Regina v Ah-See

[1999] NSWCCA 175

CITATION:	Regina v Ah-See [1999] NSWCCA 175
FILE NUMBER(S):	CCA 60267/98
HEARING DATE(S):	30 June 1999
JUDGMENT DATE:	30 June 1999
PARTIES :	Regina v Stephen Brian Ah-See
JUDGMENT OF:	Sully J at 21; Bell J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:	Appellant: P. Segal Respondent: C.K. Maxwell QC
SOLICITORS:	Appellant: Wiradjuri Aboriginal Legal Service Respondent: C.K. Smith
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE; sentencing; appeal against severity; account to be taken of guilty plea to alternative offence; CRIMINAL LAW AND PROCEDURE; sentencing - principles as to sentencing of aboriginal prisoners
ACTS CITED:	Crimes Act 1900 Sentencing Act 1989
CASES CITED:	Regina v Winchester (1992) 58 A Crim R 345 Regina v Bragias (1997) 92 A Crim R 330 Regina v Fernando (1992) 76 A Crim R 58
DECISION:	See para 20

IN THE COURT OF
CRIMINAL APPEAL

60267/98

SULLY J
BELL J

Wednesday, 30 June 1999

REGINA v Stephen Brian AH-SEE

JUDGMENT

1    BELL J: Stephen Brian Ah-See applies for leave to appeal against the severity of a sentence imposed on him in the District Court at Dubbo on 1 April 1998. He was convicted after a short trial lasting some three days of an offence of armed robbery.
2    On 1 April 1998 he was sentenced to a total term of seven years penal servitude, comprising a minimum term of four years penal servitude to commence on 4 September 1997 and to expire on 3 September 2001. An additional term of three years was fixed to commence from 4 September 2001. The applicant was taken into custody on the date of the offence, being 4 September 1997.
3 The indictment upon which he was arraigned charged him, firstly, that on 4 September 1997 at Wellington, being armed with an offensive weapon, namely a knife, he did rob Myrtle Lee of a sum of money the property of the Wellington Bowling Club. Count 2 in the alternative charged the applicant on that date with the robbery of Myrtle Lee contrary to s 94 of the Crimes Act 1900.
4    The applicant pleaded not guilty to count 1 but guilty to count 2. The Crown did not accept the plea to the alternative count in discharge of the indictment and the matter accordingly proceeded to trial. The jury convicted the applicant in respect of the first count, namely the armed robbery of Ms Lee.
5    The sentencing judge's remarks on sentence are brief. A factual summary has been prepared by Mr Segal, who appears for the applicant, and I will draw my summary of the facts from that document, which I infer is accepted by the Crown, no submission to the contrary having been put in submissions filed by the Crown.
6    It appears that the applicant, an aboriginal man, was a patron of the Wellington Bowling Club. On the occasion of this offence he was leaving the club a little before 9pm when he turned back from the door with his shirt pulled over his head. He jumped the counter whilst armed with a knife. Myrtle Lee was serving behind the bar and was put in real fear. She tripped as she ran away from the applicant and suffered grazing, bruises and some soreness to her back. The applicant seized notes from the till. He was then detained by other patrons of the club and held at the scene until the police arrived.
7    He participated in an electronically recorded interview with police and admitted his presence at the club. He said he did not remember robbing Ms Lee at knifepoint. He was shown the knife in the course of the interview and did not dispute that he customarily had it in his possession. He was affected by alcohol and possibly suffering the effects of methadone withdrawal at the time of the offence.
8    The principal matter contended on the applicant's behalf is that the sentencing judge failed to make allowance for the applicant's plea of guilty to the alternative charge. It was submitted that that plea evidenced contrition and that the benefit of it ought not be diminished by the circumstance that the applicant had put the Crown to proof with respect to the allegation that he was armed at the time. It was noted that the applicant had co-operated with the police, in the sense of participating in an interview. At all times his position was that he was unable to recall the use of the knife. Thus, it was contended:

"He had admitted his guilt to the extent that he was subjectively able to do."

9 Section 439 of the Crimes Act 1900 provides that in passing sentence for an offence on a person who pleaded guilty to the offence a court must take into account the fact that the person pleaded guilty, together with consideration of when the plea of guilty was entered, and may accordingly reduce the sentence that it would otherwise have passed. A court which does not reduce the sentence that it passes on a person who pleaded guilty to an offence must state that fact and its reasons for not reducing the sentence when passing sentence.
10 It is in this respect that s 439 alters the law as it stood prior to its enactment: Regina v Winchester (1992) 58 A Crim R 345. It is to be noted that s 439 is directed to cases where a person is sentenced for an offence to which he or she pleaded guilty. That is not the case here. His Honour's failure to comment in the course of his reasons for sentence upon the fact that the applicant entered a plea of guilty to the alternative count charged in the indictment which was not accepted by the Crown does not, in my view, disclose error.
11    A second matter which was urged on the applicant's behalf was that he had been in custody on remand for a lengthy period prior to his trial. As a remand prisoner he had not had the opportunity to participate in courses available to sentenced prisoners. The sentencing judge did back-date the sentence and no complaint is made in that regard but, rather, it is submitted that some discount ought have been provided for the burdensome conditions of remand.
12 It was noted by this Court in Regina v Bragias (1997) 92 A Crim R 330 at 332 that it would be illogical to grant a sentencing discount for a plea of guilty, as is the case, on the one hand, and on the other offer convicted prisoners a discount for stress undergone by requiring proof of their guilt at trial. The submission that the applicant ought have received some discount for the period spent as a remand prisoner additional to the circumstance that the sentence was back-dated in my view lacks merit.
13 The sentencing judge's reasons for sentence were expressed with some brevity. He did, however, make reference to the principles as to the sentencing of aboriginal prisoners outlined by Wood J (as he then was) in Regina v Fernando (1992) 76 A Crim R 58. In that respect his Honour said this:

"I take account of the various matters set forth by Wood J in Fernando as appropriate to take into account when sentencing aboriginal offenders. I do, however, repeat that the seriousness of this crime is such that in my opinion only a lengthy sentence can meet the circumstances of it."

14    This offence appears to have been unpremeditated and committed while the applicant was probably significantly affected by alcohol. His Honour accepted the submission that it was a very amateurish effort doomed to failure and probably committed on the spur of the moment, although he noted that the applicant did stop and somewhat ludicrously make attempts to disguise his face.
15    The lengthiest sentence previously imposed on the applicant was a fixed term sentence of six months imprisonment imposed in relation to a conviction of a charge of receiving. The applicant has a criminal record which dates back to 1985. It was described by his Honour as being mainly for offences of minor dishonesty. It shows, among other things, that the applicant has been dealt with leniently on a number of occasions in the past.
16    The applicant was thirty-two years of age at the date of the commission of the present offence and his Honour considered that he was a person with prospects of rehabilitation. In the circumstances of this case an overall sentence of seven years is undoubtedly a severe one. His Honour in determining that this was the appropriate sentence took account of the principles in Fernando, as I have noted. That appears particularly in the way in which his Honour structured the sentence and in the departure from the ratio provided by s 5(2) of the Sentencing Act 1989.
17    His Honour considered that the objective seriousness of the crime required a lengthy custodial sentence. The only real challenge advanced on the hearing of the application was as to the failure to give credit to the applicant for his willingness to plead guilty to a lesser charge. For the reasons given, I do not consider that this matter disclosed error.
18    The only remaining consideration is whether the sentence overall is of such severity as to bespeak error. This consideration does not invite this Court to substitute its view of what might be an appropriate sentence. The starting point is to ask whether the sentence imposed falls outside the range open to the sentencing judge in the exercise of his discretion.
19    In this regard it is not without relevance to point to the circumstance that on 24 May 1996 the applicant was placed on a recognisance to be of good behaviour for eighteen months at the hearing of an appeal which proceeded before the District Court at Dubbo. That recognisance was imposed in relation to his conviction for the offence of supply heroin. He was thus subject to the recognisance at the time of the commission of the present offence.
20    I do not consider, having regard to the whole of the circumstances of this case, that it could be said that the sentence imposed by the sentencing judge fell outside the range of sentences available to him. Accordingly, I would propose that leave be granted to appeal but that the appeal be dismissed.
21    SULLY J: I entirely agree and there will be orders in terms proposed by Bell J.

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