Regina v Hawkins

[2000] NSWCCA 434

CITATION:	Regina v Hawkins [2000] NSWCCA 434
FILE NUMBER(S):	CCA 60579/99
HEARING DATE(S):	16 February 2000
JUDGMENT DATE:	16 February 2000
PARTIES :	Regina v Luke John Hawkins
JUDGMENT OF:	Sully J at 1,29; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/1139
LOWER COURT JUDICIAL OFFICER :	Luland DCJ

COUNSEL :	R Burgess (Applicant) C K Maxwell QC (Crown/Respondent)
SOLICITORS:	Legal Aid Commission of NSW (Applicant) S E O'Connor (Crown/Respondent)
CATCHWORDS:	Criminal law - sentence appeal - robbery in company - appellant entitled to the benefit of assistance to the authoritys - alleged lack of parity with co-offendor who was a juvenile
LEGISLATION CITED:	Crimes Act 1900 The Young Offenders Act 1997
CASES CITED:	Regina v Henry (1999) 46 NSWLR 346
DECISION:	Appeal upheld - minimum term and additional terms varied.

THE SUPREME COURT OF
CRIMINAL APPEAL

CCA60579/99

SULLY J
CARRUTHERS AJ

Wednesday, 16 February 2000

REGINA v Luke John HAWKINS
JUDGMENT

1 SULLY J: The Court has come to a view about this matter. I invite Carruthers AJ to give the first judgment. 2 CARRUTHERS AJ: Luke John Hawkins seeks leave to appeal against the sentence imposed upon him by Judge Luland QC at the Penrith District Court on 30 September 1999. 3 The applicant had earlier pleaded guilty to one count of robbery in company under s97(1) of the Crimes Act 1900 (as amended), which carries a maximum penalty of 20 years penal servitude. His Honour sentenced the applicant to a minimum term of one year penal servitude to commence on 30 September 1999 and to expire on 29 September 2000 and imposed an additional term of two years to commence on 30 September 2000 and to expire on 29 September 2000. 4 The applicant was born on 16 October 1980 and was, accordingly, 18 years old at the time of the offence which committed on 8 March 1999. 5 The relevant facts may shortly be stated. On the evening of 8 March 1999, the victim, who was the proprietor of a food bar at Whalan, locked the shop. As he and his female assistant walked to the rear of the premises, they were approached by the applicant and a co-accused James Lucas, who was then, in fact, aged 15 years although the applicant believed he was older. Both offenders were wearing balaclavas. 6 The applicant grabbed the victim by the shoulder and told him to sit down. The co-accused took hold of the assistant. The victim threw the day’s takings onto the ground and told the offenders to take the money and leave him alone. As the applicant reached to take the money, the victim pulled the balaclava off his head and was able to identify the applicant, as he was a customer of the shop. After the applicant’s balaclava was removed, Lucas struck the victim over the head with a large stick resembling an axe handle, and both offenders ran off. 7 The sentencing judge expressly stated that he did not take this striking into account, because it was not an element of the offence, and he accepted that the applicant did not know that Lucas, his co-offender, was armed. 8 Another person, Jamie Robinson was aware that the robbery had taken place. Robinson was 22 years old at this time and had a significant criminal record. Robinson, together with a number of other men, confronted the applicant and Lucas shortly after the offence. One of the men with Robinson struck the applicant in the face, which caused quite serious damage to a tooth. The applicant stated during an ERISP, that he had been “king hit”. 9 Robinson took the money and returned some of it to the victim but retained some for himself. Robinson was later arrested and charged with demanding money with menaces and concealing a serious offence. He was sentenced to a fixed term of five months imprisonment to date from March 1999. 10 The applicant was arrested three days later and participated, as I have said, in an ERISP. During the course of that ERISP, he made full admissions. He also named his co-accused, who was arrested shortly after the completion of the interview. He also named Robinson. 11 The applicant said in the interview that he saw James Lucas about 2 pm on the day of the robbery. Lucas arranged to come to the applicant’s house later that evening. Regrettably, during the course of that afternoon, the applicant drank most of a four litre cask of wine. As a consequence, he stated that he was “quite drunk” and “seeing double”. The applicant said that Lucas planned the robbery and told the applicant that he would give him $150 if he would help him out, and that all the applicant needed to do was to tell the victim to sit on the ground. The applicant said that he did not know that the co-accused had a stick and, indeed, when the applicant saw the co-accused strike the victim, he immediately ran away. 12 The seriousness of the subject offence needs no elaboration. The frequency with which the offences of robbery, robbery in company and armed robbery come before the District Court and this Court is a matter of grave public concern. A significant deterrent element is necessarily involved in the sentencing process. 13 There are, in this case, significant subjective circumstances, many of which were adverted to in the pre-sentence report of 22 July 1999 under the hand of Miss Bonnett, Probation and Parole Officer, Mt Druitt District Office. Inter alia, that report discloses that the applicant is an only child who resided with his mother. His father died of a heart attack when the applicant was five years old. His mother became, the report asserts, a chronic alcoholic who was and still is heavily dependent upon the applicant because of her alcoholism. 14 The applicant left school when he was 15 years old and has worked in several jobs. He was unemployed at the date of the robbery but was actively looking for work. 15 Since mid-March 1999, he had been in a relationship with a lady who was described in the report as “mature”. She has a four year old daughter. According to the report, this lady apparently has had a positive influence on the applicant, who has, it is said, acted like a father towards her young daughter. 16 The applicant made clear that he hardly ever drinks alcohol. He appeared to be genuinely contrite and concerned about the victim, to whom he wished to apologise and to whom he wished to afford compensation. 17 At the sentencing proceedings, Mr Gary John Tate gave evidence that he had known the applicant for three and a half to four years and had recently employed him on weekends to assist him in his work as a painter, decorator and gyprocker. Mr Tate was aware of the offence and said that it was completely out of character. He described the applicant, whilst working for him, as being punctual, honest and reliable. 18 The applicant gave evidence that he had recently gained permanent employment for five days a week as a powder coater with a local company. A reference was tendered from one Sam Palise confirming this employment and congratulating the applicant on his obvious effort and determination to change the path of his life through gaining fulltime employment. More references were also tendered. The applicant pressed for leniency and indicated he would be in a position to pay the $485 compensation sought. 19 The applicant expressed concern about full-time imprisonment emphasising the incident with Robinson after the robbery. He pointed out that that the assault resulted in a tooth being pushed back into the roof of his mouth. Robinson had recently been released from gaol and the applicant was called a “dobber” by Robinson. The applicant believes Robinson had friends in the prison system and was naturally concerned about his safety if he were sent to prison. He said that he had not consumed alcohol since the offence. 20 The sentencing judge appropriately treated the applicant as a person with no prior criminal record. Somewhat remarkably, during the course of his Honour’s remarks on sentence his Honour did not mention the fact that during the ERISP the applicant had named Lucas and Robinson as offenders. Also, somewhat remarkably, apparently at the conclusion of the sentencing process those appearing before his Honour did not draw his attention to this omission. 21 Basically, the application before this Court relies upon two grounds: firstly, that there was an appealable error in the fact that his Honour did not refer to the assistance which the applicant had rendered to the authorities and the public benefit which flowed from such assistance; and, secondly, the question of parity between the sentence imposed upon the applicant and the manner in which Lucas was dealt with. 22 At the time the matter came for sentence before Judge Luland QC, Lucas had not been finally dealt with. Lucas, in fact, pleaded guilty to the same charge as the applicant at the Children’s Court on 30 March 1999. He was referred for a youth conference under The Young Offenders Act, 1997. On 30 November, after satisfactory completion of an outcome plan, the charge was dismissed under s.52(7) of that Act. 23 I do not accept that there is a valid argument available to the applicant on the ground of parity with Lucas because of the discrepancy between their subjective circumstances. Lucas is, in fact, three years younger than the applicant, and he was dealt with under a different sentencing and legislative regime to that of the applicant. However, in my view the ground upon s442B of the Crimes Act has been made out and it is necessary for this Court to intervene and re-sentence the offender. 24   In the event that the Court would take this approach, evidence has been put before the Court as to the efforts made by the applicant towards his rehabilitation during the course of his four and a half months imprisonment to date. Those efforts are indeed praiseworthy but it is not necessary for me to refer to the detail of them. 25   As, unfortunately, one would have feared, bearing in mind the youth and presentable appearance of the applicant, he had not been in the gaol system long before a sexual advance was made towards him in distressing circumstances by a fellow inmate. Also, he was the victim of an unassociated attack by three inmates who beat him up (to use his expression), in his cell because he tried to maintain his rights, when waiting in a queue to telephone his mother. 26   At the moment, the applicant is at Oberon Correctional Centre, where he seems to be safe and doing well. 27   I cannot accept that his Honour erred in imposing a full time custodial sentence, bearing in mind the deterrent aspect and, to the extent that they are relevant, the views expressed by this court in the guideline judgment of Regina v. Henry & Ors. (1999) 46 NSWLR 346. Although that case deals with armed robbery, guidance in this case must necessarily be found from the judgments in Henry, because armed robbery and robbery in company could fairly be described as cognate offences. 28 That leaves, for re-sentencing purposes, the additional subjective circumstances which have been put before this Court and the necessity to grant to the applicant the benefit of the provisions s.442B. Balancing the objective and subjective circumstances, as we now know them, and accepting, as his Honour did, that there are special circumstances, I would propose that this matter be dealt with as follows:

1. that leave to appeal be granted;
2. that the appeal be upheld;
3. that the sentence below be quashed; and
4. that, in lieu thereof, the applicant be sentenced to six months penal servitude by way of a minimum term to commence on 30 September 1999 and to expire on 29 March 2000, and an additional term of 18 months to commence on 30 March 2000 and expire on 29 September 2001; and
5. that it be ordered that the applicant be released to parole at the expiration of that minimum term and that he be subject to the supervision and guidance of the Probation and Parole Service for so much of the additional term as they may deem to be necessary.

29   SULLY J: I agree with the orders proposed; and the orders of the Court will be as just now announced by his Honour.