R v Young

[2003] NSWCCA 276

CITATION:	R v Young [2003] NSWCCA 276
HEARING DATE(S):	Monday 15 September 2003
JUDGMENT DATE:	1 October 2003
JUDGMENT OF:	Hidden J at 1; Greg James J at 16; Smart AJ at 17
DECISION:	See par 15
CATCHWORDS:	CRIMINAL LAW: - Sentence - robbery, alternative stealing from the person - plea of guilty to alternative charge - whether judge maintained distinction between robbery and stealing from the person - failure of judge to refer to plea of guilty - factors on re-sentence
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act Criminal Appeal Act
CASES CITED:	R v Hua [2002] NSWCCA 384 R v Delk (1999) 46 NSWLR 340 R v Kerr-Bell (CCA unreported 13 February 1991) R v McCarroll [1999] NSWCCA 237 R v Dib [2003] NSWCCA 117 R v Crombie [1999] NSWCCA 297 R v Simpson(2001) 53 NSWLR 704 R v Cardoso [2003] NSWCCA 15
PARTIES :	Regina (respondent) Jeremy Nathan Young (applicant)
FILE NUMBER(S):	CCA 60260/03
COUNSEL:	A Francis (applicant) D Frearson (respondent)
SOLICITORS:	B Sandland (applicant) C K Smith (respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/61/1079
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ

IN THE COURT OF

60260/03

HIDDEN J
GREG JAMES J
SMART AJ

WEDNESDAY 1 OCTOBER 2003

Regina v Jeremy Nathan Young

JUDGMENT

1 HIDDEN J: The applicant, Jeremy Nathan Young, was arraigned in the District Court at Broken Hill upon an indictment charging him with robbery and, in the alternative, stealing from the person. His plea of guilty to that alternative charge was accepted by the Crown prosecutor in satisfaction of the indictment. He was sentenced to imprisonment for four years, to date from his arrest on 22 July 2002, with a non-parole period of eighteen months. He seeks leave to appeal against that sentence.

Facts

2 In the light of one of the matters argued in the application, it is best to set out the sentencing judge’s summary of the facts in his remarks:

The offender comes before me for the offence of stealing a mobile phone and a sum of money from a young man called Mason Chapman who was at the time 13 years old. Mason and three of his friends, Thomas Taylor, Gareth Jones and Matthew Adams were all camping out near the Broken Hill Speedway and were sitting round a camp fire and looking forward to spending a night in the bush when the offender and a friend of his came into the camp site. The offender in particular acted from the beginning in a rather irrational fashion. He sat down without any real invitation to do so and threw a knife on the ground saying, “I thought there was a group of older people, I guess I won’t have to use this.” This caused the four boys to become quite scared.
The offender and his friend were drinking beer and the offender snapped a branch from a tree and started smashing it on the ground and telling them, the boys, he was going to attack them. He demanded they empty their pockets. They did this. The money and the mobile phone which was the property of Mason Chapman was taken. Ultimately after making various other threats they walked off. They had told the boys that they were going to hitchhike to Adelaide. This is consistent with evidence that the offender gave me. The four boys contacted the police. They were quite scared of what had occurred. One of the boys Thomas Taylor described the mood of the offender as, in the following words, “he was ranting and raving for ages then he’d snap and go back to normal, this went on for about two hours. He was threatening us all the time.”
The offender told me in evidence that he had been on amphetamines and had been drinking for eleven or twelve days and then after that period had put himself into a detox unit which he had left after his mother had visited and told him of his friend who accompanied him to this camp site was going off to Adelaide. When he left the detox a doctor prescribed Valium for him for reasons that are completely unclear to me and he with the prescription got fifteen Valium and consumed fifteen Valium. His mood was described by the boys and all of them had the same type of description.
Example, Gareth Jones said, “Jeremy would be talking real nice one minute but then he’d snap, he started abusing us. He threatened to smash our heads in.” His mood, his actions, were all consistent with a man who was quite irrational because of two things. The ingestion of amphetamines, the ingestion of Valium and the lack of sleep caused by the fact that the amphetamines prevent sleep. It is doubtful if he fully comprehended what it was he was doing.

Subjective case

3 The applicant was twenty-three years old at the time of the offence and is now twenty five. He had a criminal record, which included convictions of armed robbery and other offences of violence. He had previously served terms of imprisonment.

4 He had a disturbed upbringing. When he was only eighteen months old his father died, and he had a number of placements in foster homes. His mother formed another relationship, but that was characterised by violence on the part of his stepfather. He left school in year 7, as he was about to turn fourteen, although he had since undertaken some practical training courses while in custody.

5 It is not surprising, given that background, that he has had a longstanding problem of drug abuse, using amphetamines since the age of fourteen. The abuse continued despite some experience of drug and alcohol counselling during earlier periods in custody. As his Honour noted, he had entered a detoxification unit a few days before the offence. He had been in a de-facto relationship and is the father of two children. About two months before the offence he and his wife separated, and she prevented his having access to the children. For a few months prior to the separation he had not been using drugs, but in the emotional upheaval which followed the separation he resorted to drugs again, as well as alcohol. It was in these circumstances that the offence was committed and, no doubt, it is this background which explains his irrational state at the time.

6 In evidence, he expressed his remorse for the offence. He had since formed a relationship with another woman and arrangements had been made for his children to visit him while in custody. He said that he had not used drugs while in custody on this occasion and he expressed his determination to deal with his drug problem. Appropriately, his Honour found special circumstances warranting a departure from the usual proportion between head sentence and non-parole period.

The application

7 Ms Francis, for the applicant, challenged the sentencing process on a number of bases. Firstly, she submitted that his Honour appears to have dealt with the applicant on the basis that he is guilty of robbery when, in fact, the offence for which he stood for sentence was stealing from the person. There is some force in this submission. In the passage from the remarks on sentence which I have quoted, his Honour referred to the knife which was in the applicant’s possession and to the fact that the victim and his companions were frightened. Later in the remarks, his Honour observed that the applicant “has to receive a punishment which reflects the fact that he robbed a young boy and terrified his friends”.

8 The Crown prosecutor before us submitted that his Honour was doing no more than describing the circumstances surrounding the offence, primarily to demonstrate the irrationality of the applicant’s behaviour. He argued that his Honour’s use of the word “robbed” was colloquial, and did not arise from a misapprehension about the offence with which he was dealing. A similar problem arose in R v Kerr-Bell (CCA, unreported, 13 February 1991). In that case Gleeson CJ, with whom Priestly JA and Mathews J agreed, dealt with the matter in this way:

Criticism was addressed to the fact that in his remarks on sentence and in a remark made to the appellant immediately before being sentenced the learned trial judge described the offence as one of robbery rather than stealing from the person. I consider, however, that his Honour was in this respect only using a colloquial expression; both robbery and stealing from the person are offences under s94 of the Crimes Act and attract the same maximum penalty. It is true that elements of the offence of robbery are in certain respects different from the elements of stealing from the person but I do not think it likely that that was something that was overlooked.

9 The Crown prosecutor also relied on the observations of Smart AJ, with whom Wood CJ at CL agreed, in R v Hua [2002] NSWCCA 384. After examining s94 of the Crimes Act, by reference to his own judgment in R v Delk (1999) 46 NSWLR 340, his Honour observed, “Put simply, too much should not be made of the distinction between steal from the person and robbery” (par 17). After noting that putting the victim in fear is an element of robbery, his Honour said of the offence of stealing from the person, “It would not be wrong for the judge to take into account that the offence had the potential for violence or the potential for putting the victim in fear” (par 20). His Honour rejected the proposition than an offence of stealing from the person is necessarily less serious than robbery, pointing out that the gravity of an offender’s conduct must be determined by the facts of each case (par 19).

10 Nevertheless, nothing in Smart AJ’s judgment in Hua suggests that the distinction between robbery and stealing from the person should not be maintained. To do so, and to be seen to do so, is of particular importance in a case such as the present. No doubt, the applicant offered the plea of guilty to the alternative charge of stealing from the person, and the Crown prosecutor accepted it, in the expectation that he would be dealt with less severely than he might have been if he had faced sentence for robbery. The passages from the remarks on sentence to which I have referred do suggest that his Honour blurred the distinction between the two offences, and give rise to a reasonable apprehension that the sentencing exercise was not focussed upon the elements of the alternative charge to which the applicant had pleaded guilty.

11 Ms Francis also submitted that his Honour had fallen into error by making no reference to the applicant’s plea of guilty and to its influence, if any, on his sentencing decision. In my view, this submission also is sound. Although it is most unlikely that the plea was overlooked, “it was necessary for his Honour to have spelt out the way in which it was taken into account or, if discounted, to explain why that was so”: R v McCarroll [1999] NSWCCA 237 per Wood CJ at CL at par 14. Of course, quite apart from his expressed remorse, the applicant was entitled to a measure of leniency for the utilitarian value of the plea of guilty, even though it was to a charge which might be seen as less serious than that originally preferred: cf R v Dib [2003] NSWCCA 117 per Hodgson JA at par 3, and my own judgment in R v Cardoso [2003] NSWCCA 15 at par 18.

12 Enough has been said to demonstrate that the sentencing process miscarried, and I find it unnecessary to deal with Ms Francis’ final submission that the sentence is, in any event, excessive. I would not dismiss the appeal upon the basis that, notwithstanding the errors identified, no lesser sentence is warranted in law: s6(3) of the Criminal Appeal Act. A head sentence of four years, after an appropriate allowance for the plea of guilty, is high. In so saying, I do not overlook the serious nature of the offence and the applicant’s unfavourable criminal record. I would see four years as an appropriate starting point, but I would reduce it by twenty-five per cent in recognition of the plea of guilty and the applicant’s remorse, so as to arrive at a head sentence of three years. Ms Francis pointed out that stealing from the person can be dealt with in the Local Court, referring to R v Crombie [1999] NSWCCA 297, per Wood CJ at CL at par 12ff. However, given the facts and the applicant’s record, summary disposal would have been entirely inappropriate in this case.

13 More troubling, however, is the question of the appropriate non-parole period. While accepting that there are special circumstances, that period must still be long enough to reflect the applicant’s criminality: R v Simpson (2001) 53 NSWLR 704, per Spigelman CJ at par 54 ff. Having given this question anxious consideration, it does not appear to me that the non-parole period could be any less than that specified by his Honour, eighteen months. To set that non-parole period in association with a head sentence of three years would ensure that the applicant is entitled to release on parole upon its expiration: s50(1) of the Crimes (Sentencing Procedure) Act.

14 A practical disadvantage of reducing the head sentence fixed by his Honour is that it leads to a reduction of the period during which the applicant might be subject to the sanction of parole. However, it needs hardly be said that the desirability of subjecting an offender to an extended period of conditional liberty is no justification for passing a head sentence greater than the case merits. In any event, I should record that I have had regard on the question of re-sentence to an affidavit of the applicant sworn on 12 September 2003. From that affidavit it appears that he has made good use of the educational and rehabilitative programs available to him in custody since being sentenced, and that he is motivated to pursue employment opportunities and meet his parental responsibilities upon his release. I believe that much could be done to foster his rehabilitation during an eighteen month period of conditional liberty, under supervision.

15 I would grant leave to appeal and allow the appeal. I would quash the head sentence passed in the District Court and would sentence the applicant to imprisonment for three years, to date from 22 July 2002. I would confirm the non-parole period of eighteen months, expiring on 21 January 2004. I would direct the applicant’s release on that day and, pursuant to s51(1A) of the Crimes (Sentencing Procedure) Act, I would order that he be subject to the supervision of the Probation and Parole Service for the whole of the parole period.

16 GREG JAMES J: I agree with Hidden J.

17 SMART AJ: I agree with Hidden J.

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Last Modified: 10/03/2003