Regina v Coombes

[2000] NSWCCA 349

CITATION:	Regina v Coombes [2000] NSWCCA 349
FILE NUMBER(S):	CCA 60318/99
HEARING DATE(S):	Monday, 31 July 2000
JUDGMENT DATE:	31 July 2000
PARTIES :	The Crown Christopher Coombes
JUDGMENT OF:	Newman J at 1; Sperling J at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0524
LOWER COURT JUDICIAL OFFICER :	Nader ADCJ

COUNSEL :	A M Blackmore (Crown) P J D Hamill (Aool)
SOLICITORS:	S E O'Connor (Crown) Ross Hill & Associates (Appl)
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Regina v Henry (1999) 46 NSWLR 346 Regina v Lowe (1984) 154 CLR 606 Regina v Postiglione (1996) 189 CLR 295
DECISION:	See para 15

IN THE COURT OF

CRIMINAL APPEAL

60318/99

NEWMAN J
SPERLING J

MONDAY, 31 JULY 2000

REGINA v Christopher COOMBES

JUDGMENT

1 NEWMAN J: This is an application for leave to appeal against the severity of a sentence imposed by Nader ADCJ on 23 April 1999 in the District Court sitting at Newcastle. Before his Honour the applicant had pleaded guilty to a charge of armed robbery contrary to the provisions of s 97(1) of the Crimes Act. The plea had been entered at a very early opportunity, the applicant having pleaded guilty and brought before the Local Court at Maitland and he there adhered to his plea before his Honour.

2    The maximum penalty for such an offence is imprisonment for twenty years. Accordingly, it is a crime which stands high in the criminal calendar.

3    In the event, his Honour sentenced the applicant to a head sentence of six years consisting of a minimum term of three years and six months and an additional term of two years and six months.

4    The applicant, as will be evident from the short facts, carried out the crime in concert with another, one Matthew Archer. Archer also pleaded guilty but by no means entered his plea at an early stage. He was sentenced by another Judge, Coolhan DCJ, on 12 November 1999. He received a head sentence of three years' penal servitude with a minimum term of twelve months.

5 Essentially three grounds of appeal have been advanced on behalf of the applicant. Firstly, that the sentence was excessive and here reliance is placed upon the guidelines set down by this Court in Regina v Henry (1999) 46 NSWLR 346.

6    Secondly, that when one compares the sentence imposed on the co-accused Archer with that imposed upon the applicant, a question of justifiable sense of grievance arises in terms of parity of sentencing.

7    Thirdly, that his Honour did not give a sufficient discount for assistance, his Honour's discount being in the order of 25 per cent.

8    I turn then to the facts of the matter. The offence occurred on 22 August 1998. Archer and the applicant approached the victim of the crime, who was sitting in a park. They demanded that the victim hand over his wallet. A knife was held to the unfortunate victim's throat, Archer keeping his thumb between the blade of the knife and the victim's throat. Plainly enough it was the intention of both co-offenders to frighten the victim into parting with anything of value he might have. They in fact forced the victim to give them his pin number. It seems that the applicant during the course of the pressure being imposed on the victim kneed and punched him.

9    Finally the pair departed and, having left the wallet at the scene of the crime, the victim found two of his cash cards were missing, and these were found on the present applicant when he was apprehended.

10    Plainly enough a serious breach of the criminal law occurred in terms of the crime of robbery, one which, in my view, fell within the criteria referred to in the judgment of Spigelman CJ in Henry, ie, one which fell within the lesser category of what otherwise, and still remains may I add, a serious crime.

11    As I have said, the applicant relies on three submissions, the first being that the sentence imposed goes so far beyond the type of sentence suggested in the guidelines judgment of Henry as to be manifestly excessive. Certainly in my view the sentence is high. It seems to me that it reaches a point of severity where it cuts into the circumstances of a case like this, when Henry is taken into account, to a degree where I would conclude that in fact it was manifestly excessive.

12    His Honour's discount of 25 per cent because of the subjective features is, in my view, plainly directed to the assistance which the applicant gave but I am of the view that to suggest that there were any other subjective features other than the assistance given which was of any great value to the applicant would be a rather hopeful submission.

13 Then, of course, there is the matter of the question of grievance. Archer was perhaps fortunate that the Crown appeal was dismissed but questions of double jeopardy were properly taken into account by the Court. But the fact is that Archer received a much lower sentence than the applicant, to such a degree that I would have thought that this is a case where the principle advanced by the High Court in Regina v Lowe (1984) 154 CLR 606and Regina v Postiglione, (1996) 189 CLR 295 as adopted by this Court, apply.

14    In all then I am of the view that error has been demonstrated and that this Court should interfere.

15    What I would propose is that this Court should quash the sentence imposed below and impose a head sentence of three and a half years to commence on 22 October 1998 and expire as a head sentence, on 25 April 2002; with a non-parole period of two years to commence 22 October 1998 and expire on 21 October 2000 when the applicant will be eligible for release on parole.

16 SPERLING: I agree with the orders proposed by his Honour and with the sentence that he proposes in relation to re-sentencing the present applicant. I would prefer to put my position solely on the ground that the sentence imposed was excessive rather than any other ground argued. The decision of the trial Judge pre-dated the decision of this Court in Regina v Henry (1999) 46 NSWLR 346 but it is important in the interests of consistency that on appeals which now come before this Court the guideline judgment of Henry should be brought into consideration.

17    Doing that, as his Honour has demonstrated, this sentence was in excess of the guideline promulgated in Henry, notwithstanding that the case is squarely within the ambit of that guideline judgment. The way in which his Honour the sentencing Judge then arrived at the result from his starting point was, in my view, unexceptional. But when that process of reasoning is applied to a starting point in the range promulgated in Henry, the result is as his Honour the presiding Judge here has proposed.

18    NEWMAN: The orders of the Court will be as I have proposed.

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