Regina v Fraser

[1999] NSWCCA 212

CITATION:	Regina v Fraser [1999] NSWCCA 212
FILE NUMBER(S):	CCA 60036/99
HEARING DATE(S):	19 July 1999
JUDGMENT DATE:	19 July 1999
PARTIES :	Regina v Shane Fraser
JUDGMENT OF:	Studdert J at 27-28; Smart AJ at 1-26

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0042
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ

COUNSEL:	M Connolly for the Appellant R D Ellis for the Respondent
SOLICITORS:	Crichton-Brownes for the Appellant S E O'Connor for the Respondent
CATCHWORDS:	Criminal Law - Sentencing - Parity - Robbery generally entails full time custodial sentence.
ACTS CITED:	-Nil-
CASES CITED:	_-Nil-
DECISION:	Leave to appeal granted; appeal allowed; In lieu of sentence imposed, the applicant is sentenced to a minimum term of nine months commencing 26 October 1998 and expiring on 25 July 1999 and an additional term of twenty-one months starting on 26 July 1999 and expiring on 25 April 2001.

- 7 -

IN THE COURT OF
CRIMINAL APPEAL

No 60036/99

STUDDERT J
SMART AJ

MONDAY 19 JULY 1999

REGINA v. SHANE FRASER
JUDGMENT

1 SMART AJ : Shane Fraser has sought leave to appeal against the severity of his sentence comprising a minimum term of penal servitude for twelve months and an additional term of eighteen months for the offence of robbery. A further offence of possession of a prohibited drug, 52.3 grams of cannabis, was taken into account. We also take that matter into account.
2 On 26 October 1998 the applicant and his co-accused or accomplice walked along the streets of Summer Hill discussing how they would obtain money for the purchase of heroin. It was decided to select a shop or store which would offer the least resistance. They went into a number of shops looking for a till to rob and ultimately selected the Summer Hill Pharmacy.
3 They had made two visits. They returned a third time when there were no other customers in the pharmacy and approached the victim, a lady standing behind the serving counter. They demanded money. As a result the victim opened the till and both men reached across, removed a combined sum of $180 in notes and ran out of the shop.
4 Immediately prior to their demand the co-accused had attempted to exchange a needle or needles, perhaps for both men, and had been unsuccessful. There was a second lady, the pharmacist, in the shop. The judge found that these two ladies were frightened and that is obviously so.
5 The applicant was aged twenty-three and the co-accused was aged twenty-four. The activities of the two men within the shopping centre were captured on video tape so it was only a matter of time before they were arrested. They were not wearing disguises.
6 The applicant was arrested in his room in a boarding house. This is where the cannabis was found. The judge found that the applicant gave information to the police pretty nearly as soon as spoken to, gave them a full confession and entered his plea of guilty to the charge at the first opportunity. The judge also found that the applicant was remorseful.
7 The judge accepted that the applicant came from an unhappy and disrupted family. His father was an alcoholic and violent. There was more trouble in the family when a step-father came upon the scene. For much of his childhood the applicant had not had the benefit of a stable home. When he was about fifteen or sixteen conditions became intolerable to him so he left home and lived on the streets.
8 He appeared in the Children's Courts in 1991 and 1992 for two dishonesty offences and lesser offences. He re-shaped his life, settled down, did a course and worked well, making good progress until a relationship he had with a young lady broke up. She was being unfaithful. This upset him to such an extent that he lost his balance. He tried to solve his problems by taking heroin. That was done in the company of his co-accused.
9 In 1994 he was fined on four motor vehicle offences. His record does not disentitle him to receive some leniency. He had been out of trouble for some years. The judge was correctly impressed with the steps the applicant was taking to improve himself and to rehabilitate himself.
10 A former employer who spoke highly of the applicant was prepared to re-employ him on his release. The applicant was, at the date of sentence, in strict protective custody being very apprehensive about the violence in gaol.
11 The judge took the view that, as there were no exceptional circumstances, the decisions of the Courts required that he impose a custodial sentence. The judge thought that the applicant had tried hard but that the aspect of personal and public deterrence was important.
12 The judge correctly found that there were special circumstances. He noted that the co-accused was involved in a large number of robberies and was given a sentence of some six years with special circumstances.
13 Complaint was made about the information which the judge was given by the Crown about the co-accused. The judge was told that he had been sentenced for two armed robberies and the subject robbery and that the co-accused had received concurrent terms of penal servitude with a minimum term of two years and an additional term of four years. In fact, for the robbery offence, the additional term was two years.
14 It is a pity that the reasons of Karpin DCJ, who dealt with the co-accused, were not available. The two unrelated armed robberies were very serious with the co-accused wielding a knife in each case as he held up a service station attendant. He had been given the benefit of a Griffiths Remand and, while on remand and twelve months later, participated in the subject robbery.
15 The co-accused committed an armed robbery in 1992 when he was under eighteen and was sentenced to a control order. His other offences involved dishonesty and drugs. He had been involved with heroin for some years.
16 Karpin DCJ reviewed the subjective features at some length. What weighed with her were the extremely serious armed robbery offences and the commission of the further offence of robbery while the co-accused was on bail on remand awaiting sentence and supposedly endeavouring to rehabilitate himself. None of these features apply to the applicant.
17 The applicant correctly submitted that he warranted a much lesser sentence than his co-accused. The judge was at a disadvantage in not being supplied with the Remarks on Sentence of Karpin DCJ and not having the benefit of her review. The judge commented correctly that it would have been desirable for the same judge to have sentenced both men. The judge was alert to the principle of parity.
18 Given the much greater overall criminality of the co-accused and his less favourable subjective features, it would normally be expected that the applicant would have received less than half the minimum term which the co-accused received. In my view regard must be had to both the full term and to the minimum term.
19 It was next submitted that the judge erred when he said:
“The Courts in this state have said that the only time that a person who involves himself into crimes such as this can escape a custodial sentence is if there are exceptional circumstances.”

There is no doubt that such a principle applies in cases of armed robbery and robbery with circumstances of aggravation.
20 Generally, the offence of robbery will attract a custodial sentence, as it should do in this case, but the offence, while serious, is slightly less grave than armed robbery or robbery with circumstances of aggravation. In cases where the robbery is at the bottom of the range of robbery offences and there are compelling subjective features, a full-time custodial sentence may not always be required. The judge has slightly over-stated the position for offences of robbery.
21 The Crown contended that the question was not whether the Judge correctly stated the law but whether the sentence was manifestly excessive. If there is an error in that the applicable principle has been slightly over-stated, then it is open to this Court to re-sentence. It may take the view that the sentence imposed was in any event the lowest sentence which could reasonably and permissibly be imposed.
22 The applicant further contended that, the figures provided by the Judicial Commission indicated that, of those persons in a similar age category as the applicant who pleaded guilty, had prior offences of a different type, only sixty or perhaps sixty-three per cent were sentenced to a term of imprisonment.
23 It was contended that the minimum term of twelve months was statistically disproportionate given that the applicant's prior offences were not extensive and the more serious ones were committed when he was a juvenile.
24 I do not think that either party gets a great deal of assistance in this case from the figures provided by the Judicial Commission. They do seem to point to the general rule that in robbery cases a custodial sentence is generally imposed.
25 I have come to the conclusion that, in all the circumstances of this case, the sentence imposed was excessive and that, in lieu of the minimum term of twelve months, a minimum term of nine months should be imposed. I would not alter the length of the full term.
26 Leave to appeal should be granted and the appeal allowed. In lieu of the sentence imposed upon the applicant, a sentence comprising a minimum term of nine months and an additional term of twenty-one months should be imposed upon him.
27 STUDDERT J: I agree.
28 The orders then will be those proposed by Mr Acting Justice Smart. The commencing date would be 26 October 1998, the minimum term to expire on 25 July 1999. The additional term then will commence on 26 July 1998 and expire on 25 April 2001.