Regina v Kitiona

[1999] NSWCCA 393

CITATION:	Regina v Kitiona [1999] NSWCCA 393
FILE NUMBER(S):	CCA 60541/98
HEARING DATE(S):	6 December 1999
JUDGMENT DATE:	6 December 1999
PARTIES :	Regina v Benjamin Kitiona
JUDGMENT OF:	Sperling J at 2; James J at 1 & 17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0992
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ

COUNSEL:	(Applicant): R Burgess (Crown): L M B Lamprati
SOLICITORS:	(Applicant): T A Murphy (Crown): S E O'Connor
CATCHWORDS:	CRIMINAL LAW - sentencing - armed robbery in company - whether sentence excessive.
ACTS CITED:	Crimes Act 1900, ss 94 & 97
CASES CITED:	Hall (NSW CCA, 28 September 1995, unreported) Henry (1999) 46 NSWLR 346
DECISION:	Leave to appeal against sentence granted; Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60541/98

JAMES J
SPERLING J

MONDAY 6 DECEMBER 1999

REGINA v Benjamin KITIONA

JUDGMENT

1    JAMES J: The first judgment will be given by Sperling J.

2    SPERLING J: The applicant was born on 7 June 1977. He is a tall man of some six feet two inches and, at the time of the offence with which this appeal is concerned, he weighed something in excess of 100 kilograms.

3    On 25 September 1997, when the applicant was 20 years of age he and another man accosted two women in Marshall Avenue, St Leonards at 9.30pm. The women were both 52 years of age. They had just finished work and were walking towards their cars. Both were carrying bags. The bag carried by one of the women was taken by one of the men without a significant struggle. The other man pulled the second woman to the ground. She was dragged along and was screaming for help. A bag was then taken from her also. The women ran to one of the cars. The two men were sighted in another vehicle. The women's car was positioned in an attempt to block their escape. They got away, scrapping the side of the women's vehicle.

4    The applicant was charged with robbery in company to which he pleaded guilty on 1 May 1998 and adhered to that plea before Gibson DCJ on 16 September 1998, when he was sentenced. At the applicant's request, the judge also took into account offences of stealing from the person and negligent driving, which related to the same incident, and an offence of receiving, which was an earlier matter.

5 Section 97 of the Crimes Act 1900 prescribes a maximum penalty of penal servitude for robbery being armed with an offensive weapon or instrument, or being in company with another person. The same section prescribes a maximum penalty of penal servitude for 25 years for such an offence if the person is armed with a dangerous weapon as distinct from a weapon or instrument which is only offensive. By s 94, a maximum penalty of 14 years penal servitude is prescribed for robbery without any of the additional elements referred to in s 97. These penalties show the seriousness with which the law regards robbery of any kind. Bag snatching is robbery. It is robbery of a more serious kind if it is committed in company. It represents a serious breach of the peace and a callous disregard of the property rights of others which cannot be tolerated in a civil society: Hall (NSW CCA, 28 September 1995, unreported). Members of the public, particularly women who have no chance of defending themselves and who are more liable to injury on that account, ought to be able to move through the streets without the threat of this kind of offence. It is important that judges reflect in their sentence the need to deter others from committing offences of this kind insofar as the courts are capable of doing so.

6    The applicant had committed serious other offences of a similar kind on prior occasions. In November 1995, he was sentenced for assault occasioning actual bodily harm and aggravated robbery. In relation to the assault, he was required to enter into a recognisance to be of good behaviour for 2 years and to accept the supervision of the Probation Service. For the offence of aggravated robbery, the applicant was sentenced to 9 months imprisonment, to be served by periodic detention. The aggravated robbery consisted of robbing a man of his wallet with violence. The recognisance had not expired when the present offence was committed. Additionally, at the time of the present offence the applicant was on bail for the charge of receiving to which I have referred.

7    The sentence imposed by Gibson DCJ was a total sentence of penal servitude for 4 and a half years, consisting of a minimum term of 3 and a half years and an additional term of 12 months.

8    The sentencing judge is said to have erred in two respects. First, it is submitted that the sentence was manifestly excessive. Secondly, it is submitted that his Honour erred in failing to find special circumstances, and - it is implied - in failing to fix a longer additional term at the expense of the minimum term imposed.

9    On behalf of the appellant, certain subjective features of the case are emphasised. The applicant was only 20 years of age at the time. He pleaded guilty to the offence. He was poorly educated and unemployed. He had expressed remorse and was actively seeking employment at the time of the sentence. After immigrating to Australia from New Zealand with his family, the applicant had fallen into delinquent company at the age of 14. His family remained supportive. He did not use drugs. According to the psychological report of Doctor Lennings, tendered at the sentencing hearing, the applicant was in the average to low average range of ability, was reactively depressed and suffered from an anxiety disorder. There were longer standing problems with his thinking, and there appeared to have been a significantly delayed area of development in social and inter-personal reasoning. The applicant was operating at an adolescent level of maturity.

10    The applicant gave evidence that he was pressured into committing the offence by the other person involved. The sentencing judge was unimpressed by that protestation in view of the applicant's unwillingness to identify his co-offender. His Honour's scepticism is not called into question on appeal, nor could it be.

11    The Crown, points to the following features of the case. The offence was committed while the applicant was subject to a recognisance and barely 2 days after the applicant had been granted bail for the receiving offence. There were really two separate offences involving two victims in which both of the co-offenders were complicit. Although there was no threat of actual violence, one of the women fell to the ground and was dragged along. The crime was discussed by the co-offenders beforehand so there was premeditation and planning. This was the second of two offences of a similar kind committed by the applicant.

12    On behalf of the applicant, reference has been made to the guideline judgment of Henry (1999) 46 NSWLR 346. It was laid down in that case that for an offence under s97 of armed robbery, with certain characteristics, the total sentence should generally fall between four and five years. That range applied to offences where a weapon such as a knife was used by a young offender, who pleaded guilty, with little or no criminal history, limited actual violence but a real threat of violence, and the victim being in a vulnerable position. It is submitted that the present sentence is out of step with that decision. I disagree, bearing in mind the features of the present offence to which I have referred, including that there were two victims, and two robberies in which both co-offenders were complicit.

13    The sentence imposed was a heavy sentence but it was not, in my opinion in excess of the proper exercise of judicial discretion.

14    As to special circumstances, counsel for the applicant has calculated that the minimum term actually exceeded the statutory ratio by some six weeks. It is acknowledged, however, that, although this is unusual, it is not unlawful. The main complaint is that the sentencing judge erred in failing to find special circumstances and, accordingly, failed to go the other way, enlarging the additional term at the expense of the minimum term relative to the statutory formula.

15    I see no reason to find that the sentencing judge was bound to find special circumstances in this case. In particular, the sentencing judge was not bound to find that a longer additional term was required for supervised rehabilitation.

16    The material placed the before the court on appeal indicates that the applicant has been a cooperative prisoner and is making earnest efforts to rehabilitate himself. The applicant is to be commended for those efforts and is to be encouraged in his endeavours. If I could encourage him further by reducing of the present sentence, I would be strongly tempted to do so. However, no ground has been demonstrated for disturbing the sentence imposed.

17    The orders I propose are as follows:

(1) Grant leave to appeal.

(2) Appeal dismissed.

18    JAMES J: I agree. The orders of the court will be as proposed by Sperling J.

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