R v S.D

[2000] NSWCCA 43

CITATION:	R v S.D. [2000] NSWCCA 43
FILE NUMBER(S):	CCA 60003/99
HEARING DATE(S):	Friday 25 February 2000
JUDGMENT DATE:	25 February 2000
PARTIES :	Regina v S.D.
JUDGMENT OF:	Grove J at 1, 18; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0248
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

COUNSEL :	P. G. Berman (Crown) J.S. Andrews (Appellant)
SOLICITORS:	S. E. O'Connor (Crown) T. A. Murphy (Appellant)
CATCHWORDS:	Criminal Law and Procedure - Sentence - Multiple Armed Robberies - Offences Committed Shortly After Release on Parole for Similar Offence - Particular Discount Available to Offender
CASES CITED:	R v Ellis 1986 6 NSWLR 603
DECISION:	Appeal Dismissed

IN THE COURT OF
CRIMINAL APPEAL

60003/99

GROVE J
SMART AJ

Friday 25 February 2000

REGINA v S.D.


JUDGMENT

1    GROVE J: I will ask Smart AJ to give the first judgment.

2    SMART AJ: S D seeks leave to appeal against the severity of concurrent sentences comprising a minimum term of seven years and an additional term of three years in respect of each of six charges of armed robbery committed between 13 March and 5 April 1998.

3    In four cases the offensive weapon used was a knife and in two cases a blood filled syringe. The judge also took into account a further twenty five offences of either armed robbery (twenty instances) or assault with intent to rob whilst armed (five instances) with six of these offences being committed whilst armed with a blood filled syringe, seventeen whilst armed with a knife or scissors and two whilst armed with both a knife and blood filled syringe. Thus the applicant committed thirty one armed robberies or assaults with intent to rob whilst armed in twenty three days. Necessarily this involved putting a large number of people in fear of their own safety and well-being.

4    The sentencing judge pointed out that some of these people were young females (aged fifteen to twenty). The offences were committed at various commercial premises in the western and south western suburbs of Sydney and included service stations, newsagencies, supermarkets, pharmacies, fast food outlets and other retail shops in suburban shopping centres. Sums of money were taken. A further seven offences of larceny of motor vehicles and an offence of possession of cocaine were also taken into account. At the time of his arrest on 6 April 1998 the applicant said to the police:
"It's about time I got caught. It's time to go back in, my run has come to an end. It's the drugs man, they just make you do it, I needed the money to keep up the habit."

5    The applicant pleaded guilty in the Local Court and at the first available opportunity.

6    The applicant was born on 31 March 1968. His adult criminal record began in 1989. He has committed a large number of offences, he has been in prison a number of times and there have been a number of property offences. Of particular importance was his conviction on 17 May 1995 of armed robbery, his sentence comprising a minimum term of three years from 21 January 1995 and an additional term of two years. The offences charged occurred within a short period of his release on parole. His parole was cancelled and he was required to serve the balance of the additional term of one year 11 months and 15 days commencing on 6 April, 1998.

7    The judge backdated the applicant's sentences to 6 April 1998 so that the applicant received credit for periods in gaol while he was also serving his additional term, that is from 6 April 1998 to 10 December 1998, the latter being the last date on which the sentence imposed by the judge could commence. Further, the applicant served but part of the balance of one year eleven months and fifteen days.

8    The judge found that the applicant's co-operation and admissions were of particular importance as only a small number of offences were supported to a sufficiently cogent degree by evidence of identification which provided reasonable prospects of conviction. The judge found that the applicant was entitled to the discount or leniency given to such pleas in accordance with R v Ellis (1986) 6NSWLR 603.

9    The judge further found that the applicant was entitled to a substantial discount for the assistance which he had given and will give in an important but unrelated murder matter where such assistance is critical. The judge noted that the applicant would spend his time in prison in protection and the onerous conditions that that involved.

10    The judge took into account the applicant's subjective features. He was born in Sydney of Greek parentage and had an unremarkable upbringing save for the separation of his parents when he was 16 years of age. He showed some early promise as a footballer but cannabis use, followed shortly by cocaine and heroin, at the age of 16 led him into theft and ultimately gaol.

11    The applicant was sent by his father to Greece but this change did not rid him of his drug habit. A number of attempts for rehabilitation have been made over the years but to no avail. At the time of these offences the applicant said that he was spending a thousand dollars per day on cocaine. He has been on a methadone program since 6 April 1998. The judge found that without a major change, and that did not appear to be imminent, the applicant's prospects of rehabilitation were dim.

12    The judge found special circumstances.

13    The applicant complained that the sentences imposed did not sufficiently reflect the leniency to which he was entitled for providing evidence against himself where the Crown case would have otherwise failed and the discount for valuable assistance to the authorities.

14    In both cases the allowances had to be substantial. The judge did not specify the allowances which she made nor her starting point. She took an overall approach.

15    The real difficulty in this case is the extent of the applicant's criminality. The applicant's prior record did not help him. For the six offences of armed robbery with which he was charged he had to receive lengthy sentences; then the other offences had to be taken into account. In the circumstances a starting point of effective head sentences totalling 18 years with a minimum term of 14 years would not have been excessive. If this be correct, as I think it is, the sentences imposed involve an overall discount of forty five percent to fifty percent. The use of knives, scissors and blood filled syringes makes the offences very serious.

16    While the sentences imposed were lengthy, they had to be, given the nature and extent of the offences. In my opinion the sentences imposed do reflect the substantial allowances to which the applicant was entitled. The sentences were within the sound exercise of the judge's sentencing discretion.

17    I agree with the judge's remarks on sentence. The application for leave to appeal should be granted, the appeal should be dismissed

18    GROVE J: I agree and the orders of the Court therefore are, that the application for leave to appeal is granted, the appeal is dismissed.
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