Regina v Dillon

[2002] NSWCCA 221

CITATION:

REGINA v DILLON [2002] NSWCCA 221 revised - 1/07/2002

FILE NUMBER(S):

CCA 60733/01

HEARING DATE(S):

5 June 2002

JUDGMENT DATE:

5 June 2002

PARTIES :

Regina

v

Matthew DILLON

JUDGMENT OF:

Adams J at 1; Carruthers AJ at 13

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/0108
LOWER COURT JUDICIAL OFFICER :	Black DCJ

COUNSEL :	D C Frearson (Crown) S McNaughton (Applicant)
SOLICITORS:	S E O'Connor (Crown) D J Humphreys (Applicant)
CATCHWORDS:	Sentence appeal - robbery in company - plea of guilty - appropriate discount - requirement to qualify sentence - requirement to specify - public policy
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Thomson & Houlton (2000) 49 NSWLR 383 Sharma [2002] NSWCCA 142
DECISION:	Leave to appeal granted, sentence below quashed and that there be substituted therefor a sentence of imprisonment for a period of three years commencing on 3 August 2001 and expiring on 2 August 2004 and a non-parole period of eleven months, commencing on 3 August 2001 and expiring on 2 July 2002. The Court directs the applicant's release on the expiration of the non-parole period. The time giving notice of appeal is extended.

IN THE COURT OF

CRIMINAL APPEAL

60733/01

ADAMS J

CARRUTHERS AJ

WEDNESDAY 5 JUNE 2002

REGINA v MATHEW DILLON

JUDGMENT

1 ADAMS J: This is an application for leave to appeal from a sentence imposed in the District Court on 3 August 2001.

2 The applicant was charged at committal with an offence under s 97(1) of the Crimes Act 1900, in substance, robbery in company on 2 June 2000 at Parramatta, when he and two others robbed two young men of cash and a mobile telephone.

3 The applicant was sentenced to a term of imprisonment of three and a half years from 3 August 2001, with a non-parole period of fifteen months, expiring on 2 November 2002. At the time of the offence, the applicant was eighteen and five months old and the co-offenders were slightly over fifteen years of age.

4 The facts may be briefly stated and I am indebted to the clear summary in the reasons for sentence of the learned sentencing judge from which, in substance, I quote. The offender was in company with two others who were juveniles. The two victims were pedestrians in Church Street, Parramatta on the evening of Friday 2 June when the three offenders, of whom the applicant was one, having decided (in the offender’s words) “to jump them”, did so. The victims were forcibly restrained and searched and were implicitly threatened with violence if they “did anything silly”. One of them was taken to an ATM and money was extracted from his account. The applicant was aware before the attack that violence of some nature would be used, although he had not instigated the offence. His Honour rightly described this offence as terrifying to members of the public and regrettably prevalent. It is regarded seriously by the courts and will usually lead to a sentence of imprisonment.

5 I have mentioned that the applicant was aged eighteen years and five months at the time of the offence. He was about nineteen and a half when he came to be sentenced. His background was to a real degree most unfortunate but an uncle had been of great assistance to him in giving some family support and guidance. It is very much to his credit that the applicant completed his Higher School Certificate and, indeed, has been employed since leaving school. He said that he valued his work and his employer attested to his dedication, consistency and potential in his work. The applicant expressed deep regret for his actions and when spoken to by police, made a full and frank confession, pleading guilty at the committal proceedings and adhering to that plea when in the District Court. A number of points have been made on the applicant’s behalf, submitting that the learned sentencing judge erred. I do not think it necessary to deal with those submissions as I am satisfied that his Honour failed to apply the judgment of this Court in The Queen v Thomson and Houlton (2000) 49 NSWLR 383 when considering the significance of the plea of guilty. There is no doubt that the applicant pleaded guilty at the first possible occasion. His Honour when dealing with the plea said this -

“I turn then to the subjective factors in relation to the offender. He has pleaded guilty at the first opportunity. I accept he has been cooperative and shown contrition and remorse. It is clear from his record that he is now facing imprisonment for the first time and I bear that in mind.”

Having regard to the sentence imposed and to the language used by his Honour, it seems to me that Thomson and Houlton was overlooked. This is exactly the sort of case in which it is important to apply the reasoning and conclusions of this Court in that case for strong reasons of public policy, which have recently been reiterated by this Court in Sharma [2002] NSWCCA 142.

6 Two aspects arise. The first is that a substantial utilitarian discount should have been allowed in this case. The second is the need to state clearly that a plea at an early stage is recognised as having utilitarian value and specify, unless it is clearly inappropriate to do so, the extent of discount which thereby should be granted to the offender. In this case the appropriate discount would have been in the order of twenty five per cent. There was nothing unusual in the features of the case which would have justified a variation from what one might describe as the usual discount where a plea of guilty has been entered at the very earliest opportunity. In the circumstances here also, the inconvenience and trauma which would have been suffered by the victims if they had been required to re-live their experience is a material factor justifying the discount which I have specified.

7 This being an error, it falls to this Court to re-sentence. It will not always be that the identification of an error will lead to an adjustment of sentence. One must look at the overall criminality.

8 Enough has been said, I think, to indicate that this was indeed a case where a sentence of imprisonment was necessary, even having regard to the public interest in rehabilitation of young people and the other strong subjective considerations to which I have adverted.

9 The applicant has tendered affidavits, firstly from his uncle, who has indicated a very real and mature interest in supporting and guiding the applicant and is prepared to continue that support with the additional help of the applicant’s grandparents. His uncle has also arranged employment. There is an affidavit also from his former employer.

10 The applicant has said that whilst in custody he has commenced work under the Community Projects Program since May of this year and has progressed to unsupervised work five days a week. He has also participated in educational courses. I accept both that substantial rehabilitation has already occurred and that his prospects of staying out of the criminal justice system are good.

11 I have dwelt on the subjective features of this case, which are always of very great importance when sentencing young persons, and might on occasions lead to dispositions which reflect more the public interest in rehabilitation than the other interests of sentencing of general deterrence and denunciation. However, as I have said, in this case I am of the view, having regard to the objective seriousness of the offence, a sentence of imprisonment was necessary.

12 I propose that leave to appeal be granted, that the sentence below be quashed and that there be substituted therefor a sentence of imprisonment for a period of three years commencing on 3 August 2001 and expiring on 2 August 2004 and a non-parole period of eleven months, commencing 3 August 2001 and expiring 2 July 2002. The Court will direct the applicant’s release on the expiration of the non-parole period. I should also order that time giving notice of appeal should be extended.

13 CARRUTHERS AJ: I agree with the orders proposed by Adams J.

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