R v Shaw

[2000] NSWCCA 326

CITATION:	R v Shaw [2000] NSWCCA 326
FILE NUMBER(S):	CCA 60223/99
HEARING DATE(S):	23/08/00
JUDGMENT DATE:	23 August 2000
PARTIES :	Regina Lee Anthony Shaw
JUDGMENT OF:	Heydon JA at 1, 27; Smart AJ at 25; Ireland AJ at 26

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1188
LOWER COURT JUDICIAL OFFICER :	Backhouse DCJ

COUNSEL :	Applicant in person P Hock (Respondent)
SOLICITORS:	Applicant in person S E O'Connor (Respondent)
CASES CITED:	R v Henry (1999) 46 NSWLR 346 R v Morgan (1993) 70 A Crim R 368 Veen v R (No 2) (1988) 164 CLR 465
DECISION:	See para 24

IN THE COURT OF

CRIMINAL APPEAL

60223/99

HEYDON JA
SMART AJ
IRELAND AJ

Wednesday, 23 August 2000

REGINA v Lee Anthony SHAW
JUDGMENT

1    HEYDON JA:

This is an application by Lee Anthony Shaw for leave to appeal against sentences imposed on him by Backhouse DCJ on 13 April 1999. In substance the sentences were as follows. First, on a charge that on 29 January 1998 the applicant, being armed with an offensive instrument, namely a liquid filled syringe, robbed Terrence Tung-Yep of cash, the applicant was given a head sentence of six years’ penal servitude with a minimum term of three years and an additional term of three years. Secondly, on a charge that on 4 April 1997 the applicant broke into and entered Loyola College Mt Druitt with intent to steal, the applicant was given the same sentence, to be served concurrently. In relation to the first offence, the sentencing judge took into account an offence committed on 30 January 1998 of attempting to rob Eva Abdo of cash at her place of work, a hairdressing salon, by threatening her with a screwdriver.

2    The applicant pleaded guilty to the first and second offences, and asked for the third to be taken into account.

3    The facts of the first two offences are set out sufficiently in the reasons for judgment of the sentencing judge. It need only be noted of the first offence that the syringe was apparently filled with a red liquid; that the applicant told the victim the liquid was blood; that apart from the threats of stabbing with the syringe implicit in the six demands for money which the applicant made, the applicant three times expressly threatened to stab with the syringe; that the victim was alone while the applicant was accompanied by a female companion; that the hour was 10.10pm; and that there were circumstances pointing to premeditation in that, apart from the syringe with which the applicant was armed, he told the victim that he had been following him all day. The offence taken into account took place on the following day. The victim was female. The hour was 6.30pm. The weapon was a screwdriver. The applicant was accompanied by the same co-offender. These offences were committed while the applicant was on parole: he had been released from prison on 22 January 1998.

4    The applicant put two arguments in writing.

5    The first argument related to the armed robbery charge. He pointed to R v Henry (1999) 46 NSWLR 346, a case decided on 12 May 1999, after he was sentenced. In that case Spigelman CJ, with whom Wood CJ at CL, Newman J and Simpson J agreed (Hulme J dissenting), said that a sentencing range of a full term of four to five years should apply for a category of case which has the following features (at 380 and [162]):

“(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.”

6    In the case of the armed robbery with which the applicant was charged, factors (iii)-(vii) apply. Factor (i) does not, for though the applicant

is young, he has a substantial criminal history. In one sense factor (ii) does not apply either because it would be difficult to kill or inflict serious injury with a syringe not filled with AIDS-infected blood; however, the victim no doubt feared that death or serious injury might result from being infected with blood of that character. In the case of the armed robbery which was taken into consideration, factors (ii)-(v) and (vii) apply. Factor (vi) does not, since nothing was taken. Factor (i) does not, for the reasons already given.

7    However, though the armed robbery offence committed by the applicant does not fit completely into the category identified in R v Henry, the Crown was generous enough to concede that it fell “broadly” within it, and it is convenient to assume that it does. Accordingly the applicant submits that his sentence should be reduced “to fit that of the sentencing guideline”.

8    As Spigelman CJ said in R v Henry (1999) 46 NSWLR 346 at 357 ([29]-[31]):

“A guideline judgment on the subject of sentencing should not lay down a requirement or anything in the nature of a rule. The failure to sentence in accordance with a guideline is not itself a ground of appeal. Guidelines are not rules of universal application. They may be departed from when the justice of a particular case requires such departure. I made this clear in R v Jurisic when I said (at 220):
‘Such guidelines are intended to be indicative only. They are not intended to be applied in every case as if they were rules binding on sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents.’
In this respect I refer to my adoption in R v Jurisic [(1998) 45 NSWLR 209] (at 220) of the analysis by Dunn LJ in R v De Havilland (1993) 5 Cr App R (S) 109 at 114, to the effect that decisions on sentencing are not authorities binding on lower courts in the way decisions on substantive law are binding. I went on to say (at 220-221):
‘… such guidelines are not binding in any formal sense. They represent a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator.’
Nevertheless, where a guideline is not to be applied by a trial judge, this Court would expect that the reasons for that decision be articulated, so that the public interest in the perception of consistency in sentencing decisions can be served and this Court can be properly informed in the exercise of its appellate jurisdiction.”

9    The sentencing judge obviously cannot be criticised for having failed to apply the guideline in the applicant’s case, it having been enunciated after the applicant was sentenced. The primary relevance of the guideline would appear to be that it is a tool which may be useful in determining whether any appellable error took place in the discretionary judgment of the sentencing judge.

10    Spigelman CJ’s reference to departure from guidelines when the justice of a particular case requires it is amplified at 381 [169]), where he said:

“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.”

He then mentioned numerous factors, one of which was the offender’s criminal record and another of which was whether the offence was committed while the offender was on bail.

11    When the offences were committed, the applicant was not on bail. But he was on parole. The commission of an offence on parole is a seriously aggravating factor in this case, despite the sentencing judge’s sympathetic account of the difficulties in which the applicant found himself by reason of unexpectedly early release from gaol and consequent inability to commence working and living at a permanent address in the manner which had been planned.

12    The offender’s criminal record, for a man of 22 at the time of sentencing, was bad. He had been sentenced on fifteen prior occasions between 20 May 1993 and 16 October 1998 on fifty-three charges. Most of these charges related to crimes against property. While it is true that a substantial quantity of the charges were relatively trivial, numerous gaol terms had been imposed in respect of the more serious ones. Since 1996 the applicant has spent only about nine months out of gaol.

13    In Veen v R (No 2) (1988) 164 CLR 465 at 477 Mason CJ, Brennan, Dawson and Toohey JJ said:

“ … the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. … The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the court in this country …”.

14    The applicant’s criminal record shows that the robbery offence was not an uncharacteristic aberration and manifests a continuing attitude of disobedience of the law. It shows a dangerous propensity. It shows a need to deter the applicant from committing further offences of a like kind. It is not relevant only to a claim for leniency, but it does negate that. This Court has drawn attention to the serious aspects of robberies committed by threatening to use syringes apparently filled with AIDS-infected blood. That aspect of the crime is reflective of one of the special factors mentioned by Spigelman CJ in R v Henry (1999) 46 NSWLR 341 at 381 ([170]), namely “intensity of threat, or actual use, of force”. Relatively heavy sentences are a legitimate means of effectuating general deterrence against the commission of that conduct by others.

15    A further factor which is relevant to the selection of six years rather than a period in the range of four to five years is the robbery which the applicant asked to be taken into consideration. In R v Morgan (1993) 70 A Crim R 368 at 372, Hunt CJ at CL, with whom Allen J apparently agreed on this point, and with whom Loveday AJ agreed, said:

“it is wrong in principle that there should only ever be little by way of addition to the penalty imposed upon the offence charged when another offence is taken into account.”

16    In my opinion the disparity between the sentence for armed robbery and the guidelines in R v Henry is not such as to point to any error in the discretion of the sentencing judge to impose the sentence she did.

17    The applicant’s second argument related to the sentence for breaking and entering with intent to steal. The applicant submitted:

“The sentencing judge clearly indicated the robbery offence was the more serious offence. She has passed a six year term on this offence, she has therefore classed it to be as serious as that of armed robbery.”

The applicant then submitted that out of thirty-nine cases for breaking, entering and stealing - a more serious offence than his offence of breaking and entering - only three received a minimum term of three years or more. The submission continued:
“Surely a mistake somewhere has been made and [I] will try to the best of my ability to have it fixed.”

18    The Crown prepared certain statistical tables on sentences for breaking and entering, some relating to offenders generally and some relating to offenders similar to the applicant. The Crown submitted:

“The sentence imposed for the break and enter offence is high when regard is had to the judicial statistics. As the sample of cases is small the statistics are of limited value. Bloomfield (1998) 44 NSWLR 734 [at 739]. They show only eight percent of all offenders (two cases) received full terms of six years … and ninety-two percent received a minimum term of less than three years …
When the applicant’s individual features are entered the sample is again reduced. However, two offenders received the same full term as the applicant … and two offenders were given a greater minimum term than the applicant …”.

19    However, the Crown also submitted that the factors referred to in Veen v R (No 2) (1988) 164 CLR 465 at 477 applied, namely that the applicant’s record shows that the offence was not an uncharacteristic aberration, that the applicant had manifested a continuing attitude of disobedience of the law, and that accordingly a more severe penalty than normal was warranted.

20    Further, the circumstances of the offence are aggravated by the fact that it was committed while the applicant was on bail in relation to various offences of which he was charged on 18 February 1997. That bail was granted on 26 February 1997.

21    If the breaking and entering charge were taken in isolation, the sentence would have been a very severe one, in view of the limited damage caused, the fact that nothing was taken, and the fact that no victim was alarmed. Even taken in conjunction with the other factors to which the Crown points, namely, the criminal record and the fact that the offences were committed while on bail, the circumstances do not, to my mind, indicate that this sentence falls within the legitimate range of the sentencing judge’s discretion.

22    In my opinion it is appropriate to set aside the sentence on the break and enter charge and substitute a fixed term of two years imprisonment

to be served concurrently with the charge in relation to the robbery, to commence on 13 April 1999.

23    The applicant’s background and his life so far excite some sympathy. However, in law there is, in my judgment, no possibility of this Court assisting his position further than that.

24    I would propose that leave to appeal be granted and that the appeal be allowed. So far as the sentence for breaking and entering is concerned, I propose that in lieu of the sentence imposed by the sentencing judge on that charge, there be substituted a fixed term of two years imprisonment to be served concurrently with the sentence on the robbery charge and to commence on 13 April 1999.

25    SMART AJ: I agree.

26    IRELAND AJ: I also agree.

27    HEYDON JA: The orders I have proposed will be the orders of the Court.

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