Regina v Gibson - [2006] NSWCCA 299

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v GIBSON [2006] NSWCCA 299

FILE NUMBER(S):
2006/1498

HEARING DATE(S): 24 July 2006

DECISION DATE: 24/07/2006

PARTIES:
The Crown (Appl)
Phillip William Gibson (Resp)

JUDGMENT OF: Tobias JA McClellan CJ at CL Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/2037

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
V Lydiard (Crown/Appl)
A P Cook (Resp)

SOLICITORS:
Director of Public Prosecutions (Crown/Appl)
Aboriginal Legal Service (Resp)

CATCHWORDS:
CRIMINAL LAW – Crown appeal against sentence – robbery – affray – assault student at a school – intimidating a member of staff at a school – partially accumulated sentences – substantially concurrent with sentences being served for prior offences – whether sentences reflected objective seriousness of offences – subject to good behaviour bonds at time of offences – whether sentencing judge ought to have adjusted commencement date of sentences – subjective factors – offender’s anticipation of release – principle of double jeopardy – limit to additional period of imprisonment

LEGISLATION CITED:
Crimes Act 1900

DECISION:
1. Appeal upheld and sentence quashed in relation to count one. In lieu thereof sentence the respondent to a period of imprisonment of fourteen months to date from 28 February 2006 with the balance of term of nine months to commence on 1 May 2007 and expire on 31 January 2008
2. In relation to the other matters, the appeal should be dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1498
TOBIAS JA
McCLELLAN CJ at CL
HOEBEN J
MONDAY 24 JULY 2006

REGINA v Phillip William GIBSON

Judgment

McCLELLAN CJ at CL: The Crown appeals against the sentences imposed upon the respondent at Parramatta District Court on 10 May 2006 for a number of offences committed against the staff and a student of Riverstone High School. The offences were committed on 8 April 2005. Although arrested on 12 April 2005 the respondent was not arraigned in relation to these matters until 1 December 2005, on which occasion he pleaded guilty. The matters were then adjourned for sentence and, after obtaining a pre-sentence report, he was sentenced on 10 May 2006.
There were four offences, the first being a count of robbery, one count of affray, one count of assault student at a school and one count of intimidating a member of staff at a school. The offences occurred on the same day in or near the school grounds. The respondent was sentenced to an effective term of two years and eighteen days’ imprisonment with an effective non-parole period of fifteen months and eighteen days. The effective non-parole period expires on 31 July 2006. This effective sentence consisted of three wholly concurrent, fixed terms for counts two to four inclusive, of nine months, six months and six months respectively. All those sentences were to date from the date of arrest, being 12 April 2005.
For count one he was sentenced to a partially accumulated sentence of twenty-three months with fourteen months’ non-parole to commence on 1 June 2005. It is for this reason that the effective non-parole period expires on 31 July 2006 when the fourteen month non-parole period for count one expires. However, the reality, as the Crown points out, is that the effective sentence was reduced because the respondent had been sentenced to imprisonment on other matters.
The sentences for the present matter were substantially concurrent with sentences of imprisonment which he was serving for unrelated matters, being expressly a count of stalking for which he was sentenced to ten months fixed term from 30 May 2005 to 29 March 2006, and a second offence of intimidating police for which he was sentenced to a fixed term of eight months from 30 September 2005 to 29 May 2006.
In addition, the respondent had had his parole revoked since 12 April 2005 until 20 May 2005 for a third matter relating to a stolen motor vehicle. This period of revoked parole was as a consequence of the present sentences being wholly subsumed within them. The reality is the extension to the respondent’s imprisonment for the present matters was the extension of the non-parole period from 29 May 2006 to 31 July 2006, a period of two months and two days, and the parole period of nine months from 9 August 2006 until 30 April 2007.
In these circumstances, the Crown submits the penalties which were imposed are manifestly inadequate because they do not reflect the objective seriousness of the offences. Notwithstanding the fact that the respondent is due for release on 31 July 2006 under the current sentences which have been imposed, the Crown submits that the principles of double jeopardy cannot prevail because of the wholly inadequate sentences in this case.
The sentencing judge made findings of fact determined, as I understand it, from facts which were agreed before him. Those facts are as follows. On 8 April 2005 the respondent was in McCulloch Street, Riverstone, outside the Riverstone High School when he confronted ZC. ZC was a student at the high school who was listening to an MP3 player. When he saw the offender and another male he put the MP3 player in his pocket. The respondent said to him, “Do you think you’re tough because you’re wearing a Punisher t-shirt?” ZC was apparently wearing a black t-shirt with the Punisher skull on the front. The respondent then said, “Hand over your MP3 player or I’ll bash you”. ZC took his MP3 player out of his pocket and the offender said to him, “Hand it over now”, and ZC did that. The respondent also asked to see ZC’s wallet. He said, “Show us your wallet now or I’ll king hit you”. At that stage the other person involved in the offence, Hickey, said, “He’s got nothing”, and both Hickey and the respondent walked away.
Another high school student sought to have the MP3 player returned. There was a period of negotiation during which both the respondent and Hickey went to the school gate and Hickey entered the school grounds and said to ZC, “Give us your necklace.” The necklace was given to Hickey. An agreement was reached that, for $20, the necklace and MP3 player would be returned at lunchtime.
The respondent and Hickey, at about 1.30 pm, entered the grounds of the high school where he was sighted by ZC, teachers and students. The facts tendered by the police show that he realised he was not going to get $20 that he had negotiated and he started to leave the school saying, “I’m going to bash you”. He then returned to ZC and attempted to punch him but ZC avoided the punch. A teacher, Mr Johnson, placed himself between the respondent and ZC and the school principal then told ZC to go to the office. On the way, Hickey chased ZC, grabbed him by the hair and punched him twice in the face. Both the respondent and Hickey then fled the grounds.
The respondent’s criminal record was tendered at the sentencing proceedings. It is significant and indicates a record of criminal offending since an early age. Notwithstanding the penalties which have been previously imposed upon him, it would seem that to this point the respondent has failed to redress his behaviour and has failed to pay any, or any significant, regard to the endeavours which have been made to bring home to him the necessity of his behaviour to conform in a way which is acceptable to the general community. It was in that context he came to be sentenced in relation to the present matters.
The Crown submits that in these circumstances the sentences which his Honour imposed were manifestly inadequate. The fundamental complaint is that because the respondent was already in custody for other offences he would serve only two months and two days’ imprisonment for this series of offences, which in themselves are serious offences deserving a significant, although perhaps not lengthy, prison sentence. The Crown emphasised that the offences involved three victims and two separate incidents. Furthermore, the offences of assaulting or intimidating school students and staff under s 60E(1) of the Crimes Act 1900 carry a maximum of five years’ imprisonment, some two and a half times the maximum penalty for assault under s 61.
It is submitted, and I accept, this represents an important policy consideration and the increase in the relevant penalty should be recognised by the Court in passing sentence. The offence of robbery, which is count one, carries a maximum penalty of fourteen years and affray, being the offence in count two, carries a maximum of five years’ imprisonment.
The Crown accepts that it is preferable for sentencing judges to fuly backdate a sentence for pre-sentence custody solely referable to that offence if there is no breach of parole or other sentences. However, it is submitted that in the circumstances of this case his Honour erred by fully backdating the sentences for counts two to four to the date of the offences. The effect of the sentences imposed was to entirely subsume the combined breach of parole and fixed terms for three unrelated offences and meant that the effective non-parole period for the present matter was little more than two months.
The Crown also emphasised that at the time of the commission of the present offences the respondent was on two bonds imposed by Blacktown Local Court on 7 February 2005. One of those bonds was for an offence of behave in an offensive manner in or near a public place or school, an offence identical in nature to the present matter. In these circumstances, a substantial cumulative sentence would normally be imposed: see R v Jones (unreported, NSWCCA, 30 June 1994); R v WHS (unreported, NSWCCA, 27 March 1995). The familiar principles have more recently been discussed by this Court in R v Snider [2004] NSWCCA 134.
The Crown also submits that it is relevant that the respondent appears to have been at large at the time of the present offences. His criminal record was tendered at the sentencing hearing and indicates that the Parole Board revoked his parole on 15 December 2004 with a warrant to issue on the offence of stealing a motor vehicle. The Crown acknowledges that the respondent’s custodial history provided to the Crown by Corrective Services states that the parole was revoked on 28 April 2005 with a commencement date of 12 April 2005 but this followed the respondent’s arrest on the present matter.
The Crown submits if the revocation of the parole is accepted to have occurred on 15 December 2004, as indicated by the record tendered at the sentencing hearing, the respondent would have been at large at the time of the commission of the present offences. Being at large is a serious aggravating factor: see R v David King [2003] NSWCCA 352.
With respect to the fact that there were multiple offences, the Crown submits that although his Honour did partially accumulate the sentence for count one, his Honour does not appear to have given effect to the special need for consideration of accumulation of sentence by reason of there being more than one victim of the offences, even though they occurred on the same day. The Crown refers to the remarks of this Court in R v KM & Ors [2004] NSWCCA 65. Reference can also be made to the discussion of the principles in R v Dunn [2004] NSWCCA 41.
Accordingly, the Crown submits that the sentencing judge ought to have adjusted the commencement date of the first of the sentences in order to reflect the objective seriousness of the offences. It is submitted that it is difficult to see why full accumulation should not have occurred upon the eight month fixed term for the offence of intimidating a police officer. That sentence commenced on 30 September 2005 and expired on 29 May 2006. The Crown submits if the Court proceeds to re-sentence the respondent, the first of the sentences ought to commence on 30 May 2006.
The Crown also emphasised the respondent’s criminal record, submitting that it is an aggravating feature in the ordinary sense of that word, as understood in Veen v The Queen [No 2] (1987-88) 164 CLR 465. Of course, that view is the subject of consideration in a reserved judgment of a five member Bench of this Court in R v McNaughton [2006] NSWCCA 242. However, I do not understand the Crown’s submissions in this case to trespass upon the area of debate in the McNaughton matter.
The respondent’s counsel accepts the sentences which were imposed by his Honour were lenient. However, it is submitted that his Honour sufficiently identified or marked out the offending occasioned in those offences by the sentence which was imposed. It is submitted that his Honour was required to be mindful of the fact that the respondent was in prison in relation to earlier offences and the principles of totality were important. It is also submitted that his Honour was entitled to view the respondent as a young person with a seriously deprived background, warranting an opportunity from the Court to change his traditional behaviour and set upon a different regime for his life.
It is pointed out that he is the youngest of ten children with an Aboriginal father and a non-Aboriginal mother and was first taken into care at the age of ten. He witnessed an injury caused by his father to his mother using a meat cleaver which caused him to attack his father to defend his mother. Both of the respondent’s parents were drug and alcohol abusers and he had lived in a continuous series of foster placements before his first incarceration. The respondent experienced learning difficulties at school and required special treatment for this. As a consequence, his education has been both inadequate and truncated.
The respondent has been abusing alcohol from an early age and has taken up the use of illegal drugs, including crystal methyl amphetamine, from about the age of fourteen. He has difficulty with attention and memory.
The respondent’s counsel submits that his Honour had a particularly difficult task when sentencing the respondent and that those difficulties were capable of being reflected in the lenient sentence which was imposed. He also submits that under the current sentencing regime he is eligible for release on parole on 31 July 2006. If he was now to have his effective sentence extended, the punishment upon him would be unduly harsh. It is submitted that even if this Court came to the view that the sentence was lenient and in other circumstances may require intervention, the fact that he is due for release should have a consequence that this Court in the exercise of its discretion should not intervene.
I have given careful consideration to the respondent’s written submissions and to the submissions made by his counsel today. Everything which could have been said on behalf of the respondent has been said. However, notwithstanding those submissions, I am satisfied that the Crown’s submissions should be accepted, at least in part. Although it is apparent that the sentencing judge was mindful of the respondent’s youth and the fact he was imposing a lenient sentence, it does not appear that he had in mind the practical consequences of the sentence which he imposed. Although his Honour was made aware of the respondent’s record, and it would seem had drawn to his attention the fact the respondent was due for release at an early date, his Honour does not reflect the latter fact in his remarks on sentence. Whether or not his Honour overlooked the practical consequence of the sentence which he imposed, I am satisfied that his Honour erred in imposing the sentencing regime which he did.
In my opinion, the sentences which he imposed were so inadequate that this Court is left with no alternative but to intervene. The offences which were committed were serious, comprising at least two separate episodes of serious criminal offending with multiple victims. Sentencing principle requires that the offending be punished with an identifiable term of imprisonment for the separate offences. The need for such punishment was made greater by reason of the fact that the respondent has a significant criminal record for similar offences.
Having regard to the uncertainty in relation to whether or not the respondent was at large at the time of committing these offences, I am prepared to leave that aspect of the matter to one side. However, as this Court has made plain on many occasions, if an offence takes place in those circumstances an offender cannot expect leniency from this Court.
This Court has considered the principles relevant to a Crown appeal on sentence on many occasions: see R v MD, BM, NA, JT [2005] NSWCCA 342. It is not necessary for me to repeat them today. In most cases where the Crown seeks an extension of expiry term of a sentence where that term is close to expiry, this Court will generally be reluctant to intervene. The increased penalty would be significantly greater because of the denial of the anticipated release. However, there will be cases, of which this is one, where the sentence imposed falls so far short of what the law requires that this Court must intervene notwithstanding that the period of incarceration is to shortly come to an end.
Although the respondent was arrested on 12 April 2005 for offences which occurred on 8 April 2005, he did not plead guilty until he was arraigned on 1 December 2005. Then, as would almost always be the case if the sentencing task is one with any difficulty, an adjournment was necessary and a pre-sentence report was obtained. In the ordinary course of the working out of these matters, submissions in relation to sentence were not made until 27 April 2006 and he was sentenced on 10 May 2006. The respondent when sentenced must have anticipated that the period of imprisonment which he was then serving would be extended for a period of time by reason of the present offences, having regard to the serious nature of these offences and his prior record. The respondent must have anticipated that a significant period of imprisonment would be imposed, although, as I earlier indicated, perhaps not a lengthy one.
The effective sentence which was imposed was much less than the respondent was entitled to expect he would have imposed upon him. In these circumstances, although, no doubt, he will be disappointed if his sentence is increased, I am not persuaded that the additional punishment is so harsh that this Court should in the exercise of its discretion not interfere. However, mindful of the matters of double jeopardy, the additional period of imprisonment which should be imposed, in my view, should be more limited than would otherwise have been appropriate.
Although more significant accumulation providing identifiable punishment for the separate offending which was involved would have been appropriate if sentenced at first instance, I am satisfied this Court should only intervene to alter the date on which the sentence for count one should commence. The date upon which the sentence for that matter should commence, in my opinion, should be 28 February 2006 which will provide an effective extra period of imprisonment of nine months.
In these circumstances, in my opinion, the following orders should be made:
(1)Uphold the appeal and quash the sentence in relation to count one. In lieu thereof sentence the respondent to a period of imprisonment of fourteen months to date from 28 February 2006 with the balance of term of nine months to commence on 1 May 2007 and expire on 31 January 2008.
(2)In relation to the other matters, the appeal should be dismissed.
TOBIAS JA: I agree.
HOEBEN J: I agree.
TOBIAS JA: The orders of the Court will be as pronounced by Justice McClellan.

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LAST UPDATED: 16/11/2006