Regina v Holden

[2001] NSWCCA 214

CITATION:	Regina v Holden [2001] NSWCCA 214
FILE NUMBER(S):	CCA 60039/00
HEARING DATE(S):	11/05/01
JUDGMENT DATE:	28 May 2001
PARTIES :	Regina v Christopher James Holden
JUDGMENT OF:	Carruthers AJ at 1; Badgery-Parker AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0241
LOWER COURT JUDICIAL OFFICER :	Job J

COUNSEL :	W L Robinson QC (Crown) P J D Hamill (Applicant)
SOLICITORS:	S E O'Connor (Crown) D K Humphreys (Applicant)
CATCHWORDS:	Criminal law- sentence- not manifestly excessive- sentencer not obliged to specify the degree of reduction of penalty attributable to each subjective circumstance- and should not do so- multiple offences - separate assessment of criminality required (R v Itamua, Pearce v The Queen applies)- accumulation of sentences as a "special circumstance"- principle of totality.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1914 (Commonwealth)
CASES CITED:	R v Thawaites (unreported, NSWCCA 6 October 1993); R v Flemming (1999) NSWCCA 142; R v PPB (1999) NSWCCA 360, unreported; Pearce v The Queen (1999) 198 CLR 111 R v Thompson and Houlton (2000) NSWCCA 502 AB v The Queen (1999) CLR 111 R v Itamua (2000) NSWCCA 502
DECISION:	Grant leave to appeal; uphold the appeal and quash the sentences imposed in District Court; new sentence imposed.

IN THE COURT OF

CRIMINAL APPEAL

CARRUTHERS AJ
BADGERY-PARKER AJ

Monday 28 May 2001

Regina v Chris HOLDEN (60683/99)

JUDGMENT

1    CARRUTHERS AJ: I agree with Acting Justice Badgery-Parker and his Honour’s reasons for judgment.

2    BADGERY-PARKER AJ: This is an application by Christopher James Holden for leave to appeal against sentences imposed upon him by his Honour Judge Job QC in the District Court at Gosford on 17 September 1999 in respect of each of two counts relating to offences committed on 10 May 1999. The applicant was sentenced to a total period of eight years penal servitude, commencing 10 May 1999 and expiring 9 May 2007. The Judge specified a minimum term of six years penal servitude, dating from 10 May 1999, to expire on 9 May 2005.

3    On the evening of 9 May, armed with a .38 calibre Colt revolver loaded with one bullet, the applicant attempted to rob a service station attendant working alone in premises at Erina, and succeeded in robbing a service station attendant working alone in that premises at Womberal. The victim of the first offence resisted the applicant by throwing a box of chocolates at him, pressing the alarm bell, and telling the applicant to “get out”. The applicant walked out of the shop. The victim was apparently encouraged to resist in that fashion because he thought that the pistol was a fake. The victim of the second offence believed that the pistol was genuine (as was the case) and was very shaken and emotional as a result of the robbery, in the course of which the applicant pointed the gun at him and waved it around in front of him.

4    On each occasion there were several witnesses to what occurred, and some of them noted the registration plate of a motor vehicle in which the applicant had come to the premises. The vehicle was driven by the applicant’s wife. Another man, Kevin Kelso, was present in the vehicle on both occasions. When they left the second service station, the criminals proceeded to the applicant’s home in Bateau Bay. It was there, in the early hours of 10 May, that the applicant and Kevin Kelso were arrested. A search of the premises revealed a substantial sum of money in a wallet belonging to Kelso, a beanie with two eye holes cut into it (the applicant wore such a beanie on the occasion of the second robbery) and a firearm, loaded with one live round. In the course of the police interview the applicant handed over $2,430.00 in bank notes which he was carrying. He admitted his responsibility for the two offences. He claimed that Kelso was the applicant’s heroin supplier, to whom he owed substantial money, and by whom he was being pressured to repay. The Judge accepted that

“the debt which he owed (to Kelso) could have been a reason why he committed the offences”.

5    The applicant pleaded guilty to both charges and the Judge expressly took that into account. But of course, its significance was substantially limited by the strength of the Crown case having regard to the eye- witness evidence, the recording of the number plate of the vehicle, and the location of the incriminating items in the applicants home.

6    The applicant is aged 43 and has a substantial criminal record involving a considerable number of armed robbery and a number of other property offences. In 1982 he was sentenced to three years for break, enter and steal, robbery and other offences, with a non-parole period of six months. He breached his parole and in 1983 was sentenced to penal servitude for 3 years. Also in that year, on charges relating to stealing from a dwelling, and larceny of a motor vehicle, he was sentenced to a total term of six and a half years, with a non-parole period of 15 months. Again he breached his parole by the commission of further armed robbery offences, and on 18 March 1985 in the Sydney District Court, in respect of the breach of parole, 7counts of armed robbery, one count of possession of a shortened firearm, and one count of breach of recognisance, he was sentenced to a total term of nineteen and a half years servitude with a total non-parole period of ten years and six months. Those sentences were confirmed later that year when he unsuccessfully appealed to this Court.

7    He was released on parole apparently in about June 1992, and it is to his credit that between that date and the commission of the present offences he acquired no further convictions, apart from one traffic matter. From 15 October 1992 until the time of his arrest he was an out-patient at the Pacific Centre Methadone Unit. According to Dr Orgias: -

“Initially he did well and his urine samples were rarely contaminated with drugs, however over the last 15 months of his attendance on our program there were 15 samples received that were contaminated with heroin and it had become apparent that Mr Holden was not doing as well as he previously had”.

8    Dr Orgias commented that the applicant appeared to become more involved in the usage of illicit drugs, initially heroin, and more lately including amphetamines, and had become much less responsive to counselling.

9    Nevertheless, during that period of almost seven years, the applicant was in regular employment, riding track work at Wyong Race Course and was very well regarded by his employers, who found him punctual, willing, reliable and trustworthy.

10    The applicant is again in a methadone program while in custody, and he also attends AA meetings.

11    In a careful and thorough judgment, Judge Job reviewed all of the foregoing matters, and all salient features of the case. The prisoner claimed that he did not know that the weapon was loaded, but the Judge rejected that evidence, noting, of course, that in fact the weapon was not fired on either occasion. The Judge considered whether there were any special circumstances justifying adjustment of the relationship between the minimum and additional terms, but found none.

12    It is submitted on behalf of the applicant that the total effective sentence imposed is manifestly excessive. I disagree. The seriousness of the offences is not to be minimised. This Court has repeatedly commented on the need for salutary sentences in respect of armed robbery, particularly where the victim is a proprietor of a small business, and particularly where the victims are of an especially vulnerable type. Both of these offences took place in service stations.

13    In R v Thwaites (Unreported, NSWCCA 6 October 1993) this Court noted that the robbery of service station attendants, a vulnerable occupation, should attract deterrent sentences. In R v Flemming (1999) NSWCCA 142 Justice Carruthers noted the increasing trend of concern to those required to administer the criminal law towards the armed robbery of small businesses given the more stringent security provisions undertaken by larger organisations, and he said: -

“It is now a matter of great concern that people who are required to attend small businesses, particularly during the evening hours when they are alone, feel themselves to be continually at risk of armed robbery. This is a very important matter from a deterrent point of view.”

Those remarks are particularly apt in the present case.

14    Counsel for the applicant made certain, more specific submissions. In particular, it was submitted that the Judge gave insufficient weight to the favourable subjective matters to which I have already referred. I reject that submission. It is clear that his Honour took all of those matters into account - indeed, had he not done so, and given them full weight, the outcome would have been a sentence even heavier than that which was imposed.

“It is not required of a sentencing judge that he or she state specifically the degree to which any particular subjective matter has influenced the sentence. The obligation to quantify the effect of the particular matters arises only where it is imposed by statute, for example, s 22 of the Crimes( Sentencing Procedure) Act ,1999 with regard to a plea of guilty. Also the Crimes Act 1914 (Commonwealth ) s.21 E requires a court to specify the sentence that would have been imposed if the offender had not undertaken to cooperate with the authorities; contrast the Crimes (Sentencing Procedure) Act 1999 s 23 which authorises the imposition of a lesser penalty than the court would otherwise impose on an offender, having regard to ( inter alia )the degree to which the offender has assisted the law enforcement authorities, but does not require the judge to specify the degree of reduction of the penalty. However, this court has expressed the view that it would be “prudent” for sentencing judge to include the arithmetic by which the appropriate sentence is derived where discount has been given under the section R v PPB (1999) NSWCCA 360. There are good reasons why the amount of the discount for a plea of guilty and for assistance to the authorities should be specified, because the public interest which is to be served by the allowance of discount in those circumstances can only be served if the fact of the discount is known and understood by those who may be influenced by the prospect of securing such a discount in the future. Knowledge that an early plea of guilty will attract a significant discount is likely to encourage offenders who have no defence to a charge to make an early admission of guilt, thereby relieving the community of the cost of a trial and assisting in the problem of delay in the criminal justice system. Knowledge that an offender who assists the authorities, for example by identifying and giving evidence against co-offenders, will thereby attract a significant discount when he himself comes to be sentenced, hopefully may encourage that sort of behaviour by other offenders in the future. Those public policy considerations do not apply to other subjective features in the ordinary case, and for that reason, not only is a sentencing judge not required to separate out each element taken into account in the sentencing process and to attach a value to each, but the practice has been specifically disapproved. As McHugh, Hayne and Callinan JJ observed in Pearce v The Queen (1998) 194 CLR 610 (paragraph 46). “ Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision”. In R v Thompson and Houlton (2000) 49 NSWLR 383 at 396 (para. 57) the Chief Justice said
“ The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought to be few in number and narrowly confined. As long as they are such, their separate treatment will not comprise the intuitive or instinctive character of the sentencing process considered as a whole”.

15    In AB v The Queen (1999) 198 CLR 111 at 122 (paragraph 18) McHugh J said:

“ The factors bearing on a sentence will vary from case to case. Frequently they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case…”

See also in the same case per Hayne J at 156.

16    It was submitted that the fact that identical sentences were imposed on each count is suggestive of error, and that indeed his Honour had failed to assess the criminality in relation to each count separately as required by the joint judgment in Pearce v The Queen (1998) 194 CLR 610.

17    Any question whether the principles stated in the joint judgment at p623-624 should be regarded as limited in their application to the relatively confined and probably rare situation with which that case was concerned, or should on the other hand be regarded as having application generally across the whole field of sentencing was resolved by the judgment of this court in Regina v Itamua (2000) NSWCCA 502. Notwithstanding the practical difficulties of such an approach, to which Smart AJ drew attention, and the windfall benefit that application of these principles may confer on many undeserving convicted persons (because of the lack of any power in this court to increase, in the course of readjusting, sentences imposed pursuant to the pre-Pearce regime, resulting from the absence of any right in the Crown to appeal in respect thereof), the position is that every judge called upon to sentence for multiple offences “must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as totality”.

18    The judge did not do that. Conformably with Pearce and Itamua, I am forced to conclude that his Honour was in error in that regard and that the sentences which he imposed must be quashed.

19    It follows that this court must re-sentence and must do so in the manner prescribed by the judgement in Pearce.

20    Proceeding in that fashion, I consider first the offence charged in count 1. The objective criminality is manifest but is, quite clearly, less than that exhibited by the offence charged in count 2. I am of the opinion that the objective seriousness of the offence charged in count 1, giving full effect, of course, to all of the subjective matters but attaching due weight to the appellant’s prior record and the need for the imposition of salutory sentences in respect of armed robbery committed against persons in vulnerable occupations, requires a term of actual detention of three years.

21    In my view the objective gravity of the offence charged in the second count, again paying full heed to the subjective circumstances of the appellant but also giving appropriate weight to the need for general deterrence, as well as, in light of the applicant’s prior record, particular personal deterrence, would call for a sentence, if that matter stood alone, of not less than six years imprisonment.

22    Imposition of both sentences which I have determined in that fashion would create a total term of imprisonment of nine years and that in my view exceeds what is appropriate to the totality of criminality involved when both offences are considered together. The sentences which I will now propose reflect the application of the principle of totality. They also reflect my view that the accumulation of the two sentences in the manner which I will propose itself creates a special circumstance, which warrants the determination in respect of the second sentence of a non-parole period which is less than three quarters of the term of that sentence.

23    The orders of the court which I would propose are these:

(1) Grant leave to appeal

(2) Uphold the appeal and quash the sentences of imprisonment imposed in the District Court


(3) In lieu thereof sentence the appellant as follows-

In respect of the first count: a fixed term of imprisonment for three years to date from 10 May 1999 and to expire on 9 May 2002.

In respect of the second count: a term of imprisonment for five years to date from 10 May 2002 and to expire on 9 May 2007. In respect of that sentence the court should set a non-parole period of three years which, commencing on 10 May 2002 will expire on 9 May 2005 which is the earliest date upon which the appellant will become eligible for release on parole. With regard to the sentence imposed in respect of count 1, the court should not determine a non-parole period because of the imposition of the accumulated sentence in respect of the second count.