R v X

[2003] NSWCCA 56

CITATION:	R v X [2003] NSWCCA 56
HEARING DATE(S):	06/03/03
JUDGMENT DATE:	13 March 2003
JUDGMENT OF:	Hodgson JA at 1; Dowd J at 2; Barr J at 3
DECISION:	Allow the appeal and set aside the sentence appealed from.; Sentence the respondent to imprisonment for a period of four years commencing on 25 May 2002.; Fix a non-parole period of two years and six months, expiring on 24 November 2004. The respondent will become eligible for release on parole on that day.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act, ss 23(3), 44(2)
CASES CITED:	Attorney-General's Applicatoin [No 1]; R v Ponfield [1991] NSWCCA 435 Bugmy v The Queen (1990) 169 CLR 525 Power v The Queen (1974) 131 CLR 623 R v Gallagher (191) 23 NSWLR 220 R v Henry (1999) 46 NSWLR 346 R v Moffitt (1990 20 NSWLR 114 R v Rushby [1977] 1 NSWLR 594 Wong v The Queen [2001] HCA 64
PARTIES :	REGINA (Applicant) X (Respondent)
FILE NUMBER(S):	CCA 60736/01
COUNSEL:	Applicant: GIO Rowling Respondent: AC Haesler
SOLICITORS:	Applicant: SE O'Connor Respondent: South Eastern Aboriginal Legal Service

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/41/0177
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

60736/01

HODGSON JA
DOWD J
BARR J

Thursday, 13 March 2003

REGINA v X

Judgment

1 HODGSON JA: I agree with Barr J.

2 DOWD J: I agree with Barr J.

3 BARR J: On 26 October 2001 the respondent, whom I shall refer to as X, pleaded guilty to a charge of specially aggravated breaking entering and stealing. He was sentenced to imprisonment for twenty-three months with a non-parole period of nine months, commencing on 13 June 2001. This is an appeal by the Crown against what is asserted to be the inadequacy of the sentence.

4 The sentence included an allowance for the respondent’s promise to give evidence against certain other offenders but he escaped from lawful custody on 21 December 2001. When the appeal came on for hearing on 11 February 2002 it was adjourned because the respondent was still at large. Then the Crown lodged an appeal under s 5DA Criminal Appeal Act because it asserted that the respondent had not made good his promise to assist. Both appeals were listed for hearing on 23 August 2002 but on that day the respondent was still at large and notice of the second appeal had not been served upon him. The Crown wished to proceed with the original appeal but the Court preferred to adjourn it once again pending service of notice of the second appeal, intending eventually to hear both appeals together. The respondent has been recaptured and is serving the sentence the subject of the appeal. The Crown has abandoned the s 5DA appeal.

5 The respondent knew Mr Douglas Griffin, who lived with his family at Greenwell Point, a village not far from Nowra. He knew that there was a safe in Mr Griffin’s house and believed that he kept in it a large amount of money and other valuables. He maintained that Mr Griffin owed him about $30,000. He told these things to one Glenn Wilson. Wilson engaged others to rob Mr Griffin and introduced them to the respondent.

6 At about 2.15 am on 25 December 1998 Mr Griffin was at home with members of his family. Men broke and entered the house armed with a shortened, double-barrelled shotgun, a knife and a baseball bat. They wore masks. They threatened Mr Griffin, demanding that he open the safe. They continually threatened to kill him and prodded him with the knife. During the course of the offence they cut his face by pushing him into a wall. They demanded that he open his safe but left before he had done so, taking money and jewellery belonging to Mr Griffin’s wife. Mr and Mrs Griffin and their children were terrified.

7 The respondent, who was armed with an unloaded pistol, remained immediately outside the house. His job was to intercept anyone who left the premises. However, he left the scene as his co-accused were preparing to enter. He was expecting to receive a share of the proceeds of the crime and made demands upon the co-offenders accordingly.

8 In July 1999 police officers asked him for a statement about the offence. He told them that he knew Mr Griffin and that associates had asked him where he, Mr Griffin, kept his money. He said that he had read in the newspaper that a home invasion had been committed at Greenwell Point and had asked those associates whether they had committed it. They had told him that they had but had obtained nothing from the crime. He had not believed the story and had spoken to them again, demanding part of the proceeds of the crime. They had given him nothing. He said that he had accompanied those persons to Greenwell Point where they had retrieved from a hiding place in the bush a bag containing two masks, a sawn-off shotgun, a knife, a hammer and an aluminium baseball bat, all used in the commission of the offence.

9 At no time did the respondent disclose to the police the part he had played in the offence.

10 He agreed to become a registered police informer and gave some assistance to the police.

11 His co-offenders suspected that he was a police informer, abducted him and threatened to kill him if he informed against them. He therefore left New South Wales with his wife and family and went to reside in Queensland.

12 On 26 April 2001 a registered informer, an associate of one of the co-offenders, gave a statement to the police implicating the respondent in the offence. As a result, on 22 May 2001 police spoke to the respondent in Queensland. He returned voluntarily to New South Wales. On 13 June 2001 he was refused bail in the Local Court. He remained in custody until he came before the sentencing judge.

13 On 1 August 2001 the respondent gave an account to police officers which was substantially in accordance with the account I have related. A police officer called to give evidence before the sentencing judge regarded the account as reliable and as corresponding with another statement later obtained from another co-offender. He said that without the respondent’s admissions the case against him would not have been strong.

14 The same officer regarded as genuine the respondent’s report about the threats made by his co-offenders and that his resulting fear caused him to run away to Queensland.

15 The respondent was born on 11 February 1960 and is forty-three years old. He is married and has six children. In a report for the sentencing judge a psychologist, Elizabeth Kusch, assessed him as above average in intelligence. She said that he had no psychiatric illness, though he had reacted to the adversities of a hard life, coming from a dysfunctional family and leaving school at twelve years of age.

16 The respondent’s criminal record is not good. He began to offend when he was ten years old and found himself before the Children’s Court. There were many appearances over the next thirty years. Of more consequence, however, has been his record over the past fifteen years during his period of maturity. He has continued to offend, though at a somewhat lesser rate than before. There have been several convictions for stealing and kindred offences, assaults, behaving in an offensive manner and malicious injury. In 1999 he was convicted in his absence of possessing a firearm and ammunition. He has many convictions for drug and drug related offences and traffic offences. His latest periods of imprisonment, apart from the one the subject of this appeal, appear to have been a forty-eight week period imposed in 1991, after a sentence of periodic detention was revoked, and a period of four months in 1993.

17 Material was put before his Honour and sealed in an envelope giving particulars of the assistance provided by the respondent. This Court has read the contents of the envelope. They show that the information the respondent gave about his offence and his co-offenders was comprehensive and that his promise to assist was considered genuine and likely to be effective. His assistance in unrelated matters was more restricted, however. No arrest resulted and there was consequently no occasion for giving evidence. When the respondent left the State, of course, he made himself unable to render further assistance.

18 His Honour acknowledged the value of the respondent’s admissions in his own case and of his offer to assist the police, including giving evidence if called against his co-offenders. His Honour accepted that the respondent was in fear of his life and would have to serve his sentence in strict protection, with the denial of opportunity that such a regime entails. His Honour acknowledged the seriousness of the offences and referred to the maximum penalty of twenty-five years’ imprisonment. His Honour said this -

Because of the seriousness of this offence, but for the factors that I have mentioned, I would consider that a sentence of five years’ imprisonment would be appropriate. However, because of the plea and co-operation, that will be reduced by twenty-five percent, which leads to a term of three years and nine months. That must also be discounted further by fifty percent for the assistance to the police, resulting in a term of one year and eleven months’ imprisonment and it is that term that will be the sentence of the Court …
It is clear that there are a number of special circumstances which justify me in reducing the non-parole period beyond the norm of seventy-five percent. The fact that [X] is in strict protection is a major special circumstance. The fact that he will be unable to return to the area where he grew up after his incarceration is a special factor. The effect of all these events on his family is a matter which ought properly be taken into consideration.
For those reasons I will set a non-parole period of nine months, commencing on 13 June and expiring on 12 March 2002. On that date he will be released on parole …

19 It was submitted on behalf of the Crown that, given the maturity and substantial criminal experience of the respondent, the fact that the robbery began with his grievance and his special knowledge of the intended victim, that the enterprise was carefully planned and the robbers well disguised and equipped, the starting point ought to have been substantially higher than that selected by his Honour.

20 It was pointed out that in Attorney-General’s Application [No 1]; R v Ponfield [1999] NSWCCA 435 this Court held that certain features aggravated offences of breaking, entering and stealing. Several apply to the present case. They are that the offence was the result of professional planning, organisation and execution, that the premises were those of an elderly man – Mr Griffin was sixty-three years old - and that the offence was committed at night when it was intended that he should be at home.

21 It was submitted by the Crown that the facts of this case would have justified a conviction for armed robbery, the kind of offence contemplated in the guideline judgment R v Henry (1999) 46 NSWLR 346. In that case a starting range of between four and five years’ imprisonment was proposed where the offender was young with no or little criminal history and there was a limited degree of planning.

22 In my opinion these submissions should be accepted. I think that his Honour erred in regarding a sentence of five years as the maximum period available on the facts of this case.

23 The next submissions attacked the manner in which his Honour allowed for the respondent’s favourable subjective features.

24 A sentencing judge has a wide range of discretion in the assessment of features which may combine to produce a more lenient sentence and in incorporating their value in the ultimate sentence. However, to separate out and allow discrete discounts for different features is artificial and illogical because it ignores the inter-relationship between different mitigating features. See the judgment of Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227-228; Wong v The Queen [2001] HCA 64 at 74-78. Such an approach can lead to error because it disguises the fact that sentencing is an intuitive process. Although a quasi-mathematical approach may perform the useful function of exposing a process of reasoning it may lead to error by giving an appearance of exactitude which it cannot impart.

25 Although it is not altogether clear, such a thing may have happened in the present case because co-operation and assistance to the police are inter-related and perhaps overlap. Assistance to the police may to a substantial extent have been a working out of the plea of guilty and both may have been evidence of the contrition which entitled the respondent to leniency.

26 In my opinion a discount of sixty-two and one-half percent for the favourable features of the present case, strong though they were, was outside the range of his Honour’s sentencing discretion. Discounts of that magnitude are reserved for rare cases. The respondent’s assistance was substantial but not of the highest order. The information he provided was of practical value only in the prosecution of the offence which he and his co-offenders committed. His worth as a registered informer was limited and ceased when he left New South Wales.

27 By s 23(3) Crimes (Sentencing Procedure) Act a court may not reduce a sentence for assistance so as to make it unreasonably disproportionate to the nature and circumstances of the offence. In my opinion the resulting head sentence of less than two years’ imprisonment, given the respondent’s maturity and criminal history and the detailed planning and execution of the offence, fell below the proper range of his Honour’s sentencing discretion because it failed to reflect the objective seriousness of the offence: R v Rushby [1977] 1 NSWLR 594.

28 The final submission attacked his Honour’s findings about circumstances considered special for the purposes of the increase of the parole period and the reduction of the non-parole period pursuant to s 44(2) Crimes (Sentencing Procedure) Act. Such circumstances must be capable of giving rise to the need for an extended period on parole: R v Moffitt (1990) 20 NSWLR 114 per Samuels JA at 115-116.

29 It was submitted that two of the circumstances taken into account by his Honour were not capable of mandating such a requirement. It does not appear to me why the fact that the respondent will be unable after the service of his sentence to return to the area where he grew up gives rise to a need for an extended period on parole. However, I think it unnecessary to deal further with the submissions because there are facts which in any event entitle the respondent to an adjustment of the prima facie proportion between non-parole and parole periods.

30 The fundamental difficulty with his Honour’s approach is that the non-parole period is so short that it implies error. It may be accepted that the fixing of a non-parole period is a benefit to the offender, but that does not mean that the sentencing judge in fixing it may approach the task as though the sole or primary concern was with the offender’s prospects of rehabilitation: Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 628; Bugmy v The Queen (1990) 169 CLR 525 per Mason CJ and McHugh J at 530-532. The non-parole period is concerned with deterrence, not of the offender alone but of all persons who might resort to crimes of the same nature.

31 In my opinion the non-parole period of nine months provides nothing like sufficient deterrence, either to the respondent himself or generally, seen against the very serious criminality involved in the case.

32 In my opinion the attack on the sentence has been made good and there is no cause for the Court to decline in its discretion to interfere with the sentence. Choosing a sentence at the bottom of the available range, as is appropriate in a Crown appeal, and allowing one-half of that figure for all the respondent’s mitigating features, I would impose a sentence of four years’ imprisonment. The sentence should commence on a day which allows for the time during which the respondent was at large after commencing to serve his sentence. Counsel informed the Court that that day was 25 May 2002.

33 I would increase the parole period at the expense of the non-parole period to make allowance for the difficult transition the respondent will have in moving from close confinement on his release and to promote the rehabilitation of which he has begun to show prospects.

34 I propose the following orders -

1. Allow the appeal and set aside the sentence appealed from.


2. Sentence the respondent to imprisonment for a period of four years commencing on 25 May 2002.

3. Fix a non-parole period of two years and six months, expiring on 24 November 2004. The respondent will become eligible for release on parole on that day.

35 Counsel for the respondent submitted that the Court should not publish the respondent’s name but refer to him in a manner that would not identify him. Counsel acknowledged that the respondent’s co-offenders knew who he was and would identify him whether or not he were named in the judgment, but made the following submissions -

(a) The respondent has undertaken to give evidence at the forthcoming trial of two co-accused.


(b) He has been forcefully told, and it has been demonstrated to him, that his life is at risk should he give evidence.

(c) Those threats and the action taken to reinforce them have been accepted as genuine by investigating police and the sentencing judge.

(d) He has been assaulted while in gaol serving his sentence for this matter.

(e) He is presently bail refused in relation to an escape matter which will, should he be convicted, result in a custodial sentence.

(f) He will be subject to further custody should the Crown appeal be upheld.

(g) He will be at risk of further harm within gaol should his status as an informer and Crown witness become generally known.

(h) The judgments of this Court are published on the internet. They are available within the gaol system.

(i) The victims in this matter will have sufficient familiarity with it to identify the respondent despite the use of a pseudonym.

(j) That the co-offenders know who the respondent is does not lessen the risk of assault from those who may simply wish for their own reasons to “punish” an informer.

(k) There can be no guarantee, despite whatever efforts are put in place by Corrective Services that the respondent can or will be afforded complete protection while in custody.

(l) Corrective Services cannot in any event protect the respondent after his release.

(m) The Crown do not oppose the use of a pseudonym in this matter.

36 As submitted, the Crown did not oppose the making of such an order.

37 I think in all the circumstances that it is appropriate that the respondent be referred to as X.

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Last Modified: 03/17/2003