Regina v Perrin

[2001] NSWCCA 422

CITATION:	Regina v Perrin [2001] NSWCCA 422
FILE NUMBER(S):	CCA 60121/01
HEARING DATE(S):	Friday 12 October 2001
JUDGMENT DATE:	12 October 2001
PARTIES :	Regina v David John Perrin
JUDGMENT OF:	Grove J at 1; Howie J at 18

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/0292
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

COUNSEL :	E,A. Wilkins (Crown) C.B. Craigie (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) D.J. Humphreys (Applicant)
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - ARMED ROBBERY - YOUNG OFFENDER - THE OFFENCES WITHIN 24 HOURS - CONFESSION AT POLICE STATION A FEW DAYS LATER - DISCOUNT FOR GUILTY PLEA AND CONTRITION - DECISION ON PARTICULAR FACTS - NO SPECIAL POINT OF PRINCIPLE
DECISION:	APPEAL ALLOWED; RESENTENCED

IN THE COURT OF
CRIMINAL APPEAL

60121/01

GROVE J

HOWIE J

Friday 12 October 2001

REGINA v DAVID JOHN PERRIN

JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant by Sorby DCJ in the Parramatta District Court. The applicant had appeared in that Court charged with two offences of armed robbery and his Honour sentenced him on the first count to imprisonment for four years with a non-parole period of two years, and on the second count, to imprisonment for four years and six months with a non-parole period of two years and six months. Both sentences were ordered to commence upon the same date and therefore were to the extent of the first imposition, concurrent.

2 This application, thanks to the co-operation of counsel, can be dealt with relatively expeditiously.

3 The facts of the matter are that the applicant was then a nineteen-year-old young man who had apparently been viewing videos, in the course of which he developed an idea of committing a robbery. I remain mystified as to how that thought sprang into his mind. However, in the afternoon of Wednesday, 20 September 2000, he left his premises, riding his brother's bicycle. He was wearing a black coloured back pack and had taken with him a kitchen knife.

4 I do not need to specify all of the events which occurred, but in short, he went to a Blockbuster video store where he exposed the handle of the knife, as a result of which staff opened the tills and gave him approximately $330.

5 At about 6 am the following morning, again riding his brother's bicycle, there was almost a repeat of what had occurred on the previous afternoon, although on this occasion the target was a McDonalds hamburger store.

6 The applicant sought to flee the scene of this crime, but was chased by members of the staff, including one in a motor car. As a result of a collision, his brother's bicycle was damaged and he was forced to continue his flight on foot. Coincidentally, he encountered a police officer, but was able to persuade this police officer he was visiting a friend and he was on this occasion not arrested.

7 However, it is obvious information was pointing towards him and a search warrant was executed. On Sunday morning, the applicant no doubt having heard the police had an interest in him, presented himself at the Parramatta Police Station. He was interviewed by detectives, and made a full confession in relation to both matters. He pleaded guilty when charged. That plea was maintained when he appeared before the District Court.

8 The learned sentencing judge, as is obvious from the sentences which I have specified, found that there were special circumstances justifying a departure from the proportion of non-parole period to the head sentence specified in the statute.

9 One matter which has been canvassed in the course of this appeal relates to his Honour's remarks concerning the application of the guidelines set down in the case of Regina v Henry. His Honour expressed himself as intending to sentence the applicant in accordance with guidelines set down therein. He also said that he found that the applicant was entitled to a discount of 25 per cent because of his plea.

10 It needs to be observed that in Regina v Thompson, the Chief Justice expressly observed that the Court had been asked to clarify its earlier guideline judgments, in particular including the case of Regina v Henry. An important observation for present purposes is that his Honour affirmed that in the case of Henry the Court was concerned with a guilty plea of limited value. In the present case the plea was as early as one could imagine is possible.

11 It seems to me therefore that the application by his Honour of a discount, which would be appropriate simply to the utilitarian value of the plea, would seem not in all the circumstances to have been sufficient for this particular case. In my view the jurisdiction of this Court is enlivened, and we should proceed to re-sentence.

12 I have already observed that the applicant was but nineteen years of age at the time of the offence, and he has only just turned twenty. He has no prior convictions. I have already observed that the circumstances of the offence, although no doubt frightening, even terrifying, for the victims, were somewhat peculiar. The learned sentencing judge observed that there had been a degree of planning, but for my part it is difficult to identify exactly what planning had occurred.

13 It is true, as the Crown Prosecutor has pointed out, that there was evidence that the applicant had contemplated the matter apparently over a period of weeks, but contemplation and planning are not in my vocabulary synonymous words.

14 The applicant is entitled, in my view, to considerable favourable weight to be given to his early confession in this matter. As the Court is proceeding to re-sentence, we can also take into account material in an affidavit by the applicant sworn on the fourth of this month. That shows that the applicant is performing very well in gaol, and I observe his statement that he never wants to return again to gaol after he is released from this sentence. His prospects of rehabilitation would seem to be every bit as good as his Honour hoped for, and his progress to date would indicate that it is likely to be achieved.

15 It was said in the Court below - and I have no reason to doubt it - that the applicant had got into financial difficulties as a result of gambling. He had, however, associated himself with Gamblers Anonymous, and it appears he has insight into his problem and it has helped considerably to overcome that, showing the enthusiasm for rehabilitation that he expressed in the affidavit.

16 I would propose therefore that the Court make the following orders: The application for leave to appeal be granted, the appeal allowed, the sentence imposed in the District Court quashed, and in lieu thereof, the applicant be sentenced as follows: On the first count to imprisonment for one year and nine months to commence on 6 February 2001 and to expire on 5 November 2002. I would not set a non-parole period in respect of that sentence, having regard to the following sentence to be imposed in respect of the second count.

17 On the second count I would sentence the applicant to imprisonment for three years and six months, to commence on 6 February 2001 but I would specify a non-parole period of one year and nine months, to commence on 6 February 2001 and to expire on 5 November 2002. The applicant would therefore be eligible for release to parole from 5 November 2002.

18 HOWIE J: I agree. The discount that the applicant was entitled to was perhaps even more than 25 per cent, as specified by the sentencing judge, having regard to the fact that he voluntarily went to the police station and confessed his guilt. Even though this may not be a case where the confession was of a type that he would not have been discovered by the police, nevertheless it was a matter to which the applicant was entitled to receive an additional discount, other than the plea of guilty before the Magistrate.

19 This is a matter, of course, like all of these appeals being dealt with by a two-person Bench, which is determined on its own facts and circumstances, and it does not indicate at all what might be the appropriate sentence in other facts and circumstances.

20 GROVE J: The order of the Court will therefore be as I have proposed.