Regina v Christian
[2002] NSWCCA 264
•19 June 2002
CITATION: Regina v Christian [2002] NSWCCA 264 FILE NUMBER(S): CCA 60218/2002 HEARING DATE(S): 19 June, 2002 JUDGMENT DATE:
19 June 2002PARTIES :
Regina
Alex John ChristianJUDGMENT OF: Spigelman CJ at 1, 18, 20; Simpson J at 19; Blanch AJ at 2
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 01/21/0282 LOWER COURT JUDICIAL
OFFICER :Balla DCJ
COUNSEL : G I O Rowling (Crown)
C Craigie SC (respondent)SOLICITORS: S E O'Connor (Crown)
Sydney Regional Aboriginal Corporation Legal Service (respondent)CATCHWORDS: Criminal law - robbery - demand money with intent to steal - Crown appeal - cross roads LEGISLATION CITED: Crimes Act, 1900 s94 CASES CITED: R v Henry (1999) 46 NSWLR 346
R v Osenkowski (1982) 5 A Crim R 394DECISION: 1. Crown appeal allowed. Sentences imposed below quashed. ; 2. On first count and taking into account two matters on Form 1, sentence imposed of four years to date from 1 November, 2000 with non-parole period specified of two years to expire on 31 October, 2002.; 3. On second count, sentence imposed of three years and two months to date from 1 November, 2000 with non-parole period specified of two years to expire on 31 October, 2002.; 4. Sentences to be served concurrently.
- 6 -IN THE COURT OF
60218/02
19 June, 2002SPIGELMAN CJ
SIMPSON J
BLANCH AJ
1 SPIGELMAN CJ: I invite Blanch AJ to deliver the first judgment.
2 BLANCH J: This is a Crown appeal brought against a sentence imposed at Parramatta District Court on 15 February, 2002. On that day the respondent was sentenced on two charges of robbery contrary to s94 Crimes Act, 1900 which specifies a maximum penalty of fourteen years. In addition there were two matters on a Form 1, one being an offence of robbery and the other being an offence of demand money with intent to steal. On each count, the respondent was sentenced to imprisonment for three years and two months to commence on 1 November, 2000 and a non-parole period of two years was specified to expire on 31 October, 2002.
3 The first offence on the indictment related to a robbery on Saturday, 28 October, 2000 at the TAB agency at Ashfield. At 9.30 p.m. the respondent went into the agency and approached Ms Richards who was working there and said “Give me your fucking money”. The victim then triggered an alarm and the respondent shook his head and said “What did you do that for?” and the victim then handed the respondent money from the till. He lifted up his T-shirt and she thought she saw a black gun under the T-shirt.
4 The second offence related to a robbery on 31 October, 2000 when the respondent went to the Blockbuster video shop at Enmore at 2.30 p.m. He said to Heidi Martin, who worked in the shop “…I’ve got a gun in my jacket” and he then told the two women in the shop to get the till out. The money from the till was put in a plastic bag and he heard a siren. He said he didn’t care if the police came and asked them for an ice cream, which he took from a refrigerator nearby and then walked out of the shop with $350 taken from the till.
5 The two Form 1 matters both related to the Enmore TAB agency. The first was at 8.10 p.m. on 7 October, 2000 when he walked into the agency and said he had a gun and demanded money from the till. He decamped with $764. The second matter on the Form 1 was on the same TAB agency at 2.30 p.m. on 31 October, 2000. This time he encountered a Mr. Palombi in the agency. He recognised the respondent because he had been robbed by him in similar circumstances on three previous occasions. There was some discussion between them and the respondent said “I suppose you’ve hit the button by now, in that case you’d better give me the money”. Mr Palombi refused and the respondent said: “Do you want me to pull out the gun?” Mr Palombi walked away from the counter and the respondent walked out of the shop.
6 The respondent is 44 years of age. He has a criminal history dating back to 1972. He was sentenced to three and a half years imprisonment for dishonesty offences in Sydney District Court in 1976. In 1980 he was sentenced to six years imprisonment for three robbery offences. He was sentenced to three years imprisonment for dishonesty offences in the Local Court in 1984. He was sentenced to eight years penal servitude for dishonesty and violence offences in 1989. In 1993, for seven robbery offences, he was sentenced to five years imprisonment and in 1999, he was sentenced to five years imprisonment for robbery offences at Sydney District Court. In addition to those sentences, he has been sentenced to a number of other shorter periods of imprisonment. On 2 November, 2000, which was the day after his arrest on these matters, his parole was revoked, leaving him with a sentence of one year eight months and nineteen days imprisonment from 1 November, 2000. He was on parole at the time these offences were committed, having been released from custody on 20 July, 2000.
7 A number of reports were tendered relating to the respondent. A report from Duffy, Barrier and Robilliard, psychologists dated 21 January, 2001 states he is an Aboriginal man born in Cowra. He is married with a thirteen year old son. He told the psychologist he has been in gaol for all but eight months of his son’s life. He reported an extensive drug abuse history from his mid-teens and prior to his arrest, he was injecting heroin at a cost of about $150 a day, as well as using cocaine and cannabis. The psychologist report diagnosed his major problems as drug dependency and depression but expressed the view he “may benefit” from a shorter sentence with a lengthier term of supervision. An Official Visitor at the gaol, Dr. Simon Hasleton, has spoken to the respondent on a number of occasions and noted his desire to go into the William Booth Rehabilitation Programme. He concluded “Almost in the teeth of his history, I have a strong feeling that Alex Christian has a chance of putting his life in order…”. Dr. John Daniels, the Director of Health Services at the Aboriginal Medical Service Co-operative Limited, has treated the respondent for the past three years. He says he has a chronic depressive illness which is now responding to new medication. He says the respondent has made “impressive progress”. He went on to say the respondent had given significant assistance as the Aboriginal delegate at the gaol and “It is my opinion that the evident changes in Mr. Christian are highly suggestive of that very kind of permanent change which is indicative of a low risk of the circumstances which may lead to re-offending behaviour.”
8 The sentence imposed by the sentencing judge has three unusual characteristics. Firstly, the sentences are backdated to the date the respondent commenced serving the balance of his parole, namely 1 November, 2000 rather than the date of sentence, namely 15 February, 2002. Secondly, although the judge said the matters on the Form 1 called for a higher penalty, she did not specify which was the charge in respect of which she took them into account. Thirdly, she imposed exactly the same sentence on each count and made the sentences concurrent.
9 Her Honour expressed some difficulty in determining an appropriate sentence, bearing in mind the guideline judgment in R v Henry (1999) 46 NSWLR 346 relates to armed robbery offences and these were not offences involving being armed. By the same token, the offences are robbery offences and each of them carries a significant maximum term of imprisonment. Of particular note in this case is the fact that the prisoner was on parole in respect of the robbery offences at the time these offences were committed. He had been released to parole just over two months before the first offence was committed. By backdating the sentence for these offences to the date on which his revocation of parole took effect, the sentencing judge was giving to him a very significant discount on these sentences. In my view, the fact that offences are committed while on parole is not a basis for reducing the sentence, it is more often a basis for not reducing the appropriate sentence. Of course, there was a long delay in these sentences occurring and no doubt that had to do with the difficulties the Aboriginal Legal Service had in obtaining the necessary reports and negotiating an appropriate indictment with the Crown. The respondent should not be penalised for that.
10 The failure to specify which of the sentences was to reflect the matters on the Form 1 makes it difficult to understand the method of sentencing and that will need to be addressed.
11 In my view, the overall sentence imposed here is manifestly inadequate and accordingly, I would allow the Crown appeal.
12 Having reached that stage in the deliberations of this Court, it then becomes necessary to look at the exercise of the discretion as to what sentence should be imposed, bearing in mind a number of significant factors. One troubling factor in this case is the delay since the time the prisoner went into custody. He has been in gaol since 1 November, 2000 and he is presently due for consideration for release to parole on 31 October, 2002. As I have indicated, the reasons for the delay no doubt have much to do with the difficulties in preparing his case and the negotiations which proceeded between the defence and the Crown. At the end of the day, the Crown has accepted that it is appropriate for him to plead guilty to offences of robbery, rather than armed robbery. That concession was made by the Crown apparently after the trial at Parramatta began. Again, the respondent is not to be penalised for that delay.
13 He was, of course, sentenced on 15 February, 2002 and the Crown appeal was lodged on 18 April, 2002. Since 15 February, he has been contemplating 31 October, 2002 as a possible release date, and, of course, the prison authorities would have been, as we have been informed, working towards that release date.
14 Another factor to consider in what this Court does in imposing sentence is the fact that although these are robbery offences, and therefore, serious, the nature of them does not disclose that the prisoner is an adept professional criminal.
15 A further matter that needs to be considered is the further evidence that has now been tendered before us from Dr. Daniels. A substantial argument which was submitted to the sentencing judge was that this prisoner had reached the cross roads within the well-known meaning of that phrase, as expressed in R v Osenkowski (1982) 5 A Crim R 394. Bearing in mind the history of the prisoner’s imprisonment in the past, this Court would be justified in being somewhat doubtful as to whether or not the cross roads had been reached. On the other hand, there is some significant and uncontradicted material coming from the gaol which says that the prisoner has reached that cross roads and has, as it were, seen the light. In particular, in the report of Dr. Daniels, he says that the respondent’s offences “…were committed at a time when he didn’t have access to the antidepressant medication Sertraline (Zoloft)…” He went on to say that the depressive illness the respondent had was untreated at the time of the offences and, no doubt, had some significant part to play in his offending behaviour. In his further report he goes on to say “I would especially re-emphasise that Mr. Christian has undergone significant transformation and that he now has the requisite personal qualities to combat any previous tendency towards recidivism.”
16 Bearing in mind all of those factors and, of course, the fact that this is a Crown appeal involving considerations of double jeopardy, the course that I would propose is a course which ordinarily would not be open, bearing in mind the objective seriousness of the offences committed as they were on parole. However, I believe, bearing in mind these other matters that I have referred to, the course I propose is appropriate.
17 I would allow the Crown appeal and quash the sentences imposed below. On the first count and taking into account the two matters on the Form 1, I would impose a sentence of four years to date from 1 November, 2000 and specify a non-parole period of two years to expire on 31 October, 2002. On the second count, I would impose a sentence of three years and two months to date from 1 November, 2000 and fix a non-parole period of two years to expire on 31 October, 2002. Those sentences, of course, would be concurrent.
18 SPIGELMAN CJ: I agree.
19 SIMPSON J: I also agree.
20 SPIGELMAN CJ: The orders of the Court are as indicated by Blanch AJ.
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