Regina v Brown

[2004] NSWCCA 215

CITATION:	Regina v Brown [2004] NSWCCA 215
HEARING DATE(S):	28/06/04
JUDGMENT DATE:	28 June 2004
JUDGMENT OF:	Ipp JA at 1; Hulme J at 24; Hislop J at 29
DECISION:	Leave to appeal granted; Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - Appeal against sentence - Guilty pleas for three robbery offences - Where offences had extremely serious consequences for victims - Where accused was young with no prior convictions - Partly principle - Whether trial judge erred in not taking the regret and remorse of the accused into account - Importance of the serious criminality of the offences.
PARTIES :	Regina Peter Brown
FILE NUMBER(S):	CCA 60099/04
COUNSEL:	G I O Rowling (Crown) D Dalton (Applicant)
SOLICITORS:	S Kavanagh (Crown) S O'Connor (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0605; 03/11/0126
LOWER COURT JUDICIAL OFFICER :	McGuire DCJ

60099/04

IPP JA
HULME J
HISLOP J

Monday 28 June 2004

REGINA v PETER BROWN

Judgment

1 IPP JA: This is an application for leave to appeal against sentence.

2 The applicant was convicted on his own plea of guilty of three offences. Firstly, armed robbery committed on 21 May 2002; secondly, robbing one Robert Lalor, in circumstances where, immediately before the robbery, he maliciously inflicted actual bodily harm on Lalor; and, thirdly, being armed with intent to commit an indictable offence, namely armed robbery.

3 The maximum penalty on the first offence was twenty years imprisonment, twenty years imprisonment on the second offence and, on the third offence, seven years imprisonment.

4 The sentencing judge, McGuire DCJ, sentenced the applicant under the third offence first. The sentence imposed was imprisonment for a fixed term of two years, the sentence to commence on 11 October 2002 and to expire on 10 October 2004.

5 His Honour then turned to the first and second offences. He sentenced the applicant on the first offence to imprisonment for a term of six years to commence on 11 October 2004 and to expire on 10 October 2010. He fixed a non-parole period of three years to commence on 11 October 2004 and to expire on 10 October 2007. In relation to the second offence, the judge sentenced the applicant to imprisonment for a term of six years to commence on 11 October 2004 and to expire on 10 October 2010 and he fixed a non-parole period of three years to commence on 11 October 2004 and to expire on 10 October 2007, when he ordered him to be eligible for release on parole. It can be seen that the sentences in respect of the first and second offences were ordered to be served concurrently.

6 The applicant was born on 12 May 1985, he was therefore seventeen years old at the time of the offences. He lived at home with his family and he was unemployed.

7 In dealing with the seriousness of the offences, the judge said that this was not a case of some callow youth performing a one-off crime. After the first robbery, the applicant was prepared to duplicate the violence involved in employing dangerous weapons to further the armed robbery ventures.

8 A very serious matter in this case is the consequences to the victims of the first and second offences perpetrated by the applicant. Mr Lalor was struck with a sledge-hammer during the course of the commission of the second offence. His wife said:

“As I work in the same job, I am always frightened of strangers, or unusual incidents. I’ve become much more aggressive and defensive in my workplace. I cry at work for no apparent reason. I find the work so stressful now that I must drink alcohol just to go, where previously I rarely drank. This also upsets me, as I think of myself as an alcoholic, that is, I have no control over my drinking, where previously I drank only when I chose to … I never leave the house except for work or my husband’s many doctors’ appointments (at least three per week). I never socialise … I am depressed and think often of suicide but I am responsible for many people and have no options. As I earn less than $14 per hour, and am now the only breadwinner in my large family, I have no choice but to keep working in a job that makes me feel constantly threatened by people who choose to make money by damaging others.”

Mr Lalor said:

“As a result of this assault I received multiple fractures of my facial bones, a blow-out fracture of my right eye socket, cervical and upper thoracic spondylitis and minor facial cuts and abrasions. Surgery was performed to correct the multiple facial fractures. This surgery also disentangled the muscle of my right eye from bone fragments, a result of “a very large blow-out into the right maxillary sinus” and a silicon sheet was placed over the hole in the floor of my right eye socket. I also have suffered a partial loss of my sense of smell. I have suffered from long periods of anxiety and depression and, as a result I am still receiving counselling.
… My vision, as a result of this assault, has been adversely affected and I still suffer from double vision. After approximately six months I had regained some feeling in the right side of my face, however, I still suffer from partial numbness to the right side of my face, nose, eye, forehead and right temple. I suffer from chronic pain and stiffness in my neck and right shoulder and receive regular treatment to address my symptoms. I constantly suffer from nerve spasms in and around my nose and right eye.”

9 His Honour pointed out that there was ample medical evidence from a number of treating doctors to support Mr Lalor’s description of his injuries and his ongoing incapacities and symptoms. I think it is fair to say that Mr Lalor’s life has been affected, irredeemably, to a most serious degree. He is not able to work again, his wife has become the sole supporter of a family with children, and it is quite plain that she, too, has been harmfully affected in a most serious way by the conduct of the offenders.

10 It is not known who struck the blow to Mr Lalor but, as his Honour found, it must have been quite plain to the co-offenders, including the applicant, when embarking on their criminal ventures that any one of the weapons they took with them could inflict serious injuries on the victims of their intended crimes.

11 These matters underlay the approach taken by the sentencing judge and, although he did refer to the applicant’s youth and the absence of any prior convictions, it is quite plain that he was influenced by the deliberate nature of the crimes and the callousness with which the applicant used and was prepared to use violence in perpetrating them. In my view his honour was perfectly entitled to adopt the approach that he did.

12 Mr Dalton on behalf of the applicant has raised every issue that could possibly be raised. The most important ground that he argued on the applicant’s behalf was based on the parity principle. The argument was based on a sentence imposed by Nash ADCJ on a co-offender, one Niuqila, for the same offence as the third offence of which the applicant was convicted.

13 Niuqila was not involved in the first two offences, he was a co-offender only in regard to the third offence. He had a prior conviction for robbery that he committed three to four years before the offence was committed for which he received a twelve month period of recognisance. Nash ADCJ was required to sentence Niuqila for three principal offences. The first was receiving stolen property, for which the judge sentenced Niuqila to imprisonment for four months. The second was taking and driving a conveyance, the sentence for this offence was nine months imprisonment. The third was the same offence as the third offence for which the applicant in this case was convicted. For this offence Nash ADCJ sentenced Niuqila to imprisonment for a period of two years nine months with a non-parole period of one year four months. He ordered that all the sentences be concurrent with each other and, thus, Niuqila was sentenced to an overall fixed term, in effect, of one year four months imprisonment.

14 Mr Dalton submitted that the fixed term sentence of two years imposed on the applicant in this case, when compared to the sentence imposed on Niuqila, was contrary to the parity principle.

15 This submission warranted careful consideration, but I am satisfied that the parity principle is not of application. In the present case, the applicant had committed two serious offences before committing the third offence. The first of the prior offences being committed some six months before the third offence, and the second being some two months before. Each of these two previous offences involved the perpetration of violence, the second in a most harmful way, as I have mentioned. Even though there is no proof that the applicant was the one who wielded the sledge-hammer on Mr Lalor, the violence involved bears significantly on the criminality of the applicant’s conduct in the sense that it demonstrates, in regard to the third offence, that, notwithstanding his knowledge of what the use of dangerous weapons could lead to, he was quite prepared to go along with preparations to commit a like offence again. That is to say, notwithstanding that he knew of the kind of harm that had been done to Mr Lalor, he was prepared two months later to attempt to embark on some other criminal venture, with co-offenders, and being equipped with weapons that could cause serious injury once more.

16 Here was an instance of deliberate planning in which the applicant was involved, deliberate planning to commit serious crimes on a now third occasion in the full knowledge that what he was doing could cause life threatening harm to individuals and cause innocent families to suffer in a terrible way. The applicant did not appear to care about that, and he was quite prepared to continue with what really amounted to a crime spree.

17 Niuqila’s criminal conduct was not of the same kind. For this reason I do not regard the parity principle as having been of application, and I consider that the sentence imposed by the sentencing judge for the third offence was appropriate.

18 Mr Dalton then pointed to a remark made by the judge that “[t]here was no personal expression of regret, remorse, contrition or intended reformation, no apology to the victims of his robberies”. Mr Dalton has demonstrated that there was material before his Honour which did indicate that the applicant had, to Department of Juvenile Justice officers, made remarks indicating that he felt a high level of empathy with his victims, that he felt bad for what he did, he felt shameful not only in regard to the disgrace that he had brought on his own family, but because of the way in which members of the public had been hurt by his criminal actions.

19 In this respect the judge erred, but in my opinion this error is insignificant when regard is had to the very serious criminality of the applicant in relation to each one of the three offences.

20 In my view it would have been open to the trial judge to increase the sentences beyond those that he imposed on the applicant. In addition, the judge ordered that the first offence be served concurrently with the second. In this last respect the judge exercised his discretion compassionately towards the applicant. He did not have to make such an order. He did so because of the applicant’s youth and because the applicant has undoubtedly a respectable, hardworking, good and caring family and there is a prospect of the applicant’s rehabilitation once he has completed his sentence. In my view the applicant should consider himself fortunate. It was open, as I have said, for the judge to have sentenced him to a more substantial term. Taking these aspects into account I am unpersuaded that the judgment should be affected by the judge’s error in finding that there was no personal expression of regret, et cetera.

21 Another point raised by Mr Dalton in his written submissions was that his Honour wrongly found that the combination of offences was a significant factor, not only when determining that the applicant should be dealt with according to law, but also in giving only limited consideration to the applicant’s youth. Mr Dalton, however, in oral submissions, rightly accepted that, when the judge’s sentencing remarks are analysed, it is apparent that his references to the combination of offences were only to his decision to deal with the applicant at law.

22 Mr Dalton also suggested that the totality of the sentences was extreme and excessive, but for the reasons I have explained, I am not persuaded of that.

23 For those reasons, while I would grant the application for leave to appeal against sentence, I would dismiss the appeal.

24 HULME J: In his victim impact statement Mr Lalor said this, “I still cannot come to terms with how one human being could even contemplate using a sledge hammer as a weapon against another human being, let alone actually use it to assault someone.” With that statement I completely agree.

25 Two of the matters to be taken into account in sentencing are retribution – the community’s entitlement to feel that justice has been done – and protection of the community. When regard is had to this serious injury suffered to Mr Lalor, innocent of any misconduct completely, I would very much doubt whether the community would feel that justice has been done in this case

26 I also very much doubt whether the protection of the community is adequately dealt with by sentences of this length in the case of thugs as the appellant apparently is for, as the presiding judge has pointed out, after the first two of his offences he was quite content to join equally thuggish colleagues in yet another potentially violent armed robbery.

27 However, there has been no Crown appeal and in those circumstances there is no opportunity in this Court to impose any higher sentence than has been imposed. One can but hope, as the trial judge seems to have thought, that the applicant will in fact be rehabilitated and be able to pursue the rest of his life in a decent respectable manner.

28 I agree with the orders proposed by the presiding judge and with his Honour’s reasons.

29 HISLOP J: I also agree with Justice Ipp.

30 IPP J: The order of the Court will be that while the application for leave to appeal against sentence is granted, the appeal is dismissed.

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Last Modified: 07/02/2004