R v Smith
[2003] NSWCCA 381
•12 December 2003
CITATION: R v Smith [2003] NSWCCA 381 HEARING DATE(S): 12/12/03 JUDGMENT DATE:
12 December 2003JUDGMENT OF: Sully J at 1; Barr J at 2; Newman AJ at 45 DECISION: (1) Allow the appeal and quash the sentences appealed from; (2) Impose in lieu the following sentences: (i) For the attempted robbery in company on 14 February 2002 imprisonment for six years and six months commencing on 13 June 2003 and ending on 12 December 2009. Decline to fix a non-parole period; (ii) For the robbery in company on 18 February 2002 imprisonment for eight years commencing on 13 June 2004 and expiring on 12 June 2012. Decline to fix a non-parole period; (iii) For the robbery in company on 7 March 2002 imprisonment for six years and six months commencing on 13 June 2005 and ending on 12 December 2011. Decline to fix a non-parole period; (iv) For the robbery in company on 28 March 2002 imprisonment for eight years commencing on 13 June 2006 and expiring on 12 June 2014. Fix a non-parole period of six years expiring on 12 June 2012; (v) For the aggravated robbery in company on 17 May 2002, and taking into account the matters under the provisions of s 32 Crimes (Sentencing Procedure) Act imprisonment for eleven years commencing on 13 June 2007 and expiring on 12 June 2018. Fix a non-parole period of five years expiring on 12 June 2012; (vi) Declare that the respondent will be eligible for release on parole on 12 June 2012. CATCHWORDS: Criminal law - sentencing - robbery and aggravated robbery LEGISLATION CITED: Criminal Appeal Act s5D
Crimes (Sentencing Procedure) Act ss32, 44CASES CITED: Regina v Henry (1999) 46 NSWLR 346
Pearce v The Queen (1998) 194 CLR 610
Regina v Thomson and Houlton (2000) 49 NSWLR 383PARTIES :
Regina
Justin Robert SmithFILE NUMBER(S): CCA 60275/03 COUNSEL: Crown: P Miller
Respondent: A P CookSOLICITORS: Crown: S E O'Connor
Respondent: D Humphreys
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/1161; 02/11/1162; 02/11/1161; 02/11/1162; 03/11/0168 LOWER COURT
JUDICIAL OFFICER :Backhouse QC, DCJ
60275/03
Friday, 12 December 2003SULLY J
BARRJ
NEWMAN AJ
1 SULLY J: The Court is in a position to deal with this matter. I invite Barr J to give the first judgment.
2 BARR J: This is an appeal by the Director of Public Prosecutions under the provisions of s 5D Criminal Appeal Act against sentences imposed in the District Court. On 21 November 2002 the respondent, Justin Robert Smith, was committed to the District Court for trial for an attempted robbery in company on 14 February 2002 at Kensington, a robbery in company on 18 February 2002 at Cronulla and a robbery in company on 28 March 2002 at Annandale. On the first day of his trial, 10 March 2003, he pleaded guilty to all three charges. On 29 November 2002 he pleaded guilty before a Local Court magistrate to robbery with corporal violence on 7 March 2002 and was committed to the District Court for sentence. On 14 February 2003 he pleaded guilty in the Local Court to robbery whilst armed with a dangerous weapon on 17 May 2002 at Bankstown and was committed to the District Court for sentence.
3 All charges came before Judge Backhouse QC and on 13 June 2003 her Honour imposed these sentences:-
For the robbery in company on 18 February 2002 imprisonment for four years commencing on 14 June 2006 and expiring on 13 June 2010 with a non-parole period of two years expiring on 13 June 2008;For the attempted robbery in company on 14 February 2002 a fixed term of two years’ imprisonment commencing on 14 June 2006 and expiring on 13 June 2008;
- For the aggravated robbery with corporal violence on 7 March 2002 imprisonment for a fixed term of three years commencing on 14 December 2002 and expiring on 13 December 2005;
For the robbery with a dangerous weapon on 17 May 2002 imprisonment for seven years commencing on 14 December 2002 and expiring on 13 December 2009 with a non-parole period of four years and six months expiring on 13 June 2007.For the robbery in company on 28 March 2002 imprisonment for a fixed term of two years commencing on 14 June 2006 and expiring on 13 June 2008; and
4 In sentencing for the robbery of 18 February 2002 her Honour took into account under the provisions of s 32 Crimes (Sentencing Procedure) Act the respondent’s possession of small amounts of cannabis and heroin.
5 The practical effect of the sentences was a head sentence of seven years and six months commencing on 14 December 2002 and expiring on 13 June 2010 and a non-parole period of five years and six months expiring on 13 June 2008.
6 On 27 July 2000 the respondent had been sentenced in the District Court to imprisonment for four years and six months for the offence of robbery in company. The two-year non-parole period had expired on 4 November 2001 and the respondent had been released to parole on that day. He was subject to that parole throughout the commission of the five offences with which this appeal is concerned. He was arrested on 24 May 2002 and not long afterwards the Parole Board revoked his parole, backdated the revocation to the date of his arrest and ordered him to serve the balance of the four-year sentence, a period of two years and three days commencing on 24 May 2002 and expiring on 26 May 2004.
7 There was, thus, a concurrency between the sentences which commenced on 14 December 2002 and the one for which parole had been revoked, beginning on 14 December 2002 and ending on 26 May 2004.
8 The circumstances of the offences were as follows. Shortly after 4pm on 14 February 2002, the Kensington branch of the Commonwealth Bank had closed for the day but clients were still within the chamber completing their business. Four intending robbers entered the bank after one of them broke the door with an axe. The respondent and one other kicked open a door and gained access to the place where the cash was kept. The staff pressed an alarm, security screens rose and the attackers were thwarted. They ran out of the bank and got away from the district in a stolen car. The image of the respondent’s face was recorded by a security camera.
9 During the afternoon of 18 February 2002 the respondent and three others entered the Cronulla branch of Westpac Bank. Two of them went up to a security guard and struck him on the head. Another stood at the door to stop anybody leaving. The respondent jumped onto the counter and swung on a security screen until it came loose. He threw it to the floor. He and one other went to the cash drawers, removed money and put it into a bag that the respondent was carrying. They got away with more than $15,000. As before, the respondent’s image was recorded by a security camera. During the commission of the offence, an eight-one year old client of the bank was pushed to the floor and fell heavily onto his right shoulder, which was sprained. He was treated in hospital. A staff member was struck on the face and the back of the head. She was treated in hospital for concussion and facial bruising.
10 At about 11.20pm on 7 March 2002 staff of Coles’ Supermarket at Randwick were removing money from tills and placing it in bags. The respondent and another entered the store. The respondent struck a staff member on the head and tried to take a money bag from her. He and his companion ran from the store and as they did so one of them took the sum of $260 in cash out of the hand of another staff member. The first staff member was put in pain and was scratched on the arm. The other suffered minor cuts and bruising to a hand and arm. The respondent left a fingerprint at the scene.
11 On 28 March 2000 the respondent and three others entered the Annandale branch of the Australia and New Zealand Bank. The respondent and two others got into the place where the cash was kept and removed it from drawers. One of them required the manager to open the safe and as she went to do so another co-offender pushed her, causing her to fall and hit her head on a door frame. She lay stunned on the floor and the co-offender kicked her and dragged her towards the safe. One of the co-offenders called “Time” and the robbers ran away. They got away from the district in a stolen car driven by a fifth offender. They stole more than $17,000. The image of the respondent was recorded by a camera.
12 The last of these offences took place on 17 May 2002 at Bankstown. The respondent and two others banged on the door of the ANZ Bank and the manager opened it. One of them threatened him with a crowbar and they demanded to be let in. The manager ran into the bank and they followed him. One of them took out a gun. They removed a quantity of deposit bags and money from drawers. They took the wallets and handbags of members of the staff. They got away in a stolen car driven by another offender. Altogether they took more than $134,000. On 24 May 2002 police searched the respondent’s house and found the deposit bags and other documents and things stolen in the robbery. A member of the bank’s staff identified the respondent as one of the attackers by selecting his from a number of photographs.
13 The maximum sentences for the offences were, respectively, twenty, twenty, twenty, twenty and twenty-five years’ imprisonment.
14 The respondent did not give evidence on sentence but a report from Mr John Machlin, psychologist, was tendered that said something about him and his history. He was born on 7 February 1977, so he was twenty-six years old at the time of sentence. His parents separated when he was three years old and he had not seen his father since. His mother was an alcoholic. He was raised mainly by his grandmother and an aunt. He began offending at the age of twelve years but avoided juvenile detention. At fifteen or sixteen years old he began cohabiting with his partner. They have two children, a son aged nine and a daughter aged four years. The respondent left school from Year 8. He has done some work under Work for the Dole schemes as a juvenile and on work release programs while in custody. He has participated in drug and alcohol counselling through involvement with the justice system.
15 He used cannabis until the age of nineteen or twenty, when he began using heroin. That started while he was serving a gaol sentence. He has been smoking heroin for the past five years, except when in custody. He participated in a rehabilitation program when he was nineteen or twenty years old but only briefly, leaving it almost immediately after beginning. At the time of his arrest he said that he was using two grams of heroin a day at a cost of $700.
16 The respondent is considered to be well below average in intelligence, having a composite IQ calculated at 75. Mr Machlin considered that to be above the level of developmental disability. Mr Machlin thought that the respondent was depressed, though not clinically so.
17 The respondent has a bad record for a young man. I shall not refer to his less serious offences of dishonesty and violence. In March 1994, when he was sixteen years old, he was dealt with for five counts of robbery. He was ordered to perform community service. In August 1996, when he was nineteen years old, he was convicted of seven counts of robbery in company and sentenced to a term of three years three months’ imprisonment with a minimum term of one year. In January 1998, when he was twenty years of age, he was dealt with for stealing from the person and two other offences. He was sentenced to imprisonment for one year with a minimum term of nine months. In July 2000 he was sentenced for the count of robbery in company, which I have already mentioned.
18 A pre-sentence report, which was prepared by an officer of the Probation and Parole Service, drew attention to the respondent’s financial and social deprivation and to the consequence that he had failed to realise his potential. The officer regarded the respondent as a person with low self-esteem who was easily influenced by associates and who had come to regard a succession of gaol sentences as inevitable. The officer drew attention to the respondent’s repeated failures on parole which had led to the two prior revocations.
19 The remarks of the sentencing judge are extensive and detailed. Having reviewed the facts at length, the judge recorded that the respondent accepted responsibility for the part he had played as well the parts his co-offenders had played in each of the offences. The judge noted that none of the money stolen from the banks had been recovered. The judge expressed the view that the respondent was entitled to a twenty-five per cent discount from the sentence which would otherwise apply for each of the offences, mentioning the utilitarian value of the pleas and the respondent’s remorse and contrition. Her Honour continued by saying, “...albeit limited by the strong Crown case in each instance.” That statement implies, if it does not express, doubt about remorse and contrition, though elsewhere in the remarks on sentence her Honour appeared to be free of doubt about those matters.
20 Her Honour referred to the family, education, work and criminal history of the respondent, with particular reference to his use of heroin and his acknowledged need to rid himself of the need to use that drug. Her Honour accepted the evidence of Mr Machlin that the respondent would probably respond to therapeutic and rehabilitative efforts now, having acknowledged his need to be rid of his addiction.
21 Her Honour referred to the objective seriousness of the offences and for the need for sentences to deter the respondent and others from committing such offences. Her Honour observed that the fact that the offences were committed to obtain money to buy heroin did not mitigate the respondent’s criminality.
22 Referring to the most recent revocation of parole and observing that the respondent had been in custody ever since his arrest on 24 May 2002, her Honour stated an intention to backdate the sentencing for a period of six months from the date of imposition, though there was no explanation of how that commencement date was selected or calculated.
23 In accordance with s 44 Crimes (Sentencing Procedure) Act her Honour identified the age of the respondent, the fact that he was Aboriginal and the need for ongoing rehabilitation as justifying a sentencing structure in which the parole period exceeded one quarter of the head sentence.
24 During the remarks on sentence her Honour referred to Regina v Henry (1999) 46 NSWLR 346 and Pearce v The Queen (1998) 194 CLR 610.
25 The Crown made a number of attacks on the sentences in this Court. First, relying on Regina v Henry and Pearce v The Queen, it was submitted that the individual sentences were too low. It was submitted that the total effective sentence was too short to reflect the objective seriousness of the whole of the respondent’s bout of criminality. It was submitted that the sentences, short as they were, were really even shorter because there was a concealed leniency resulting from the partial concurrency with the parole period of the previous sentence. It was submitted that the commencing date of the overall sentence should have been the day of its imposition, 13 June 2003. Finally it was submitted that the discount of twenty-five per cent for the pleas of guilty was too high, in view of the fact that only two of the five offences involved pleas of guilty at the earliest opportunity.
26 Although her Honour made a passing reference to Regina v Henry, there was no comparison made between the circumstances of the present case and those dealt with in that case. Regina v Henry indicates a range of four to five years as an appropriate starting point for sentencing in a fairly typical kind of robbery in company, important features of which are that the accused is young with no substantial previous criminal history, little or no planning is involved, and little property is taken. The present case was far more serious than the kinds of cases there contemplated in that the respondent was no longer a youth, there was a substantial degree of planning in each attack, substantial amounts of money were taken or at risk and there were the aggravating features of the violence done to property and staff and clients of the banks. The last offence involved the use of a dangerous weapon. All the offences were committed when the respondent was on parole. To the extent that Regina v Henry might offer any guidance, therefore, it would be that in the absence of strong reasons to the contrary the starting point for these sentences ought to have exceeded the range there indicated. They did not.
27 The fact that the judge made no attempt to justify by reference to Henry or any other case or body of information that might have indicated appropriate sentences and the shortness of the sentences themselves satisfy me that her Honour fell into error.
28 Moreover, the fact that the sentences imposed for the offences committed on 14 February 2002, 7 March 2002 and 28 March 2002 were made concurrent with the other two sentences meant that the respondent received no punishment for those three offences. I have not overlooked the fact that it may be appropriate in a particular case to order that one sentence run concurrently with another but in my view the shortness of the individual sentences and the resulting shortness of the overall sentence had the result that I have explained. Really, it seems to me that the strength of the Crown argument is that, however the sentences are structured, the total effective sentence is far shorter than it reasonably could have been.
29 In a Crown appeal against sentence, this Court will not interfere merely because it would itself if sentencing have imposed a higher sentence. The Crown must show that the sentence appealed against was so low as to be entirely outside the proper range of discretion of the sentencing judge. Even then the Court is not bound to interfere but must exercise its discretion whether to do so. An important consideration in the exercise of that discretion s that effectively the offender is called for sentence a second time.
30 Bearing all these matters in mind, I have come to the view that these sentences were individually and collectively so low that they fall below the proper range of sentencing discretion of the judge. For the same reason I think that this Court should interfere.
31 It is not necessary to deal with all the attacks made by the Crown, but I do think it appropriate to deal with two other matters. The Crown submitted that her Honour erred in allowing a twenty-five per cent discount for the pleas of guilty. A plea of guilty may affect the sentence in a number of ways. First, it will save the State time and money in trying the offender. This has been called the utilitarian value of the plea and is generally taken to entitle an offender to a reduction of somewhere in the range of ten to twenty-five per cent from the sentence which would otherwise apply, depending on the timing of the plea. The earlier the plea the more time, trouble and money are saved and the greater the reduction that should be allowed. The assessment of reduction for this reason does not concern itself with motive but with the measure of the benefit flowing to the State.
32 Secondly, a plea of guilty makes it unnecessary for witnesses to give evidence. That assumes importance where lay witnesses who because of age or as a result of injury or the unsettling effect of their experience might find giving evidence unusually burdensome. It was an important feature of the respondent’s pleas, because they relieved the clients and staffs of the organisations concerned, some of whom were injured, one of whom was elderly and all of whom must have been badly shaken by their experience, from the need to give evidence.
33 Thirdly, a plea of guilty might be evidence of remorse. Her Honour appears so to have regarded it. There was independent evidence in the report of Mr Machlin that the respondent was sorry and that he wanted to do what he could to rid himself of his addiction to heroin.
34 The judgment of this Court in Regina v Thomson and Houlton (2000) 49 NSWLR 383 made it plain that a sentencing court is encouraged to nominate the percentage or other proportion by which a sentence has been reduced on account of the utilitarian value of a plea of guilty. I say “encouraged” because it is unnecessary for the Court to do so if it does not appear appropriate for the Court to do so.
35 In due course I shall propose sentences to be passed in lieu of the sentence imposed by her Honour. Those sentences will incorporate a substantial allowance for the respondent’s pleas of guilty, some in the Local Court and some at the very commencement of the trial. I do not think it appropriate otherwise to mention the value of the discount which I shall allow.
36 The Crown submitted that the sentences were even more lenient than they at first appeared because they had been made to commence during the currency of the earlier sentence. Her Honour appears to have regarded the period between arrest on 24 May 2002 and the commencement date of the first sentence, 14 December 2002, as notionally attributable solely to the prior sentence. There was no evidence on which her Honour could do so and no reason was given. At the same time, her Honour regarded as an aggravating feature, justifying a higher sentence, the fact that the offences were committed on parole.
37 A number of cases in this Court have dealt with the problem that exists when a sentencing judge is faced with the prospect of grafting a new sentence or new sentences onto the parole period of an existing sentence. Views differ about the appropriate way to deal with the problem in any particular case.
38 In argument before us, Mr Cook, responding to the Crown’s submission that any sentence should be made to date from the date that her Honour imposed sentence, submitted that this would produce a capricious result, that in a practical sense the precise day upon which an offender came for sentence was ultimately quite accidental.
39 That states only one half of the problem, to my mind. What a sentencing judge has to do is impose a proper sentence or proper sentences overall, taking into account the criminality for the sentences that are there and then to be imposed and all relevant antecedent facts, including, if it is the case, that an offender is serving the balance of the parole period of an existing sentence. The sentencing judge must take that into account and in an intuitive way adjust accordingly the sentence or sentences to be imposed.
40 I shall propose the commencement the first of the sentences on the day on which her Honour imposed sentence. In doing so, however, I shall take into account the fact that the offender was serving the balance of parole of an earlier sentence. I shall take into account the fact that these offences were all committed while the respondent was on parole and I shall take into account the fact that the sentences will be accumulated onto an existing sentence. That last fact of itself weighs, when the Court considers the principle of totality, in deciding the length of sentences it is to impose.
41 Employing the restraint which is necessary in re-sentencing a respondent to a Crown appeal and reducing sentences which would otherwise be appropriate by an appropriate amount sufficient to allow for the pleas of guilty and their consequences, as well as the other subjective features to which her Honour drew attention, I would impose an effective head sentence of fifteen years and a non-parole period of nine years counting from the date upon which her Honour imposed sentence.
42 The parole period would exceed twenty-five per cent of the head sentence because the respondent needs a longer period than would ordinarily apply to promote the chances of his rehabilitation when he is released to parole.
43 The partial accumulation of sentences justifies the Court in declining to fix a non-parole period on any of the first three sentences, to reduce it on the fourth and to increase it on the fifth. I propose the following orders:-
(1) Allow the appeal and quash the sentences appealed from.
(2) Impose in lieu the following sentences:
(i) For the attempted robbery in company on 14 February 2002 imprisonment for six years and six months commencing on 13 June 2003 and ending on 12 December 2009. Decline to fix a non-parole period.
(ii) For the robbery in company on 18 February 2002 imprisonment for eight years commencing on 13 June 2004 and expiring on 12 June 2012. Decline to fix a non-parole period.
(iii) For the robbery in company on 7 March 2002 imprisonment for six years and six months commencing on 13 June 2005 and ending on 12 December 2011. Decline to fix a non-parole period.
(iv) For the robbery in company on 28 March 2002 imprisonment for eight years commencing on 13 June 2006 and expiring on 12 June 2014. Fix a non-parole period of six years expiring on 12 June 2012.
(v) For the aggravated robbery in company on 17 May 2002, and taking into account the matters under the provisions of s 32 Crimes (Sentencing Procedure) Act imprisonment for eleven years commencing on 13 June 2007 and expiring on 12 June 2018. Fix a non-parole period of five years expiring on 12 June 2012.
(vi) Declare that the respondent will be eligible for release on parole on 12 June 2012.
44 SULLY J: I agree with the orders proposed by Barr J. I agree with the entirety of the reasons given by his Honour for those orders.
45 NEWMAN AJ: I also agree.
46 SULLY J: The orders then will be as proposed by his Honour.
Last Modified: 12/22/2003
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