Regina v Michael John Walker

[2002] NSWCCA 178

CITATION:	Regina v Michael John Walker [2002] NSWCCA 178
FILE NUMBER(S):	CCA 60619/01
HEARING DATE(S):	15/5/02
JUDGMENT DATE:	15 May 2002
PARTIES :	Regina v Michael John Walker
JUDGMENT OF:	O'Keefe J at 1; Smart AJ at 21

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Hock DCJ

COUNSEL :	Ms Cox- Applicant Mr R Hulme - Crown
SOLICITORS:	Mr D J Humphreys Legal Aid Commission Sydney - Applicant S E O'Connor, Sydney - Crown
CATCHWORDS:	Appeal - Application for leave to appeal against sentence - Robbery whilst armed with an offensive weapon - Guideline judgment - applicability - Antecedent criminal history - Statistics
LEGISLATION CITED:	Crimes Act 1900 s 97(1)
CASES CITED:	Regina v Henry (1999) 46 NSWLR 346 Regina v Jurisic (1998) 45 NSWLR 209 Veen v The Queen (No 2) (1997-1998) 164 CLR 465
DECISION:	Application for leave to appeal dismissed.

60619/01

O’Keefe J
Smart AJ

15 May 2002

Regina v Michael John Walker

Judgment

1 O’Keefe J:

BACKGROUND

2 This is an application by Michael John Walker (“the Applicant”) for leave to appeal against a sentence imposed in the District Court following a plea of guilty to a charge of robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 20 years. The Applicant asked the Court to take into account an offence of using a prohibited weapon, namely a replica pistol. However as this was the weapon referred to in the charge to which the Applicant pleaded guilty, the judge took the view that the facts relating to the matter on the Schedule were entirely subsumed by the facts of the armed robbery. The sentence imposed was imprisonment for six years from 3 August 2001, with a non-parole period of three years and six months, so that the earliest date on which the applicant would become eligible to be released on parole is 2 February 2005.

3 The application for Leave to Appeal is based upon one ground only, namely that the sentence imposed was manifestly excessive. There was no challenge to the facts found by the sentencing judge, nor was it suggested that any element relevant to the fixing of the term of the sentence had been omitted from consideration.

FACTS

4 On 19 February 2001, a 17 year old schoolboy was sitting at a bus stop with his girlfriend. He had with him a mobile phone on which he had just completed a call. Having done so, he placed the mobile phone back in his schoolbag. Thereupon the applicant approached the schoolboy and his girlfriend, pointed a replica pistol at the boy’s chest, and began to search through his schoolbag, which had been on the ground near the victim’s feet. The boy believed that the gun was real and so allowed the Applicant to take his mobile phone from the schoolbag and make off with it.

5 The offence was witnessed by an off-duty police officer, who also believed that the replica pistol was real. Because of this, he did not seek to intervene in what was occurring or had occurred. Prudently, he called for assistance from other police, who attended promptly. The Applicant was located at a nearby shop and arrested. The replica pistol was found on him, but the mobile phone was not recovered.

6 The Applicant was charged and indicated before the Magistrate that he proposed to plead guilty.

7 The Applicant was born on 28 July 1968. Thus at the time of the offence he was 32 years of age. He has a reasonably extensive criminal record dating back to 1985. It includes seven convictions for assault, six convictions for matters of dishonestly, and three convictions for robbery with actual violence, steal from the person and robbery. The three last mentioned matters are of more recent occurrence. In the past, he has been given a recognizance on five occasions, a suspended sentence on another, and a bond on yet another occasion.

8 On 19 February 2001 the Applicant was the subject of a suspended sentence which was imposed on him for an offence of robbery with actual violence. He was also on parole for offences of stealing from the person and robbery; indeed, he had been released on parole on 28 December 2000. This means that the offence the subject of the present application was committed less than eight weeks after his release on parole.

9 The Applicant gave evidence that he was affected by drugs at the time of commission of the relevant offence. This is significant since leniency had been extended to him by the court on a previous occasion. This led to the Applicant attending The Glen (rehabilitation centre), but before he had finished the rehabilitation course, he went absent without leave and apparently did not complete the course.

10 The argument advanced on behalf of the applicant was that the sentence imposed was in excess of that referred to in the guideline judgment of Regina v Henry (1999) 46 NSWLR 346. In that case, a specially constituted Court of Criminal Appeal laid down guidelines for sentences for armed robbery under s 97(1) of the Crimes Act 1900, where certain features were present. These were seven in number. And importantly included that the offender is young, and had little or no criminal history. The situation of the Applicant in the present case is clearly distinguishable and Her Honour accurately distinguished Regina v Henry (supra). Furthermore, in Regina v Henry (supra) it was made clear that:

“Guidelines are not rules of universal application. They may be departed from where the justice of a particular case requires such departure.” (supra at 357)

11 This statement echoes what was said by Spigelman CJ in Regina v Jurisic (1998) 45 NSWLR 209, namely:

“… guidelines are intended to be indicative only. They are not intended to be applied in 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.” (supra at 220)

12 Her Honour’s remarks on sentence recognise the foregoing principles. In this regard, it should be noted that as well as distinguishing Regina v Henry (supra) by reference to the age and criminal history of the Applicant, she had regard to the fact, in favour of the applicant, that the weapon used was not a knife, but rather a replica pistol. Its use was nonetheless such as to give rise to a terrifying experience for the young victim, who believed the weapon was genuine. It must also have been terrifying for the young girl who was in his company.

13 In her Remarks on Sentence, a full discount of 25% was allowed for the utilitarian value of the plea, but her Honour was guarded in relation to the prospects of the Applicant undertaking successful rehabilitation in relation to his drug dependency. In the light of the Applicant’s history and record there was good reason for caution by her Honour.

14 Counsel for the Applicant referred to a number of cases, details of which were set out in a schedule to her written submissions. Various comparisons and distinctions were made in support of the submission that the sentence imposed was manifestly excessive. However, an examination of his case shows that there is no case which is on all fours with the instant case. In addition, in the present case the age of the offender, the fact of his long and escalating criminal history in terms of the gravity of the offences committed, and the aggravating feature that the offence was committed whilst the applicant was at liberty for three offences (two of which were of a nature similar to that the subject of the present application) were features which justified a sentence above the range identified in Regina v Henry (supra) and an examination of the cases in the schedule reveals that there is no case which is on al fours with the instant case.

15 In Veen v The Queen (No. 2) (1997-1998) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said:

“The antecedent criminal history is relevant … to show whether the instant offence is an uncharacteristic aberration, or whether the offender has manifested in his commission of the instant offence, a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity, or shows a need to impose condine punishment to deter the offence and other offenders from committing further offences of a like kind.” (supra at 477)

16 This statement has application in the present case and gives an additional basis of support for a penalty greater than that referred to in Regina v Henry (supra).

17 An examination of the statistics compiled by the Judicial Commission does not, in my opinion, make good the argument on behalf of the Applicant that the sentence imposed was manifestly excessive. For example, they show that in cases where there is only one count, there has been a plea of guilty, and the offence had been committed whilst the offender was on bail or on a bond, 24% of the sentences were six years or more.

18 The Remarks on Sentence show that her Honour carefully considered the particular case, its seriousness, relevant surrounding features, all subjective matters pertaining to the Applicant. She then came to her conclusion as to the sentence that was warranted. Particular regard was given to the non-parole period.

19 When these factors are looked at, I am of opinion that the submission that the sentence imposed was manifestly excessive is not correct. In my opinion, the sentence imposed by Her Honour was within the range appropriate to the particular offence and the sentence determined by her was warranted.

20 In my opinion, the application for leave to appeal should be dismissed, and I would propose that the court order accordingly.

21 SMART AJ : I agree.

22 O’KEEFE J : The order of the court will be that the application for leave to appeal is dismissed.

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