Regina v Philips; Regina v Simpson

[2002] NSWCCA 167

CITATION:	Regina v Philips; Regina v Simpson [2002] NSWCCA 167
FILE NUMBER(S):	CCA 60720/01; 60721/01
HEARING DATE(S):	6 May 2002
JUDGMENT DATE:	6 May 2002
PARTIES :	Regina v Stephen John Philips Regina v Danielle Simpson
JUDGMENT OF:	Greg James J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0832; 01/11/0879
LOWER COURT JUDICIAL OFFICER :	His Honour Judge Shillington QC

COUNSEL :	Crown - W.G. Dawe QC Applicants - M. Johnson (Philips); H. Dhanji (Simpson)
SOLICITORS:	Crown - S.E. O'Connor Applicants - Ross Hill & Associates (Philips); D.J. Humphreys (Simpson)
CATCHWORDS:	Sentencing appeals - sentencing judge did not quantify discount for plea of guilty - further, did not specifically backdate sentence for pre-sentence custody - desirability of quantifying discount for plea and backdating for pre-sentence custody emphasised - R v Howard [2001] NSWCCA 309 applied
LEGISLATION CITED:	Crimes Act 1900, s 97(1) Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(c)(iii) , 22(1), 24, 47(3) Justices Act 1902, s 51A
CASES CITED:	Lowe v The Queen (1984) 154 CLR 606 Regina v Cartwright (1989) 17 NSWLR 243 Regina v Deeble (CCA, 19 September 1991, unreported) Regina v English [2000] NSWCCA 245 Regina v Frascella [2001] NSWCCA 137 Regina v Henry & Ors (1999) 46 NSWLR 346 Regina v Hitchens [1983] 3 NSWLR 318 Regina v Howard [2001] NSWCCA 309 Regina v McHugh (1985) 1 NSWLR 588 Regina v Rose [2001] NSWCCA 370 Regina v Thomson and Houlton (2000) 49 NSWLR 383 Regina v Thwaites (CCA 1993, unreported)
DECISION:	Philips - Leave to appeal granted, appeal dismissed.; Simpson - Leave to appeal granted, appeal allowed. Sentence varied; see par 64.

60720/01
60721/01

GREG JAMES J
CARRUTHERS AJ

Monday, 6 May 2002

REGINA v Stephen John PHILIPS

REGINA v Danielle SIMPSON

Judgment

1 GREG JAMES J: In each case, I agree with the orders proposed by Carruthers AJ and his reasons. The orders therefore will be as he has proposed.

2 CARRUTHERS AJ: Stephen John Philips and Danielle Simpson seek leave to appeal against sentences imposed upon them by his Honour Judge Shillington QC in the Sydney District Court on 19 October 2001.

3 Although each applicant was separately represented before this Court, it is convenient to deal with their applications together.

4 Mr Philips had been committed to the District Court pursuant to the provisions of s 51A of the Justices Act 1902 after having pleaded guilty in the Local Court to a charge of robbery being armed with an offensive weapon pursuant to s 97(1) of the Crimes Act 1900. This offence carries a maximum penalty of twenty years imprisonment. The committal documents referred to the applicant being armed with a “steel-bladed machete”. However, his Honour was informed that the Crown accepted that the offensive weapon was a knife and not a machete and it was upon that basis that the District Court proceeded to sentence.

5 Mr Philips was sentenced to imprisonment for six years to date from 3 May 2001, (the date upon which he was taken into custody, bail having been refused) and to expire on 2 May 2007. Having found special circumstances, being the need for rehabilitation and relatively good prospects for rehabilitation, his Honour imposed a non-parole period of three years, to date from 3 May 2001 and to expire on 2 May 2004.

6 Ms Simpson adhered to a plea of guilty to one count under s 97(1) of the Crimes Act of robbery in company. His Honour sentenced Ms Simpson to imprisonment for four years to commence on 19 October 2001 and to expire on 18 October 2005. Having found special circumstances, being her youth and her need for rehabilitation, his Honour sentenced her to a non-parole period of two years, to date from 19 October 2001 and to expire on 18 October 2003.

7 It will be noted that Ms Simpson’s sentence is to date from the date of sentence, she having been granted bail on 5 June 2001 following her arrest on 3 May 2001. However, his Honour expressly stated that he had taken into account the fact that she served thirty three days in custody prior to being granted bail.

8 Prior to the subject offences, the applicants had been in a de facto relationship for some five years. Three children of that relationship had earlier been taken into DOCS’ care. Unfortunately, two years or so prior to the commission of the offences, a four months old child of the applicants died, which they both, as will be referred to shortly, attributed to their beginning to take heroin and the development of a subsequent addiction.

9 The facts may be briefly stated. At about 12 midnight on Saturday, 28 April 2001 one Gregory Vlahogiannis was driving his taxi along King Street Newtown. He was hailed by the applicants at the intersection of King Street and Australia Street.

10 After entering the taxi, Mr Philips sat in the front passenger seat and Ms Simpson sat in the rear seat. Mr Philips directed the driver to proceed to Annandale near the water. Upon arriving at Annandale, Mr Philips directed the driver to Chapman Road, which is a cul-de-sac. Having arrived at the cul-de-sac, the driver was instructed by Mr Philips to do a U-turn. This he did, and as Mr Vlahogiannis was driving back along Chapman Road he heard Mr Philips say to Ms Simpson “We’ll do it here”.

11 Mr Philips then told the driver to “Stop here”. The driver complied, stopping on Chapman Road. Mr Philips then produced a large bladed knife from under his clothing and said to the driver “Give me all your money, mate”. The driver, fearing for his life, complied and removed $200 from his trouser pockets.

12 At this stage Ms Simpson alighted from the rear seat of the taxi and stood at the driver’s door. Mr Philips then said to Ms Simpson “get all the money”. The driver handed Ms Simpson the $200 cash. She then reached into the taxi and stole a number of items from the driver’s shirt pockets, including a Mastercard Keycard and driver’s licence belonging to the driver.

13 As this was occurring, Mr Philips held the knife at the driver’s neck in a threatening manner, placing him in fear of his life.

14 According to the Facts Sheet, which was tendered by consent, the driver believed he was cut at this time by the knife on the left side of the chin, resulting in a small cut which bled onto his clothing. There was of course, however. no allegation of wounding associated with the armed robbery.

15 Mr Philips then said “take everything, you’ve got everything?”. To this, Ms Simpson replied “yeah”.

16 Mr Philips then ordered the driver from the taxi and once he had alighted from the taxi Ms Simpson sat in the driver’s seat. The taxi was then driven on to The Crescent, Annandale, with both applicants on board and almost immediately became involved in a collision with a number of parked vehicles upon adjacent Nelson Street, Annandale. Both applicants then fled from the scene.

17 At the time of the offence, the driver activated an in-vehicle security surveillance camera system installed within the taxi. With the assistance of technician specialists, the images recorded of the applicants at the time of the robbery were downloaded and transferred to compact disk and printed. Police took possession of these photographs, which were then shown to a number of police officers. Both applicants were positively identified from the photographs by a number of police officers by reason of their previous dealings with them.

18 On 3 May 2001 the applicants were seen by an off duty police officer to board a government bus. Back-up police having been summoned, the bus was stopped by police on City Road Darlington. Both applicants were arrested and conveyed to Newtown police station.

19 Both applicants, as was their right, declined to be interviewed about the matter.

20 Mr Philips remained in custody. Ms Simpson, as I have indicated, was however, granted bail on 5 June 2001, upon certain conditions which she apparently complied with.

21 I turn then to the subjective matters relating to Mr Philips.

22 Mr Philips was twenty-nine at the time of the offence and thirty at the time of sentence. Mr Philips has a criminal record dating back to 3 March 1989, thereafter he has regularly been before Local Courts, receiving over the years considerable leniency. Indeed, this was his first sentence by way of a custodial penalty.

23 The subject matter was aggravated by the fact that at Balmain Local Court on 12 July 2002 he was given the benefit of a twelve months good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, in respect of a conviction for assault occasioning actual bodily harm. This bond was therefore current at the time of the subject offence. Further aggravation is to be found in the fact that Mr Philips was on bail in relation to another matter, which bail was entered only three days before the commission of the subject offence. Counsel for Mr Philips frankly and realistically concedes that this breach of conditional liberty was an aggravating feature of his case. However, Mr Matthew Johnson of counsel for Mr Philips submitted in his helpful argument that evidence was before his Honour which amounted to a “powerful subjective case”. That evidence, counsel contended, was to be found in the evidence of the applicant before Judge Shillington, his prior criminal history, a pre-sentence report, a clinical psychological assessment by Dr Christopher Lennings dated 10 October 2001 and a letter by Brother Pat Lynch, Catholic Chaplain at Parklea Correctional Centre. There was also a report from the Western Sydney Institute of TAFE dated 13 September 2001 to the effect that Mr Philips was proceeding satisfactorily with a course of welding and thermal cutting. There was also a certificate of attendance in “Relapse prevention workbook” issued on behalf of A & OD (Alcohol and Other Drugs).

24 I shall not refer to the detail contained in the above evidence. For my part, I agree with counsel’s summation that the material details a traumatic upbringing, an association with the co-offender Ms Simpson of four years, the tragic death of a child of Mr Philips and Ms Simpson and a history of drug abuse, which included ingestion of heroin, which goes to explain to some degree the subject offence. Further, that the report of Dr Lennings confirms ongoing psychological problems that required hospitalisation from an early age and, at the time of the report, included depression, anxiety, paranoia and drug related psychosis.

25 In his remarks on sentence, his Honour said that Mr Philips was described as a young man of average intelligence with a background of a grossly dysfunctional family and, as a result, a grossly dysfunctional personality. He reports a long history of antisocial behaviour.

26 His Honour said:

“It is said that he would benefit from a lengthy period of treatment for his problems with drugs, in a rehabilitation centre. He had a short period at one stage, which did not continue. There seem to be some hopeful signs from the accounts which are given to me from the prison Catholic Chaplain who says that he has conducted himself well since in custody and there are certificates which show that he has been doing courses in drug and alcohol abuse treatment and has been doing a TAFE course in welding in the hope of eventually progressing towards leaving custody and being in a position to rehabilitate himself and re-unite with his partner and to take control again of the children of the partnership.”

27 His Honour said that he had taken those matters into account.

28 Having referred to the criminal history of Mr Philips and the breach of conditional liberty, his Honour expressed the view that a relatively heavy sentence must be imposed. However, his Honour found the special circumstances which I have outlined above.

29 In his overall submission that the sentence imposed was manifestly excessive, counsel for Mr Philips relied specifically upon two matters. Firstly, he pointed out that although the learned sentencing judge had referred in the opening of his remarks on sentence to the fact that Mr Philips entered a plea of guilty before a magistrate, no further reference was made to the plea of guilty and therefore no reference to a quantified discount for the utilitarian value of the plea. Relevant to the discount for the plea of guilty is the fact that there was evidence of contrition available from the applicant in his evidence in the pre-sentence report and in the report of Dr Lennings.

30 Counsel also relied upon the fact that there was a sentence imposed in round figures. It was submitted that the learned sentencing judge should have specifically awarded the applicant the maximum discount of 25 per cent for the plea, together with the evidence of contrition.

31 Reference was made to the judgment of this Court in Regina v Thomson and Houlton (2000) 49 NSWLR 383 and in particular to paragraphs 52 and 53, where the Chief Justice, Spigelman CJ, said

“The absence of any reference to actual consideration of the guilty plea in the course of sentencing should as a general rule in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations.”

32 And later,

“It may not have been entirely clear prior to this judgment that the absence of reference to consideration of a guilty plea in the sentencing process would generally be regarded on appeal as an indication that a relevant consideration had not been given weight.
In the course of formulating this guideline, the Court has been asked to determine that such should be regarded as the case in the future. This is designed to overcome the problem that the evidence and submissions before this Court in these proceedings have identified, namely the extent to which practitioners do not accept that a guilty plea, particularly an early plea, is in fact taken into account by sentencing judges.
As part of the process of overcoming this perception, the Court should, in my opinion, adopt the approaches generally applicable to decisions on sentencing for State offences delivered after a reasonable period allowed for the handing down of this judgment.”

33 Reference was made to s 22(1) of the Crimes (Sentencing Procedure) Act 1999, which requires a court to take into account a plea of guilty and by subs (2) requires a court that does not impose a lesser penalty by reason of such a plea, to indicate to the offender and record its reasons for not doing so.

34 The Court was referred by Mr Dawe of Senior Counsel on behalf of the Crown to the fact that at the conclusion of the sentencing procedure in relation to both applicants his Honour was specifically reminded by Mr Gilson, then counsel for Ms Simpson, of the asserted need to quantify the discount for the plea of guilty. This is recorded in the transcript as follows:

“GILSON: Your Honour, I should draw to your Honour’s attention the encouraged need, if I can put it that way, to quantify the discount for the plea of guilty, so it’s not catting (sic) with your Honour’s decision, but that sentencing judges have been encourage (sic) to quantify to enable--
HIS HONOUR: I don’t think it’s appropriate in this case that I should do that but I’ve certainly indicated that she gets in effect the maximum remission or reduction in the sentence by reason of her plea of guilty.
GILSON: May I(sic) please the Court.”

35 Despite the submission by Mr Johnson to the contrary, I think it is reasonable in all the circumstances to infer that his Honour’s remarks in response to the matter raised by Mr Gilson should be taken to extend to Mr Philips as well as Ms Simpson.

36 I cannot accept that an experienced judge, as his Honour is, could possibly have overlooked in the circumstances Mr Philips’ entitlement to a significant discount for the benefit of an early plea of guilty. His Honour was not bound by authority to quantify the discount which he would have allowed. It is, of course, as learned Senior Counsel for the Crown conceded, a most desirable practice that there be quantification of sentences and it is unfortunate that his Honour did not quantify whatever particular allowance he made for the plea of guilty. Nevertheless he did indicate that the maximum remission or reduction had been granted in Ms Simpson’s case and I interpolate, as I have said, those remarks to Mr Philips’ case.

37 Of course, the remarks by the Chief Justice in Thomson and Houlton make it perfectly clear as to the desirable practice. However, the Chief Justice did not express the approach which he advocated in absolute terms. With respect, his Honour obviously allowed there to be, in a rare case, an exception. The instant case, to my mind, falls within the rare exception class.

38 Upon the assumption that the other grounds raised by counsel for Mr Philips fail for the reasons which I propose now to give, it is fair to say that the sentence by way of a full term and a non-parole period imposed by his Honour, bearing in mind the objective seriousness of Mr Philips’ criminal conduct and allowing for the subjective case, are eloquent of the fact that a significant discount was in fact allowed for the plea.

39 I would therefore reject this ground of appeal.

40 The next matter raised on behalf of Mr Philips was a submission that the sentence imposed on Ms Simpson was significantly more lenient in relation to both the head sentence and non-parole period, and demonstrated a failure by the sentencing judge to adhere to the principles enunciated by the High Court in Lowe v The Queen (1984)154 CLR 606.

41 The point is made that both offenders were sentenced for offences under s 97(1) of the Crimes Act. It is common ground that Ms Simpson was charged with robbery in company as opposed to robbery whilst armed with an offensive weapon because the Crown was not able to prove beyond reasonable doubt that Ms Simpson was aware of the presence of the knife before it was produced by Mr Philips. However, it is pointed out on Mr Philips’ behalf, that the sentencing process proceeded on the basis that his Honour found Ms Simpson:

“...was well and truly aware of what was happening when the vehicle stopped. When she got out of the vehicle, she then took an active part in depriving the owner of his assets and drove off with the co-offender.” (See remarks on sentence page 4.)

42 Thus, in short, it is submitted that there was little difference in the degree of criminality insofar as each of the applicants was concerned. Allowing for the fact that Ms Simpson was not in breach of a s 9 bond or on bail and thus subject to the aggravating aspects of Mr Philips’ offence, the submission is that the difference between the sentences was of such a magnitude as to engender a justifiable sense of grievance in the mind of Mr Philips.

43 There is no doubt that a significant difference between the sentencing regime imposed upon Mr Philips and that imposed upon Ms Simpson existed. However, I am not convinced that it is such as to constitute a failure to apply the principles enunciated in Lowe. The production by Mr Philips of the knife and the use of it in a threatening manner such as to engender a fear by Mr Vlahogiannis that his life was in danger does involve a very significant additional degree of criminality on the part of Mr Philips.

44 Suspicious as one may be that Ms Simpson may have been aware of the fact that Mr Philips was carrying the knife and that he intended to produce it and to use it in the manner in which he did, nevertheless the Crown did not adduce sufficient evidence for the sentencing judge to be satisfied on the criminal standard of proof that Ms Simpson had this knowledge. In addition, she was younger than Mr Philips and had a lesser prior criminal record.

45 The matter is not free from difficulty but I am not convinced that Mr Philips has made out a case that this Court should interfere on the basis of a lack of parity between the two sentences.

46 Therefore I would reject this ground of appeal.

47 In addition to the specific matters to which I have referred, reference was made by counsel for Mr Philips to the effect that at the time of sentence he was in protective custody as a result of threats and because of this experienced difficulty in obtaining access to rehabilitative courses.

48 It is pointed out that his Honour’s remarks on sentence make no reference to the fact that Mr Philips was in protective custody. It is submitted therefore that his Honour failed to take into account the hardship that would be suffered by Mr Philips in gaol because he will be in protective custody. (See for example Regina v Cartwright (1989) 17 NSWLR 243 at 255.)

49 The evidence given by Mr Philips in this regard was brief indeed. No evidence was adduced to explain why the alleged threats were made to him and how long he would be likely to remain on protection. This evidence did not in my assessment constitute a sufficient basis for his Honour to inject a further element of leniency into the sentencing regime by taking it into account.

50 Then it was argued that the penalty of six years imprisonment for the first offence of this nature exceeds the four to five years imprisonment discussed in Regina v Henry & Ors (1999) 46 NSWLR 346 at 380. It was pointed out that in Thomson and Houlton it was said that Henry should be understood as involving a late plea for the purpose of the application of the guideline promulgated in Thomson. Thus it was argued that in the instant case the penalty of six years indicates no discount for the plea of guilty. An alternative argument was raised that if there was a discount in relation to the plea of guilty, then his Honour must have started with a figure of about eight years, which indicated a manifestly excessive starting point.

51 Challenging as these submissions may be, they sink under the weight of the grave objective seriousness of the offence committed by Mr Philips. In addition to the breach of conditional liberty, which of itself is a significant aggravating factor, there is additional venality associated with the use of a knife in a threatening manner. A knife is a weapon treated with abhorrence by the criminal justice system. The fact that the victim was a taxi driver and the particularly vulnerable position in which a taxi driver so frequently finds himself or herself is a very relevant factor so far as deterrence is concerned.

52 Reference for the significance of the deterrence element in sentencing for offences in the case of assaults upon taxi drivers is to be found in cases such Regina v Hitchens [1983] 3 NSWLR 318 and Regina v Thwaites (unreported CCA 1993).

53 The common law has now found statutory embodiment in s 21A(2)(c)(iii) of the Crimes (Sentencing Procedure) Act 1999, where vulnerability of the victim is a matter which the Court must take into account. The high level of present public concern with regard to the safety of taxi drivers and the concerns of the drivers themselves can be discerned from the steps which are taken and, in some cases, required by law to provide taxi drivers with as much security as their demanding and vulnerable circumstances permit. Thus, despite the longstanding and well established principle that offences of this nature require condign punishment, concern for the safety of taxi drivers would appear to be as great if not greater than ever.

54 For these reasons, I would propose the applicant Philips be granted leave to appeal against sentence but the appeal be dismissed.

55 I turn then to the application by Ms Simpson for leave to appeal. Ms Simpson relies solely upon one ground, namely that his Honour erred in demonstrably failing to take into account the applicant’s pre-sentence custody.

56 As I have indicated, his Honour said in relation to Ms Simpson:

“The prisoner has served a period of some thirty three days in custody before being released on bail and that is a matter which must be taken into account.”

57 Then later his Honour said:

“I have taken into account the fact that she served that thirty three days in custody."

58 Section 24 of the Crimes (Sentencing Procedure) Act required his Honour to take into account any time for which Ms Simpson had been held in custody in relation to the subject offence. Section 47(3) of the Act is generally to the same effect. However, there is no legislative requirement that the sentence be backdated to take into account a period of pre-sentence custody. There is much authority on the other hand as to the desirability of such a course. Thus, reference may be made to the well known passage in the judgment of Chief Justice Street, speaking on behalf of this Court, in Regina v McHugh (1985) 1 NSWLR 588 at 590-599 where the Chief Justice said:

“It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which the sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be backdated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order.”

59 Over the years, the practice recommended by the Chief Justice has been regularly applied. (See for example Regina v Deeble (unreported CCA 19 September 1991) and Regina v English [2000] NSWCCA 245.)

60 Although the practice was not followed in Regina v Frascella [2001} NSWCCA 137 and Regina v Rose [2001] NSWCCA 370 by two judge Benches of this Court, it has been more recently followed and affirmed in the judgment of a Full Bench of this Court in Regina v Howard [2001} NSWCCA 309. It does not appear that Judge Shillington’s attention was drawn to Howard, which is perhaps not surprising, since it had only been handed down shortly before his Honour imposed the subject sentences.

61 I would respectfully agree with the submission of Mr Dhanji, counsel for Ms Simpson, that the approach recommended in McHugh and followed in Howard should be adopted by this Court in the instant case. One significant reason is that it would make clear to the applicant, Ms Simpson, that a specific identifiable allowance was made for the thirty three days in question.

62 It would clearly have dispelled any doubts which might be found to exist in the fact that his Honour imposed a sentence in round figures. Accepting this submission requires the subject sentence to be backdated to 17 September 2001. Accordingly, I would propose that the application for leave to appeal by Ms Simpson be granted and the appeal be allowed and I would propose that the sentence imposed by Judge Shillington be varied to a sentence of imprisonment for four years, to date from 17 September 2001 and to expire on 16 September 2005 with a non-parole period of two years to date from 17 September 2001 and to expire on 16 September 2003.

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