R v West

[2000] NSWCCA 545

CITATION:	R v West [2000] NSWCCA 545
FILE NUMBER(S):	CCA 60299/2000
HEARING DATE(S):	6 December 2000
JUDGMENT DATE:	6 December 2000
PARTIES :	Crown - Respondent John WEST - Applicant
JUDGMENT OF:	Simpson J at 1; Carruthers AJ at 29

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0386
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	M G Pincott - Applicant Ms P Hock - Crown
SOLICITORS:	Sydney Regional Aboriginal Corporation Legal Service S E O'Connor - Crown
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 346 Wright v R (1989) 45 A Crim R 423 R v Todd [1982] 2 NSWLR 517 R v Micallef [1990] 50 ACrimR 465 R v Edwards (1996) 90 A Crim R 510 R v Edwards (1996) 90 A Crim R 510
DECISION:	Leave to appeal granted, appeal allowed, the sentence quashed to the extent that the non-parole period be reduced, in substitution thereof the applicant sentenced to a period of imprisonment of six years with a non-parole period of three years.

IN THE COURT OF
CRIMINAL APPEAL

60299/00

SIMPSON J
CARRUTHERS AJ

6 December 2000


REGINA v John WEST

Judgment

SIMPSON J :

1 The applicant seeks leave to appeal against the severity of a sentence imposed upon him on 17 May 2000 by Kinchington DCJ following his plea of guilty to a charge of assault with intent to rob whilst armed with an offensive instrument. Pursuant to s 97(1) of the Crimes Act 1900 the applicant was liable to a maximum penalty of imprisonment for twenty years. Judge Kinchington imposed a term of six years with a non parole period of three and a half years commencing 12 May 2000, the date the applicant was taken into custody.

2    The facts of the offence can be shortly stated. It was committed on Sunday 27 September 1998 at about 12.30 pm. The applicant entered a pharmacy in Auburn on three occasions. On the first two occasions he purchased, or looked at roles of adhesive tape and then left the store. On the third occasion he returned and selected a role of tape and approached the counter behind which the female pharmacist was standing. She sought to assist him with his purchase. The applicant hand over some coins to pay for the purchase and she opened the cash register. The applicant produced a blood filled syringe and jumped over the counter, causing the pharmacist to fall backwards on the floor. It seems that, although the pharmacist was aware that the applicant was holding something in the nature of a weapon and he alluded to what it was, it was not until two days later that she found the syringe on the shelf in the pharmacy and appreciated what it was that she had been threatened with. It is also to be observed that her fall to the floor was caused, not by a punch or a kick, but by the applicant’s body coming into collision with hers, presumably as he leapt the counter.

3    The applicant was born on 23 January 1970. He was aged twenty-eight years at the time of the offence. He was interviewed by police on 4 March 199 but declined to answer questions until he had obtained legal advice. However, he willingly permitted the taking of a blood sample for comparison purposes.

4    On 13 December 1999 the applicant wrote a letter to the victim apologising for the trauma he had caused and saying that he understood that his actions must have terrorised her and left her scarred for life.

5    Also before the sentencing judge was a letter written by a family friend who lives in Orange, a Mr J Sampson. The most significant details that emerged from this letter concern the applicant’s background. He was described as an Aboriginal boy from a broken family who barely knew his father. Mr Sampson also referred to the applicant’s current family situation, information which also emerges from other material produced. This included three progressive presentence reports.

6    The applicant is the father of a five year old daughter who has been in the care of her grandparents, and a two year old daughter of whom he had sole custody. The mother of the children was then serving a lengthy term of imprisonment. In his letter Mr Sampson spoke of the applicant’s devotion to and care for his daughter and her dependence of and need for him.

7    The applicant has a criminal record which began in 1985 when he was fifteen years of age. It contained offences of dishonesty, motor vehicle offences and drug offences. Most significantly, it discloses that he was subject to a recognisance imposed in 1996 when he committed this offence. According to the pre-sentence report, he began using heroin at the age of sixteen, and continued this until approximately twenty-five years of age. He subsequently entered a methadone programme. However, his explanation for the present offence was that he had recently used, and was then in need of, drugs. Analysis in September and October 1999 disclosed no illegal drug use. It does not appear that he has any alcohol problem.

8    During the course of oral submissions it was pointed out that analysis of the record shows that while there were far too many offences prior to 1991 there was then a gap until 1996 when the applicant was convicted of larceny and subjected to a recognisance and thereafter he remained free of offences until 1998 when he committed this offence.

9    Supplementary pre-sentence reports described the applicant’s compliance with his remand conditions as “compliant but superficial” and this is a description that was repeated throughout the reports made by the Probation and Parole Service.

10    The reports also show that in 1991 the applicant was subjected to a community service order which he breached, but in 1996 a further community service order was successfully completed, and it was suggested that this gave rise to an inference that the applicant’s rehabilitation, although marred, had been progressing since 1991.

11    It has been observed that the offence was committed on 27 September 1998. The applicant was arrested on 4 March 1999 and he thereafter remained on bail, subject to conditions including reporting conditions, until 12 May 2000. He has not been the subject of any additional charges during that time.

12    He gave evidence in the sentencing proceedings. He explained his drug use as having begun when he was told to leave school in the country and he came to Sydney to complete his education and, to use his words, “I met the wrong people I suppose”. He said he had no real memory of his father and of his mother he said “She was just a mother who wasn’t around”. He had lived with different relatives during his childhood and adolescence, and this was because of his mother’s alcohol problem.

13    His explanation for his relapse into drug use was that his de facto’s brother had been released from gaol and persisted in offering him cocaine and heroin.

14    The applicant has had employment at times in the city and in the early 1990’s during which time he was drug free.

15    At the time of sentencing he had commenced an apprenticeship with the Aboriginal Housing Corporation in conjunction with TAFE in carpentry, and had full time employment. The course involves two years of study, made up of two days in the classroom and three days of practical work. He was continuing to look after his daughter with the assistance of a young cousin.

16    He anticipated that on his incarceration he would find it necessary to call upon his mother for assistance although she is sixty-four years of age and not in very good health, being asthmatic and suffering from “a bad heart”.

17 The sentence imposed by his Honour is, on its face, in conformity with the guideline judgment promulgated in R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 346 at para 165, at least when the features which distinguish this case from the profile set forth in Henry are taken into account. The guideline pronounced in Henry was of a full term of between four and five years. In para 162 seven features of the profiles to which that guideline applied were specified. These included a young offender and limited criminal history. The applicant does not really fall into either of these categories. Moreover, this offence was committed while he was subject to a recognisance imposed in February 1996 requiring him to be of good behaviour for three years.

18    It was not argued on the appeal that the head sentence was excessive or that the applicant could expect anything other than a full time custodial sentence. The principal matter argued on behalf of the applicant concerns the effect of the rather lengthy period between the date of the commission of the offence and the date of sentencing, and the steps he had taken towards rehabilitation during that time, and it also incorporated reference to the apparent partially successful rehabilitation as evidenced from his record from 1991 to 1998 which was marred only by a single conviction for larceny.

19 On behalf of the applicant, reliance was placed upon a passage from a judgment of Justice Badgery-Parker, in Wright v R (1989) 45 A Crim R, 423 as follows::

“The second aspect of Todd’s case [ R v Todd [1982] 2 NSWLR 517] is the need to have regard to what has transpired during the period of delay prior to sentence. I have referred, as a relevant consideration, to the effect of such delay, on the state of mind of a prisoner who is left in uncertainty as to what the future may hold for her. Nothing in particular was made of this in the evidence here but it is a fact that has been given some weight and it is, in my view of some significance here because of the interplay of that factor and the question of rehabilitation. The principal way in which the lapse of time between offence and sentence may operate to attract leniency is by the opportunity which it provides to asses the prisoner’s prospects of rehabilitation and progress towards rehabilitation”,

and also in passages from a judgment of my own in Henry :

“Usually, and certainly in relation to armed robbery, general deterrence is a very significant factor in the sentence process. So is specific deterrence, and so is punishment. The point I wish to make is that where a combination of two circumstances exist, then general deterrence and other sentencing objectives such as retribution, may yield to rehabilitation. The two circumstances are:
(i) a background to the addiction that may explain the offenders decision to use drugs, and diminish his or her moral culpability for that decision;
(ii) demonstrated progress towards rehabilitation,
The second is, to my mind, essential before general deterrence can be seen to give way to rehabilitation.
Where those two circumstances coincide, then the interests of the community may well be better served by the imposition of a penalty that leans towards furthering the rehabilitative process at the expense of the punitive and even the deterrent objectives of sentencing.”

and of Wood J (as his Honour then was) in R v Micallef [1990] 50 ACrim R 465 stated at that page 467:

“It is true that sentencing Judges should be astute in detecting those cases where, after a poor record of turning point appears in a life of a repetitive offender …. Commonly, offenders in their early thirties reach that critical stage, but before extending leniency sentencing Judges should be satisfied that there is a glimmer of hope, and even then should impose a sentence which adequately balances the interest of general deterrence against the interest of rehabilitation”.

20    This submission requires some closer examination in the circumstances of that lengthy delay. As I have noted, the applicant was arrested on 4 March 1999. He first appeared in the District Court on 13 December of that year. Just what happened between those dates does not appeal from the papers before this court. On 13 December an application for an adjournment was made on behalf of the applicant. The reasons advanced were his need to care for his two year old daughter, the impending release of the child’s mother on parole, anticipated in February of this year, and that an adjournment would enable the applicant to spend Christmas with the child. Judge Kinchington acceded to this application, essentially for the reasons on which it was based. His Honour did not hold out any hope that this should be taken as an indication of a non custodial sentence and expressly alluded to the possibility of a term of imprisonment. I would interpolate here that I would reject the contention that in adjourning the matter, his Honour held out some sort of carrot to the applicant. What his Honour did was to accede to an application for an adjournment, but he never indicated that he was considering anything other than a custodial term or a custodial term that would be limited by reason of that adjournment.

21    The matter next came before Judge Kinchington on 24 March 2000. That was the day on which the applicant gave evidence. His Honour indicated that he intended to reserve his decision in order to consider the factual and legal matters that were put before him, but expressed the view that it would be dealt with “the sooner the better”. The applicant’s legal representative asked that the adjournment be longer rather than shorter in order to enable the applicant to continue with his TAFE course and the care of his daughter. Although he had immediately before that floated the suggestion that the applicant might be sentenced to a term to be served by way of periodic detention he also recognised the possibility of a full time custodial sentence. His Honour requested an updated report to keep him informed as to the applicant’s general behaviour and his attendance at TAFE. I do not think the applicant was in any way misled into thinking that there was any real prospect of a non-custodial sentence. Such an idea would be quite unrealistic.

22    As I have mentioned, there were in fact three pre-sentence reports prepared. The first was dated 25 November 1999. The applicant was then described as “superficially compliant” towards the Probation and Parole Service and somewhat resentful of the need to attend interviews as directed. The second report was dated 21 February 2000 and repeated the description of the applicant’s participation in supervision as “compliant but superficial”. It did, however, report that the applicant had obtained the employment with the Aboriginal Land Council that has already been mentioned. However, the officer also reported that enquiries had revealed that the applicant had attended work on only one occasion during a two week period and expressed concern about the failure to attend.

23    The third report was dated 9 May 2000 and again repeated the description of the applicant’s participation in the probation supervision. On this occasion the applicant’s attendance at the TAFE course was described as “irregular and requiring more application”, a description which was conveyed to the Probation and Parole Service officer by the applicant’s teacher. A view was expressed to the effect that the applicant’s somewhat lukewarm attention to the course was occasioned by the pending court appearance.

24    There is a need always to balance the considerations of gravity of the crime and its objective circumstances against the subjective circumstances meriting the extension of leniency. Subjective circumstances seldom override imposition of what has come to be called “condign punishment”. The seriousness of a threat to attack a lone woman in a small commercial enterprise with a blood filled syringe cannot be gainsaid. Use of such a weapon is a relatively new but regrettably increasingly common offence and it is also a particularly abhorrent crime. Plainly the applicant’s offence demanded a sentence at the very least of the five years top of the range specified in Henry.

25 On the objective circumstances, the additional period of one year is justified by the applicant’s age, criminal history and the fact he was subject to a recognisance at the time, although that head sentence is, in my opinion, at the top of the available range. I should mention here that, although the contrary was not argued, the applicant’s need to case for his daughter is not an exceptional circumstance such as to bring the case within the R v Edwards (1996) 90 A Crim R 510.

26    The only question to my mind is whether, in the nearly twenty months that elapsed between the crime and sentencing, the applicant’s progress towards rehabilitation was such as to render the non-parole period imposed as excessive, or put another way, whether it can be seen that the sentencing judge failed to have due regard to that apparent progress.

27    His Honour in his remarks on sentence expressly explained the non-parole period he imposed by reference to the applicant’s efforts to overcome his drug addiction and attempts to change his previous life-style, and steps taken towards his own rehabilitation while awaiting sentence. It is therefore plain that his Honour had in mind the need to have regard to that progress. However, in my estimation the effect given to that appreciation was inadequate. The non-parole period of three and a half years does not, in my view, fully recognise the not entirely successful but nevertheless commendable efforts made by the applicant, and the level of success which he has achieved. I do not think it is appropriate to interfere with the head sentence, but I would reduce the non parole period by six months.

28    I propose that leave to appeal be granted, appeal be allowed, the sentence quashed to the extent that the non-parole period be reduced, and I would propose in substitution that the applicant be sentenced to a period of imprisonment of six years with a non-parole period of three years.

29    CARRUTHERS AJ: I agree.

30    SIMPSON: The orders of the court will be as I have proposed.

**********