R v Whitton - [2004] NSWCCA 313

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Whitton [2004] NSWCCA 313

FILE NUMBER(S):
60197/04

HEARING DATE(S): Wednesday 1 September 2004

JUDGMENT DATE: 13/09/2004

PARTIES:
Regina v Thomas Whitton

JUDGMENT OF: Grove J Simpson J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0583

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL:
E. Wilkins (Crown/Respondent)
R. Button (Applicant)

SOLICITORS:
S. Kavanagh (Crown)
S O'Connor (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
STEAL FROM PERSON AND ATTEMPTED ROBBERY
STATISTICS FOR SIMILAR OFFENCES
PARTIAL CUMULATION
WHETHER RESULTANT SENTENCE MANIFESTLY EXCESSIVE

LEGISLATION CITED:

DECISION:
LEAVE TO APPEAL AGAINST SENTENCE GRANTED
BY MAJORITY, APPEAL ALLOWED
APPELLANT RESENTENCED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60197/04
GROVE J
SIMPSON J
SHAW J
Monday 13 September 2004

REGINA v THOMAS WHITTON

Judgment

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Ainslie-Wallace DCJ at Sydney District Court on 8 December 2003. On that occasion the applicant adhered to pleas of guilty previously made before a magistrate to offences of stealing from the person and attempted robbery. In each case the prescribed maximum penalty is imprisonment for fourteen years.
It is significant to note that in January 2000 the applicant had been sentenced for an offence of aggravated robbery with wounding to a minimum term of three years imprisonment with an additional term of four years imprisonment. In respect of that sentence he was released to parole in June 2002. The additional term will expire on 30 June 2006.
Of the current matters the first offence occurred at about 10.35 am on Sunday 15 December 2002. A nineteen year old girl was walking in George Street, Sydney when she was approached by a co-offender who asked for directions. Being distracted by that approach she did not notice the applicant reach into her backpack and remove her wallet. Money was taken from the wallet, which was later abandoned. The incident was surveyed by security cameras and as a result police who had been contacted arrested the applicant and his co-offender shortly thereafter. The applicant was released to bail and pleaded guilty to the offence mentioned when he appeared in the Local Court. He was, as indicated above, on parole at the time of this offence.
The second offence occurred at about 9.35 am on Sunday 2 February 2003 when the victim, a seventeen year old girl was walking along Lawson Street, Redfern carrying a blue denim handbag over her left shoulder. The handbag contained money, a mobile phone and personal items.
The applicant was loitering nearby to the entrance of Redfern Railway Station. As the victim approached, he attempted to remove the handbag from her shoulder by pulling at it with both hands. The victim struggled as a result of which the applicant pulled her to the ground. She screamed for assistance and the applicant fled. As a result of being thrown to the ground, the victim had symptoms of soreness in her lower back and grazes to her left wrist and elbow. The incident was also recorded on a surveillance camera. The applicant was known to an employee at the railway station who had come to the assistance of the victim. He identified the applicant to police who located him in the area shortly after 3 pm that afternoon. When called upon to stop the applicant fled on foot but after a chase he was apprehended and taken to the police station where he was charged. At the time of this offence he was still on parole and also on bail in respect of the first offence.
On the first charge her Honour sentenced the applicant to imprisonment for eighteen months commencing on 2 February 2003 (the date upon which he was taken into custody in respect of the second offence). On the second charge her Honour sentenced the applicant to imprisonment for four years and six months commencing on 2 February 2004 with a non parole period of two years and six months commencing on that date and expiring on 1 August 2006.
As a result of the partial accumulation, the effective minimum custodial term of these sentences amounts to three and half years. It might be observed that the first date of eligibility for parole in respect of these sentences is 1 August 2006 and the expiry date of the sentence imposed for the offence in 2000 is 30 June 2006. A report from the Probation and Parole Service indicates that the Parole Board is considering the question of revocation of parole and monitoring the outcome of the proceedings in respect of these offences.
The sole ground of appeal advanced on behalf of the applicant is that the two individual sentences and the aggregate are manifestly excessive.
No challenge is made against any of the findings of fact made by her Honour for the purpose of sentence. She recounted the handicaps of the circumstances of his upbringing and his early contact with drug taking and, ultimately, his failure to successfully withdraw from heroin addiction. The subjective matters affecting the applicant are not in dispute.
It is submitted that the first offence amounted to little more than pick pocketing and it is submitted that “it is not easy to think of an example of the offence that could be less serious than this one”. I reject the implication that it is a matter of minimal seriousness to steal from a person lawfully going about her affairs in the streets of the city on a Sunday morning. The Crown Prosecutor has drawn attention to the remarks of Gleeson CJ in R v Ransee NSWCCA, unreported 8 August 1994:
“One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others”.
The amount of money in the young woman’s purse was comparatively small ($10) and in my view it is, in a general sense, just as serious to take a little from those who might have little as to take a lot from those who might have a lot. The victim was a student. In a written submission counsel for the applicant conceded that an imposition of eighteen months imprisonment after an early plea of guilty would not be erroneous for this offence in normal circumstances but submitted that the sentence is too long in this case even allowing for the matter of aggravation created by the circumstance that the applicant was on parole at the time.
The thrust of the submissions on behalf of the applicant related to the sentence on the second matter and the partial accumulation. Reference is made to the statistics published by the Judicial Commission and it has been sought to be demonstrated that the ultimate sentence (allowing for discounts indicated by her Honour) can be “seen to be very high” by reference to those statistics. Statistics of course are available for guidance but they do not create a template into which every sentence must fit. I have observed elsewhere that, if it were requisite to put every sentence within the ambit of an extant range of impositions, it is an arithmetical certainty that the inclusion of such impositions into the statistics would diminish the upper margin of the range in a continuity as they came to be included. This would distort the guidance the statistics are designed to offer.
It was acknowledged that the figures for attempted robbery were derived from a sample of only eleven offenders. A much larger sample (336 cases) was available of terms of sentence of all offenders convicted of robbery. It was no doubt that these combined sources were the basis of submission that the sentence was “very high” but not, I would observe outside the range of the statistical collation.
Given the concession that the learned sentencing judge made no error in finding relevant facts, I conclude that the assertion of error is, in essence, an assertion that this court should differently assess the appropriate sentence from that of her Honour. The intervention of this court is not attracted because this court would, if dealing with the matter itself, have imposed a more lenient term. It is constituted as, and exercises jurisdiction as, a court of error and not a court of review.
Having regard to the whole of the circumstances including matters of aggravation and matters of mitigation weighing in favour of the applicant I am unpersuaded that her Honour’s assessment falls outside the range of the sound exercise of her discretion. Nor am I persuaded that the construct reflected in the partial accumulation of sentences leads to any different conclusion. It is also necessary in terms of the applicable statute for it to be considered that some different sentence other than those imposed by her Honour should have been imposed and neither do I reach that conclusion.
I propose that application for leave to appeal against sentence be granted but the appeal dismissed.

SIMPSON J: In this matter I have had the advantage of reading in draft the judgment of Grove J. As his Honour has set out the circumstances of the two offences, it is unnecessary that I repeat those. What is in issue is whether either or both or the aggregate of the two sentences imposed was manifestly excessive. In the result I have come to a different view to that of Grove J. In seeking to support his contention that the sentences, in their overall effect, were manifestly excessive, counsel who appeared for the applicant relied upon statistical material provided by the Judicial Commission of NSW. It is commonly observed that these statistics are of limited use. Nevertheless, the statistics available establish to my satisfaction that each sentence imposed, and in particular their aggregation, took the overall sentence imposed upon the applicant to the very top of the range of sentences imposed upon the offenders represented in the statistical samples.
There were good reasons why the applicant was facing a severe sentence. Both offences were committed whilst he was on parole, indeed on parole for an offence of aggravated robbery with wounding; and the second offence was committed whilst he was on bail in relation to the first. He has a relatively lengthy criminal history, including the offence which I have just mentioned. The second offence, in particular, was a serious one of its kind, involving the use of real violence.
There were, of course, subjective features relevant to the assessment of the applicant’s culpability. His personal history was recounted in a pre-sentence report and the report of a psychologist. In brief, the applicant’s history as a child and adolescent was marked by the alcoholism of both parents and significant violence on the part of his step-father; and a pattern of emotional and physical deprivation too frequently seen in the criminal courts. As a consequence he began at an early age to use alcohol and illicit drugs.
There was, however, also evidence of rehabilitation and some hope for a crime-free future. This was particularly related to a relationship with a young woman with whom the applicant now has a child.
One significant matter argued on the applicant’s behalf was that the sentencing judge indicated her intention of allowing the applicant the maximum discount available in respect of his pleas of guilty. That is a discount of 25% on the sentence she would otherwise have imposed. Simple calculation demonstrates that the starting point for the sentence in respect of the second offence must thus have been a sentence of six years; and for the first, two years. It is to be remembered that the applicant stood for sentence for an offence of attempted robbery; it was not the completed offence, and not the aggravated form of the offence that incorporates violence. After consideration I have come to the view that these starting points did take the sentences outside the available range. Alternatively, it may be that her Honour did not give full effect to her stated intention to allow the maximum discount in respect of the pleas of guilty.
As a result, I would grant leave to appeal, allow the appeal, and quash the sentences imposed. In relation to the first count, of steal from a person, I would impose a sentence of a fixed term of twelve months of imprisonment, commencing on 12 February 2003 and expiring on 1 February 2004. On the second count, of attempted robbery, I would impose a non-parole period of one year and nine months with a head sentence of four years. I would order that that sentence commence at the expiration of the previously imposed sentence, 2 February 2004. The non-parole period would expire on 1 November 2005, and the head sentence on 1 February 2006.
SHAW J: I agree with Simpson J.

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LAST UPDATED: 24/11/2004