Regina v Strangleman

[1999] NSWCCA 343

CITATION:	Regina v Strangleman [1999] NSWCCA 343
FILE NUMBER(S):	CCA 60071/99
HEARING DATE(S):	25 October 1999
JUDGMENT DATE:	25 October 1999
PARTIES :	Regina v Leo Strangleman
JUDGMENT OF:	Simpson J at 17; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0735
LOWER COURT JUDICIAL OFFICER:	Downs DCJ

COUNSEL:	A: C P Heazlewood R: L M B Lampratti
SOLICITORS:	A: Heazlewoods R: S E O'Connor
CATCHWORDS:	Sentencing; no value placed on assistance by sentencing judge; valuable assistance; special circumstances; sentence excessive
CASES CITED:	R v Henry (1999) 46 NSWLR 346
DECISION:	Appeal allowed. Sentence reduced.

IN THE COURT OF
CRIMINAL APPEAL

60071/99

SIMPSON J
SMART AJ

MONDAY, 25 OCTOBER 1999

REGINA v LEO STRANGLEMAN
JUDGMENT

1   SMART JA: Leo Strangleman seeks leave to appeal against the severity of his sentence, comprising a minimum term of 2 years and 6 months penal servitude and an additional term of 10 months for, being armed with an offensive weapon, a kitchen knife, robbing a named person of certain property, namely $400 in cash and eight packets of Horizons cigarettes.

2   On the evening of 8 July 1998, the applicant and Aaron Bailey had some discussions in which ultimately they decided to commit an armed robbery. Aaron Bailey had some expertise in that area. He drove the applicant's Holden motor vehicle to the Northmead district and parked the car in Lombard Street, Northmead. The applicant removed a black T-shirt, placed it over his head and Bailey cut two eyeholes in the garment. The applicant removed the T-shirt from his head.

3   They went to an area adjacent to the Ampol service station, Northmead, which was protected by trees. They could watch what was happening without being seen. They waited for about an hour until there were no cars or people around the service station. About 11.45pm, Aaron Bailey led the way into the service station, with the applicant close behind. As he ran in, Aaron Bailey was holding a knife. The applicant had a knife in his pocket, but did not produce it. Aaron Bailey pointed the knife at the console operator and demanded the money in the till. Bailey moved next to the operator and took money from the till. The applicant took eight packets of cigarettes. Both Bailey and the applicant ran from the store to the vehicle, with Bailey driving it back to Eastwood.

4   The applicant received just under $200 as his share of the robbery proceeds. It appears from the record of interview that the applicant was keen to do the robbery, as he owed some money to a person whom he declined to name and was due to meet on the following day.

5   The police had long suspected that Aaron Bailey was behind a large number of robberies and had him under surveillance. They noticed Bailey and the applicant together earlier in the evening.

6   On 23 August 1998, the police spoke to the applicant about his relationship with Bailey and his involvement in the offence. In his recorded interview, the applicant made full admissions and cooperated with the police.

7   The applicant was born on 26 August 1978. He had no previous convictions. He was living in a de facto relationship. Sadly, when his de facto wife gave birth to their son in March 1998, he was stillborn. As at July 1998, the applicant appears to have been in some financial difficulty.

8   The service station attendant was frightened, but neither physically assaulted (other than by the pointing of the knife and the inherent threat) nor injured. The applicant was in regular employment, a hard worker and described by his employer as a good employee who was very reliable.

9   The judge recorded that recently Aaron Bailey had been charged with 19 similar offences. When he was before the Local Court, the applicant gave evidence which implicated Bailey in the commission of the subject offence. It was common ground that the applicant was not involved in the similar offences or any other matter involving Bailey. The judge noted the applicant's assistance to the police. The judge, while finding that the accused was a young man aged 20 with no previous convictions, so that this would be his first time in gaol, declined to find special circumstances. The judge thought that a full custodial sentence was required, but that it should be towards the bottom of the scale.

10   There can be no doubt about the seriousness of the offence and that a full-time custodial sentence was required. The applicant complained that while the judge noted the applicant's assistance to the authorities, he did not indicate even in broad terms the value to be placed on that assistance. The assistance was given at an early stage and it had been cemented by giving evidence in the Local Court in the committal proceedings. The scale of Aaron Bailey's operations made it especially important that there be direct evidence of his commission of an armed robbery. The evidence of Bailey's admission to the applicant of Bailey's involvement in a number of armed robberies was also important.

11   On the material before the judge, this was a case where a substantial discount should have been given. As we have to look at the matter again in view of an error in the judge's approach, we are entitled to take into account material in the form of a statement to the Court by the learned Crown Prosecutor that Aaron Bailey was convicted on 15 April 1999 of multiple offences of armed robbery and received a minimum term of 5 years and an additional term of 5 years. It is believed that this was pursuant to pleas of guilty. The offence with which we are concerned was one of the offences to which Bailey pleaded guilty. Through his counsel, the applicant has informed the Court that he was not asked to give evidence against Bailey at the District Court hearing.

12   This was a case where a discount in the order of 35 per cent should have been given, with 20 per cent being attributed to assistance to date and 15 per cent for future assistance. I add that, in view of the information given to this Court, it may be that the applicant will not be called on further to give evidence, but nevertheless, the discount indicated should be allowed as he is prepared to give evidence. It cannot be doubted that the assistance had significant value.

13   Apart from the question of assistance to the authorities, this case falls within the guidelines propounded in R v Henry (1999) 46 NSWLR 346. In that case it was indicated that in general terms a full term of 4 to 5 years was appropriate. Henry stressed that general and personal deterrence is of cardinal importance in this class of offence.

14   Because of the paucity of the judge's reasons, nobody knows what allowance the judge made for assistance, nor how he apportioned that allowance. This is a case where the appropriate starting point for the full term would be 4 years. That should be discounted by 35 per cent, leaving a full term sentence of 2 years 7 months.

15   I come next to the question of special circumstances. This is almost a classic case of special circumstances pointing to a longer than usual additional term. There is a young offender aged 20 at the time of the offence, who has experienced some difficulties. This is his first time in gaol and hitherto he has had no convictions. Rehabilitation is very important and he would certainly benefit from supervision upon his release. It is worth noting that he was regarded well by his employer and worked hard even when facing the charge in question.

16   I propose that leave to appeal be granted, the appeal be allowed, the sentence quashed and that in lieu of the sentence imposed there should be a minimum term of 18 months commencing on 3 February 1999 and expiring on 2 August 2000 and an additional term of 13 months commencing on 3 August 2000. There will be an order that the applicant be released on 2 August 2000 with conditions to be set by the parole authorities.

17   SIMPSON J: I agree. The orders of the Court will be as proposed by Smart AJ.

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