Regina v WM - [2004] NSWCCA 53

No judgment structure available for this case.

CITATION: Regina v WM [2004] NSWCCA 53

HEARING DATE(S): 6 February 2004

JUDGMENT DATE:
12 March 2004

JUDGMENT OF: Grove J at 1; Sully J at 2; Bell J at 87

DECISION: Crown appeal allowed; Sentences passed in District Court quashed; Respondent re-sentenced as per paragrah 85 of judgment

LEGISLATION CITED: Crimes (Sentencing Procedure) Act (NSW)
Crimes Act 1900 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)

CASES CITED: Reg v Thomson and Houlton (2000) 49 NSWLR 383
Reg v NP [2003] NSWCCA 195
Reg v Ellis (1986) 6 NSWLR 603
Reg v Hallacoglu (1992) 63 A Crim R 287 at 299

PARTIES :
Regina
WM

FILE NUMBER(S): CCA 60303/03

COUNSEL: M. Grogan - Crown
M. Gelbert - Respondent

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0133

LOWER COURT
JUDICIAL OFFICER : Blackmore DCJ

60303/03

GROVE J
SULLY J
BELL J
12 March 2004

REGINA v WM

Judgment

1 GROVE J: I agree with Sully J.

2 SULLY J: The Crown appeals against what it asserts to be the manifest inadequacy of sentences passed upon the respondent, WM, on 1 May 2003 by his Honour Judge Blackmore SC in the Sydney District Court.

3 The respondent was presented before Judge Blackmore on 4 April 2003. There was, initially, a deal of confusion as to the number of charges which were to be dealt with by his Honour. In the event, the respondent was formally arraigned before his Honour upon an indictment containing seven counts. The respondent pleaded guilty to each of the seven counts. He asked his Honour to take into account in connection with his sentencing for the offences charged in the indictment, a further eighteen offences the details of which were set out in a document conforming to Form F1 of the Forms prescribed in connection with section 32 of the Crimes (Sentencing Procedure) Act (NSW), (hereinafter “the Sentencing Procedure Act”). The offences charged in the indictment and the offences notified in the Form 1 were respectively charged and notified as having been committed on the following days: 30 September 2000; 19 October 2000; 7 December 2000; 29 December 2000; 11 February 2001; 21 March 2001; and 22 March 2001.

4 It will be necessary to look in due course at the detailed structuring of the sentences that were passed upon the respondent by Judge Blackmore. It is sufficient at this point to note that the effect of that structuring of sentences was to sentence the respondent to an effective term of imprisonment for five years commencing on 1 May 2003 and expiring on 30 April 2008, with an effective non-parole period of 2 years and 6 months commencing on 1 May 2003 and expiring on 31 October 2005.

5 It will be necessary to consider, also, in due course the effect of the respondent’s criminal antecedents. Put very simply, there were two entries in the respondent’s antecedent criminal record. The first concerned a charge of robbery, and a charge of robbery in company, for both of which the Lidcombe Children’s Court dealt with the respondent on 14 April 1999. On each of those charges the respondent was ordered to perform 40 hours of community service, the community service order being made without conditions. The second, and much more serious, antecedent concerned two charges of malicious wounding and a charge of having fired a fire-arm, all three of which charges had been dealt with in the Sydney District Court, and by his Honour Judge Kinchington, on 6 September 2002. His Honour had then sentenced the respondent, for each of the two offences of malicious wounding, to imprisonment for 5 years commencing on 30 April 2001 and concluding on 29 April 2006, with a non-parole period of 2 years and 9 months to commence on 30 April 2001 and to conclude on 29 January 2004; and for the offence of firing a fire-arm to imprisonment for a fixed term of 2 years and 9 months to commence on 30 April 2001 and to conclude on 29 January 2004. His Honour ordered that the entirety of those three concurrent sentences should be served in a Juvenile Justice Centre. The offences in respect of which Judge Kinchington thus sentenced the respondent had been committed on the evening and early morning of 4/5 August 2000.

6 The respondent was born on 31 May 1983. He was aged, therefore, 17 years and some 10 months at the date of his re-arraignment before Judge Blackmore; and he was aged 17 and about 11 months as at the date on which he stood for sentence. He is now aged 18 years and some 9 months.

7 It is proposed, to the end of establishing a comprehensible overview of the respondent’s objective criminality, to take, in chronological order, each of the days upon which offences were committed by the respondent, and to consider discretely the offences committed on that particular day.

· 4/5 August 2000

8 As previously noted, the respondent was charged with two offences of malicious wounding and with one offence of firing a fire-arm in a public place. He was so charged jointly with two of his cousins, Manoa Sinamoni and Sione Sinamoni. All three co-accused pleaded not guilty. They were put, thereupon, upon their joint trial by jury; and the jury found each of them guilty as charged.

9 Each of the two offences of malicious wounding contravened section 35(1)(a) of the Crimes Act 1900 (NSW), and attracted upon conviction a statutory maximum penalty of imprisonment for 7 years. The offence of firing a fire-arm in a public place contravened section 93G(1)(b) of the Crimes Act, and attracted upon conviction a statutory maximum penalty of imprisonment for 10 years.

10 It is convenient to extract the relevant objective facts and circumstances from the remarks on sentence of his Honour Judge Kinchington:

“On the night of the 4th/5th of August 2000 you had gone to the premises occupied by the Hot Chocolate Night Club at the Flemington Hotel to attend a social function which had been organised to raise money for a member of the Tongan community who was returning to Tonga. While the evidence discloses that during the course of the evening both Manoa and Sione Sinamoni had consumed alcohol and were well affected by it at the end of the evening it is not so clear whether …. (the respondent) …had consumed any alcohol or if so what quantity as at the end of the evening he was found unconscious on a path adjacent to the Night Club having sustained a serious head injury as a result of either being hit on the head with a blunt object or falling to the ground and hitting his head. In any event it is also clear from the evidence as to the events which took place at the Night Club on this night that sometime about midnight an incident involving at least the two Sinamoni brothers led to both of them and …(the respondent) … being told to leave the function and the premises which they did in a white car. It is also clear from the evidence that the jury were satisfied that the three offenders subsequently returned to the vicinity of the Night Club armed with a shotgun and rifle and that both weapons were discharged in the vicinity of the Club and that in particular the rifle was fired at the Night Club and resulted in two of the persons attending the function to which I have previously referred sustaining gunshot wounds to their legs which necessitated suturing in hospital. It is also clear from that evidence that the jury were satisfied that when the rifle was fired each of the offenders were engaged in a joint criminal enterprise involving the firing of that rifle and in particular that either Manoa Sinamoni or Sione Sinamoni were in possession of the rifle when some of those shots were fired. However it is also clear from the jury’s verdicts that they were satisfied that while it was one or other of the Sinamoni brothers who fired the rifle that caused the wounds sustained by the two persons in the Club there is no direct evidence as to which one of them actually fired the rifle at that time. In addition it is also clear from the evidence herein that …(the respondent) … could not have fired the rifle at that time because he was observed to be lying unconscious on a pathway outside the Night Club at about this time. In any event it is clear from the jury’s verdicts that each of the offenders after being expelled from the Night Club and told to leave left the area in a motor vehicle and a short time later returned thereto armed with a shotgun and rifle pursuant to a joint criminal enterprise to “shoot up the premises” occupied by the Night Club and pursuant to that joint criminal enterprise the rifle was fired by one of the Sinamoni brothers at the Night Club with the result that two persons inside the Night Club sustained wounds to their legs as a result thereof.”

11 It is not necessary to look, at this point, at the detail of the subjective matters which Judge Kinchington took into account. It is sufficient to note that his Honour gave special weight to the respondent’s youth, and to the fact that the respondent appeared to have “some remorse and contrition for the events of this night”.

· 30 September 2000

12 The offences are:

1. Aggravated armed robbery: (Indictment, Count 7)

(Form 1, item 14)

13 The facts are that at about 11.30 p.m. on Saturday, 30 September 2002, a gentleman named Luke Song was working at his place of business, known as Sushi World, at Camperdown. Three males entered those premises. One of them was armed with a 12-gauge shotgun. The males demanded money from Mr. Song and threatened him with violence. There were present at the time a number of Mr. Song’s co-workers. When they saw the firearm they began, not surprisingly it might be thought, to scream. In the ensuing commotion, Mr. Song tackled the man who was holding the shotgun; and a struggle ensued, during the course of which Mr. Song managed to seize the firearm. The three young males thereupon decamped, not having succeeded in obtaining any money or property from their attempted robbery.

14 In due course the respondent was interviewed by investigating police. He admitted to having been one of four persons involved in the stealing of the motor vehicle that was the subject of item 14 in Form 1. The respondent told the police that the four young men had gone to the premises of Mr. Song’s business with the intention of robbing the business. He said that they had checked out the business several hours prior to the actual attempted robbery. He said that after Mr. Song succeeded in seizing the shotgun, which had been carried by another of the young men, there had been a collective decision to decamp without going on with the robbery. The respondent admitted that during the course of the attempted robbery, he had played his part, which had been to threaten Mr. Song’s co-workers, thereby to get them to lie down on the floor. The respondent admitted to the police that he had known, prior to the attempted robbery, of the existence of the firearm, and that he knew it to be a working firearm.

· 19 October 2000

15 The offences are:

1. Nine offences of armed robbery: (Form 1 items 1, 3, 4, 5, 6, 7, 8, 9 and 10) .

(Form 1, item 2)

16 The facts are that on Thursday, 19 October 2000 the respondent met with three co-offenders at an address in Erskineville. He got into a particular motor vehicle then containing the three co-offenders. At the time he knew that the vehicle was a stolen vehicle. While the respondent and his co-offenders were in the stolen vehicle, they agreed and arranged to commit an armed robbery of the Rockdale Tennis Club. The four young men travelled in the stolen vehicle to the premises of the Club at Rockdale. At about 10.20 p.m. they entered the Club premises through the front doors. The Club was then open, and there were about 20-30 patrons and staff inside the Club premises. The respondent and his co-offenders were carrying machetes, and had covered their faces with items of clothing in an attempt to disguise their appearances and identities. The four offenders ran through the Club premises waving their machetes in the air and ordering patrons and staff to get down on the floor. The respondent, who presented before this Court as tall, well built, and apparently strong, played, once again, the part of intimidating the patrons and staff while his co-offenders stole money from various tills and from the Club safe.

17 Not only were various patrons and staff intimidated collectively, but eight in particular of their number were individually robbed. One of the staff members was forced to the ground and kicked in the course of being robbed of his mobile phone. Another employee, a lady, was ordered onto the ground behind the bar and robbed of her handbag. She complied with the demand because she feared that to do otherwise might cause her to be assaulted and injured. Six of the Club patrons were robbed at machete point of various items of personal property.

18 In all, the respondent and his co-offenders robbed the Club, its staff and its patrons, of money and property amounting to some $20,000 - $25,000. The respondent himself told investigating police that he had received as his share $3,000 - $4,000, which he had spent on clothes and shoes.

· 7 December 2000

19 The offences are:

1. An offence of armed robbery: (Indictment, count 6) .

2. Larceny of a motor vehicle constituted by the respondent’s having allowed himself to be carried in the motor vehicle knowing that it had been taken without the consent of the owner: Form 1, item 13)

The facts are that on 7 December 2000 the respondent travelled to and from the premises of the Alfred Hotel at Camperdown in a motor vehicle which he then knew to have been stolen. At about 1.00 a.m. on the morning of 7 December three males, of whom the respondent was one, entered the hotel premises and ordered hotel staff to hand over money. One of the three robbers, not the respondent himself, was armed with a Chinese military style assault rifle. The respondent and his other unarmed co-offenders intimidated the persons then in the premises of the hotel, while the armed co-offender forced the manager at gunpoint to open the hotel safe and its poker machine till from which $26,000 in cash was stolen. The three co-offenders then decamped, driving away from the hotel in the stolen motor vehicle which had been kept waiting for them with a fourth co-offender at the wheel.

· 29 December 2000

20 The offences are:

1. An offence of taking away one Noelene Thomas for advantage, namely to use her to prevent his lawful apprehension: ( Indictment, count 1 )

2. An offence of maliciously shooting at Snr. Constable John Partridge with intent thereby to prevent the lawful apprehension of himself: (Indictment, count 2)

3. An offence of firing a firearm in a public place, namely the alcove near the Cammeray TAB in Miller Street, Cammeray (Indictment, count 3)

4. An offence of having robbed Noelene Thomas then an employee of the Cammeray TAB of $700 in cash, then the property of the Cammeray TAB, and of having so robbed her while armed with a dangerous weapon, namely a loaded SKS Chinese Assault Rifle: (Indictment, count 4)

5. An offence of possession of a firearm, namely a 7.62 calibre Semi Automatic SKS Chines Assault Rifle, without being authorised either by licence or permit to have such possession: (Indictment, count 5)

6. An offence of larceny of a motor vehicle constituted by the respondent’s having allowed himself to be carried in the motor vehicle knowing that it had been taken without the consent of the owner: (Form 1, item 11)

(Form 1, item 12).

21 The facts are that during the evening of Friday, 29 December 2000, the respondent travelled, in company with a number of co-offenders, to and from the premises of the Cammeray TAB at Miller Street, Cammeray. The motor vehicle which was used in those journeys was, and was known by the respondent to be, a stolen vehicle.

22 At about 9.00 p.m. on that evening three young males of whom the respondent was one forced their way into the premises of the TAB. They did so by smashing the glass front door of the premises. One of these assailants, the respondent, was armed with a 7.62 calibre Semi-Automatic SKS Chinese Assault Rifle. Another of his co-offenders was armed with a shortened shotgun. The two armed men approached Noelene Thomas who was then the sole employee of the TAB who was present on the premises. The two assailants demanded money. Miss Thomas, having earlier seen the firearms, had activated a personal panic alarm in order to alert police to what was happening. The two armed assailants demanded that Miss Thomas give them the contents of the safe. She said that the safe had a time delay. The two armed men waited several minutes until the time delay could be disarmed and the safe opened. While they were waiting for these things to happen, police arrived in answer to the panic alarm alert. The police called upon the two armed assailants to drop their weapons. The respondent thereupon grabbed Miss Thomas in a headlock dragging her from the premises and using her as, in effect, a human shield against any attempt by the police officers to fire their own weapons. While thus dragging Miss Thomas away, the two armed assailants were aiming their respective weapons at the police.

23 The police, providentially, were able to persuade the two assailants to release Miss Thomas. As soon as the assailants had done so, they began to run from the scene, using for that purpose a stair-well adjoining the rear of the TAB premises. The police gave chase on foot. At a point about half-way down the stair-well, the respondent turned facing the pursuing police. He fired a single shot from his assault rifle at the pursuing police. The projectile thus fired struck a step at the upper end of the stair-well. It was, again, providential that nobody was seriously injured, or perhaps even killed.

24 The three young men then got into the stolen motor vehicle which had been waiting for them with a fourth offender behind the wheel. The vehicle decamped at high speed and the police gave chase to it. The police lost track, unfortunately, of the vehicle in the vicinity of Alexandria, and after a car chase which had taken the vehicles across the Harbour Bridge and over the Eastern Distributor.

25 Miss Thomas was treated for minor lacerations, bruising and severe shock.

26 In due course the respondent was interviewed by investigating police about this incident. He admitted having pre-planned the robbery with the three other males present at the time of the robbery. He admitted having kicked the front door of the TAB premises so as to smash it and thus make possible entry to the premises. He admitted having been in possession of a firearm which he described as an AK 47 Assault Rifle, but which is properly to be regarded as having been an SKS Assault Rifle. He admitted that he had made the decision, a conscious decision, to use Miss Thomas as a hostage in order to avoid arrest by the pursuing police. He admitted having dragged her along with him, using her as an effective shield between himself and the pursuing police. He admitted to having discharged the firearm, although he initially asserted that the discharge of the firearm had been accidental and had been caused by his having slipped while attempting to run from the police. The learned sentencing Judge rejected, as in my opinion his Honour must have done on the available evidence, that self-serving gloss.

27 Some $700 in all was taken from tills within the premises of the TAB. According to the respondent, he received only $50 of that amount. He told the investigating police that he had left his firearm in the stolen motor vehicle at the time he decamped from that vehicle in Alexandria.

· 11 February 2001

The offence is:

(Form 1, item 18)

28 The facts are that on Sunday 11 February 2001 the respondent went to an address in Erskineville at which he met up with four other young male acquaintances. The five men discussed a project to rob licensed premises. They walked a short distance to a vehicle which the respondent later told investigating police he knew was a stolen vehicle because it had to be started with a screw driver.

29 At about 9.00 p.m. the five males travelled in the vehicle to the premises of the Rockdale Tennis Club at Rockdale. They waited in the vehicle in view of the club. About an hour later they noticed a number of patrons leaving the club premises. They thought that the time had come to make their move; and all five of them ran to the front of the club premises. One of them, not the respondent, was carrying a large machete; and another, not the respondent, was carrying a knife. The respondent subsequently told the police that he knew the weapons were going to be used in connection with the robbery of the club premises.

30 Once inside the premises the respondent and two of his co-offenders went to a rear office where they came upon three staff members. The remaining two offenders, meanwhile, went to the club auditorium. This latter group included the man carrying the machete.

31 Inside the rear office the respondent stood by while one of his co-offenders armed with the knife menaced the club staff and demanded that the safe be opened. The club staff did in fact open the safe; and the robber who was armed with the knife thereupon took an amount of cash out of the safe and put it into a black bag which he was carrying. The respondent and his four co-offenders then ran from the club premises; got back into the stolen motor car, and drove back to the Erskineville area where they divided equally among themselves the proceeds of their robbery. According to what the respondent subsequently told the investigating police, he himself received $3,000 - $4,000.

· 21 March 2001

· 22 March 2001

32 The offences are:

1. An offence of larceny of a motor vehicle constituted by the respondent’s having allowed himself to be carried in the motor vehicle knowing that it had been taken without the consent of the owner: (Form 1, item 15)

(Form 1, items 16 and 17)

33 The facts are that on Thursday, 22 March 2001 the respondent received a phone call at his home from a male acquaintance. The two of them had a conversation about robbing a bank. The respondent suggested that the Flemington Branch of Wespac was a good target. Apparently the respondent had checked out the perspex security screens then in use at the branch and had calculated that they were no significant impediment to a robbery.

34 Later that day three male acquaintances of the respondent picked him up in a motor vehicle. The respondent subsequently admitted to investigating police that he knew the vehicle to be stolen, having been told as much by some one or more of the other occupants of the vehicle.

35 The four men then travelled to Flemington and stopped within view of the Westpac Bank. They watched the bank, waiting for customers to leave; and discussed while waiting what roles they would take, respectively, during the planned robbery.

36 Eventually, and after a number of customers had in fact left the bank premises, the respondent and two of his co-offenders ran to the bank entrance, leaving the remaining co-offender behind the wheel of the vehicle.

37 The respondent and his co-offenders entered the banking chamber. One of the co-offenders jumped the service counter between two perspex screens before the anti-bandit screen could be activated. He at once opened a staff service entry door, thus allowing another co-offender to enter the bank staff area. The respondent remained in the bank chamber as a look-out, and as a controller of such of the bank’s customers as were still in the banking chamber. In the course of playing that part, the respondent robbed an elderly male customer of his Nokia mobile phone. He threatened other customers of the bank with violence if they did not comply with his directions to stay still. At the time there were three elderly ladies, a young child and two elderly gentleman present in the banking chamber.

38 Shortly thereafter the two co-offenders who had got into the staff banking area left that area carrying a quantity of cash believed to be in excess of $27,000. The respondent and the two co-offenders at once left the bank premises, running to the stolen motor vehicle, which they entered and in which they were driven away by the remaining co-offender.

39 According to the respondent he received about $5,000 as his share of the proceeds.

40 The criminality of the conduct laid out before the learned sentencing Judge was, and is, truly appalling. Every one of the offences was instinct, from first to last, with contempt for the rule of law; with a callous and at times brutal contempt for the person and property of the various individual victims to whom reference has been made; and with a sheer, cold-blooded effrontery, the brazen amorality of which would surely be regarded by any intelligent, reasonable and properly informed person as crying out for condign punishment.

41 There is no dearth of authority to give guidance to a sentencing Judge as to how such flagrant criminality is to be dealt with. Bearing in mind the issues which are raised by the present appeal, it is expedient to re-state, in the form of four short extracts from decisions of various benches of this Court, the essential guiding principles.

[Reg v Rushby (1977) 1 NSWLR at 597]

“In seeking to determine in any case the sentence appropriate to a particular crime, it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done, the other factors requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances, accord with the general moral sense of the community.

It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given the most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment, that is the protection of the public. The fundamental purpose of punishment is the protection of society.

[Reg v Camilleri: unreported, NSWCCA, 8 February 1990]

Geddes

Veen (No. 2)

Todd

Mill

Rushby

[Reg v Dodd (1991) 57 A Crim R 349 at 354

[Reg v C (1994) 75 A Crim R 309 at 316-317.

42 The sentences in fact passed upon the respondent have been tabulated helpfully, and as follows, in the written submissions of the Crown:

Count	Charge	Maximum	Sentence Imposed
1.	Detain for advantage	20 years	Fixed 2 years 6 months
2.	Shoot with intent to prevent apprehension	25 years	(Including Form 1 matters) 5 years with non-parole of 2 years 6 months
3.	Discharge firearm in public place	10 years	Fixed 2 years
4.	Aggravated armed robbery	25 years	Fixed 2 years and 6 months
5.	Possession of firearm	5 years	Fixed 18 months
6.	Aggravated armed robbery	25 years	4 years with non-parole of 2 years
7.	Aggravated armed robbery	25 years	4 years with non-parole of 2 years
Form 1	Taken into account on Count 2
1.	Armed robbery	20 years
2.	Larceny motor vehicle	5 years
3-10 inclusive	Armed robbery	20 years
11.	Larceny motor vehicle	5 years
12.	Assault occasioning ABH	7 years
13.	Larceny Motor Vehicle	5 years
14.	Larceny Motor Vehicle	5 years
15.	Larceny Motor Vehicle	5 years
16.	Robbery in Company	20 years
17.	Robbery in Company	20 years
18.	Armed Robbery	20 years

43 It is apparent from the foregoing table that whatever else might be said about the sentences actually passed upon the respondent, those sentences were extraordinarily lenient. This is markedly so in the case of the sentence passed in connection with Count 2 of the indictment. In connection with that count, a sentence of 5 years with a non-parole period of 2 years and 6 months was passed in order to punish an offence of shooting with intent to prevent apprehension; 10 offences of armed robbery; 2 offences of robbery in company; 1 offence of assault occasioning actual bodily harm; and 5 offences of larceny of a motor vehicle. Such a sentence is, in my opinion, on its face manifestly inadequate. It would, without more, justify in my opinion the intervention of this Court.

44 As to the remaining six counts in the indictment, the sentences variously fixed for those counts are not only egregiously lenient, but are effectively subsumed into the sentence passed in connection with Count 2. In other words, a total sentence of imprisonment for 5 years, with a non-parole period of 2 years and 6 months is the effective total punishment meted out for a serious offence of detaining another for advantage, for a serious offence of shooting with intent to prevent apprehension; for the illegal possession of a firearm; for the discharge of a firearm in a public place; for three offences, each of them very serious on their individual objective facts, of aggravated armed robbery; and in addition the eighteen separate and serious offences scheduled in the Form 1. That spree of criminality extended from the end of September 2000 to almost the end of March 2001. It cannot possibly be correct, in my opinion, that a sentence of 5 years with a non-parole period of 2 years and 6 months is adequate to punish, according to proper principle, such a catalogue of deliberate, contemptuous, persistent and very serious criminal conduct.

45 When one asks what might explain the extraordinary, and as I think unsustainable, leniency shown by the learned primary Judge, it seems to me that the answer is to be found in the combined effect of four factors:

[1] His Honour’s perception of the subjective features of the respondent’s case and of the weight properly to be given to those subjective features;

[2] His Honour’s perception of what would be a proper discount of sentence in order to take account of the respondent’s pleas of guilty;

[3] His Honour’s perception as to the nature and extent of the cooperation given by the respondent to the investigating police; and His Honour’s perception of the discount of sentence that might properly be made in order to take account of that factor; and

· The Subjective Features of the Respondent’s Case

46 In this connection, his Honour took account, correctly in my respectful opinion, of the age of the respondent. As previously herein indicated the respondent was born on 31 May 1983. He was aged, therefore, 17 years and some 2 months when he committed the offences for which he was sentenced by Judge Kinchington. He was aged 17 years and some 4 months when he began the outburst of criminal offending for which he was sentenced by Judge Blackmore. He was aged about 17 years and 10 months at the end of that outburst of criminality. He was aged not quite 20 years when he stood for sentence on 1 May 2003. He is now aged 20 years and some 10 months.

47 It is trite that the youth of an offender is always a matter of anxious concern to a sentencing Court. There is, however, nothing determinative about youth of itself. The respondent was not, at any material time, a child in any sense that would be accepted by an intelligent, reasonable and properly informed member of the public. A young man in his late teens who commits the kinds of crime which were committed by this respondent cannot reasonably expect to avoid, and must not in any event be permitted to avoid, his just desserts, simply by appealing conveniently to his comparative youth.

48 Judge Blackmore took the view that the respondent was remorseful for his criminal behaviour; that he had been an exemplary prisoner; and that his prospects of rehabilitation were good.

49 There was, in my opinion, ample evidence before Judge Blackmore to justify his Honour’s conclusion that the respondent had been an exemplary prisoner.

50 As to remorse and rehabilitation, it is to be noted that the respondent did not give evidence before Judge Blackmore. He did write a letter which was tendered in evidence before his Honour, and the contents of which were taken into account by his Honour.

51 It seems to me that, certainly in a case of the present kind, a Court should approach with a good deal of caution protests of remorse which are not backed up by actual evidence from the particular offender. It strikes me as unconvincing that somebody who acted over a not insignificant span of time with the brazen effrontery of the present respondent has become, within a very short time of his apprehension, genuinely remorseful. Pauline conversions are not unknown, but they are unusual.

52 As to rehabilitation, there is no dearth of authority for the proposition that the law regards it as being in the interests of the community as a whole that a young offender, such as the respondent, should be given every proper encouragement to rehabilitate himself.

53 The combined effect of youth, at least a degree of remorse, and apparent prospects of rehabilitation, in combination undoubtedly justified a measure of mitigation of what would otherwise have been well deserved severe sentences of imprisonment. It is, however, always necessary to ensure that an attempt to effect some such mitigation of sentence does not produce an end result in which the perceived subjective considerations simply swamp the objective criminality, reasonably and sensibly assessed, of the particular offending conduct.

54 In my respectful opinion, the sentences passed in the present case suggest, on their respective faces, that such a disproportionate weighting was indeed given to the present respondent’s subjective features.

· The Respondent’s Pleas of Guilty

55 Section 22 of the Sentencing Procedure Act requires a sentencing Court to take into account the fact that the particular offender has pleaded guilty; and to take into account, also, the time at which the particular offender so pleaded, or indicated an intention so to plead. How effect is to be given in any particular case to that statutory requirement is considered in the guideline judgment of this Court: Reg v Thomson and Houlton (2000) 49 NSWLR 383.

56 That guideline judgment establishes, among other things, that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range: 10 – 25 per cent discount on sentence. The judgment lays down the proposition that the primary consideration which determines where in that range a particular case should fall, is the timing of the plea. That matter of timing is to be determined by reference to all of the relevant facts of the given case.

57 In the present case Judge Blackmore gave the respondent a 25 per cent discount of sentence on account of the respondent’s pleas of guilty. His Honour explained that decision in this way:

“Whilst there was some debate about whether or not those pleas were at the first reasonable opportunity, I have considered this matter and reached the conclusion that they must realistically be regarded in that way.”

58 At the inception of the proceedings on sentence before Judge Blackmore, the solicitor then appearing for the Crown put the following matters to his Honour:

“The history of these matters is that there was a plea of guilty entered into in the Lidcombe Children’s Court on 31 January 2002. The 51A document came up and contained those matters which are 4, 5, 6 and 7 on your Honour’s indictment. Matters 1, 2 and 3 were also on that 51A document, but they were essentially pleas of not guilty. So in relation to those matters that are 4, 5, 6 and 7, he’s entitled to the full benefit of the discount under the benefit of Thomson and Houlton. He’s entitled to a lesser discount in relation to those first three matters on the indictment.”

59 Counsel then appearing for the respondent did not demur to this summary.

60 In those circumstances, I do not see how a blanket discount of 25 per cent was justified. That is more so the case in the light of additional facts to which the written submissions of the Crown in connection with the present appeal draw attention in the following terms:

“The Respondent was committed for trial on Counts 1, 2, 3 and 5 (as recorded on the indictment dated 4 April 2003) on 30 January 2002. Those matters were mentioned in the District Court during March and May 2002 and listed for trial to commence in November 2002 on 31 May. It was not until 25 October, less than two weeks prior to the trial date that the Respondent entered pleas to all matters.”

61 In my respectful opinion Judge Blackmore erred in allowing a simple, blanket discount of 25 per cent on account of the respondent’s pleas of guilty. In my opinion a discount in the range 15 per cent – 20 per cent would have been appropriate.

62 Not only did Judge Blackmore allow a simple, blanket discount of 25 per cent on account of the pleas of guilty; but his Honour aggregated that discount with a further discount of 25 per cent which his Honour allowed in consideration of what his Honour perceived to have been the marked cooperation of the respondent with the investigating police. Such a simple aggregation of discounts is wrong in principle for the reasons explained by this Court in Reg v NP [2003] NSWCCA 195.

· The Respondent’s Cooperation with Investigating Police

63 Judge Blackmore gave the respondent a further 25 per cent discount of sentence in consideration of this factor. His Honour based his decision upon the decision of this Court: Reg v Ellis (1986) 6 NSWLR 603.

64 The facts in Ellis were quite simple. Mr. Ellis committed seven armed robberies between 6 September 1984 and 14 November 1984. He had qualms of conscience about what he had done. Those qualms caused him to seek pastoral advice from a Minister of Religion. He was advised to see a solicitor and to make a clean breast of what he had done. He did see a solicitor who, with his consent, telephoned the police and put them in touch with Mr. Ellis. The police interviewed Mr. Ellis; and he made to them, as he had done to his confessor and to his solicitor, a clean breast of what he had done.

65 In those unusual circumstances Street CJ, delivering the judgment of this Court, said:

“Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.” (at 604D)

66 The transcript of the proceedings before Judge Blackmore records the solicitor who then appeared for the Crown as saying:

“The principle (sic) issue Mr. Gelbert addressed you on was the Ellis argument. I don’t have any submissions against that your Honour.”

67 The Crown cannot now be permitted properly to go behind that completely clear concession.

68 That being so, the question now to be decided is whether Judge Blackmore erred, in particular having regard to the requirements of section 23 of the Sentencing Procedure Act, in giving the respondent as high a discount as 25 per cent.

69 In my respectful opinion his Honour did so err. The discount of 25 per cent which his Honour allowed, whatever else might be said about it, was a very significant factor in the production of ultimate sentences as manifestly inadequate as those which his Honour ultimately passed upon the respondent. In that sense and to that extent it seems to me that the 25 per cent discount brought about, contrary to the requirements of section 23, a result that was unreasonably disproportionate to the nature and circumstances of the offending behaviour.

· The Principle of Totality

70 In my opinion his Honour was correct in having some regard, when setting his own sentences, to the sentence that had been earlier passed upon the respondent by Judge Kinchington. The way in which his Honour dealt with that matter was to reject a submission that he should back-date his Honour’s own sentences to the commencing date of Judge Kinchington’s sentence. His Honour, as has been previously explained, dated the sentences passed by him so that they commenced on 1 May 2003, the day on which the sentences were actually passed.

71 I see no error of principle in the approach thus taken by Judge Blackmore.

72 In addition to the foregoing matters there is one further aspect of Judge Blackmore’s sentences that calls for present consideration.

73 His Honour ordered that the entire non-parole period set by his Honour, that is to say the period commencing 1 May 2003 and expiring 31 October 2005 should be served in a juvenile detention centre.

74 The availability of such an order depends upon the terms of section 19 of the Children (Criminal Proceedings) Act 1987 (NSW). That section provides:

“(1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served in a detention centre.

(2) A person is not eligible to serve a sentence of imprisonment in a detention centre after the person has attained the age of 21 years, unless:

(a) in the case of a sentence for which a non-parole period has been set – the non-parole period will end within 6 months after the person has attained that age, or

(b) in the case of a sentence for which a non-parole period has not been set – the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

(3) A person who is sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment in a detention centre after the person has attained the age of 18 years, unless:

(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person in a detention centre after that age, or

(b) in the case of a sentence for which a non-parole period has been set – the non-parole period will end within 6 months after the person has attained that age, or

(c) in the case of a sentence for which a non-parole period has not been set – the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

This subsection is subject to subsection (2).

(4) In determining whether there are special circumstances for the purposes of subsection (3), the court may have regard to the following matters:

(a) the degree of vulnerability of the person,

(b) the availability of appropriate services or programmes at the place the person will serve the sentence of imprisonment,

(c) any other matter that the court thinks fit.

(5) A person who is subject to an order under this section that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order under this section. Any such application requires the leave of the court.”

75 The respondent will attain his 21st birthday on 31 May 2004

76 Section 19(2)(a) and section 19(2)(b) plainly do not apply in the respondent’s case.

77 Section 19(3) plainly did not apply to the present respondent, because he had passed his 18th birthday by the time he stood for sentence on 1 May 2003. In any event, section 19(3) is expressly subject to the provisions of section 19(2).

78 The end result of the foregoing statutory scheme is, in my opinion, that there was no power in the learned sentencing Judge to order that the respondent serve his sentence in a juvenile detention centre at any time after 31 May 2004, the date of the respondent’s 21st birthday.

Conclusions

79 For the whole of the foregoing reasons, I am of the opinion that the Crown has justified its challenge to the adequacy of the sentences passed in the District Court. Subject to a consideration of the question whether there has been such a delay in the bringing of the present Crown appeal as would warrant the dismissal of the appeal, I am of the opinion that the sentences passed in the District Court are manifestly inadequate to a point which demands the present intervention of this Court.

80 As to the matter of delay in the bringing of the present Crown appeal, the relevant facts are stated in an affidavit filed by the relevant solicitor employed by the Office of the Director of Public Prosecutions. As thus stated, the facts are:

“2. My duties include making recommendations to the Director of Public Prosecutions and his Deputies on the question of possible Crown appeals in sentence matters that have been referred to the Director’s Chambers by ODPP lawyers who have had the carriage of the prosecution at the time of the sentence.

3. This matter was referred to the Director’s Chambers on 5 August 2003 and received in the Director’s Chambers on 6 August 2003.

4. On 7 August 2003 I recommended to the Director that there be a Crown appeal and on 7 August 2003 the Director directed that there be an appeal.

5. I have examined the file relating to the prosecution of this matter and I have made inquiries concerning the conduct of the matter. This matter was not referred earlier to the Director’s Chambers because the ODPP lawyer who had overall conduct of the prosecution made an error of judgment in determining whether or not the sentence should be referred to the Director’s Chambers for consideration of an appeal. Some time later there was an inquiry about the sentence from an interested party: the question of the adequacy of the sentence was then considered and the matter was promptly referred to the Director’s Chambers.”

81 It appears from what the Court was told at the hearing of the present appeal that the first notification given to the respondent of the intention of the Crown to appeal, was given on 8 August 2003.

82 The relevant principles are conveniently examined and explained by Hunt CJ at CL in Reg v Hallacoglu (1992) 63 A Crim R 287 at 299:

“The notice of appeal was signed by the Director of Public Prosecutions eight weeks after the sentence was imposed, and served on the respondent two weeks later. A letter had been sent to the respondent four days after the sentence was imposed informing him that the Director was considering an appeal. The letter was received by the respondent within a week of the sentencing date.

McDonald

DPP (NSW) v Garnum

Astill

Myers

Bardo

Pham and Ly

Carngham

Morris

83 The delay of three months in bringing the Crown appeal against the present respondent was, in my opinion, deplorable. The explanation advanced in paragraph 5 of the affidavit earlier quoted is unpersuasive. That explanation is, to say the least, vague and general. Why, it might reasonably be asked, is there no affidavit from the “ODPP lawyer who had overall conduct of the prosecution”, and who is said to have made “an error in judgment in determining whether or not the sentence should be referred to the Director’s Chambers for consideration of an appeal”? And who, it might reasonably be wondered, was the “interested party”, whose inquiry, alone, seems to have galvanised the Office of the Director of Public Prosecutions into some belated action. And, perhaps most importantly of all, precisely what was the “error of judgment”?

84 In a case more finely balanced than the present one, I would myself have thought that the Crown has left the matter of delay in so unsatisfactory a condition as to raise a very real question whether the Crown appeal, albeit otherwise made good, should nevertheless be dismissed in the exercise of this Court’s discretion.

85 It is, however, my view that the present case is not at all finely balanced. As I have said more than once, I consider the sentences passed at first instance to have been on their faces manifestly inadequate; and I consider the respondent’s criminal conduct to have been culpable in high degree. That being so, I think that it is consistent with the reasoning in Hallacoglu that the present appeal should be upheld, notwithstanding the unsatisfactory condition in which the Crown has left the issue of delay.

86 In my opinion the Court should make the following orders:

[1] that the Crown appeal be allowed;

[2] that the sentences passed in the District Court be quashed;

· Count 1

Imprisonment for 6 years commencing on 1 May 2003 and expiring on 30 April 2009; with a non-parole period of 4 years commencing on 1 May 2003 and expiring on 30 April 2007.

· Count 2, including the Form 1 Matters

Imprisonment for 9 years commencing on 1 May 2003 and expiring on 30 April 2012; with a non-parole period of 6 years commencing on 1 May 2003 and expiring on 30 April 2009.

· Count 3

Imprisonment for 3 years commencing on 1 May 2003 and expiring on 30 April 2006; with a non-parole period of 2 years commencing on 1 May 2003 and expiring on 30 April 2005.

· Count 4

Imprisonment for 7 years commencing on 1 May 2003 and expiring on 30 April 2010; with a non-parole period of 4-1/2 years commencing on 1 May 2003 and expiring on 30 October 2007

· Count 5

Imprisonment for 2 years and 3 months commencing on 1 May 2003 and expiring on 30 July 2005; with a non-parole period of 1 year and 3 months commencing on 1 May 2003 and expiring on 30 July 2004

· Count 6

Imprisonment for 7 years commencing on 1 May 2004 and expiring on 30 April 2011; with a non-parole period of 4-1/2 years commencing on 1 May 2004 and expiring on 30 October 2008.

· Count 7

Imprisonment for 7 years commencing on 1 May 2005 and expiring on 30 April 2012; with a non-parole period of 4-1/2 years commencing on 1 May 2005 and expiring on 30 October 2009

The total effective sentence is imprisonment for 9 years commencing on 1 May 2003 and expiring on 30 April 2012; with a non-parole period of 6 years commencing on 1 May 2003 and expiring on 30 April 2009.

Children (Criminal Proceedings) Act 1987 (NSW)

87 BELL J: I agree with Sully J.

60303/03

GROVE J
SULLY J
BELL J
19 March 2004

REGINA v WM

SUPPLEMENTARY Judgment

88 THE COURT: The attention of the Court has been drawn to a dating discrepancy in the re-sentencing orders made by the Court in its reserved judgment handed down on 12 March 2004.

89 The Court re-sentenced the Respondent upon Count 7 to imprisonment for 7 years commencing on 1 May 2005 with a non-parole period of 4 years and 6 months expiring on 30 October 2009.

90 The Court expressed the overall effect of the re-sentencing on Counts 1 through 7 as being an effective sentence of imprisonment for 9 years commencing on 1 May 2003 and expiring on 30 April 2012 with a non-parole period of 6 years commencing on 1 May 2003 and expiring on 30 April 2009.

91 It was, and remains, the intention of the Court that the effective sentence overall should be one of imprisonment for 9 years with a non-parole period of 6 years.

92 To that end, and pursuant to its powers in that behalf, the Court corrects its former order in connection with Count 7 by ordering in respect of the sentence of 7 years passed for that Count a non-parole period of 4 years commencing on 1 May 2005 and expiring on 30 April 2009.

93 The earliest date upon which the Respondent will be eligible for parole is 30 April 2009.

94 The orders made on 12 March 2004 are otherwise confirmed.

**********

Last Modified: 03/23/2004

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Citations

Regina v WM [2004] NSWCCA 53

Most Recent Citation

R v Cicekdag [2004] NSWCCA 357

Cases Citing This Decision

2

Regina v MSK Regina v MAK Regina v MRK Regina v MMK [2004] NSWSC 319

R v Cicekdag [2004] NSWCCA 357

Cases Cited

3

Statutory Material Cited

3

Simkhada v R [2010] NSWCCA 284

R v NP [2003] NSWCCA 195

CITATION:	Regina v WM [2004] NSWCCA 53
HEARING DATE(S):	6 February 2004
JUDGMENT DATE:	12 March 2004
JUDGMENT OF:	Grove J at 1; Sully J at 2; Bell J at 87
DECISION:	Crown appeal allowed; Sentences passed in District Court quashed; Respondent re-sentenced as per paragrah 85 of judgment
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act (NSW) Crimes Act 1900 (NSW) Children (Criminal Proceedings) Act 1987 (NSW)
CASES CITED:	Reg v Thomson and Houlton (2000) 49 NSWLR 383 Reg v NP [2003] NSWCCA 195 Reg v Ellis (1986) 6 NSWLR 603 Reg v Hallacoglu (1992) 63 A Crim R 287 at 299
PARTIES :	Regina WM
FILE NUMBER(S):	CCA 60303/03
COUNSEL:	M. Grogan - Crown M. Gelbert - Respondent
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0133
LOWER COURT JUDICIAL OFFICER :	Blackmore DCJ