R v Spinks

[2005] NSWCCA 459

CITATION:	R v Spinks [2005] NSWCCA 459
HEARING DATE(S):	6 December 2005
JUDGMENT DATE:	6 December 2005
JUDGMENT OF:	Grove J at 1; Studdert J at 39; Whealy J at 40
DECISION:	LEAVE TO APPEAL REFUSED

CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE OFFENCES OF ARMED ROBBERY - STRUCTURE OF SENTENCE CRITICISED BY APPELLANT BUT EFFECTIVE TERM WELL WITHIN DISCRETIONARY RANGE - NO INTERVENTION CALLED FOR
CASES CITED:	AG's Apln under s 37 of Crimes (SP) Act 1999 2002 56 NSWLR 146 Johnson v The Queen 2004 78 ALJR 616 Mill v The Queen 1988 166 CLR 59 Pearce v The Queen 1998 194 CLR 610
PARTIES:	Regina v Ashley John Spinks
FILE NUMBER(S):	CCA 2005/736
COUNSEL:	P. Hamill SC (Applicant) J. Dwyer (Respondent/Crown)
SOLICITORS:	S. O'Connor (Legal Aid Commision) S. Kavanagh (Public Prosecutions)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0060
LOWER COURT JUDICIAL OFFICER:	English DCJ

2005/736

GROVE J
STUDDERT J
WHEALY J

6 December 2005

REGINA v ASHLEY JOHN SPINKS

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by English DCJ at Campbelltown District Court. The applicant had been committed for sentence after pleading guilty in the Local Court to four counts of aggravated robbery, for each of which was available a prescribed maximum sentence of twenty five years imprisonment.

2 There were also matters which her Honour was asked to take into account in two groups pursuant to the Form 1 procedure. Included in one of these were three further counts of aggravated robbery, two of which were committed on an occasion separate from those to which the counts related. The other was the assault and robbery of an additional victim on an occasion to which the second count related. The other Form 1 was in relation to offences committed some considerable time previously. I will refer to these as the first Form 1 and to the other as the second.

3 The applicant was arrested for unrelated matters on 13 July 2003. They included stealing a motor vehicle, hindering a police officer in the execution of duty, custody of suspected stolen goods, possession of implements to enter or drive a conveyance and serious driving offences.

4 On the following day, 14 July 2003, the applicant was sentenced at Port Macquarie Local Court to an effective overall sentence of twelve months imprisonment with a non parole period of nine months for these offences. He was also on that day charged with the current offences.

5 Her Honour sentenced the applicant as follows: On count one and taking into account the first Form 1, to imprisonment for seven years nine months commencing on 14 July 2003; on count two and taking into account the second Form 1, to imprisonment for fifteen years with a non parole period of eight years and nine months, both commencing on 14 July 2003; on count three, to imprisonment for seven years commencing on 14 July 2004; and on count four, to imprisonment for six years commencing on 14 July 2005. All of the sentences on counts one, three and four will expire before the expiry of the non parole period set in connection with the second count, that is to say on 13 April 2012.

6 The effective overall sentence is that imposed on count two, namely fifteen years imprisonment with eight years nine months non parole period.

7 The facts were summarised in an agreed statement. A short description of these events demonstrates the serious criminality in which the applicant engaged.

8 Soon after 7am on Monday 16 June 2003, the applicant and a co-offender, Lea-Caton, drove in a stolen vehicle to the Pendle Hill Newsagency at Pendle Hill. Lea-Caton waited outside while the applicant entered the premises with a shortened .22 calibre rifle. The applicant stepped on to the handbag rail at the service counter and demanded the owner, Mr Bortfield, open the cash register. Mrs Bortfield was also behind the counter at this time. Mr Bortfield complied and emptied the contents of two cash registers, being about $1,361 in total, into the applicant’s outstretched hand. The applicant pointed the rifle in Mr Bortfield’s direction as he took the money. The applicant left the premises and the offenders escaped in the get-away vehicle driven by Lea-Caton.

9 This conduct was comprehended in count one.

10 Count two was reflected in these facts, that ten days later, at about 8am on Thursday 26 June 2003, the applicant and Lea-Caton drove in another stolen vehicle to the Toongabbie Newsagency at Toongabbie. They entered the premises, one armed with a shortened .22 calibre rifle. The newsagent, Mr Cai, was told to hand over the money from two registers but was afraid and could not open the register. Mr Cai’s delivery driver, Mr Chamberlain, and a customer were also at the counter area at this time. The unarmed offender leapt the counter and emptied the registers of about $1,000. They later left in the stolen vehicle.

11 A week later, at about 1.30pm on Tuesday 1 July 2003, the applicant and a co-offender drove in another stolen vehicle to the Liquorland Bottle Shop on Frances Street, Artarmon. They entered the store. The applicant was armed with a .22 calibre firearm. The victim, Mr Kwan, was told to open the register. He complied and handed over $670. The offenders left in the stolen vehicle. Those facts constitute count three.

12 A further week later, at about 4.30pm on 8 July 2003, the applicant and Lea-Caton drove in a vehicle to the Blaxland Fine Wine Cellars on the Great Western Highway at Blaxland. They entered the store. Lea-Caton was armed with a shortened .22 calibre rifle. The victim, Mr Penrose, was ordered at gunpoint to open the register. The applicant walked behind the service counter and took the cash tray from one register and four cartons of cigarettes, while Lea-Caton took notes from a second cash register. In total $1,000 was stolen. They left in the get-away vehicle. Those facts constitute count four.

13 As the applicant and his co-offender were leaving the Toongabbie Newsagency a customer was robbed of his mobile telephone.

14 This was the third offence on the second Form 1.

15 The other two robberies taken into account on that form were again committed by the applicant in the company of Lea-Caton.

16 On 3 July 2003 they entered a newsagency at Concord armed with a shortened .22 calibre rifle. A staff member was forced to hand over contents of a cash register amounting to $600 and a customer to hand over his wallet and its contents.

17 The first Form 1 admitted offences committed on 30 December 2000 at premises in Seven Hills known as Best Street Take-Away. They consisted of three charges of assault occasioning actual bodily harm on three separate victims, possession of a prohibited weapon, being a replica pistol, and being armed with that pistol with intent to commit an indictable offence specified as an assault.

18 The applicant was born on 24 April 1975. He has a considerable criminal record commencing in the Children’s Court. It is not necessary to pause to detail it.

19 At the time of these offences, with the exception of those on the first Form 1, he was on conditional liberty in connection with a conviction for arson in Rockhampton, Queensland in 2002.

20 The applicant’s personal background shows the manifestation of problems from an early age. He was adopted as an infant and her Honour noted his adoptive mother, in a true sense his mother, is supporting him as far as she can and was present at the sentence hearing.

21 He had attention deficit disorder identified while he was at school and he was taking drugs at an early age. A psychological report was tendered and its contents have been noted.

22 Four grounds of appeal have been filed and they are expressed in these terms:

1. The total effective sentence is manifestly excessive.
2. The sentence imposed in relation to count 2 is manifestly excessive.
3. The sentencing Judge erred in her approach to the matters on the Form 1.
4. The sentencing Judge gave insufficient weight to, or failed to give effect to, her findings relating to the mitigating features of the case and in particular to her findings in relation to (i) contrition, (ii) the lack of substantial harm to the victims and (iii) the applicant’s prospects of rehabilitation.

23 Grounds 1 and 2, imposed in the light of the structure of sentences which I have set out, attack the enveloping term of fifteen years imprisonment with a non-parole period of eight years nine months imposed on count two. I recognise that her Honour referred to the “principles of totality” in accordance with the dictate of Pearce v The Queen (1998) 194 CLR 610 and said that the sentences would be partly cumulative. In fact, as I pointed out, they are effectively wholly concurrent. Although a verb of command appeared in the joint judgment in Pearce at page 624, it is to be understood in light of the later decision in Johnson v The Queen (2004) 78 ALJR 616 which noted at page 624 that while Pearce and also Mill v The Queen (1988) 166 CLR 59 articulate commended courses, neither absolutely commands.

24 In my opinion the issue for this court is whether a total sentence which emerged in these circumstances as fifteen years imprisonment with eight years nine months non parole period from the structure which her Honour used was excessive in the sense that it lay beyond the limits of discretion.

25 Ground 3 conveys an underlying assumption that the marked elevation of the sentence on count two when compared with counts one, three and four was the result of misapplication of the approach to the three further robberies comprehended in the second Form 1. It is complained that her Honour made neither specific reference to the guideline judgment: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, (2002) 56 NSWLR 146, nor to the principles extracted therefrom.

26 Remarks on sentence have primary purposes of informing a prisoner why he or she is receiving an assessed sentence and exposing the reasons for making that assessment. Whilst my powers of observation do not prevent me from perceiving that many judges feel impelled on occasions to embroider their remarks with case references, quotations therefrom and elaborations upon sentencing principles, I consider that remarks on sentence which fulfil the primary purposes are beyond criticism and I reject the implication that an unembroidered approach is revelatory in some way of error.

27 As I have said, the issue for this Court is the total sentence and I would reject the assertion that there is implicit error of some sort.

28 The fourth ground, as its expression acknowledges, complains of matters of weight. Her Honour recounted significant matters of the applicant’s background, including his drug and gambling problems. She noted his expression of contrition and a letter received in evidence concerning remorse.

29 It is true that no victim was physically harmed, but there were multiple victims and their statements show their experiences were not without personal detrimental effect in almost every case. It was correct to observe that the safety of many innocent victims was threatened.

30 I do not accept that the learned Judge failed to give sufficient weight to the applicant’s prospects of rehabilitation. The evidence showed, as the Crown pointed out, that these offences were committed as the applicant breached conditional liberty for a third time.

31 The proportion between non parole period and total term was significantly varied in the applicant’s favour from that specified in the statute for the express purpose of allowing an extended, and I would say very extended, period of supervised rehabilitation. I detect no error in her Honour’s weighing of mitigatory circumstances.

32 I return to the enveloping sentence. It was assessed after a discount of twenty five percent for the plea of guilty. Lesser assessments of every count became in a practical sense irrelevant as the sentences on these counts were wholly subsumed within the non-parole period specified for count two.

33 In this instance the criminality of the applicant comprised four charged counts of aggravated armed robbery and three counts of robbery on the second Form 1, as well as what it must be conceded to have been an older offence on the first Form 1.

34 Save one day, the enveloping sentence also subsumed the sentences received by the applicant at Port Macquarie. I consider the enveloping sentence comfortably within the range of the sound exercise of discretion.

35 I acknowledge the reference by counsel to the collated statistics, but these are of little assistance when, for the reasons which I have indicated, it is appropriate to view in this case what her Honour assessed in terms of effective totality.

36 Senior Counsel for the applicant took the Court to a number of cases for comparative purposes. Those cases, and the statistics may be taken to have been in a similar situation, involved conventional assessments in accordance with what is now described as the commended approach of Pearce.

37 The reasons which I have given indicate that this is a case in which the criminality was in practical terms reflected entirely by the sentence imposed on count two.

38 I propose that the application for leave to appeal be granted but the appeal dismissed.

39 STUDDERT J: I agree.

40 WHEALY J: I agree.

(Mr Hamill made application that the order of the Court be that the application for leave to appeal be refused).

41 GROVE J: In lieu of the order which I have proposed, the order of the Court will be that leave to appeal against sentence is refused.

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