The Queen v Hennessy, Patrick Michael
[1996] FCA 380
•23 MAY 1996
CATCHWORDS
CRIMINAL LAW - sentencing - Crown appeal on ground that sentences imposed individually and in total in respect of a number of offences manifestly inadequate - accused pleaded guilty to charges of offences of possession of heroin for purpose of supply, entering a building as a trespasser with intent to steal and theft, and armed robbery followed by an assault - offences committed over a period of 18 months - consideration of relevant facts and circumstances - no question of principle.
Crimes Act 1900 (ACT), ss.26, 99, 101, 102, 164, 429A, 449
Drugs of Dependence Act 1989 (ACT), s.164
Parole Act 1976 (ACT), s.1
THE QUEEN v PATRICK MICHAEL HENNESSY
No. ACT G 13 of 1996
CORAM: GALLOP, SHEPPARD, and R.D. NICHOLSON JJ
PLACE: CANBERRA
DATE: 23 MAY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY ) No. ACT G 13 of 1996
DISTRICT REGISTRY )
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE QUEEN
Appellant
AND:PATRICK MICHAEL HENNESSY
Respondent
MINUTES OF ORDER
CORAM: GALLOP, SHEPPARD, R.D. NICHOLSON JJ
PLACE: CANBERRA
DATE: 23 MAY 1996
THE COURT ORDERS THAT:
the appeal be allowed;
in substitution for the sentences imposed by the Supreme Court of the Australian Capital Territory, we impose the following sentences:
(a)in relation to the offence of armed robbery, a sentence of 2 years' imprisonment;
(b)in relation to the offence of common assault, a sentence of 3 months' imprisonment to be served concurrently with the sentence for armed robbery;
(c)in relation to the offence of entering a building as a trespasser with intent to steal, a sentence of 12 months' imprisonment to be served cumulatively upon the sentence for armed robbery;
2.
(d)in relation to the offence of theft, we deem it inexpedient to impose any penalty;
(e)in relation to the offence of possessing heroin for the purpose of supply, a sentence of 12 months' imprisonment to be served cumulatively upon the sentence for entering a building as a trespasser with intent to steal;
(d)we fix a non-parole period of 2 years;
(e)the head sentences and non-parole period will date from 21 January 1996.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No. ACT G 13 of 1996
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE QUEEN
Appellant
AND:PATRICK MICHAEL HENNESSY
Respondent
CORAM: GALLOP, SHEPPARD, R.D. NICHOLSON JJ
PLACE: CANBERRA
DATE: 23 MAY 1996
REASONS FOR JUDGMENT
THE COURT: This appeal was heard on 19 April 1996. At the conclusion of the argument we announced that the appeal would be upheld and that the sentence of imprisonment imposed upon the respondent for one of a number of crimes would be increased as would the total period of imprisonment which the respondent would be required to serve before being eligible for parole. We said that we would publish our reasons in due course. What follows are those reasons.
The appeal was from a judgment of a judge of the Supreme Court of the Australian Capital Territory (Higgins J). The
appeal was brought by the Crown which claimed that sentences imposed by his Honour for a number of crimes were individually and in total manifestly inadequate. The crimes of which the respondent was convicted were as follows:
(a)Armed robbery contrary to s.101 of the Crimes Act 1900 (ACT). For this offence the respondent was sentenced to two years' imprisonment.
(b)Common assault contrary to s.26 of the Crimes Act. For this offence his Honour sentenced the respondent to three months' imprisonment to be served cumulatively upon the sentence for armed robbery.
(c)Entering a building as a trespasser with intent to steal contrary to s.102(1)(a) of the Crimes Act and theft contrary to s.99 of that Act. In respect of these two offences the appellant was sentenced to nine months' imprisonment to be served cumulatively upon the sentence for armed robbery.
(d)Possession of heroin for the purpose of supply contrary to s.164(3) of the Drugs of Dependence Act 1989. For this offence the respondent was
sentenced to 16 months' imprisonment to be served concurrently with the other sentences.
It is to be observed that the total period of imprisonment imposed by his Honour was in fact two years and nine months. That is because both the sentence for the assault and the sentence for the trespass with intent to steal were imposed cumulatively upon the sentence for the armed robbery. His Honour believed that he had imposed a total period of imprisonment of three years. The matter was argued by both counsel on this footing. Because of the view we took of what the outcome of the appeal should be, nothing turned on this matter. We mention it only for completeness.
The periods of imprisonment fixed for each offence were fixed after taking into account a promise of future co-operation made by the respondent. His Honour was required by s.449(1) of the Crimes Act to specify the reason for the reduction in consequence of the co-operation and the sentence that would have been imposed but for that reduction. The Court was also required, in relation to any non-parole period, to specify the reason for the reduction and the period that would have been fixed but for the reduction. His Honour said that, if it had not been for the promise of co-operation, he would have imposed a sentence of imprisonment of three years for the armed robbery, six months for the common assault, 12 months for the unlawful entry and theft and two years for the possession of heroin for supply. His conclusions concerning whether or not the sentences were to be concurrent or cumulative would have been the same. In consequence, if it had not been for the promise of co‑operation, his Honour would have considered initially an overall sentence of four years and six months. Thus he reduced the total sentence he would otherwise have contemplated from four and a half years to three years, a reduction of one-third. It was common ground between the parties that, if we interfered with any of the sentences imposed by his Honour, as we decided we should, we should make a similar reduction, that is one-third of the total period for which we concluded that the respondent should be imprisoned. It was also agreed that we should take into account the fact that the respondent pleaded guilty to each of the offences.
His Honour said that, if he had sentenced the respondent to four and a half years' imprisonment, he would have suspended the sentences after six months had been served on condition that the respondent enter into a recognizance to be of good behaviour for three years, to submit to the supervision of the Director of Adult Corrective Services, to obey directions of the Director or his nominee and to submit to a treatment order as recommended by the Drugs of Dependence Assessment Panel in a report of 1 March 1996 which would include a period of residential habilitation at an institution known as Karralika. His Honour said that the order would have been for 12 months but he said, having regard to the respondent's promised co-operation, "as required by the Act," he would reduce the sentence he would otherwise have imposed being the overall head sentence from four and a half years to three years and the period to be served before release to undertake the treatment from six months to two months subject, of course, to the respondent's consent to undergoing the treatment.
His Honour's conclusion was expressed as follows:
"I would reduce the period to be served before release to undertake the treatment order, from six months to two months, subject therefore [sic] to the consent of the offender and following upon an explanation being given to the effect of the above orders, I would order that he be convicted on the charge of armed robbery and sentenced to two years imprisonment thereon. On the assault matter, to three months imprisonment. On possession for supply of heroin to 16 months imprisonment. And on the burglary and theft to nine months imprisonment in respect of each or merging those two together for the purpose of that sentence.
The sentences are to be cumulative,save for the possession and supply, which would be concurrent on the armed robbery. That yields, or should yield, if my mathematics are correct, a total head sentence of three years. It will commence on the 21 January 1996. And I would order the offender to be released after serving two months of that sentence upon entering into a recognizance, self in the sum of $4000 to be of good behaviour for three years upon the terms previously stated; that is, accepting supervision, obeying directions and submitting to the treatment order."
Part IX of the Drugs of Dependence Act provides for assessment orders and treatment orders in s.122 and s.123 respectively. His Honour appears to have made a treatment order under s.123(3). That subsection is as follows:
"(3) In the circumstances referred to in subsection (2), a court may, with the consent of the offender, order that the offender, during a period of 2 years, or such shorter period as the court may specify in the order--
(a)in accordance with the recommendation of the panel, submit himself or herself for the treatment specified in the order at the approved treatment centre specified in the order, or for any other treatment at that centre or any other centre, as directed from time to time by a panel under section 142 or 143, in accordance, in any case, with the reasonable requirements of the person in charge of the relevant centre; and
(b)comply with such other conditions as the court specifies in the order."
The order was consented to by the respondent.
The facts of the matter are agreed. They are principally found in a statement of facts which was before his Honour. The statement of facts deals with the offences in the order of the dates upon which they were committed. The first is the drug offence information about which was received as a consequence of an anonymous telephone call. A telephone interception warrant was issued. From 30 May 1994 until 23 June 1994 telephone calls to and from the telephone service were recorded. The transcript of 144 calls was tendered at the hearing. A large number of them consisted of an actual negotiation of a heroin sale, the arranging of meetings at which it can be inferred that a sale took place or the negotiation or the discussion of payment of money owed from drugs supplied on credit. The respondent was charged together with one Fiona Horn and the statement refers to them both. It
says that both were involved in the selling of the heroin, the accused Horn to a lesser extent. Predominantly the heroin was sold in small "deals" referred to as "50s" or "halves", they being a reference to $50 worth or approximately 50 mg of heroin. "100s" or "one" were also sold, they being references to $100 worth or approximately 100 mg of heroin. The telephone calls also revealed that the two accused obtained their heroin from one Nicolae Russu. Over the 24 day period there were 30 telephone calls in which coded arrangements were made for the respondent to meet with Russu to obtain heroin.
According to the statement, the charge was "a rolled up charge" intended to reflect the criminal conduct of the two accused from 29 May 1994 until 24 June 1994.
Both accused were interviewed by the Police on the day of their apprehension, 23 June 1994. The respondent told Police that he had brought heroin from a person he knew as "Danny", that he had bought heroin from Danny a couple of times a week over the last six months, that he normally bought about 2 grams and paid about $500 for it and that the heroin was for the personal use of himself and Ms Horn.
The statement then deals with the charges of trespassing and stealing. On 11 January 1995 the respondent went to a house in Narrabundah. He was accompanied by a Mr Zocchi who was the son-in-law of the owners of the house. Mr Zocchi had told the respondent that there was a safe in the house and that it contained a significant amount of cash and jewellery. Their intention was to break into the house and steal the safe and its contents. They were disturbed by a neighbour and left. At 3.30 am the following morning the respondent returned to the house on his own. He forced entry and went to the master bedroom where he located a safe in a wardrobe. He lifted the safe out of the house, put it into his car and drove home. Once at home he broke the safe open. It contained $32,000 in cash and $20,000 worth of jewellery. He threw the empty safe into Lake Burley Griffin.
The respondent invited Ms Horn to pick out some items of jewellery to be kept by her. The remainder was hidden at a friend's place. On 17 January 1995 the two accused buried $12,000 in cash and some of the jewellery in the backyard of Ms Horn's father's house.
On 17 January 1995 a search warrant was executed at the home of the two accused in Yarralumla. Some items of property were located. Both accused were interviewed. Neither volunteered information to the Police regarding the trespass and theft. The two were arrested later in the day. Ms Horn led Police to the place where some of the jewellery and money were buried. The respondent took Police to a friend's home and pointed out jewellery that had been hidden in a shed. The Police recovered $12,000 together with most of the stolen jewellery. The respondent admitted the offence. He said that
some of the money had been spent on a trip to Sydney. Mr Zocchi received $1,000 for his part in the affair.
The facts of the armed robbery charge were as follows. At about 7.15 pm on 28 January 1996, the respondent entered the Narrabundah Liquor Barn in Narrabundah. He selected a bottle of port and went to the cash register at the sales counter where a Mr Plessnitzer rang the price of the port on the register. The respondent then produced a small "imitation pistol" from the blue overalls he was wearing. He pointed the gun at Mr Plessnitzer's chest and said, "Open the till, it's a hold-up". Mr Plessnitzer opened the till and the respondent ordered him to sit on the ground. The respondent removed all cash from the till. This totalled $709. He instructed Mr Plessnitzer to disconnect the telephone. The respondent left the store and ran up Boolimba Street.
Mr Plessnitzer reconnected the telephone and sounded the alarm. He ran out of the store and saw two of his regular customers, a Mr Ferres and a Mr Clarke. He told them he had been robbed and the two pursued the respondent on their bicycles. They caught up to the respondent and Mr Clarke told him to stop. There was a struggle resulting in them falling to the ground. During the struggle Mr Clarke felt something against his stomach and saw that it was a small black pistol. The respondent said, "I'll shoot you, I'll shoot you, I'll put one in you". Mr Clarke moved away and the respondent struck him on the back of the head with his hand. The respondent got up and ran towards the Narrabundah oval. A distance down the road the respondent turned back and started walking towards Mr Ferres and Mr Clarke. He threatened them again and they rode off to the Liquor Barn. The Police arrived a short time later. A search warrant was executed at the respondent's address. During a tape record of interview the respondent admitted committing the armed robbery at the Liquor Barn. He told Police where he had secreted clothing he wore during the robbery and the firearm that he had used. These items were recovered. The respondent said that he had spent the proceeds of the robbery on heroin. The pistol, which was a starter's pistol, was, he said, used in order to put fear into Mr Plessnitzer. The respondent said that he had attempted to avoid detection by shaving off his moustache and having his hair cut.
The respondent was born on 2 June 1960. He was thus 34 or 35 years old at the time of the commission of the offences. The respondent has a criminal record which discloses offences committed well before the offences in question. These offences begin with offences of break, enter and steal, break and enter with intent and unlawfully using a conveyance which were committed on 17 August 1976. The respondent was dealt with in a Children's Court. He was released on probation to be of good behaviour for 18 months. After he attained his majority, the respondent was dealt with a number of times for what may be compendiously described as petty crime. The convictions included convictions for forgery, larceny, burglary, cultivating and possessing Indian hemp, possessing an offensive weapon and "reckless assault" causing injury. The respondent also has a number of convictions for traffic offences.
In evidence was a report prepared by the ACT Corrective Services section of the ACT Attorney-General's Department. The respondent was born in Canberra. He has one older sister and two younger brothers. His parents have lived in Narrabundah for 35 years. When he was 17, he moved to the East Gippsland region of Victoria where he had relatives. He there met his first "partner", a woman ten years his senior. She had four children of a previous relationship. The relationship between the respondent and the woman continued for a number of years. In 1985 and 1986 the two travelled to Townsville and then to Murwillumbah where they were for some years. Eventually they moved to Melbourne to look for work. Twelve months later they came to Canberra. The relationship apparently ended in 1992 after the respondent met Ms Horn.
The respondent was educated up to Year 9 and left school to find work. According to the report, he describes himself as an average student, usually achieving pass grades. He was successful in school sports and actively participated in swimming and football. He found work one week after leaving school. He has since worked in a number of unskilled or semi-skilled positions including work as a farm hand, storeman, motor mower mechanic, printer's assistant, labourer, metal worker and bricklayer. Up to his return to Canberra he had not experienced difficulty in finding work. But he said that working in Canberra over the last six or seven years as a bricklayer had left him with lengthy and unpredictable periods of no work. He was dependent on a number of different contractors contacting him when bricklaying was required. His use of heroin, which appears to have commenced in 1994 and continued down to the time he was dealt with by the Supreme Court, has significantly disrupted his ability to find and retain work. He had only three months' work in 1995 and he has been in receipt of unemployment benefits.
The respondent claims to owe $600 in arrears of rent to ACT Housing. He has been threatened with eviction. At the time he was sentenced, the respondent together with Ms Horn and a child of their relationship had occupied ACT Housing accommodation. They had decided to hand back the house because Ms Horn intended to move to her mother's in Queanbeyan. He expected either to go to gaol as a result of the charges dealt with by his Honour or to be required to enter a residential rehabilitation facility.
Apart from his rent, the respondent had several traffic fines to pay in addition to telephone, gas and electricity bills. He has no savings or assets apart from some minor household effects.
The respondent said that he has used marijuana for many years. As mentioned, he first began to use heroin in about 1994. He said that he initially tried it as an experiment but became addicted after only a week. He claims to have attempted to discontinue the use of heroin on two occasions - both when he participated in the Methadone Reduction Program. The last occasion when he attempted to do this was about May 1995. The Program did not incorporate counselling but merely the dispensing of methadone together with urinalysis screening to help ensure that those participating in the program were not abusing it. He began using heroin again a week or so before the Corrective Services report which is dated 5 February 1996. He said that he used it again as a result of pressure arising from "the current legal action", lack of work and general depression concerning his circumstances. He claimed to use alcohol only on rare occasions and then never to excess. This was confirmed by his father. The respondent expressed the wish to enter a detoxification centre to be followed by a long term residential drug rehabilitation program. He had made enquiries about this but had been reluctant to begin either program for fear that he might be placed in gaol as a consequence of the offences.
The report described the respondent's criminal history as "significant". But it was pointed out that, apart from the offences now before the Court, there appeared to have been no offence for the previous eight and a half years. This statement needs to be qualified by reference to a conviction for possessing an offensive weapon on 6 September 1993. The offence could not have been regarded seriously because it was dismissed pursuant to s.556A of the Crimes Act.
The respondent asserted that the heroin found in his possession was for his personal use only. He did not appear to acknowledge the seriousness of the circumstances of the offence as they emerge from the telephone conversations earlier referred to. He agreed that the statement of facts was correct but said that he felt that his role was more of facilitating his own "satisfaction" and Ms Horn's personal need rather than of making a profit.
The respondent said that the trespass with intent to steal and the stealing related to the theft of a large amount of cash and jewellery in January 1995. The intention was to use the proceeds to purchase heroin. Although only approximately $12,000 of the amount stolen was recovered, the remainder, some $20,000, was claimed by the respondent to have been spent on heroin. He also asserted that the proceeds of the armed robbery were used to purchase heroin.
Under the heading "Assessment", the report says:
"The offender comes from a stable, loving family, where all other members except himself appear to be progressing well. He continues to enjoy considerable practical and emotional support from them.
The offender presents as depressed about his unsuccessful attempts to resolve his heroin addiction. These failed attempts probably relate to a lack of resolve and personal strength, and the misconception that he did not require counselling or residential rehabilitation. Further attempts at rehabilitation must be more intensive and of longer duration, before he can more effectively deal with reality. Together with his addiction, ongoing relationship stresses, problems in finding employment, and a poor peer group must all be addressed.
It is difficult to assess this person's resolve and ability to succeed in rehabilitation at this point. However, to date he has not had the benefit of focussed counselling and residential rehabilitation. It may be that the current court action will provoke him to better address his difficulties. Without specialist rehabilitation, the offender remains in significant danger of re-offending again."
There followed a comment on sentencing options to the detail of which it is unnecessary to refer.
Pursuant to s.448 of the Crimes Act, the respondent asked that two further offences be taken into account by the Court in determining the overall sentence to be imposed. The offences were offences of theft committed respectively on 13 January and 16 January 1996. The offences occurred when a Mr Stapleton was staying at the respondent's home in January 1996. During that time, the respondent removed Mr Stapleton's keycard and withdrew cash in an amount of $750 on 13 January and $500 on 16 January 1996. On each occasion he forged Mr Stapleton's signature to make the withdrawal over the counter. After each withdrawal the respondent returned the card to its holder in a cabinet in the room occupied by Mr Stapleton. On 25 January 1996 the respondent admitted to Mr Stapleton that he had withdrawn both amounts after
Mr Stapleton had become aware of the transactions when he checked his bank records. The respondent was interviewed about the offences by the Police on 11 February 1996. The offences were admitted. The respondent said that he had used the money to buy heroin. He said that after he had made the first withdrawal he had left $250 of the $750 in Mr Stapleton's wallet. Compensation of $1000 was sought by Mr Stapleton. The respondent has no money to pay this amount.
Amongst the material before the Court was a letter dated 20 February 1996 from the Alcohol & Drug Foundation of the Australian Capital Territory. The letter said that the respondent had been assessed by telephone on 20 February 1996 for his suitability for the Karralika STAIRways Program. It was said that he was eligible for admission but that would depend on the availability of bed space. It is unnecessary to refer to the detail of the conditions.
It remains to mention material which deals with the offer of co-operation made by the respondent. It is not appropriate to discuss the detail of that material.
His Honour referred to the facts of the matter and said that, in considering the proper sentences to be imposed on the respondent, there were two particular matters which should weigh in his favour. The first of these was his plea of guilty which his Honour said he was satisfied was as a result of true remorse. The second was his offer of co-operation with the Police. His Honour said that it was co-operation which might well require the respondent to give evidence against an alleged supplier. He remarked that the conduct was both courageous and deserving of such encouragement as a sentencing court might properly give. It also rendered any portion of a sentence actually to be served much more onerous and even dangerous than it might otherwise be. His Honour made it clear that the co-operation rested not on past conduct but on the promise of future co-operation.
His Honour said that any sentence must address the need for effective rehabilitation. As earlier mentioned, he said that, but for the promised co-operation, he would have sentenced the respondent to three years for the armed robbery charge and to a further six months for "the post-robbery assault". His Honour said that he would have imposed a concurrent sentence of two years' imprisonment in relation to the drug offence. For the burglary and theft, he would have imposed 12 months' imprisonment and that would have been cumulative upon the sentence for armed robbery but concurrent with the sentence on the drug matter. His Honour said that, in all those sentences, the two theft matters were given due consideration. The sentences would have been set to commence on 21 January 1996 to reflect time already spent in custody. A total of four and a half years would have been involved but his Honour said that he would have suspended the sentences after six months had been served on the conditions earlier referred to. They would have included a period of residential rehabilitation at Karralika. His Honour said that the order would have been of 12 months duration. He said that he did not address the issue of compensation "in view of its impracticality" but remarked that some claims might in the future be made.
As earlier mentioned, his Honour then said that, "having regard to the offender's promised co-operation", he would reduce the overall head sentence from four and a half years to three years.
The question we had to determine was whether the sentences individually and also the actual sentence of imprisonment to be served before release, a period of two months, was sufficient to mark the seriousness of these offences. In summary there are three separate matters each very serious in itself. The most serious offence was the armed robbery, followed as it was by the later incident in which the respondent pressed the gun against Mr Clarke's body and threatened him with it. It is true that the gun was a starter's pistol and harmless. But neither Mr Plessnitzer nor Mr Ferres or Mr Clarke knew this at the time that they were threatened. Each believed that the gun was a loaded weapon which, if discharged, could have caused them death or serious injury. There is of course to be taken into account the fact that there was not the danger that any of the victims thought there was. But their apprehension and fear were real and the
respondent intended that it should be. That was how he had his way with them.
The maximum sentence for armed robbery is 25 years. In all the circumstances we thought that this case warranted a sentence towards the lower end of the range. That is not to suggest that the offence was not serious. Any offence of armed robbery is a serious affair. His Honour selected a period of three years before taking into account the promise of co-operation. In the circumstances, we were of opinion that this could not be said to be manifestly too low. We shall return to the charge of assault in due course, but think that, contrary to his Honour's view, it was more appropriately to be regarded as part of the one transaction so that we ourselves would have imposed the sentence to be served for the assault concurrently with that imposed for the armed robbery.
So far there is no problem. But our difficulties with his Honour's conclusions begin with his decision to impose the sentence for the drug offence concurrently and not cumulatively. The drug offence involved a separate and distinct series of transactions and called for the sentence imposed in respect of it to be served cumulatively and not concurrently. There was no relevant connection between the drug offence and either of the other two groups of offences. His Honour would have imposed a sentence of two years for this offence but for the offer of co-operation. We are unable to say that this was manifestly too low, but we decided that the sentence should have been served cumulatively. His Honour's imposition of it concurrently was, in our opinion, an error that called for the intervention of the Court.
We are of opinion that the sentence of 12 months' imprisonment his Honour would have imposed, but for the offer of co-operation, for the trespass with intent to steal and the theft was manifestly too low. The unlawful entry and the subsequent theft of the safe and its contents involved the respondent in the commission of very serious crimes. A total of $32,000 in cash and jewellery valued at $20,000 was removed. It is true that much of the jewellery has been recovered, but a substantial amount of the cash has not. As mentioned, the offence of entering a building as a trespasser with intent to steal is provided for in s.102 of the Crimes Act. The maximum penalty for the offence is 14 years' imprisonment. The offence of theft is provided for in s.99. The maximum penalty for it is 10 years' imprisonment. We regarded the imposition of 12 months' imprisonment for the two offences as a quite inadequate marking of the seriousness of the criminal conduct which was involved. We decided that there should be substituted for the sentence imposed by his Honour a sentence of two years' imprisonment, that of course without taking into account the promise of co-operation or any other mitigating factor. We agreed with his Honour that the sentence should be imposed cumulatively upon the other sentences.
Although we decided not to interfere with the periods of imprisonment his Honour would have imposed in respect of the armed robbery and the drug offence if there had not been the promise of co-operation, we were, because of the two errors we found, in reality exercising our own discretion in order to impose a proper sentence on the respondent. We were therefore free to give effect to our view that the sentence for the assault, which we decided should be reduced to three months, should be served concurrently with the sentence for armed robbery.
Our conclusions so far then were that, before any mitigating factors were considered, the case called for a total period of imprisonment of seven years, three years for the armed robbery and assault, two years for the trespass with intent to steal and the theft, and two years for the drug offence.
We then needed to turn to the circumstances which, in the Court's opinion, warranted a reduction of this head sentence of seven years. Section 429A(1) of the Crimes Act provides:
"In determining the sentence to be imposed on a person, the matters to which a court shall have regard include, but are not limited to, such of the following matters as are relevant and known to the Court."
Relevant to this case were para. 429A(1)(h) which provides:
"...the degree to which the person has co-operated, or undertaken to co-operate, with law enforcement agencies in the investigation of the offence or other offences;"
and para. 429A(1)(u) which provides:
"...whether a person has pleaded guilty."
It was convenient to approach the matter by dealing firstly with the plea of guilty entered by the respondent. We allowed a reduction of one year for the plea of guilty by reducing the sentence in respect of the trespass with intent to steal by a period of six months from two years to 18 months, and reducing the sentence of two years in respect of the drug offence by the same period of six months to 18 months. Initially then the head sentence was reduced to six years.
In our opinion, the promise of co-operation warranted a further reduction. We agreed with counsel that a reduction of one-third, as applied by his Honour, was appropriate.
Section 449(1) provides:
"Where a sentence or a non-parole period is reduced because of the person's promised co-operation, of the kind referred to in paragraph 429A(1)(h), the court shall -
(a)in relation to the sentence - specify the reason for the reduction and the sentence that would have been imposed but for the reduction; and
(b)in relation to the non-parole period - specify the reason for the reduction and the period that would have been fixed but for the reduction."
Accordingly, on account of the promised co-operation, we reduced the sentence for armed robbery from three years to two years and reduced each of the sentences for trespass with intent to steal and the theft and for the drug offence from 18 months to one year. As a result, the aggregate of the sentences, which totalled six years, was reduced by one-third to four years.
In relation to the suspension of the sentence we regarded the period of two months' imprisonment imposed by his Honour as the minimum period which the respondent must serve before release on recognizance of good behaviour as manifestly inadequate, principally because it failed to mark the degree of criminality which was involved. It was not appropriate, in our view, to suspend the operation of the head sentence at all. Accordingly, it became necessary to fix a non-parole period pursuant to s.7(1) of the Parole Act 1976. We considered that it was not appropriate to contemplate the release of the respondent from imprisonment until he had served two years in gaol. In this respect we accepted the submission made to us about this matter by the Crown. The facts as established showed a course of serious criminal conduct extending over a period of 18 months or so which reflected a high degree of criminality. The offences were committed when he was in his mid-30's and against the
background that he came from a supportive and loving family. So often in these cases that is not the situation which confronts the Court. A further matter which we considered in determining the non-parole period was the fact that the respondent was on bail at the time the armed robbery and subsequent assault were committed.
Accordingly, we considered that a non-parole period of two years was appropriate. Section 449(1)(b) requires the court to specify the reduction and period that would have been fixed but for the co-operation. We considered that a non-parole period of three years would have been appropriate had it not been for the promised co-operation. Because of that matter we reduced the period of three years by one-third to two years. We thought that that period should commence on 21 January 1996, the date selected by his Honour for the commencement of the term of imprisonment imposed by him.
I certify that this and the twenty-three (23) preceding pages are a true copy of the reasons for judgment herein of the Court.
Associate
Dated 23 MAY 1996
APPEARANCES
Counsel for the Appellant: T. Buddin
Solicitors for the Appellant: Director of Public
Prosecutions, ACT
Counsel for the Respondent: T.J. O'Donnell
Solicitors for the Respondent: Legal Aid Office (ACT)
Date of Hearing: 19 April 1996
Place of Hearing: Canberra
Date of Judgment: 23 MAY 1996
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