R v Sama
[2005] NSWCCA 191
•20 May 2005
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: REGINA v. FRANKS [2005] NSWCCA 196
FILE NUMBER(S):
2005/525
HEARING DATE(S): Friday 20 May 2005
JUDGMENT DATE: 20/05/2005
PARTIES:
REGINA v.
Cory Dean FRANKS
JUDGMENT OF: Simpson J Buddin J Hall J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/71/0097
LOWER COURT JUDICIAL OFFICER: Norrish, DCJ.
COUNSEL:
Crown: G. Rowling
App: M. Bozic, SC.
SOLICITORS:
Crown: S. Kavanagh
App: S.E. O'Connor
CATCHWORDS:
Criminal law - appeal against sentence - aggravating factor - aggravating factor was an element of the offence - manifestly excessive sentence - Henry guideline - starting point.
LEGISLATION CITED:
Crimes Act 1900 - s.97(2)
Crimes (Sentencing Procedure) Act 1999 - s.21A
Criminal Appeal Act 1912
DECISION:
Leave to appeal granted; appeal granted in part; the sentence of four years imprisonment from 6 June 2003 to 5 June 2007 with respect to the offence under s.33B(1)(a), Crimes Act 1900 be quashed; in respect of the offence under s.33B(1)(a), Crimes Act 1900, a fixed term of three and a half years imprisonment from 6 June 2003 to 5 December 2006 be substituted in lieu of the sentence imposed of four years imprisonment; the sentence imposed with respect to the offence under s.97(2), Crimes Act 1900 be quashed; in respect of the offence under s.97(2), Crimes Act 1900, a total sentence of eight and a half years be substituted from 6 December 2004 to 5 June 2013 with a non-parole period of four years from 6 December 2004 to 5 December 2008. The eariest date on which the applicant will be eligible for release on parole of 5 December 2008.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2005/525
SIMPSON, J.
BUDDIN, J.
HALL, J.FRIDAY 20 MAY 2005
REGINA v. CORY DEAN FRANKS
Judgment
HALL, J: By application dated 11 March 2005, the applicant, Cory Dean Franks, seeks leave to appeal on the sentence imposed by the District Court of New South Wales by his Honour Judge Norrish on 25 August 2004. On that date, his Honour sentenced the applicant as well as his co-offender, John Frederick McNamara. His Honour’s remarks on sentence included his consideration of sentences imposed in relation to both offenders.
The applicant pleaded guilty to five charges in all arising out of an armed robbery at the Australian Rules Football Club at 188 Fernleigh Road, Wagga Wagga that occurred on 6 June 2003. The sentence details in respect of the five charges are as follows.
(a)Charge: threaten to use firearm to avoid apprehension: s.33B(1)(a), Crimes Act 1900 (maximum penalty of imprisonment for 12 years).
Sentence: fixed term of four years imprisonment from 6 June 2003 to 5 June 2007.
In relation to the charge under s.33B(1)(a), there were three additional offences taken into account on a Form 1. They were:-
(i) Assault: s.61, Crimes Act 1900;
(ii)Take and drive conveyance without consent of the owner: s.154A(1)(a), Crimes Act 1900;
(iii) Malicious damage: s.195, Crimes Act 1900.
The three additional offences on the Form 1 all occurred on 6 June 2003.
(b)Charge: conveyance taken without the consent of the owner: s.154A(1)(b), Crimes Act 1900 (maximum penalty of imprisonment for five years).
Sentence: fixed term of nine months imprisonment from 6 December 2004 to 5 September 2005 (to be served concurrently with the sentence imposed for the offence under s.33B(1)(a), Crimes Act 1900, although starting 18 months later than that sentence).
(c)Charge: robbery whilst armed with a dangerous weapon: s.97(2), Crimes Act 1900 (maximum penalty of imprisonment for 20 years).
Sentence: total sentence of nine years with a non-parole period of four years, six months from 6 December 2004 to 5 June 2009. A non-parole period of 4.5 years was fixed to expire on 5 June 2013.
This sentence is cumulative by 18 months on the sentence imposed for the s.33B(1)(a) offence.
(d)Charge: possess firearm without a licence: s.7(1), Firearms Act (maximum penalty of imprisonment for five years).
Sentence: fixed term of two years and three months from 6 December 2004 to 5 March 2007. This sentence is concurrent with the sentences imposed in respect of the offences under s.154A(1)(b), Crimes Act 1900 and the s.97(2) offence.
(e)Charge: resist officer in execution of duty: s.58, Crimes Act 1900 (maximum penalty of imprisonment for five years).
Sentence: fixed term of nine months imprisonment from 6 December 2004 (concurrent with sentences imposed with respect to offences under s.154A(1)(b), s.97(2), Crimes Act 1900 and s.7(1), Firearms Act.
In accordance with the terms of the sentences imposed by Norrish, DCJ., the applicant is to serve a custodial sentence of six years from 6 June 2003 to 5 June 2009 with a non-parole period of 4.5 years, making a total sentence of 10.5 years.
The sentence imposed on the co-offender, John Frederick McNamara, as I have previously stated, was a term of imprisonment of eight years with a non-parole period of 4.5 years in respect of a charge of robbery in company under s.97(1), Crimes Act 1900.
Facts
On the night of 4 June 2003, a Queensland registered motor vehicle was taken from the premises of Riverina Car Hire without consent.
Shortly before 9.00 am on 6 June 2003, that vehicle was seen in the carpark of the Riverina Australian Rules Football Club at 188 Fernleigh Road, Wagga Wagga. A little after 9.00 am, two men wearing balaclavas entered the club premises. One was carrying a revolver. Once inside the premises, one of the two men called out words to the effect:-
“Everybody on the floor. This is a hold-up. I’ve got a gun.”
An employee, Mr. Burdett, was directed by one of the two men to take them to the manager’s office. Mr. Jolley and other staff were in attendance. The two men took money from the safe in the Finance Manager’s office and pulled the telephone cord from the wall before running of.
A member who was in the club was able to telephone police on her mobile phone to advise of the robbery. That person saw the motor vehicle to which I have referred driving off at high speed and gave the registration number to the 000 operator.
The vehicle then drove at high speed along Fernleigh Road onto the Olympic Highway towards Kapooka. The vehicle entered the Army Base where one of the residents there noted the car’s two occupants leave the vehicle. That person telephoned police.
The applicant and his co-offender, McNamara, entered upon a property owned by Mr. Kidd. Mr. Kidd had a number of tradesmen working on his property. He saw the co-offender, Franks, and called out to him, pointing out that he and the applicant were on private property and would have to go back from where they had come. It was at about that point that the co-offender, Franks, produced what Mr. Kidd described as a black, shiny revolver and pointed it at Mr. Kidd’s head with his finger on the trigger and said, “Fuck off”.
The applicant, at this point, moved towards a utility owned by one of the tradesmen. He entered the vehicle and started the engine. A police vehicle approached and stopped near the utility. Three police officers rushed towards the utility which was reversing and which collided with the front of the police vehicle.
A struggle involving police, with the applicant resisting, then took place. The police managed to disarm him and removed him from the vehicle. He was handcuffed and taken into police custody. A search of the interior of the utility revealed a .357 calibre Ruger brand revolver. The revolver had three rounds in the cylinder.
Amongst other property belonging to the offenders was an amount of money found totalling $67,088 which was the money that had been stolen from the Riverina Australian Rules Football Club Limited.
Subjective factors
The applicant was born on 27 February 1970 and was accordingly 33 years of age at the time of the commission of the offence. He had a lengthy criminal history commencing when aged approximately 13 years having had a number of appearances in the Children’s Court. Subsequently, he was convicted of offences in the Local Court of dishonesty which included stealing and having goods in custody, entering premises with an intention to steal, malicious damage, driving offences and a number of street offences. He had been placed on a number of bonds and had been gaoled for relatively short periods of time. In October 2002, he was given a term of imprisonment of six months which was suspended pursuant to s.12, Crimes (Sentencing Procedure) Act 1986 for an offence of driving whilst disqualified. The sentencing judge noted that the applicant had no previous convictions for indictable offences in the District Court or the Supreme Court and that the matters with which he was concerned represented a significant escalation of his criminal behaviour.
The applicant had a lack of guidance during childhood. He was, at the time of the offences, in a defacto relationship which had in fact existed for some eight years and his partner had continued to visit him in custody. She has two children who were aged 14 and 10 as at the date of sentence, who the offender regarded as his children, for which he bore responsibility and which he regarded as his own.
The applicant has had little primary or secondary education and does not hold formal qualifications. He has had periods of unskilled work. Much of his anti-social conduct appears to be related to his history of alcohol and drug abuse.
Since approximately 1997, the applicant had been using heroin. Following his arrest for the offences in question, he went on a methadone programme.
The sentencing judge referred to material which was presented to the Court, which expressed the applicant’s regret for his involvement in the offences, which his Honour accepted. His Honour also accepted that, prior to the offences in question, the applicant was involved in a family crisis revolving around his partner’s mother. The applicant also wrote letters of apology to the victims of the offences which the sentencing judge accepted as clear evidence of contrition. His Honour also accepted that, whilst in custody, the applicant had undertaken a number of courses, particularly seeking to address drug and alcohol matters.
In relation to the offence under s.33B(1)(a) of the Crimes Act 1900 (threaten to use firearm to avoid apprehension), the sentencing judge allowed a discount for an early plea of guilty of 20%. His Honour stated that, in relation to this offence, having regard to the statutory maximum term of imprisonment and all other features, he considered a penalty would ordinarily be five years which was reduced, by reason of the 20% discount, to four years.
In relation to the offence under s.97(2) of the Crimes Act 1900 (robbery whilst armed with a dangerous weapon), the sentencing judge allowed a discount of 20% for the applicant’s plea of guilty. His Honour considered an appropriate sentence of 12 years discounted to nine years (see remarks on sentence, p.21).
Ground 1: s.97(2) Crimes Act 1900: erroneous taking into account of an aggravating factor as an element of the offence: that the offence involved the threatened use of violence
In considering the provisions of s.21A of the Crimes (Sentencing Procedure) Act 1999, his Honour referred to the fact that the applicant and his co-offender, McNamara, had pleaded guilty to an offence involving the threatened use of violence (see remarks on sentence, p.31). One of the elements of the offence under s.97(2) is the use of violence putting the victim in fear and being armed with a dangerous weapon. Accordingly, violence is an element of the offence: Regina v. Foster (1995) 78 A. Crim. R. 517, 522. The applicant, accordingly, submits that his Honour took into account this aggravating factor when it was an element of the offence contrary to the concluding words of s.21A(2). Mr. Bozic, SC., for the applicant, relied upon the following statement of principle in Regina v. Mohamadin [2004] NSWCCA 401:-
“Finally complaint was made about the fact that the sentencing judge referred to several matters which are specified in s.21A(2) of the Crimes (Sentencing Procedure) Act 1999 as being matters of aggravation. The checklist of such matters to which his Honour referred included the fact that the ‘offence involved the actual or threatened use of violence’, the fact was ‘the offence involved the actual or threatened use of a weapon’, and finally the fact that ‘the offence was committed in company’. The submission was made that the sentencing judge fell into error in having regard to those considerations as being aggravating factors because it overlooked the injunction contained in the concluding words to ss.(2) namely that ‘the court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence’. See Regina v. Wickham [2004] NSWCCA 193; Regina v. Cramp [2004] NSWCCA 264. I accept the submission that error has been thus established.”
It is to be observed that his Honour does not expressly state in this matter that he did take into account the threatened use of violence. However, as he has expressly identified it in his consideration of s.21A aggravating factors, it is reasonable, I believe, to accept that his Honour had some regard to it in determining sentence for the offence under s.97(2). I will return to the question of the significance of this error.
Ground 2: s.33B(1)(a), Crimes Act 1900: taking into account an element of the offence as an aggravating factor: that the offence involved the threat of violence
The applicant relies upon his Honour’s reference to a specific threat of violence directed at his victim when he pointed a firearm at him as he was trying to make his escape near the Olympic Way. It is asserted that the threat to use an offensive weapon to prevent lawful apprehension was an essential element of the offence under the section, but that his Honour, contrary to s.21A(2) took it into account as an aggravating factor.
I am of the opinion that there is substance to the submission made and that his Honour contrary to s.21A(2), had regard to the threat of violence as an aggravating factor.
Ground 3: that the sentence imposed under s.33B(1)(a), Crimes Act 1900 is manifestly excessive
The applicant seeks to support this ground by reference to a distinction between a case where there was an actual attempt to inflict injury on the one hand, and those cases where such injury is threatened but not actually attempted to be executed. In this respect, reliance is placed upon what was said by Adams, J. in Regina v. Milojevic [2001] NSWCCA 461, [22]-[24].
The applicant has provided a schedule of decisions of this Court in relation to offences under s.33B. The fact that the applicant pointed a loaded revolver at Mr. Kidd, in my view, called for a substantial sentence and, subject to the matter concerning the aggravating circumstance to which I have referred in the previous paragraph and to which I will return, I respectfully agree with the sentencing judge’s assessment.
Ground 4: that the sentence under s.97(2) is manifestly excessive
The sentencing judge’s approach to the assessment of the sentence of the offence under s.97(2) is criticised in much the same way as it was argued in the application for leave to appeal by the co-offender, McNamara. In essence, the criticism of the sentencing judge’s approach is that he adopted the guideline in Regina v. Henry (1999) 48 NSWLR 346 as the “starting point”, by taking the sentencing range of four to five years (remarks on sentence, p.22) and then pointing to factors which distinguish the applicant from the seven characteristics attaching to the category of case which was the subject of the Henry guideline decision.
In Regina v. Hemsley [2004] NSWCCA 228, Grove, J. stated:-
“Ground 4 asserted that his Honour erred in finding that a more severe punishment than the range suggested in R v Henry (1999) 46 NSWLR 346 was appropriate. His Honour said;-
‘It seems to me that this case requires a more severe punishment than the range suggested in Henry.’
That approach utilizes the authority as a standard rather than as a guideline. I consider that a principled approach to sentencing requires the assessment of all the objective and subjective factors applicable in a particular case. The guideline judgment is then available to observe whether the sentence thus assessed is within established patterns of sentencing. It is not, in my opinion, a correct approach to commence with a range articulated in the guideline judgment and then conduct an exercise determining whether a particular case falls below, upon or above the guideline range. That appears to have been the approach taken by his Honour.”
Accepting, as I do, that the guideline judgment should not be taken and applied as a standard, I do not consider that his Honour’s approach, as a matter of principle, in adopting the Henry guideline as a starting point was erroneous.
The applicant contends that, starting with the Henry guideline sentencing range of four to five years, the process of adjusting upwards enables a sentence near the top of the range to all too readily be reached.
As Spigelman, CJ. in Henry (supra) observed at [169] and [170], aggravating and mitigating factors will justify a sentence below or above the range, but it, being a narrow one, represents a starting point. A number of circumstances may attach to the offence of armed robbery, as the Chief Justice there observes, including matters such as the intensity of threat, or actual use, of force, amount taken, etc. On the facts of this matter, the amount of money taken from the Club was substantial and must be reflected in the sentence, as must the circumstance of the applicant’s use of a loaded revolver.
Whilst there are some differentiating circumstances from the seven identified characteristics referred to in Henry (at 162), the process of adjustment either below or above that range, as the circumstances require, was appropriate in a case such as the present. That does not involve applying the Henry guideline as a standard.
However, having said that, the question remains as to whether, insofar as the sentencing judge had regard to aggravating factors contrary to the provisions of s.21A(2) in relation to the sentence imposed under s.97(2) (as discussed earlier), such errors can be said to have resulted in a sentence which was manifestly excessive.
The total sentence of 10 years and five months with a combined non-parole period of six years, in my opinion, was in some measure influenced by such aggravating factors being wrongly brought into account to which I have earlier referred in relation to both the offence under s.97(2) and s.33B(1)(a).
I am of the opinion that the sentence imposed with respect to the offence under s.33B(1)(a) Crimes Act 1900 should be reduced by six months from four years to three and a half years from 6 June 2003 to 5 December 2006 and that the sentence in respect of the offence under s.97(2) Crimes Act 1900 be reduced by six months from nine years to eight and a half years from 6 December 2004 to 5 June 2013.
I am, accordingly, of the opinion that a less severe sentence was warranted in law and should have been passed with respect to both offences referred to in paragraph 38: see Criminal Appeal Act 1912, s.6(3). Accordingly, the sentence imposed by the sentencing judge should be quashed and a sentence as set out below should be substituted therefor.
Accordingly, the orders I propose are:-
1.Leave to appeal be granted.
2.Appeal granted, in part.
3.The sentence of four years imprisonment from 6 June 2003 to 5 June 2007 with respect to the offence under s.33B(1)(a), Crimes Act 1900 be quashed.
4.In respect of the offence under s.33B(1)(a), Crimes Act 1900, a fixed term of three and a half years imprisonment from 6 June 2003 to 5 December 2006 be substituted in lieu of the sentence imposed of four years.
5.The sentence imposed with respect to the offence under s.97(2), Crimes Act 1900 be quashed.
6.In respect of the offence under s.97(2), Crimes Act 1900, a total sentence of eight and a half years be substituted from 6 December 2004 to 5 June 2013 with a non-parole period of four years from 6 December 2004 to 5 December 2008.
SIMPSON, J: I agree
BUDDIN, J: I also agree.
SIMPSON, J: The orders of the Court will be as proposed by Hall, J.
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LAST UPDATED: 24/05/2005
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