Regina v Brain
[2001] NSWCCA 319
•17 August 2001
CITATION: Regina v Brain [2001] NSWCCA 319 FILE NUMBER(S): CCA 60929/00 HEARING DATE(S): 17 August 2001 JUDGMENT DATE:
17 August 2001PARTIES :
Regina v Daryl William BrainJUDGMENT OF: Sully J at 28; Smart AJ at 1
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 00/31/0352 LOWER COURT JUDICIAL
OFFICER :Coolahan DCJ
COUNSEL : (A) A P Cook
(C) G E SmithSOLICITORS: (A) Brezniak Neil-Smith & Co
(C) S E O'ConnorCATCHWORDS: Sentencing - robbing in company - intellectual disability - assistance - co-offender more blameworthy - assistance to authorities - parity. LEGISLATION CITED: Crimes Act, s 558 CASES CITED: R v Henry 46 NSWLR 346
R v Thomson & Houlton 49 NSWLR 383DECISION: Leave to appeal granted - Appeal against sentence allowed - Sentence quashed - In lieu of the sentence imposed, the applicant is sentenced to imprisonment for three years commencing on 18 September 2000 with a non-parole period of 18 months commencing that day and ending on 17 March 2002 - Order that the applicant be released on parole on 18 March 2002 on conditions to be settled by the Parole Board - It should bear in mind the judge's remarks and the reports of Miss Aldrich and Dr Otter and ensure an adequate rehabilitation scheme is settled with close supervision - Attention is drawn to the letter of 6 April 2001 from the Salvation Army (Major Hindle).
IN THE COURT OF
CRIMINAL APPEAL
SULLY J
SMART AJ
JUDGMENT
1 SMART AJ: Daryl William Brain seeks leave to appeal against the severity of the sentence of three and a half years imprisonment commencing on 18 September 2000 with a non-parole period of one year nine months for the offence of robbery in company imposed in the District Court.
2 The applicant pleaded guilty to the offence but there was a dispute as to some of the facts. The judge thought that the version given by the applicant in his record of interview had the ring of truth and proceeded substantially on that basis.
3 The following summary of facts is largely taken from that record. According to the applicant, around midday on 26 June 2000, he and his co-offender, Dale James Copley, spoke to the complainant in the Newcastle mall in the vicinity of an ATM near David Jones. The applicant asked the complainant for some money but he refused. A little later they met up again. The complainant wanted to buy some cannabis. The applicant stated that Copley said, "Yeah, come on, let's go, I've got some pot here." They had no "pot". The three men went to the toilets. When they were inside the toilet block Copley asked the complainant for some money and produced a syringe. Copley was standing at the door of the toilets. The complainant tried to get out. The applicant and Copley grabbed the complainant and pulled him back into the toilets and demanded that he give them his money.
4 The complainant was forced to the ground. Copley was playing with the syringe at the time. The applicant held the complainant's arm. Copley removed the money from the complainant's wallet. The applicant thought that there was about $175. He said that Copley subsequently bought him items (smokes and food, etcetera) having an approximate value of about $20.
5 The applicant and the complainant said that when Copley held the syringe the cap was off the needle. The judge accepted that prior to the robbery the applicant did not know that Copley had a syringe and that he first became aware of it when Copley produced it. It was not part of the agreement to rob. At one stage Copley threatened to give the complainant hepatitis. Copley pleaded guilty to the offence that whilst armed with an offensive weapon, namely a syringe, he robbed the complainant of $180 in cash.
6 The judge held that aggravating factors as to Brain were that some degree of force was used, that there was some degree of planning involved in that the complainant was lured into the toilets so that he could be robbed and that at the time of the offence the applicant was on a recognisance under s 558 of the Crimes Act to be of good behaviour until 7 March 2002.
7 To constitute a robbery some degree of threat or force putting the person in fear is necessary. Accordingly, I doubt whether the use of some degree of force is, strictly speaking, an aggravating factor. Of course, the applicant did use force to hold the complainant whilst Copley took the money.
8 The judge stated that instinct and experience told him that of the two offenders, Copley was the leader, but that from a legal point of view on the evidence available he could not be satisfied of this beyond reasonable doubt. That finding would preclude the judge from taking that into account when sentencing Copley, but it would not preclude him from taking it into account when sentencing the applicant.
9 The applicant was born on 6 August 1980. His record goes back to 1991. As a juvenile he had numerous convictions for offences of dishonesty including those of break, enter and steal and attempt to break, enter and steal, two assaults and driving offences. Since he became an adult there have been further dishonesty offences including breaking, entering and stealing, and breaking and entering with intent to steal. He has spent short periods in gaol ranging from two to six months. He was in gaol from 22 December 1998 to 21 June 1999, from 4 January 2000 to 3 May 2000 and two months from 6 September 2000 serving various sentences. The last sentence was for goods in custody.
10 The applicant made full admissions immediately after his arrest and nominated his co-offender. He plead guilty at the first available opportunity. The judge noted the assistance which the applicant was prepared to give to the police. Further, there was a real likelihood that the applicant's statement induced Copley to confess to his role in the incident. It could fairly be put as probable.
11 The applicant had to be placed in segregation about two months prior to sentencing. This was because of the assistance which he had given. He will spend the remainder of his sentence in segregation. This involves the applicant being in his cell for 23 hours per day. There is no contact with other inmates nor does he have any of the usual facilities or privileges that are available to the general prison population. The judge described the applicant as scared and ingenuous.
12 The applicant had a disturbed childhood in which he was subjected to an alcoholic fatherand severe physical punishment when he was young. He functions in the borderline range of intellectual ability between low normal and intellectually disabled. When dealing with matters he suffers some intellectual delay. His reading is at about Year 1 or Year 2. He is unable to hold concepts of right or left and struggles with simple mathematics. He left school in Year 7, being unable to cope with his school work.
13 The psychologist's report, which the judge accepted, expresses the view that the applicant's lengthy history of conflict with the law was highly likely to have resulted from coercion or convincing on the part of others. The psychologist (Miss Aldrich) described the applicant as a very concrete thinker who did not seem able to stand up for himself or what he believed in. He was easily led. She thought that the applicant would be able to give heroin away provided he had adequate support through a drug rehabilitation program and was separated from his associates.
14 The judge made these findings:
"Brain strikes me as a twenty year old young man who has had to cope with adverse life experiences in his younger years and in the context of an intellectual functioning in the borderline range. I accept that he is a person who is easily led and I think it is highly unlikely that the commission of this offence was instigated by him. On the other hand, there is no doubt that he was a willing participant.
However, there is no doubt that such rehabilitation will not take place unless it is carefully structured and strictly supervised. I am satisfied that this structure and supervision can be provided by a combination of the offender's parents' support, Dr Otter's program and supervision by the Department of Probation and Parole. It follows that I am prepared to find that there are special circumstances and to vary the statutory ratio accordingly."I accept Dr Otter's evidence that he is impressed with Brain's motivation to become drug free and his preparedness to help him in this regard. I am satisfied that the offender does have the support of his parents and that, given the guidance of both Dr Otter and Miss Aldrich, there are very real prospects for his rehabilitation.
15 The judge said that, but for the matters he had taken into account in the applicant's matter, he would have imposed a sentence of five years upon him. He would have imposed the same sentence on Copley. The judge discounted the applicant's sentence by 30 percent for "all the matters to which I have referred", and imposed the sentence earlier mentioned. The matters referred to included the prompt admissions to the police, an early plea of guilty, assistance to the police, serving most of his sentence in segregation and the applicant suffering from some degree of intellectual disability.
16 The applicant submitted that the judge erred in his assessment of the total discount. The judge had both Henry, 46 NSWLR 346 and Thomson & Houlton 49 NSWLR 383 in mind. The range suggested in Henry proceeded upon the basis that there was a late plea of guilty but a minimal record of prior offences of consequence. In this case the applicant was also on recognisance. Neither the judge's starting point nor the discount of 30 percent are fairly open to criticism. It was not a case for a greater discount given the judge's low starting point.
17 The applicant submitted that the judge erred in imposing the same sentence on the applicant and Copley. Although the judge thought that Copley was the leader and that Copley produced the syringe and threatened to give the complainant hepatitis, the judge accepted the Crown's submission that he should treat the participation of each offender in the incident as of equal significance. That finding was not open on the evidence.
18 Copley was aged 19 at the time of the offence. He was arrested on 18 September 2000. He declined to be interviewed. However, on 23 October 2000, being the same day upon which the applicant made his statement (as distinct from his earlier record of interview), Copley agreed to participate in a record of interview during which he made full admissions. He must have realised that the game was up.
19 Copley's record was not as bad as that of the applicant. In 1998 he was placed on probation for 18 months for stealing a motor vehicle and larceny. In 2000 he was dealt with in relation to a number of counts of break, enter and steal being sentenced to 12 months imprisonment commencing on 22 February 2000 and comprising a minimum term of two months and an additional term of 10 months. His parole was revoked. He also received in 2000 a sentence of a fixed term of one month for goods in custody. Copley was on parole at the time of the commission of the offence.
20 The judge accepted that Copley had had a disrupted childhood and experienced some tragic events. He also suffered from an addiction to drugs. He had taken positive steps to overcome that addiction. He said that since he had been in prison he had not taken any drugs. He had been attending education classes while in custody and was described by his teacher as a good student. He is more intelligent than the applicant.
21 Copley's mother gave evidence that there had been a marked change in his attitude since he had been in custody. She proposed to support him as does his de facto wife. The judge thought that Copley's desire and need for rehabilitation was genuine. He also took into account his young age.
22 The judge said he was satisfied that Copley would have a cause for grievance if a sentence was imposed upon him that was significantly greater than that imposed on the applicant. He continued:
Having considered all the various elements in mitigation in each case, I would be justified in imposing upon Copley the same sentence that I intend to impose upon Brain."
23 Even assuming that the judge was correct to treat the two men as equally culpable for the offence, I do not understand how it can be said that Copley would have a justifiable cause for grievance if the applicant received a lesser sentence than Copley.
24 While it is true that the applicant has a worse record than Copley, the latter has significant convictions and had previously received a longer sentence than the applicant and had his parole cancelled. The explanation given by Miss Aldrich, the psychologist, for the applicant's prior offences cannot be overlooked. Absent the elements of prompt admissions and assistance, the subjective features of the applicant and Copley balanced each other and would have justified broadly similar sentences.
25 However, there are three significant factors which require that the applicant receive a lesser sentence. First, the applicant made full admissions when arrested on the day following the offence and nominated the co-offender. Secondly, the applicant gave valuable assistance to the authorities and, thirdly, he will serve most of his sentence in segregation. That will not aid his rehabilitation. He will need a longer period on parole for rehabilitation. By contrast Copley declined to be interviewed on his arrest on 18 September 2000 and made his admissions on the day on which the applicant made his statement.
26 There are special circumstances for the reasons given by the judge. The applicant needs an extended and closely supervised period on parole to advance his rehabilitation. There are also his his intellectual deficits which need attention and his youth.
27 Copley's sentence commenced on 5 December 2000 and overlapped the balance of the sentence he was serving which was due to expire on 21 February 2001. This was an effective benefit of two and a half months. Copley was exceedingly fortunate in the approach the judge took to his sentence. However, the principles of parity require that the applicant should receive a lesser sentence than Copley as a result of his prompt admissions, nomination of the co-offender, assistance to the police and his segregation. The sentence imposed upon the applicant was not a harsh one. The sentence must not be disproportionate to the criminality involved allowing for all the discounts.
28 I propose the following orders:
1. Leave to appeal granted; appeal against sentence allowed.
2. Sentence quashed.
3. In lieu of the sentence imposed, the applicant is sentenced to imprisonment for three years commencing on 18 September 2000 with a non-parole period of 18 months commencing that day and ending on 17 March 2002.
4. Order that the applicant be released on parole on 18 March 2002 on conditions to be settled by the Parole Board. It should bear in mind the judge's remarks and the reports of Miss Aldrich and Dr Otter and ensure an adequate rehabilitation scheme is settled with close supervision. Attention is drawn to the letter of 6 April 2001 from the Salvation Army (Major Hindle).
29 SULLY J: I agree. The orders of the Court are as proposed by Smart J.
********
0
0
1