘Give me the money.’”
The attendant was terrified. Having emptied the contents of the cash register into a plastic bag, Mr Ridgeway, at the suggestion of his companion, then demanded that she turn out her pockets. More money was taken, making a total of $300.
A victim impact statement was placed before the sentencing Judge. The person from whom the demand was made continues to re-live the terror of that night. It has effected her confidence. It has made her suspicious. She has experienced depression, although she has made some recovery.
The second robbery occurred within a matter of days. It took place on 31 May 1999. Mr Ridgeway and a companion entered a service station. The companion had a machete. The offence occurred late at night (11.50 pm). Again the victim was a female attendant. Money was demanded. The attendant produced $170 from the register. It was placed in a plastic bag. Mr Ridgeway and his associate then left the service station by car.
The police were immediately notified. A description of the car, and the offenders, was provided. Within twenty minutes the car was intercepted. It was searched, and the machete was found. Mr Ridgeway’s companion was also found to have the money which had been stolen (or so much of it as remained after the purchase of cigarettes). Notwithstanding the video surveillance film, Mr Ridgeway, at first, denied any involvement. He later, however, acknowledged his part in the crime.
The Form 1 Offences
Mr Ridgeway was born on 30 November 1978. He is therefore 21 years old. The Form 1 offences occurred when he was 19 years old. They span a period of time between December 1997 and 17 May 1998. The charges of malicious damage apparently arose out of an argument with his sister. They occurred in March 1998. The damage in each case was to a window in his sister’s home.
There were several offences of stealing which Mr Ridgeway acknowledged. They related to the same period (March 1998). Individual charges of theft were laid in respect of a CD player, a video and television, and a blender. The receiving charge related to 17 compact discs found in Mr Ridgeway’s possession when he was searched by the police. The implements in his possession were car keys. The prohibited drug was a small rock of heroin. The other two stealing charges related to a video game play station, and to a wallet said to belong to his employer.
Individually these charges were not as serious as many which come before these Courts. Collectively, nonetheless, they demonstrated a problem. Mr Ridgeway, as he later acknowledged, had chosen at this time to live outside the law.
The Subjective Case of Mr Ridgeway
The subjective features of Mr Ridgeway’s case provided a strong counterpoint to this bleak picture. Mr Ridgeway had experienced considerable hardship in his early years. His father, apparently, had spent much of his life in gaol. Mr Ridgeway first met his father at the age of 12 years. Soon thereafter his father again disappeared from his life. In his early childhood he and his sister were abandoned by their mother. He was thereafter cared for by his grandmother until she died, and then by his aunt. He showed some promise at school, but was obliged to leave early to earn a living. He obtained work as an apprentice chef. He completed part of a TAFE course as a cook. Again, for economic reasons, he was obliged to abandon that course. He became a labourer, working as a furniture removalist. He fell into bad company, and began experimenting with drugs. He smoked marijuana and later heroin. On three occasions he used heroin intravenously.
For the purposes of sentence, he was interviewed by Ms Katherine Barrier, psychologist. She furnished a report dated 4 February 2000. Her report provides some basis for optimism. First, she detected in Mr Ridgeway no serious psychopathology. Secondly, she saw what she regarded as genuine remorse. Judge Backhouse accepted that Mr Ridgeway had shown remorse.
Thirdly, Ms Barrier also saw genuine dismay, on the part of Mr Ridgeway, as to the way in which his life had rapidly fallen apart, under the influence of drugs. He had resolved, in the future, to have nothing to do with drugs. He had successfully maintained that resolve within prison, notwithstanding the availability of drugs. He had undergone a number of urine tests, and been found to be drug free.
Fourthly, Ms Barrier believed Mr Ridgeway may benefit from further formal education. He expressed an intention of pursuing the Higher School Certificate.
There is a further reason for optimism. Mr Ridgeway has re-established his relationship with his mother, who is now living in Kempsey. He also has the support of a family friend, Mr Bourke. Mr Bourke gave evidence on his behalf before Backhouse DCJ. Mr Ridgeway, therefore, is not as isolated as he was.
Unquestionably, there was, therefore, a strong subjective case made out on behalf of Mr Ridgeway.
Complaints by the Crown
Her Honour, in her remarks on sentence, referred to the guideline judgment (R v Henry (1999) 46 NSWLR 346). She said this:
“I also mention at this point of time that the Court of Criminal Appeal in its decision in R v Henry, which was, I think, a Bench of five judges, gave their judgment on 12 May last year and laid down guidelines in respect of offences of this kind. Indeed, the Court at page 58 of its judgement set out in paragraph 162 a number of factors which it indicated that crimes involving those factors would normally call for a sentence within a range of - to generally fall between four and five years for the full term and that aggravating and mitigating factors will justify a sentence below or above the average, which itself is a starting point.”
The Crown identified four matters which should have been regarded by the sentencing Judge as features of aggravation.
First, the guideline judgment was concerned with one armed robbery. Mr Ridgeway was being sentenced for two such robberies.
Secondly, the offences acknowledged in Form 1 could not be ignored. Applying the principle of totality, the sentence needed to reflect the criminality involved in all offences.
Thirdly, the robberies occurred during the currency of a recognisance imposed upon Mr Ridgeway on 17 May 1998, and expressed to bind him for a period of one year. Indeed, the first robbery occurred the day after that recognisance had been imposed (18 May 1998).
Fourthly, the threat offered in the first robbery, at the video store, was a syringe. The use of a syringe as a weapon has been especially condemned by the Court of Criminal Appeal (R v Micallef (CCA, unreported, 3 November 1997)).
The Crown asserted, therefore, that in selecting a sentence one year below the minimum term in the range suggested by the guideline judgment, her Honour had failed to reflect the objective seriousness of the offences (R v Rushby (1977) 1 NSWLR 594).
The Response on Behalf of Mr Ridgeway
Counsel for Mr Ridgeway responded to these arguments in a number of ways.
First, her Honour was entitled to discount the sentence which she imposed by reason of the co-operation of Mr Ridgeway, and his plea of guilty. The victim thought that Mr Ridgeway had a syringe. However, it was concealed within his sleeve. She was, therefore, unsure. In these circumstances, although conviction for robbery was inevitable, conviction for robbery using a syringe was not. For my part I do not find such an argument persuasive. At best, it removes one aspect of aggravation, namely, the syringe. The offence remains that of armed robbery.
Secondly, it was said on behalf of Mr Ridgeway that there were no aggravating features associated with the syringe. It was not filled with blood. There was no reference to AIDS (which might engender even greater terror). Again, however, I do not find such an argument attractive. The threat from a syringe is implicitly a threat of infection through AIDS. A syringe is hardly a weapon without such a threat.
Thirdly, it was said that the offence demonstrated little planning. However, the profile of a typical offence under the guideline judgment (to which I will shortly refer) assumes little or no planning.
Fourthly, Mr Ridgeway received no discount for having provided assistance to the authorities. Yet, it was argued, he might legitimately have claimed such a discount, he having provided the police with the name of his co-offender in the first robbery. I do not believe, however, that naming Mr Smith can be regarded as assistance, or, at least, can be regarded as useful assistance (cf The Queen v Yenice (1994) 72 A Crim R 234, per Hunt CJ at CL at 239). Mr Ridgeway was made aware at the time of his arrest that Mr Smith had already been interviewed, and arrested. He simply provided a narrative in response to the questions asked by the police. The narrative happened to include (appropriately) Mr Smith, who was involved.
It was further submitted that Backhouse DCJ was not in error in attaching considerable significance to the strong subjective case of Mr Ridgeway. On this aspect, three arguments were advanced on behalf of Mr Ridgeway.
First, whatever the objective gravity of the charges, they must be weighed along with the individual circumstances of the person being sentenced. Mahoney ACJ in R v Lattouf (CCA, unreported, 12 December 1996) said this: (at 7)
“There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it. That is clear from what I have said as to the principles in Readman and Roberts. But there are other interests to which the sentencing process must have regard; there are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest. A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be put aside.”
Secondly, even in the context of an armed robbery, the requirements of justice may demand a non-custodial sentence in an exceptional case (cf R v Govinden [1999] NSWCCA 118, a decision made after R v Henry (supra)). Whilst a non-custodial sentence was not suggested on behalf of Mr Ridgeway, nonetheless, the capacity of subjective circumstances to ameliorate a sentence which may otherwise be appropriate must be recognised.
Thirdly, although her Honour found special circumstances, she did not significantly moderate the sentence on that account. She imposed a head sentence of three years which would suggest (according to the statutory formula) a minimum term of two years and three months. Instead, her Honour fixed a minimum term of two years, a discount of three months.
In these circumstances, it was submitted on behalf of Mr Ridgeway, that the Court should not interfere. Spigelman CJ made the following remark in R v Baker [2000] NSWCCA 85: (at para 19)
“The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.”
See Griffiths v The Queen (1977) 137 CLR 293 at 310.
In Everett v The Queen (1994) 181 CLR 295, the Court said this: (at 299/300)
“An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a ‘court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified.’” (footnotes omitted)
It was submitted on behalf of Mr Ridgeway that the Court should not intervene, on the basis that there was no error of principle. Alternatively, if the Court feels constrained to intervene, it should not disturb the minimum term imposed by her Honour.
The Sentencing Guidelines
The assumptions behind the sentencing guidelines match, almost exactly, the circumstances of Mr Ridgeway in respect of each robbery. The category of case towards which the guideline was directed in R v Henry was identified by Spigelman CJ in these terms (R v Henry (supra)): (at 380, para 162)
“It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:
(i)        Young offender with no or little criminal history;
(ii)Weapon like a knife, capable of killing or inflicting serious injury;
(iii)      Limited degree of planning;
(iv)Limited, if any, actual violence but a real threat thereof;
(v)Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi)      Small amount taken;
(vii)Plea of guilty, the significance of which is limited by a strong Crown case.”
Spigelman CJ said this in relation to such a case: (at 380, para 165)
“In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court.”
The Chief Justice added: (at 381, para 169)
“Aggravating and mitigating factors will justify a sentence below or above the range as this Court’s prior decisions indicate. The narrow range is a starting point.”
The matters relevant to an adjustment of the sentence were identified in these terms: (at 381, para 170)
“In addition to factors which may arise in any case, for example, youth, offender’s criminal record, co-operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include:
(i)        nature of the weapon;
(ii)       vulnerability of the victim;
(iii)      position on a scale of impulsiveness/planning;
(iv)      intensity of threat, or actual use, of force;
(v)       number of offenders;
(vi)      amount taken;
(vii)     effect on victim(s).”
Here there were, as the Crown asserts, matters of aggravation. Even giving full weight to the issues identified on behalf of Mr Ridgeway, including the strong subjective case, there was no warrant, in my view, for the sentence falling below a term of four years. A term of less than four years did not, in my view, adequately reflected the totality of the criminality involved. I believe, therefore, that there was error.

Further, where a sentencing Judge proposes to depart from the guidelines, the reason for doing so should be stated. It should not, in my view, be left to inference.
Addressing the issue of re-sentencing, I believe, as did Backhouse DCJ, that there are special circumstances. The youth of Mr Ridgeway, the fact that it is his first time in custody, and his prospects of rehabilitation, make it appropriate that he be considered for parole somewhat earlier than the usual statutory period.
Fixing the appropriate period presents some difficulty. Were I sentencing Mr Ridgeway for the first time, I should be inclined to fix a period of two and a half years as an appropriate non-parole period. I recognise, however, that, being a Crown appeal, there is an element of double jeopardy. In the circumstances, I am persuaded that the non-parole period fixed by her Honour should not be disturbed.
I, therefore, suggest the following orders:
1. The appeal should be allowed.
2. The sentence should be quashed.
3.In lieu of such sentence, Mr Ridgeway should be sentenced to 4 years imprisonment, commencing on 1 June 1999 and expiring on 31 May 2003. That there should be a non-parole period of 2 years commencing on 1 June 1999 and expiring on 31 May 2001. Mr Ridgeway will be eligible for release on parole on 1 June 2001.
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LAST UPDATED: 01/09/2000