Regina v Griggs

[2000] NSWCCA 33

Reported Decision: [2000] 111 A Crim R 233

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Griggs [2000] NSWCCA 33 revised - 7/03/2000
FILE NUMBER(S):	CCA 60507/99
HEARING DATE(S):	7/2/2000
JUDGMENT DATE:	29 February 2000
PARTIES :	Crown - Appellant Lee Jason GRIGGS
JUDGMENT OF:	Grove J at 1; Sully J at 8; Simpson J at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	60507/99
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL :	C K Maxwell QC - Crown Appellant P J D Hamill - Respondent
SOLICITORS:	S E O'Connor - Crown Appellant T A Murphy - Respondent
LEGISLATION CITED:	Crimes Act 1900 Sentencing Act 1989
CASES CITED:	R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Jurisic (1998) 45 NSWLR 209 R v Farah (NSWCCA, unreported, 11 December 1998) R v Silver (1999) NSWCCA 108 R v Tsoukatos R v Kyroglou [1999] NSWCCA 106 R v Henry and Barber [1999] NSWCCA 107 R v Govinden [1999] NSWCCA 118 R v Pham (1991) 55 A Crim R 128 R v Tran [1999] NSWCCA 109
DECISION:	Crown appeal against sentence upheld; recognisance granted in the District Court set aside; respondent re-sentenced for a fixed term of 18 months to be served by way of periodic detention.

IN THE COURT OF
CRIMINAL APPEAL

60507/99

GROVE J
SULLY J
SIMPSON J

Tuesday 29 February 2000

REGINA v LEE JASON GRIGGS

JUDGMENT

1    GROVE J : I have had the advantage of reading the draft judgments of both Sully J and Simpson J. I share their conclusion that the Crown has demonstrated relevant error and I therefore turn to the remaining issue whether this Court should exercise its discretion to dismiss the appeal nevertheless or whether an adequate sentence, assessed with the restraint applicable to increased sentence consequent upon successful Crown appeal, should be imposed.

2    Simpson J sketched the facts of the offence. I would add some detail. Anna Bay is a village to the east of the trunk road which passes between Port Stephens and Stockton. It is relatively isolated. Although the respondent claimed to police that it started as a joke, the intention to rob the store was discussed by the three offenders who ultimately were involved, earlier in the day when they were gathered at the house of a friend. It had obviously become serious when they equipped themselves with balaclavas, gloves and knives.

3    The raid on the store took place just before the scheduled 8 pm closing time. The older of the two male staff members who became the immediate victims was aged twenty one years. I extract description of part of his ordeal from his statement to police:

“The person who had come around the back of the counter, grabbed me with his right arm and held me by my right bicep. He then pulled me to the floor, and said, ‘Get onto the ground.’ At first I went down onto my knees, then he pushed me down onto the floor. Then I heard the sound of masking tape being torn from a roll. I then felt it being wrapped around my wrists with my arms behind my back. ………The person at my back had a piece of blue wrapping tape, and commenced to tie my wrists. He saw that I was looking at them, and he said, ‘Put your head down, put your head down.’ He then pushed his knee further into my back. Because of his weight I couldn’t move my head, so he tried to cover my eyes with one of his hands. ……… After the three men left, whilst I was on the floor I forced the tape on my hands to snap and freed myself by rolling my wrists out of the blue packing tape.”

4    The second staff member was a school student aged sixteen years who worked on weekends and sometimes on a couple of week nights, unfortunately this occasion being one of those nights. I also extract some of his description:

“Each one of the guys was carrying a large kitchen knife. I’m pretty sure they were all exactly the same. They had black plastic handles with I’d say about twenty centimetre silver blades. ……… One of them said to Alister, (the older staff member) ‘get down on the ground’. Their voices were authoritative. They weren’t loud, they just made themselves heard. Alister got down on his knees and looked over his right shoulder. One of them said, ‘lie down’. Alister then laid flat on the ground on his stomach. Just after they told Alister to lie down the second guy who crawled over the counter pointed towards the floor next to Alister and said to me, ‘over there and on the floor’. I went over to the left side of Alister and laid flat on the ground on my stomach. Then the second guy said to me, ‘get your hands behind your back’. I put my hands behind my back and he grabbed both my hands and pulled them up and started to tape them together. It was a rough job and I could move my wrists pretty easily. ………I could see that there was one guy on top of Alister. It was the first guy who came in behind the counter. He was right over the top of Alister. He had his right foot on the ground but his knee was in the back of Alister’s neck holding him down. He was tying him up. He spent ages trying to tie him up. At first he used masking tape around Alister’s wrists. Then he used blue packing tape. ……… As soon as I knew they were gone I looked at Alister and he was getting up. I stayed on the ground a bit longer probably because I was scared. ……… I was just standing there in shock waiting for the police to arrive. My heart was beating rapidly and I still couldn’t believe what had happened.”

5 The objective seriousness of the offence demands condign punishment and the proper approach to the assessment of it has been specified in the judgments in R v Henry & Ors 1999 46 NSWLR 346. In my view the offence ought be reflected in a sentence of full time imprisonment and, giving all possible weight to the efforts of the respondent towards rehabilitation which he has engaged in since the commission of the offence, I cannot conclude that such circumstances can properly reduce punishment to that which is no more onerous than release upon recognizance.

6    Nor do I conclude that a weighing of the objective and subjective circumstances leads to a substitution of sentence of imprisonment to be served by way of periodic detention and, even such a sentence were to be imposed, it should be for the maximum available period of three years.

7    The divergence of views between Sully J and Simpson J finds expression in proposals of a sentence of eighteen months imprisonment to be served by way of periodic detention or discretionary dismissal of the Crown appeal. In the light of my opinion that severer punishment is called for, I consider that the appropriate course is to agree with the orders proposed by Sully J and I express my assent accordingly.

IN THE COURT OF
CRIMINAL APPEAL

60507/99

GROVE J
SULLY J
SIMPSON J

Tuesday 29 February 2000

REGINA v Jason Lee GRIGGS

JUDGMENT

8    SULLY J: I have had the advantage of reading in draft the judgment of Simpson J. I have nothing to add to her Honour’s canvass of the relevant objective and subjective features.

9    I agree with Simpson J that the Crown has established error on the part of English DCJ. Once again, I do not need to add to what her Honour has said in that regard.

10    Where I part company from Simpson J is in her Honour’s conclusion that this Court should, in the exercise of its over-arching discretion, dismiss the Crown appeal, thereby leaving in place a penalty which I, at least, regard as both misconceived in principle and inappropriate in fact.

11    It is easy to make a strong and attractive subjective case for the present respondent. I accept that he is to be treated, although in a sensibly qualified way, as a young offender. I accept that the evidence available to this Court for proper consideration in the event of a re-sentencing of the respondent, justifies the view that he is making continuing and apparently successful efforts to rehabilitate himself. I agree that these are important matters for present consideration. I agree that they are to be given substantive, and not merely formal, acknowledgment in any process of re-sentencing by this Court.

12    All of that said, I simply cannot accept that this is a case in which it would be proper to leave standing the recognisance granted at first instance. To do so seems to me to cut across the guidelines established by the decision, to which Simpson J refers in careful detail, in Henry. I do not say so in the sense of suggesting that the respondent should have been sentenced in the District Court to imprisonment for 4 or 5 years of full time custody. I do think, however, that some full time custodial penalty ought to have been imposed. The offence committed by the respondent was, viewed objectively, extremely serious. As Simpson J points out, correctly in my respectful opinion, “……….courts cannot turn their backs on the victims of these crimes, nor the community that properly demands protection from young men (and sometimes young women) who terrorise small businesses with weapons such as knives”. To allow, in the present case, the recognisance granted in the District Court to stand, would be, in my opinion, so to turn our backs upon those victims, and that community.

13    What is now properly and justly to be done in the matter of the respondent’s re-sentencing is, of course, no easy question to resolve. As I have earlier indicated, I cannot accept that it is a correct approach to that re-sentencing simply to allow the District Court recognisance to stand. Nor do I think that it is appropriate to deal with the matter of re-sentencing by ordering the respondent to serve some number of hours of community service. Community service orders have, no doubt, a legitimate and useful role to play in the law of sentencing; but it would take, in my opinion, a wholly exceptional case of robbery in company to justify a sentence by way of Community Service Order. A fortiori when the robbery in question has involved the use of balaclavas and kitchen knives; and the man-handling of the victims.

14    The re-sentencing of the present respondent involves, as I see it, a choice between: first, a short sentence of full-time imprisonment, whether imposed as a short fixed term, or as a comparatively short minimum term accompanied by a comparatively extended additional term; and secondly, the imposition of a sentence of imprisonment to be served by way of periodic detention.

15    I have come to the conclusion that it would be a fair approach to the present re-sentencing of the respondent to take the latter of those alternative courses. I am influenced to that conclusion not so much by the respondent’s comparative youth, as by the evidence that was put before the Court in connection with re-sentencing, and to the effect that the respondent has made, and continues to make, steady rehabilitative progress. It is, of course, of the greatest importance that, the stated premise being accepted, this Court not now intrude clumsily into the continuing process of rehabilitation and thereby undo the good that has been, and that hopefully will be, achieved. It is, of course, equally important that the determination of the law to put down all forms of robbery, of robbery in company, and of armed robbery, should be, and should be seen by all concerned to be, clear and resolute. In my opinion a prudently judged sentence of imprisonment to be served by way of periodic detention will do all that can now be done to restore the balance that ought to have been struck at first instance.

16    I would favour a sentence of imprisonment of 18 months to be served by way of periodic detention. It is no secret that the practical effect of such a sentence will be that for the first one-third of the term of the sentence, that is to say for a period of 6 months, the respondent will be required to spend from Friday night to Sunday afternoon of each week-end in full-time custody, in a Periodic Detention Centre. If, as one would expect to be the case given the evidence now available, the respondent fulfils the requirements made of him during that initial six month period, then there will be an administrative relaxation of the requirements of periodic detention throughout the second six month portion of the proposed sentence. If the respondent continues to respond appropriately, then there will be a further administrative relaxation entailing that the remaining third of the proposed sentence will be served, effectively, in the performance of some kind of community service rather than in the form of full-time week-end detention.

17    I do not suggest that there is anything definitive about what is thus proposed. I do think, however, that it achieves, as best it can now be done, practical justice in a number of respects. First, the suggested approach ensures that the recognisance, erroneously granted in the District Court, is not left to stand uncorrected, and to become, thereby, a misleading and inappropriate precedent in future and similar cases. Secondly, the suggested approach entails that the respondent is required to accept responsibility, in a real way, for the criminality of his offending. Thirdly, the suggested approach does not entail an interruption of the respondent’s normal working week; or of those activities which the respondent has described in explanation of his on-going attempts to rehabilitate himself. Fourthly, the suggested approach offers a reasonable reassurance to the general community that it is not possible to rob in company, with balaclavas, kitchen knives and a degree of physical violence, and to avoid, for reasons of sympathy however understandable, any real sacrifice of personal liberty. Fifthly, the suggested approach would give, in my opinion, proper recognition and effect to both the letter and the spirit of the guideline judgment of the Court in Henry.

18    In my opinion, then, the Court should order:

1. that the Crown appeal against sentence be upheld;

2. that the recognisance granted in the District Court be set aside;

3. that the respondent be re-sentenced to imprisonment for a fixed term of 18 months to be served by way of periodic detention;

4. that the respondent report not later than 4 p.m. on Friday 10 March 2000 to the Tomago Periodic Detention Centre for the purpose of commencing service of the sentence thus imposed.

IN THE COURT OF
CRIMINAL APPEAL
60507/99
GROVE J
SULLY J
SIMPSON J
29 February 2000


REGINA v Jason Lee GRIGGS
JUDGMENT
SIMPSON J :

19 On 15 April 1999 the respondent entered a plea of guilty in the District Court to a charge of robbery in company. The charge, brought under s 97(1) of the Crimes Act 1900, carries a maximum penalty of penal servitude for twenty years. Judge English ordered that the respondent be released on recognisance in the sum of $1,000 to be of good behaviour for a period of two years. The Crown appeals the sentence, asserting, firstly, that error can be identified in the conclusions her Honour reached, and secondly, that the sentence is, in any event, on its face manifestly inadequate.

20    The offence was committed on the evening of 22 October 1998. The respondent and two co-offenders equipped themselves with balaclavas, a kitchen knife each, gloves, and masking and wrapping tape. Wearing the balaclavas and displaying the knives they entered a mixed business store at Anna Bay, on or near the Central Coast. It was just before closing time. They confronted two male staff members, forced them to the floor and used the tape to tie their hands behind their backs. They took more than $600 from three tills, and eighteen packets of cigarettes.

21    The respondent was arrested one week later, on 29 October 1998. He co-operated with police and admitted his role in the offence. He participated in a lengthy interview that was electronically recorded.

22    The respondent was born on 13 August 1979. He was nineteen years of age at the time of his offence. He was sentenced on the eve of his twentieth birthday. He has a relatively minor record in the Children’s Court for trespass, malicious damage and offensive conduct (in 1993, when he was thirteen), and trespass and possession of housebreaking implements (in 1994, aged fourteen). He gave sworn evidence in the sentencing proceedings. Judge English accepted him as a truthful witness. He said that most of the week of the offence was “a blur”, as the result of his heavy marijuana use. Immediately before entering the store he had hesitated and decided not to go through with the venture, but, notwithstanding this decision, he followed the first of the offenders in and participated fully in the events in the store. He said that there had been some vague discussions earlier in the day about committing the offence, and this much was evidenced by the possession of the weapons, the tape and the balaclava and gloves. At the time of the offence the respondent was unemployed.

23    On 11 November 1998 he voluntarily entered a rehabilitation programme to assist him to overcome his obvious drug problem. (He gave evidence of the substantial quantities of marijuana that he had been using.) He has established a positive relationship with a local general practitioner who provided evidence that drug testing on a number of occasions had returned negative results. At the time of the offence had been living away from both his parents, who are separated, but had, by the time he was sentenced, returned to live with his father and younger brother and he has retained a good relationship with his mother who is also supportive. In his evidence he described the positive (and robust) approach he has taken to deterring his younger brother from engaging in crime. He expressed a realisation of the fear that the behaviour of himself and his co-offenders must have created for the two shop assistants and expressed regret which her Honour accepted as genuine. He had obtained casual work with a builder who provided a very encouraging reference for the court. A pre-sentence report recounted a somewhat troubled adolescence with continuing disputes between his mother and his stepfather, domestic violence in that relationship, and consequent separations between them. Importantly, he was assessed by the reporting officer as suitable for a Community Service Order or a term of imprisonment to be served by way of periodic detention.

24    The co-offenders were dealt with in the Children’s Court. Each was required to perform 150 hours of Community Service.

25 The judge’s remarks on sentence were relatively brief. She took into account the respondent’s juvenile antecedents and the facts that had been put before her. She accepted his evidence that he was under the influence of marijuana at the time of the offence but recognised that that is not a mitigating factor. She took into account the seriousness and prevalence of the offence, the vulnerability of the operators of small businesses in the position of the victims, and the effect that such offences must be presumed to have upon them. She recognised the need for deterrence. She acknowledged the guideline sentence promulgated by this Court in R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 346. She described the planning for the offence as “minimal”.

26    The factors that principally operated on her Honour’s mind in taking the course she did were the respondent’s youth, his rehabilitation, and his recognition of the seriousness of the offence and the harm caused. She concluded that this was a “most exceptional type of case” permitting her to depart from the sentence that would otherwise have been required in deference to the gravity of the offence.

27 It is convenient here to mention in more detail the decision of this Court in Henry. On 12 May 1999 a bench of five members of this Court (of whom I was one) delivered judgment promulgating a guideline sentence in relation to offences against s 97 of the Crimes Act. Having considered a vast amount of evidence concerning the effects on victims of the offences, and sentencing practices, the Court identified a category of cases sufficiently common to warrant promulgation of such a guideline. The common features are listed in paragraph 162 of the judgement. They bear repeating here:

(i) young offender with no or little criminal history;
(ii) weapon like a knife, capable of killing or inflicting serious injury;
(iii) limited degree of planning;
(iv) limited, if any, actual violence but a real threat thereof;
(v) victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) small amount taken;
(vii) plea of guilty, the significance of which is limited by a strong Crown case.

28    Where a case falls generally into that profile the full term of the sentence imposed should generally be between four and five years: paragraph 165. Of course, there remains some room to move in the apportionment of the minimum and additional terms where special circumstances within s 5(2) of the Sentencing Act 1989 are found to exist.

29 It is important to maintain a proper perspective on the role of a guideline sentence judgment. Introducing the concept in a formal sense for the first time in this jurisdiction in R v Jurisic (1998) 45 NSWLR 209, Spigelman CJ wrote:

“Such guidelines are intended to be indicative only. They are not intended to be applied to every case as if they were rules binding on sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents.
…

In accordance with this approach, guideline judgments perform a limited role. Nevertheless, in my opinion, such judgments will provide a useful statement of principle to assist trial judges to ensure consistency of sentencing with respect to particular kinds of offences. I reiterate that such guidelines are not binding in a formal sense. They represent a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator.

The critical difference between judicial guidelines and statutory guidelines - whether minimum penalties or a grid system - is the flexibility of the former. There is provision for the special or exceptional case. There is recognition that sentencing must serve the objective of rehabilitation, as well as the objectives of denunciation and deterrence. A trial judge can respond appropriately to all the circumstances of a particular case.
It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation, courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy.

The preservation of a broad sentencing discretion is central to the ability of the criminal courts to ensure justice is done in all the extraordinary variety of circumstances of individual offences and individual offenders. However, public confidence in the administration of criminal justice requires consistency in sentencing decisions. As I have said, inconsistency is a form of injustice. …” (pp 220-221).

30    The Chief Justice re-stated the importance of the preservation of the individual judge’s sentencing discretion in Henry. He wrote:

“A guideline judgment on the subject of sentencing should not lay down a requirement or anything in the nature of a rule. The failure to sentence in accordance with a guideline is not in itself a ground of appeal. Guidelines are not rules of universal application. They may be departed from when the justice of a particular case requires such departure.” (para 29)

31    The Crown’s argument was essentially three-fold. Firstly, it argued that the conclusion reached by Judge English that the degree of planning involved in this offence was “minimal” could not be supported on the evidence. Secondly, it argued that certain features of this case (including the level of planning) take it outside the category identified in Henry, and into one which is more serious and which therefore called for a sentencing starting point greater than that specified in Henry. Thirdly, it argued that the sentence was, on its face, manifestly inadequate, this being particularly clear when regard is had to the Henry guideline.

32    I would reject the first argument. The evidence of the degree of planning was that the three offenders discussed committing the offence during the course of the day, whilst using marijuana and in terms which the respondent initially at least did not take seriously. The most positive evidence of planning was in the offenders’ equipping themselves with the items already mentioned. The respondent’s account of the planning, drawn from his oral evidence before his Honour and what he told police when interviewed, was that he had so little to do with it that he had little idea of where the various items had come from. I am satisfied that her Honour’s description of the planning (certainly on the respondent’s part) as minimal was not only open to her, but one which was patently correct.

33    The second argument in part re-capitulated the first; the Crown argued that three features of this offence made it a more serious one than was encompassed by the Henry profile. Besides the argument (which I reject) with respect to the proper characterisation of the level of planning, the Crown pointed to the nature of the weapons used, and the level of violence actually perpetrated. I would accept that the action of the respondent and his companions in tying the hands of the shop assistants behind their backs and securing them with masking or packing tape bespeaks a level of violence greater than could properly be characterised as “limited” and is more serious than was envisaged in Henry. This was real violence and must have been terrifying to the victims.

34    It would also accept that the number (rather than the nature) of the weapons took the offence, in that respect at least, to the very top, or even above, the Henry profile.

35    It does not necessarily follow from these conclusions that Judge English was bound to start with a total sentence greater than the four to five years envisaged in Henry. But she was called upon to begin her consideration with a realistic appreciation of the gravity of the objective circumstances and the need to impose a properly deterrent sentence. Two options that required consideration were periodic detention and a Community Service Order.

36    I am therefore of the opinion that the Crown has established that her Honour erred in one important respect although not in precisely the terms the Crown has contended. The error was in the failure to give any consideration (so far as can be discerned from the remarks on sentence) to either of the sentencing options more lenient than full time custody but more severe than a recognisance that were available to her and were expressly drawn to her attention in the pre-sentence report. The options of periodic detention, or a Community Service Order are very valuable tools provided for sentencing judges.

37    They are particularly important when young offenders with real prospects of rehabilitation, or first time (or almost first time) offenders are before the court. Sentencing judges are generally aware that it is a very big step to commit a young offender to an adult gaol for the first time. The courts cannot ignore the fact that in an adult gaol a young offender is likely to come into contact with older and more hardened criminals; nor that established progress towards effective rehabilitation is likely to be endangered by taking a such a course. In R v Farah (NSWCCA, unreported, 11 December 1998) Dunford J said:

“To send a young man of eighteen years to gaol in these circumstances where he has no previous convictions and where he might meet and be in regular contact with real or hardened criminals, could hardly assist in his rehabilitation and would almost certainly turn him out at the end of his sentence a worse person than when he went in.
One can expect that the shock of his arrest and all these proceedings will have had a salutary effect on him and can feel reasonably confident that if given a second chance he is unlikely to offend again.
…
There must be, and is room in the proper exercise of the sentencing discretion, for a Judge dealing with a young offender, particularly where he has no previous convictions and who is charged only with an accessorial offence, to extend leniency and mercy with a view to his rehabilitation to impose other than a full-time custodial sentence, notwithstanding the seriousness of the substantive case.”

At the same time, courts cannot turn their backs on the victims of these crimes, nor the community that properly demands protection from young men (and sometimes young women) who terrorise small businesses with weapons such as knives. Reconciliation of the two competing and sometimes conflicting sentencing objectives often presents a difficult balancing process for a sentencing judge. It is as an aid to achieving the appropriate balance that imprisonment alternatives, such as periodic detention and Community Service Orders have been provided and are so valuable. Failure of the sentencing judge to appreciate that she had open to her a course of action more conducive to the proper balancing of these objectives and plainly more commensurate with the objective gravity of the crime, was itself an error.

38    Had her Honour considered these alternatives, it is likely that she would have concluded that, at the very least, a sentence of a substantial number of hours of community service was called for. That, in my view, was the minimum penalty that should at first instance have been imposed. The sole reasons for my arriving at that view are the respondent’s youth and the evidence of his rehabilitation. Absent those two factors, I would have accepted the Crown argument that a sentence of full-time custody was demanded. Without evidence of real rehabilitation, other subjective factors, even including youth, and certainly including drug addiction, contrition and remorse would be inadequate to displace the need for firm sentencing.

39 The guideline pronounced in Henry is not to be regarded as prescriptive. That case does not establish that every offender convicted under s 97 must be sentenced to a term of full-time custody. What it does establish is that good reasons must exist before departure from a sentence of that order will not result in an increase in the sentence if the Crown appeals. However, it is to be remembered that Henry was one of seven cases decided in the context of the Court’s consideration of the appropriate guideline. It is instructive to return to the results of the appeals in some of the individual cases associated with Henry. Six involved Crown appeals. The seventh was an application for leave to appeal the severity of the sentence imposed.

40 R v Silver (1999) NSWCCA 108

The offender was an Aboriginal, 24 years of age at the time of the offence, addicted to amphetamines and intoxicated when he committed his offence. He had some criminal history, though not of the most serious kind. With two others, and armed with a replica pistol, he travelled to an isolated truck stop café. When the proprietor failed to open the till quickly enough he struck him on the head with the weapon. There were favourable subjective circumstances, of which the most significant was the highly impressive evidence of rehabilitation.

At first instance he was sentenced to penal servitude for three years, divided into a minimum term of six months and an additional term of two and a half years. In the exercise of discretion this Court dismissed a Crown appeal. One significant reason for doing so was the respondent’s demonstrated rehabilitation at the time of sentence; that was strengthened by the evidence, accepted by the Court, of continuing and entrenched rehabilitation following sentence.

41    R v Tsoukatos

R v Kyroglou [1999] NSWCCA 106.

Tsoukatos was twenty-six years of age when sentenced. He faced three counts: one of break enter and steal, one of armed robbery, and one of robbery. In addition there were nine offences to be taken into account pursuant to s 21 of Criminal Procedure Act 1986. He was on a recognisance at the time of the commission of all offences, and on bail at the time of the break enter and steal and at the time of some of the Form 2 offences. He had failed to comply with a Community Service Order. On the armed robbery offence he was sentenced to penal servitude to two years, with equal minimum and additional terms of twelve months. He had been released when the Crown appeal was heard. There were some subjective circumstances that gave rise to some sympathy, but, at the time of sentencing, there was little to suggest real prospects of rehabilitation. By the time the Crown appeal was heard this was not so. This Court received supplementary material which evidenced true rehabilitation, and for that reason dismissed the Crown appeal.

42    Kyroglou pleaded guilty to a charge of break enter and steal, another of after the fact of armed robbery, in which he was an accomplice to Tsoukatos, and one of larceny; there were some matters on a Form 2. On the most serious of the offences, that of accessory after the fact of armed robbery, he was sentenced to penal servitude for twelve months comprising minimum and additional terms of six months each. Again, because of the “extraordinary success” of his rehabilitation, this Court dismissed a Crown appeal.

43 These cases can be contrasted with those of Henry and Barber [1999] NSWCCA 107. These respondents were, respectively, twenty-three and nineteen years of age at the time of the offences. In neither case was there any real reason for confidence in rehabilitation. In each case the minimum term of the sentences originally imposed was increased.

44 The same approach was taken by Dunford J in R v Govinden [1999] NSWCCA 118, unreported, a decision of in which James J and Smart AJ concurred. In that case an eighteen year old pleaded guilty to the charge of accessory after the fact of armed robbery and robbery in company. The second and more serious offence was committed while the respondent was on bail having been charged with the accessory offence. Their Honours considered that the case was exceptional, sufficient to warrant the dismissal of a Crown appeal. On the robbery charge the respondent was sentenced to 200 hours of community service. Convincing evidence of rehabilitation was one of the matters cited in dismissing the Crown appeal.

45 I have mentioned these individual cases as indicative of the emphasis which this Court places on demonstrated rehabilitation. Particularly is that important when combined with youthfulness at the time of the offence. It is, however, well recognised that neither youthfulness nor established rehabilitation, nor the two in combination, is sufficient to exclude altogether considerations of general and specific deterrence, particularly where the crime is of the kind more commonly associated with adults: Pham (1991) 55 A Crim R 128. A recent discussion of the balancing of the principles in a specific case can be found in the judgment of Wood CJ at CL in R v Tran [1999] NSWCCA 109, another of the individual cases decided in conjunction with Henry. The respondent was nineteen years of age at the time of the offence, somewhat beyond the age at which he would be considered entitled to the benefit of the principles relating to youthful offenders. Nevertheless, in my view the sentencing judge was entitled to take into account his relative youth, and the positive evidence of substantial rehabilitation . This was not, as I have observed above, sufficient to displace the need for a sentence of greater severity than that which was imposed.

46    The Crown’s final argument was, in effect, that it was wrong for her Honour to conclude that this was an exceptional case, and that therefore, the departure from the guideline established that the sentence was manifestly inadequate. I do not accept the fundamental premise that it was wrong to categorise this case as exceptional. I agree that the case was sufficiently exceptional to warrant a departure from a sentence of full-time custody, but not so exceptional as to justify the recognisance that was imposed.

47    The view which I have reached makes it necessary for this Court to sentence afresh. Against this possibility it accepted additional evidence. Perhaps the most important of this evidence was contained in an affidavit sworn by the respondent himself. He deposed that he no longer associated with any of his co-offenders or their friends, confining his social activities to friends with whom he works or his brother. He has not used marijuana since the day he began rehabilitation. He undertook work experience, frequently for no payment, as a painter, and for two months has been working full-time. A family decision was made that, rather than accepting legal aid for his representation, private legal fees would be paid by his step-father which the respondent would repay, and this he has been doing. He acknowledged the stress occasioned to his family as a result of his offence and expressed regret for it.

48    Other material was provided by the painter with whom he has been working, who favourably reported on his attitude, punctuality, and honesty, and expressed the view that with guidance and care the respondent would make a worthwhile contribution to the workplace and society. There was other material of a similar nature.

49    Having regard to all of this material, and notwithstanding my view that, at the time of sentencing, the respondent should have been ordered at the very least to perform community service, I am of the view that in the exercise of the Court’s residual discretion the Crown appeal should be dismissed.

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