Regina v Calleja

[2001] NSWCCA 259

CITATION:

REGINA v CALLEJA [2001] NSWCCA 259

FILE NUMBER(S):

CCA 60627/00

HEARING DATE(S):

2 July 2001

JUDGMENT DATE:

2 July 2001

PARTIES :

Regina

v

Christopher Lee CALLEJA

JUDGMENT OF:

Adams J at 1; Smart AJ at 18

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/5086
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

COUNSEL :	Mr L M B Lamprati (Crown) Applicant in person
SOLICITORS:	S E O'Connor (Crown) Applicant in person
CATCHWORDS:	Sentence - robbery - drug addiction exacerbated by illness - significance - prison classification delayed - sentence reduced
CASES CITED:	Thompson (2000) 49 NSWLR 383 Henry (1999) 106 A Crim R 149
DECISION:	Leave to appeal be granted; Appeal against sentence of fixed term of 2 years for robbery dismissed; Appeal against sentence of 5 years for each of two counts of armed robbery dismissed; Appeal against non-parole period of 2 years 6 months in respect of each offence of armed robbery allowed. Non-parole period quashed. In lieu thereof, the court fixes a non-parole period of 2 years commencing on 10 March 2000 and expiring on 9 March 2002, on which date the applicant will be eligible for release on parole.

Ex tempore

- revised

IN THE COURT OF

CRIMINAL APPEAL

60627/00

ADAMS J

SMART AJ

MONDAY 2 JULY 2001

REGINA v CHRISTOPHER LEE CALLEJA

JUDGMENT

1    ADAMS J: The applicant is a young man of 23 years who, regrettably, has lapsed into a life of serious crime as a result of his addiction to heroin. The offences in question here may be briefly described. There is nothing unique about them. In relation to the first charge, he was driven to a shopping center by an acquaintance. Before doing so, he had partially filled a syringe with his own blood and kept it in his pocket until he entered the newsagency. He threatened the store owners whilst holding the syringe in front of him. It was plainly a terrifying occasion. There was a struggle. In the course of the struggle the applicant kneed one of the victims a number of times in the stomach. A number of shop keepers and others in the near vicinity came to the victims’ assistance. The applicant continued to struggle and lash out but was eventually detained. The police attended a short time later and the applicant was taken into custody. When interviewed by the police the applicant made admissions. He denied using the syringe to threaten the owners of the shop but, in the course of the proceedings before the learned District Court sentencing judge, he admitted the facts which I have just set out.

2    The second charge occurred about a week earlier. There, a young man named Ekmal Iqbal was working in a service station and saw the applicant in the premises holding a syringe containing blood. The applicant demanded money from him. The two went to the cash register and, under threat, Mr Iqbal pulled out the cash tray and tipped moneys into a bag held by the applicant. He saw a lady's wallet behind the counter at this time and took it. The incident was recorded on a video surveillance camera. The applicant was questioned about the matter following his arrest on 10 March 2000 and admitted the offence stating that he needed money for heroin.

3    It was accepted that the applicant cooperated with police and showed genuine remorse for the victims. The applicant was also dealt with for an offence which occurred on 14 October 1999 in which he went to a store in Wetherill Park outside of which were some tables on which some sale items were available and where there was a cash register. The applicant approached a member of staff, then only 16 years old, said that he had a knife and demanded that she should open the cash register. The prosecution does not suggest that the applicant actually did have a knife but, not surprisingly, the young lady believed the applicant's threat. She opened the register. The applicant grabbed a bundle of $50 notes from the till and then fled.

4    Although the applicant had a criminal history of some seriousness, the offences for which he was sentenced in the District Court were, by a considerable degree, the most serious offences that he committed. There were no previous offences involving violence. As her Honour observed, he appears to have commenced his criminal offending in 1996 when he was about 18. And, until the instant offences were committed, the matters on his record had been either for dishonesty or involved using and driving a motor vehicle and the like. It is a serious aggravation of the applicant's culpability that the two latter offences were committed whilst he was on bail for the robbery offence in October 1999 and whilst he was subject to conditional liberty pursuant to a bond of 5 years that he entered into on 4 December 1998 for the offence of receiving. He had been subject to supervision under the terms of that bond but it was clearly inadequate, in the circumstances, to ensure that he did not commit further serious offences.

5    The applicant had a good employment history but his increasing drug habit took a heavy toll on his work life and his ability to support that habit through work. A most significant matter affecting the latter two offences was that a few weeks before he had been seriously assaulted as a result of which his fingers were severed. It is not surprising that the pain he suffered as a result of this and other injuries was very significant. As well, he was experiencing an increasing stress disorder arising out of the assault. These matters were accepted by the learned sentencing judge to have significantly contributed to a substantial increase in the applicant’s level of heroin abuse.

6    I do not intend, for present purposes, to relate further his personal history. It is sufficient to say that he qualified as a butcher, he is clearly intelligent and articulate and he has demonstrated, since the offences, significant and, in my experience of cases of this kind, unusual maturity and insight. The learned sentencing judge took a favourable view of the applicant's prospects for rehabilitation and rightly considered that for someone of the applicant's age and background this was a very significant factor in the sentencing process. Her Honour considered that it was appropriate to give the applicant the maximum indicative discount for his pleas of guilty as provided in Thompson (2000) 49 NSWLR 383, adjusted appropriately, as she took the guidelines in Henry (1999) 106 A Crim R 149 as applying to the sentencing exercise.

7    The starting point of the sentence was 6 years as an appropriate overall term of imprisonment. This was reduced that to an overall term of imprisonment of 5 years, taking into account the additional value of the plea of guilty represented by utilitarian considerations, accepting at the same time that they also represented genuine remorse and contrition. One of the criticisms of her Honour's judgment in this respect raised by the applicant is that it resulted in a discount in the order of only 16 per cent, as distinct from the 25 per cent discount accepted by her Honour in terms as appropriate in the circumstances of the case. As the Chief Justice said in Thompson (2000) 49 NSWLR 383 at 419, specifically referring to Henry -

"The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty for purposes of the application for the guideline promulgated in these reasons". (emphasis added)

8    It seems to me that that is precisely what her Honour did, in substance, and hence this complaint has no merit.

9    So far as the first offence was concerned, which occurred on 14 October 1999, the applicant was sentenced to a fixed term of imprisonment for 2 years commencing on 10 March 2000 and expiring on 9 March 2002. For each of the other two charges of armed robbery he was sentenced to an overall term of imprisonment of 5 years commencing on 10 March 2000, with a non-parole period of 2 years and 6 months expiring on 9 September 2002. Her Honour ordered that the applicant be eligible for release at the expiration of the non-parole period and recommended that the parole be subject to conditions as to supervision by the Probation and Parole Service, and that he undertake appropriate drug counselling, including residential drug rehabilitation if that was thought to be necessary.

10    The sentences imposed by her Honour, to my mind, represent appropriately the seriousness of the offences and the policy of sentencing law so far as the rehabilitation of relatively young men, such as the applicant, are concerned.

11    Two matters, however, concern me, neither of them were adverted to by the learned District Court judge. The first is that, as appears on the applicant's record, he was convicted in 1998 of escaping from police custody. The applicant submits that the effect of this offence is to prevent him from serving his sentence unless, as I understand it, the circumstances are special, in any prison except a maximum security prison.

12    He is presently classified as a medium security prisoner but has been held throughout his imprisonment in maximum security institutions. It may be that the regime under which he is held is somewhat less severe than that which would apply to a maximum security classification, but even so, I consider that it is a material factor to be borne in mind when considering the rehabilitation programs to which a prisoner has access in such institutions, as distinct from minimum security institutions. There have been tendered before us a number of certificates and reports that indicate that the applicant has taken full advantage of such programs as have been available to him, and that he has made significant progress in his rehabilitation.

13    The other significant factor concerns the consequences of the injuries he received in the assault which occurred in January 2000, to which I have adverted. It is clear from his prison record that he has needed extensive medical treatment whilst he has been in custody and, indeed, he is presently at Long Bay in the Metropolitan Medical Transient Centre awaiting surgery. A significant proportion of the period the applicant has spent thus far in prison has been taken up by attendance at this Centre. This has had a significant affect on his progress through the prison system.

14    The applicant has submitted, and for present purposes I accept it as probably true, that his movements in the system, largely dictated by his medical condition, have adversely affected his application for reclassification to minimum security, which on the face of it, were it not for the significance of his conviction for escape, he would have obtained very shortly after his reception into prison. This was not a matter to which her Honour adverted, for reasons that are obvious, but it has significantly affected the prison regime which her Honour had in mind when she sentenced the applicant.

15    I consider that the public interest in the applicant's rehabilitation, the progress that he has already made and the impact that his medical condition has had upon his progress through the prison require this Court, in the light of the knowledge that is now available, to reconsider the applicant's non-parole period.

16    I would propose that the applicant be given leave to appeal, that his appeal in respect of the sentence in respect of 2 years imprisonment and applicable to the offence that occurred on 14 October 1999 be dismissed; that the appeal against the sentences of 5 years concurrent in respect of the offences committed in March 2000 be dismissed, but that the order relating to the non-parole period be quashed and in lieu thereof a non-parole period of 2 years be substituted to commence on 10 March 2000 and to expire on 9 March 2002, so that the earliest date upon which the applicant will be eligible for parole is 9 March 2002.

17    I would recommend that, if granted parole, it be subject to the following conditions: That the applicant accept the supervision and guidance of the New South Wales Probation and Parole Service; second, that he undertakes such drug counselling, including residential drug rehabilitation if thought desirable as is recommended to him by the Probation and Parole Service.

18    SMART AJ: I am in substantial agreement with the reasons given by Adams J.

19    The applicant appeals against the severity of three sentences imposed upon him in the District Court.

20    The first sentence was one of a fixed term of 2 years for robbery, and the second and third sentences were each in respect of an armed robbery and comprise sentences of 5 years with non-parole periods of 2 years 6 months. All sentences were to be served concurrently.

21    The robbery offence, itself, was a serious one, but the armed robbery offences, which occurred some months later, were even more serious.

22    The materials reveal that the applicant was severely assaulted in early January 2000 and received serious injuries for which he was hospitalised. The injuries include the severance of two fingers and him being severely beaten, and stabbed in the back. He suffered serious physical consequences which would have affected him in his job as a butcher. He also suffered considerable post traumatic stress disorder. This is not surprising, given the circumstances of the attack, and the applicant's occupation.

23    Ongoing surgical procedures are required, and so also psychological counselling. Unfortunately, upon the applicant's release from hospital, and to cope, he started to use heroin by injecting it for the first time. This led to a significant increase in his heroin consumption. That in turn prompted the need for extra money to meet the cost of his increasing heroin use. The armed robberies followed.

24    The history does not excuse the armed robberies but it provides some explanation for the descent into even more serious crime. It is unusual for a trigger such as this to occur.

25    As at the date of sentencing, the applicant had exhibited significant remorse and he had commenced upon the process of rehabilitation.

26    The applicant's escape offence in 1998 led to him receiving an E2 classification. It was an escape in unusual circumstances. It was not from a police station or a gaol, but the applicant left in his car after having been stopped by the police when there was a threat of physical violence from outside people.

27    While the applicant has been kept in maximum security gaols he has been classified as medium security and that gives him additional privileges, particularly that of being able to work.

28    With a young offender with no instance of escape one would normally expect that after a reasonable period of time he would be classified, or reclassified, to minimum security. That is not likely to happen in this case and the applicant is unlikely to receive the benefits of minimum security, having regard to the normal progression in security classifications in prisons.

29    In her reasons the judge did not consider the question of the conditions under which the applicant would serve his sentence. The point was not raised. In the circumstances, and particularly having regard to the reasonable prospects of supervised rehabilitation, the non-parole period was excessive.

30    I would propose the following orders:

1. Leave to appeal be granted.

2. Appeal against sentence of fixed term of 2 years for robbery dismissed.

3. Appeal against sentence of 5 years for each of two counts of armed robbery dismissed.

4. Appeal against non-parole period of 2 years 6 months in respect of each offence of arm robbery allowed. Non-parole period quashed. In lieu thereof, the court fixes a non-parole period of 2 years commencing on 10 March 2000 and expiring on 9 March 2002, on which date the applicant will be eligible for release on parole.

31    I agree with the recommendations proposed by Adams J as to the supervision that should be given to the applicant on his release on parole.

32    ADAMS J: The orders will be therefore as specified by the court.

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