Regina v Stepanovic

[2003] NSWCCA 343

CITATION:	REGINA v. STEPANOVIC [2003] NSWCCA 343
HEARING DATE(S):	Tuesday 18 November 2003
JUDGMENT DATE:	18 November 2003
JUDGMENT OF:	Tobias JA at 25; Hidden J at 26; Greg James J at 1
DECISION:	Leave to appeal granted; appeal dismissed.
CATCHWORDS:	Criminal law - sentence - appeal - whether sentence manifestly excessive - whether special circumstances should have been found - no question of principle.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	N/A
PARTIES :	REGINA v. STEPANOVIC, Ivica
FILE NUMBER(S):	CCA No. 60284 of 2003
COUNSEL:	Crown: D. Woodburne App: R. Hulme, SC.
SOLICITORS:	Crown: C.K. Smith App: S. O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/1064
LOWER COURT JUDICIAL OFFICER :	Christie, DCJ.

No. 60284 of 2003

TOBIAS, JA.
HIDDEN, J.
GREG JAMES, J.

TUESDAY 18 NOVEMBER 2003

REGINA v. IVICA STEPANOVIC

Judgment

1 GREG JAMES J: This is an application for leave to appeal against a sentence imposed on the applicant by Judge Christie QC in the District Court of New South Wales at Sydney. The sentence was imposed for the offence of robbery in company committed on 29 November 2000. That offence is under s.97(1) of the Crimes Act 1900, punishable by a maximum penalty of 20 years imprisonment.

2 In addition there were two offences taken into account by his Honour at the request of the applicant; they being the offence of detain for advantage (sometimes referred to as kidnapping) and the offence of obtaining a benefit by deception. The first of those offences is a most serious offence punishable by a sentence of 14 years imprisonment if not committed in either of the aggravated forms, which involved the commission of the basic offence in company or involve harm to the victim.

3 The short facts were set out by the trial judge in his remarks on sentence and I quote from his remarks on sentence referring to the various offences:-

“All of those three events, of course, arise from the one circumstance, where the prisoner, in company with another person, entered the car of Mr. Froggert and Mr. Froggert was then required from about 9.50 pm that evening to drive in and around the City of Sydney with the prisoner and his cohort, giving him instructions as to where to drive and so on. It was during all of this time, and it extended over a significant period of time, that the prisoner walked to an ATM and withdrew $200 from Mr. Froggert's account, using his card. It was that factor, of course, which led to the second matter contained on the Form 1. As far as I know, the co-offender has never been identified and the prisoner refuses to disclose that person's identity".

4 The learned sentencing judge referred to the significant emotional effect upon Mr. Froggert and an account of the difficulties Mr. Froggert had experienced since the offence. In addition he referred to a psychologist's report tendered with Mr. Froggert's account supporting that Mr. Froggert had sustained a very severe emotional reaction to the point where he was unable to obtain employment.

5 The facts that were before the learned trial judge included reference to the applicant and his co-offender entering Mr. Froggert's vehicle when it was stopped while he was using the phone. The co-offender entered the front seat and the applicant, the rear seat. They began to grab and push at the victim. Both the applicant and the co-offender made various threats.

6 The co-offender produced a knife and held the tip of the knife against the left hand side of the victim as he was compelled to drive about Sydney. He was required to drive from Millers Point to Chatswood. The co-offender demanded the victim hand over his wallet. Not only was money taken from Mr. Froggert’s wallet, but he was interrogated as to his financial circumstances and as to his credit and cash cards. He was required to provide his personal identification number. He was instructed to find an ATM machine. He stopped the vehicle at Chatswood and it was then that the applicant withdrew the money from his account using the ATM. Apparently the applicant took the last $200 in Mr. Froggert's account.

7 He was required to drive again through various back streets. He became terrified that he would be killed. The applicant was in possession of a cloth bag. Both the co-offender and the applicant made references to that bag asserting it contained a loaded gun. So desperate did Mr. Froggert become that in the vicinity of the Great Northern Hotel on the corner of Mowbray Road and Pacific Highway he drove into oncoming traffic deliberately causing a collision to allow him to escape. That occurred not only at risk to himself, but also to those others with whom he collided. He ran from the car and the accused and the other male left the scene.

8 The trial judge's findings, particularly having regard to the evidence before him concerning how horrified Mr. Froggert had become, were entirely understandable. It can be seen from the recital that I have given of what the trial judge had decided from the facts before him, that his Honour's view of the facts seemed more favourable to the applicant than those facts on their face appeared to warrant. They were apparently presented to him without objection and without challenge. The trial judge categorised the offence, however, as "not the worst offence in its category but it is not very far removed from it either". He referred to Mr. Froggert's attempt to escape. He referred also to the applicant's significant substance abuse. He said, "Hopefully there is some light at the end of the tunnel in relation to his substance abuse but one would not be entitled to be overly confident about that matter".

9 The trial judge had reserved his decision in order to consider the question of special circumstances, particularly because of the age of the applicant who he said:-

"… is still only a boy really. I mean he is only 20 and I was wondering whether special circumstances really might be in his long term interests or not in his long term interests because when one looks at his record, he has committed some offences whilst on conditional liberty.”

10 Upon examination of the material before the trial judge including referring to the summary of offences put before us on this appeal by the applicant’s counsel, those offences set out in the applicant's gaol record and those set out in his criminal record, again it would appear that his Honour's remarks here too are favourable to the applicant, if not positively charitable.

11 His Honour turned to aspects of the applicant's criminal record. They included the offences for which the applicant had been dealt with prior to the commission of this offence and in respect of which, at that time, the applicant was on conditional liberty. His Honour referred also to the circumstances of the applicant not having come forward for sentence for this offence and indeed not having been charged for it until quite a long time after it had been committed saying:-

"Why he was not picked up for this offence somewhat earlier than he has been is a bit of a mystery. He left his fingerprints and DNA, I think, all over the subject material so there was never going to be much trouble about ascertaining his identity and his role in the enterprise.”

12 His Honour referred to the various offences the applicant had committed since this offence and the sentences he had received for them. He referred particularly to the applicant having been dealt with by way of control orders and orders permitting conditional liberty. His Honour, notwithstanding those sentences, backdated the sentence he passed to the date of the applicant’s arrest, 19 August 2002, thus giving to the applicant the benefit of concurrent sentences in respect of this offence and some offences of affray.

13 The trial judge gave the applicant the benefit of the plea of guilty both as supporting contrition and also for its utilitarian value. His Honour noted also as a matter sounding in an additional benefit, that the plea saved”-

“… the already deeply traumatized Mr. Froggert from having to come here and regurgitate these unsavoury events before a jury.
Mind you, I would be less than frank if I did not say that the prisoner’s plea of guilty is at least in part a recognition of the inevitable. His fingerprints, as I say, and his DNA were all over the vehicle. But there is no such thing in the State of New South Wales as a certainty of conviction by any stretch of the imagination, so that his plea of guilty must entitle him to a not insignificant consideration.”

14 His Honour referred to the maximum sentences prescribed by law which he referred to as being significant periods of time in prison. He expressed the view that since the applicant was such a young man, his being a victim of drug abuse entitled him to some consideration, but he pointed to the offence as being rife and an offence of considerable concern to the community.

15 His Honour concluded that he should not find special circumstances, expressing the view that he did not think a lengthy parole period was in this man's interest since he concluded that it would tempt the applicant to commit crimes whilst on parole. That is, in essence, a finding of a lack of significant prospect of rehabilitation.

16 His Honour pointed out that it was a sad and grave duty to send young persons to adult prison and expressed the view, however, that in the community's interests the applicant had to be "taken out of play". The trial judge made the sentence a little shorter than he otherwise would have to offset not finding special circumstances. He expressed the view that he would have sentenced the applicant, absent his plea of guilty, his youth and some of the subjective factors, to a sentence of between six and seven years. He concluded that the appropriate sentence which took into account the offences on the Form 1 was a period of imprisonment for four years from 19 August 2003 with a non-parole period of three years.

17 On the appeal the submission has been put particularly in the light of the offences set out in the schedule handed up to us on this appeal, elucidating the table provided to us in the written submissions, that the applicant's period in custody for various offences prior to coming forward to be dealt with for this offence, when considered in totality together with the sentences that had been imposed for offences committed subsequent to this offence, mitigated in favour of a longer parole period, particularly having regard to his youth and the prospect that after serving a period of the order of three years in imprisonment, it could be expected there would be additional maturity.

18 Both the Probation and Parole officer and Dr. Nielssen who had furnished reports in evidence before the trial judge, adverted to the community's interest in the applicant being afforded as much assistance as possible, including in relation to drugs and alcohol so as to avoid future criminality. However, neither the Probation and Parole officer nor Dr. Nielssen could find any matter which produced any hope for the applicant's rehabilitation, particularly having regard to these offences being committed whilst on condition of liberty so shortly after he had been released to that liberty, and the commission of further offences thereafter.

19 The new schedule was provided to us because it appeared that the material before the trial judge did not fully set out the applicant's prior record. The material before the trial judge did not include offences committed when the applicant was very young and offences in 1999 of aggravated robbery and assaulting an officer for which he received a fixed term of eight months plus probation to be of good behaviour for two years. There were also offences of assault committed in 1996 with intent to rob, offences of further assault at Campbelltown in 1996 and common assault at Wyong in 1998 coupled with a break and enter in 1998 at Wyong.

20 Mr. Hulme, SC., who appeared for the applicant, in his oral submissions accepted that the lengthy custodial history was produced by a continued commission of offences and accepted that his submission that there should be a shorter non-parole period and a longer parole period had to be considered in that context. The submission really is that having regard to the custodial history, there might have been something to say for the prospect that he should have been allowed a longer time on which he might be on parole in order that there should be some mechanism employed to ensure rehabilitation. But the purpose of a non-parole period is not merely to ensure the rehabilitation of the individual offender. It is to provide that period of imprisonment which is the shortest time that it is considered the offences merit in custody having regard to all the circumstances.

21 I am unable to see that there is any matter which would warrant any interference with the trial judge's exercise of discretion. In particular, I am unable to see that the matters to which Mr. Hulme has pointed are such as to suggest that the applicant might enjoy any real prospect for rehabilitation, at least as things are now.

22 In my view, no lesser sentence was warranted, nor should have been passed, and no lesser non-parole period would have been warranted.

23 The grounds of appeal also asserted that the sentence was manifestly excessive, in addition to the ground to which I have referred, that his Honour erred in failing to find special circumstances. In the oral submissions little was put concerning the sentences being manifestly excessive.

24 I am unable, for my part, notwithstanding the oral and written submissions, to consider that having regard to the criminality of the offence, to the offender's prior and subsequent record, to the limited prospects of rehabilitation that the subjective material suggests, that any other sentence was warranted and should have been passed, I would propose leave to appeal be granted since the appeal has been fully argued, but that the appeal should be dismissed.

25 TOBIAS, JA: I agree.

26 HIDDEN, J: The aspect of this case which has troubled me is his Honour's declining to find special circumstances. Given the applicant's criminal history, one might well be pessimistic about his prospects of rehabilitation. However, that is not a finding one would readily make in respect of one so young, and there is much to be said for the view that it would have been in the community's interest for the applicant to have a longer period of parole eligibility than that specified by his Honour.

27 That said, however, I agree with Greg James, J. that the non-parole period of three years is the least his Honour could have passed, given that a non-parole period necessarily has a punitive component to it.

28 On the basis that no lesser sentence than that which his Honour passed could have been passed, I agree with the orders proposed.

29 TOBIAS, JA: The orders of the court will be as proposed by Greg James, J.

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Last Modified: 11/19/2003