Regina v Chase

[2002] NSWCCA 231

CITATION:	Regina v CHASE [2002] NSWCCA 231
FILE NUMBER(S):	CCA 60714/01
HEARING DATE(S):	3 June, 2002
JUDGMENT DATE:	3 June 2002
PARTIES :	Regina (appellant) Roger Chase (respondent)
JUDGMENT OF:	Heydon JA at 19, 21; Hidden J at 20; Blanch AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/0180
LOWER COURT JUDICIAL OFFICER :	Puckeridge QC DCJ

COUNSEL :	PG Ingram (Crown) L Flannery (respondent)
SOLICITORS:	SE O'Connor (Crown) DJ Humphreys (respondent)
CATCHWORDS:	Criminal law - robbery - Crown appeal - parity of sentence
CASES CITED:	Griffiths v The Queen (1976-1977) 137 CLR 293
DECISION:	Crown appeal dismissed.

- 6 -

IN THE COURT OF
CRIMINAL APPEAL

60714/01

HEYDON JA
HIDDEN J
BLANCH J

3 June, 2002

REGINA v ROGER CHASE

JUDGMENT

: This is a Crown appeal against sentence, which was imposed in the District Court in respect of a series of robbery offences. The sentences were imposed on 7 September, 2001. Effectively, the respondent was sentenced in respect of a number of the offences, being counts 1-3 and 5-8, to a fixed term of three years imprisonment to date from 25 January, 2001.

2 There was a further offence, count 4, which was robbery whilst armed, and on that charge the sentencing judge imposed a cumulative sentence of three years, which was to date from 25 January, 2004. In respect of that cumulative sentence, his Honour found that there were special circumstances, and specified a non-parole period of eighteen months from 25 January, 2004, so that the total effective sentence imposed in the District Court was one of six years, with a four and a half year non-parole period.

3 I would note at the outset that the special circumstances that his Honour found related to the dysfunctional background and drug addiction of the respondent, and he would have been entitled to have found special circumstances merely because the second sentence was expressed to be cumulative upon the first. Having found special circumstances on the basis that he did, however, the end result of the sentence that he imposed in totality was six years, with a four and a half year non-parole period, and the non-parole period looked at as a percentage of the total sentence is, in fact, the statutory proportion.

4 The offences largely relate to offences of robbery and aggravated robbery on railway stations in company with other people. In some of them there was a degree of violence used, but apart from the one matter of count 4, that I have mentioned, there was no suggestion of the respondent being armed.

5 In sentencing him, the judge also took into account on a Form 1, two charges of aggravated robbery, two charges of robbery in company, one charge of demand money with menaces, two charges of goods in custody, and one charge of common assault. Obviously it was a serious episode of criminality involving the terrorising of people on the public transport system and, of course, in that context it was a case where it was legitimate to impose a sentence which reflected significant elements of general deterrence.

6 There was a co-offender by the name of Williams, who was sentenced at the same time. Williams apparently committed a similar sequence of offences and was a co-offender of this respondent in respect of many of the offences. There was one offence, however, which Williams committed, and in respect of which this respondent was not involved.

7 That offence was on a video store at Leichhardt on 16 January and the facts found by the trial judge were that Williams went into the shop with two other males, a knife was produced, and the man in charge of the store was required to open the cash register and lie on the ground. The knife was held close to his face and whilst he was lying on the floor, he had several boxes of merchandise thrown at him, striking him in the back. He described the boxes as full boxes of glass orange juice containers. Obviously, the circumstances of that particular offence, involving the use of a knife and the use of a significant amount of gratuitous violence during the course of the offence, made that a serious offence indeed.

8 In imposing sentence on Williams, the sentencing judge took exactly the same course in the format of his sentencing as he did in respect of this respondent. However, he came to the conclusion, so far as Williams was concerned, that for the offence that I have just outlined, being the robbery, armed with a knife, that he should impose a six year cumulative sentence, with a three year fixed term. So that Williams ended up with a sentence of nine years, with a non-parole period of six and a half years. Again his Honour found special circumstances, again those special circumstances related to the dysfunctional background of the prisoner.

9 One of the matters raised by the Crown in this appeal is that the sentencing judge did not advert to the fact that this respondent was on parole. The judge did advert to the fact that the respondent had been released on bonds, and he was in breach of those bonds, one of them was a bond for robbery, given in the Children’s Court.

10 Insofar as Williams is concerned, he was on parole for robbery at the time the offences were committed. It might be said in the overall context of this case, that the offender Williams was somewhat older, had a somewhat longer record, was on parole at the time of these offences for robbery, and committed the one more serious offence. It might reasonably be expected, therefore, that Williams would get a sentence that was significantly longer than the sentence given to this respondent.

11 There has been no appeal by the Crown against the sentence which was imposed on Williams, and accordingly this Court is asked to review the sentence of this respondent on the basis that his overall criminality and other circumstances place him in a position where he is liable to a lower sentence than might be passed on Williams.

12 As I have said, the discrepancy in the non-parole period is only a period of two years. Moreover, as I have also said, the four and a half year non-parole period imposed in this case, although purportedly fixing a non-parole, relying on the fact that special circumstances existed, did not, in reality, reduce the statutory ratio of the overall sentence.

13 For my own part, I would see the only arguable proposition for the Crown being one of increasing the head sentence and not the non-parole period. I say that because this respondent was 19 years of age at the time these offences were committed. He was 20 at the time of sentence, and he is 21 years of age now.

14 Another fact to bear in mind is that he has now been serving the sentence since 7 September last year.

15 It is not only those bare facts that need to be considered so far as this respondent is concerned, there is also what the sentencing judge described as his dysfunctional background, and that comment related to the fact that the respondent was adopted out by his parents when he was two years of age; his adoptive parents divorced, there were then further relationships and separations, and the fact of the matter is that it is now very difficult to find someone in the community who is prepared to take some responsibility for this respondent – although on the material produced, it appears that he has now got some support in the community.

16 In looking at Crown appeals, the classic statement in relation to matters of this kind can be found in Griffiths v The Queen (1976-1977) 137 CLR 293. At page 310, Barwick CJ said:
“Inadequacy of sentence, an expression not found in the Criminal Appeal Act but which is the form in which the ground of the Attorney-General’s appeal is expressed, is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such an inadequacy in the sentence as is indicative of error or departure from principle. No doubt, consistency in the sentences imposed by the judges of the District Court is a desirable feature of criminal administration. Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle. Thus, in an appropriate case, the Court of Criminal Appeal may exercise its influence towards such consistency of sentence. But that consistency is not to be sought or secured, in my opinion, by the Court of Criminal Appeal substituting in any case which the Attorney-General cares to bring before it, its own view of the appropriate sentence irrespective of the presence or absence of error on the part of the trial judge.”

17 In my view, no such error has occurred in this case and also in my view it would be wrong to interfere with the sentence of this respondent, bearing in mind the sentence imposed on Williams, which has not been appealed by the Crown.

18 Accordingly, I propose that the appeal of the Crown be dismissed.

19 HEYDON JA: I agree with Blanch J.

20 HIDDEN J : I also agree.

21 HEYDON JA : The order will be as stated by his Honour Blanch J.