Tregeagle v The Queen

[2016] NSWCCA 106

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Tregeagle v R [2016] NSWCCA 106
Hearing dates:	23 May 2016
Date of orders:	08 June 2016
Decision date:	08 June 2016
Before:	Payne JA at [1]; Price J at [107]; Garling J at [108]
Decision:	(1)   Leave to appeal granted; (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether sentencing judge erred in failing to find that the applicant had good prospects of rehabilitation as a mitigating factor – whether sentencing judge erred in taking into account the physical and psychological harm suffered by the victims as an aggravating factor
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A Crimes Act 1900 (NSW), ss 27, 95, 97 Criminal Appeal Act 1912 (NSW), s 5
Cases Cited:	AB v The Queen [1999] HCA 46; 198 CLR 111 Dinsdale v R [2000] HCA 54; 202 CLR 321 House v The King (1936) 55 CLR 499 Josefski v R [2010] NSWCCA 41 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Markarian v R [2005] HCA 25; 228 CLR 357 Qing An v R [2007] NSWCCA 53 R v Gent [2005] NSWCCA 370 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Solomon [2005] NSWCCA 158 R v Youkhana [2004] NSWCCA 412
Category:	Principal judgment
Parties:	Applicant: Lindsay Michael Tregeagle Respondent: Regina
Representation:	Counsel: Applicant: J Paingakulam (and W Hunt in writing) Respondent: H Baker   Solicitors: Applicant: Legal Aid NSW Respondent: Solicitor for Public Prosecutions
File Number(s):	2013/271083
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 24 July 2015 Before: Berman SC DCJ File Number(s): 2013/271083

Judgment

1. PAYNE JA: On 13 August 2014, Mr Lindsay Tregeagle, the applicant, pleaded guilty in the Local Court to seven offences and was committed for sentence to the District Court. The charges comprised one charge of attempted armed robbery; three charges of armed robbery; two charges of aggravated armed robbery; and one charge of causing wounding with intent to murder.

2. On 24 July 2015 a sentencing hearing took place before Berman SC DCJ in the District Court at Newcastle and the applicant was sentenced that day to an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) with a non-parole period of 16 years and 6 months, which will expire on 5 March 2030, and head sentence of 22 years imprisonment, to date from 6 September 2013, the day the applicant was taken into custody.

3. The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed. There are four grounds of appeal:

1. the sentencing judge erred in failing to have regard to the applicant’s prior good behaviour as a mitigating factor pursuant to s 21A(3)(f) of the Act;

2. the sentencing judge erred in failing to find that the applicant had good prospects of rehabilitation as a mitigating factor pursuant to s 21A(3)(h) of the Act;

3. the sentencing judge erred in taking into account the physical and psychological harm suffered by the victims as an aggravating factor pursuant to s 21A(2)(g) of the Act; and

4. the sentence was manifestly excessive.

4. At the hearing of this appeal counsel for the applicant, Ms J Paingakulam, described Ground 1 as essentially a particular of Ground 4. Therefore these Grounds will be addressed together. Ground 3 was not addressed at the hearing, Ms Paingakulam being content to rely on Mr Hunt’s written submissions on that issue.

Facts

5. The following summary is adapted from the remarks on sentence and a statement of agreed facts signed by the applicant and tendered by consent before the sentencing judge.

6. At the time of the events the subject of the counts in the indictment, the applicant was 22 years old. He was employed by Structural Concrete Industries and was also a casual employee at the Rathmines Bowling Club.

7. The facts relating to each of the charges are addressed in chronological order from the date of the first offence.

Sequence 8 - Armed robbery of Rathmines Cellars

8. At about 7.12 pm on 2 May 2013 the applicant entered Rathmines Cellars. He carried a “chef style” knife which was approximately one foot long. The applicant was wearing a hoodie, pulled up over his head, and a balaclava over part of his face.

9. The store attendant was Susan Johnston, then aged 52. The applicant demanded money from the till. He placed the money (totalling $1,500) in his backpack. He also placed three bottles of Bundaberg Rum in his backpack. He then left the store.

10. This offence, under s 97(1) of the Crimes Act, carries a maximum penalty of 20 years imprisonment.

Sequence 7 – Armed robbery of Rathmines Cellars

11. At about 7.50 pm on 27 June 2013 the applicant returned to Rathmines Cellars. The applicant was wearing a hoodie, pulled up over his head, and a balaclava over part of his face.

12. The victim of the previous offence, Susan Johnston, was again working alone. The applicant carried a knife described as a carving knife which had a blade approximately 12 inches long. He demanded money. He accused Ms Johnston of hiding the $100 notes and lying to him. Ms Johnston removed the coin tray and gave the applicant some $50 and $100 notes. The applicant said “Get on the floor bitch. Put your face in the carpet”. He then left the store, taking $1,200 in cash.

13. This offence was under s 97(1) of the Crimes Act, which carries a maximum penalty of 20 years imprisonment.

Sequence 6 – Attempted armed robbery of Blackalls Park Convenience Store

14. At 6.15 am on 5 July 2013 the applicant entered Blackalls Park Convenience Store. The applicant was wearing a hoodie, pulled up over his head, and a balaclava over part of his face.

15. The victim was Stephen Keggan, then aged 62 years. Mr Keggan had just opened the store, and was working alone.

16. The applicant carried a knife with a serrated edge. The knife was approximately 30-40 cm long. He demanded cash from Mr Keggan. Mr Keggan said he had no cash and told the applicant to get out of the shop. He picked up a tomato stake and hit the applicant hard with it and yelled for help. The applicant ran out of the store and rode away on a push bike.

17. This offence was under s 97(1) of the Crimes Act, which carries a maximum penalty of 20 years imprisonment.

Sequence 5 – Aggravated armed robbery of Blackalls Park Convenience Store

18. At 6.10 am on 19 July 2013 (two weeks later) the applicant returned to the Blackalls Park Convenience Store. The applicant was wearing a hoodie, pulled up over his head, and a balaclava over part of his face.

19. Mr Keggan was again working alone. The applicant was carrying a timber baseball bat. He hit Mr Keggan on the left leg, causing him to fall to the ground. He continued to hit Mr Keggan’s left leg and left arm, which he was holding up to defend himself. The applicant stopped hitting Mr Keggan and demanded cash. Mr Keggan gave the applicant some cash from a cash register.

20. As both men moved towards another cash register in the store the applicant hit Mr Keggan again. Mr Keggan said “stop hitting me. I’m getting the cash out for you”. Mr Keggan opened the register and gave the applicant cash. The applicant demanded $50 notes. Mr Keggan lifted the coin tray to show that he had none. The applicant ran out of the shop, taking a total of $700 cash.

21. Mr Keggan sustained fractures in his leg and arm as a result of the attack.

22. This offence was under s 95(1) of the Crimes Act which carries a maximum penalty of 20 years imprisonment.

Sequence 4 – Robbery whilst armed with an offensive weapon of Network Video Toronto

23. At about 7.45 pm on 15 August 2013 the applicant entered Network Video. Lyn Becker, aged 64, was working behind the counter. The applicant was wearing a hoodie, pulled up over his head, and a balaclava over part of his face.

24. The applicant carried a knife. He pointed the knife at Ms Becker and demanded money. Ms Becker opened the till and gave the applicant cash. He asked for “the rest of it” a number of times, and Ms Becker said “there’s no more”. He also pushed Ms Becker into the back corner of the store. She sustained a cut to her left thumb and bruising to her left forearm. The applicant left the store, taking $710 cash.

25. This offence was under s 97(1) of the Crimes Act which carries a maximum penalty of 20 years imprisonment.

Sequence 3 – Aggravated robbery of Blackalls Park Newsagency

26. At about 5.20 am on 30 August 2013 the applicant entered Blackalls Park Newsagency. The applicant was wearing a hoodie, pulled up over his head, and a balaclava over part of his face.

27. The shop attendant was Sarah Noakes, then aged 20. Also present was Ronald Jenkins, then aged 71. The applicant carried a knife described as being about 12 inches long. He grabbed Mr Jenkins and placed the tip of the knife’s blade on the back of his neck. He demanded money from both tills. Ms Noakes emptied the tills on the counter. The applicant moved away from Mr Jenkins and took the cash on the counter. He fled the store, taking $623 in cash.

28. This offence was under s 95(1) of the Crimes Act which carries a maximum penalty of 20 years imprisonment.

Sequence 1 – Cause wounding with intent to murder at Woodrising Cellars

29. At about 6.45 pm on 2 September 2013 the applicant entered Woodrising Cellars. The applicant was wearing a hoodie, pulled up over his head, and a balaclava over part of his face.

30. The owner operator Mark Hamilton, then aged 50, was working alone. The applicant carried a knife. He demanded money. Mr Hamilton told him to “Fuck off”.

31. Mr Hamilton was then cornered behind the counter and held his arms up in a defensive stance. He advanced towards the applicant and tried to wrestle him out of the shop. The applicant pushed Mr Hamilton over, into a display of wine bottles. During the struggle the applicant’s hoodie and balaclava were dislodged and his face was captured on the CCTV recording at the shop.

32. The applicant stood over Mr Hamilton, who lay on the floor on his back. He held Mr Hamilton down and stabbed him three to four times, causing wounds in his stomach and back. The applicant started to walk away from Mr Hamilton, but then returned and thrust the knife into his torso a further three to four times shouting “Die! Fucken Die!”.

33. Mr Hamilton sustained the following injuries:

1. fractured left tenth rib;

2. small anterior pneumothorax;

3. laceration of the upper love of the lung posteriorly;

4. left haemopneumothorax;

5. left lobe atelectasis;

6. eight stab wounds to the torso, hip and thigh; and

7. knife lacerations in his hands, arms, neck and cheek.

34. This offence was under s 27 of the Crimes Act which attracts a 25 year maximum sentence and a standard non parole period of 10 years.

Sentencing judge’s remarks on sentence

35. The evidence before the sentencing judge comprised the statement of agreed facts and a Pre-Sentence Report. The applicant led psychological evidence from Mr Probets and character evidence from Mr Callen and Mr Costello. The applicant did not give evidence. The Crown led psychological and psychiatric evidence from Dr Banks and Dr Allnut respectively and tendered two victim impact statements.

36. The sentencing judge found that the applicant had “no real criminal history” and that the applicant was “abusing alcohol” and “in financial difficulties” caused by gambling.

37. The sentencing judge pointed out that voluntary alcohol consumption was not a mitigating factor on sentence (s 21A(5AA) of the Act).

38. The applicant’s parents had separated and applicant did not speak to his father for some time. His mother had attempted suicide on a “couple of occasions”.

39. Mr Probets said that PTSD may be a factor because the applicant told him he had been sexually assaulted as a child. However, the sentencing judge noted that the applicant “did not give sworn evidence that that had occurred”. His Honour continued:

... in circumstances where the offender did not give sworn evidence, where he refused to be assessed and interviewed by a psychologist on behalf of the Crown, and where in at least one area he was exaggerating his responses to the psychologist who did interview him, I am not satisfied on the balance of probabilities that the sexual assault occurred.

40. The reference to exaggeration is a reference to a Personality Assessment Inventory test administered by Mr Probets in which the applicant recorded a “negative admission management” score. This was, according to Mr Probets, indicative of “malingering” or “exaggeration”. Mr Probets also said this score was consistent with a “cry for help”, “careless responding” and “an extreme or exaggerated negative evaluation of oneself or one’s life”.

41. The sentencing judge recorded that “a great deal of time ... was spent attempting to establish the offender’s prospects of rehabilitation”.

42. On this issue, his Honour found that the applicant was hardworking and industrious. He had continued his industrious attitude in custody – he “has done many courses” and “obtained certificates”. The sentencing judge, however, was not satisfied that the applicant had good prospects for rehabilitation. His Honour said that these offences “were apparently committed all because of the applicant’s gambling problems” and that “I would have to be satisfied on the balance of probabilities that he was not going to do the same thing next time he was short of cash.”

43. After reviewing the facts, the sentencing judge also commented on the impact of the applicant’s crimes on the victims. Mr Jenkins (Sequence 3) said he had nightmares and difficulty sleeping. Mr Hamilton (Sequence 1) had scarring, permanent pain, was easily spooked, frightened and suspicious of new customers. The sentencing judge also commented upon the impact of the applicant’s actions on the other victims (although there were no victim impact statements tendered from those victims).

44. The sentencing judge expressly considered the following additional matters:

1. the applicant’s expressions of remorse. There was no sworn evidence to this effect but the his Honour was “prepared to infer that he has feelings of regret”;

2. the fact that the victims were vulnerable by reason of their occupation (this is an aggravating factor pursuant to s 21A(2)(l) of the Act);

3. the fact that the offences were committed for financial gain (this is an aggravating factor pursuant to s 21A(2)(o) of the Act); and

4. the applicant’s early plea of guilty (this is a mitigating factor pursuant to s 21A(3)(k) of the Act), which the sentencing judge held entitled the applicant to a 25 per cent discount on the sentence otherwise to be imposed.

45. The sentencing judge sentenced the applicant to an aggregate term of 22 years imprisonment with a non-parole period of 16 years and 6 months. His Honour gave the following indicative sentences as required by s 53A(2)(b) of the Act:

1. Sequence 1: 12 years (8 years non-parole period);

2. Sequence 3: 5 years 6 months;

3. Sequence 4: 4 years 6 months;

4. Sequence 5: 6 years;

5. Sequence 6: 3 years;

6. Sequence 7: 4 years 6 months; and

7. Sequence 8: 4 years.

Psychological and psychiatric evidence

46. Much of the sentencing hearing before the sentencing judge was taken up in cross-examination and submissions concerning psychological and psychiatric evidence.

Mr Probets’ evidence

47. Mr Probets, a forensic psychologist, provided an assessment dated 17 November 2014. Following one consultation where three psychometric tests were conducted, Mr Probets diagnosed the applicant with three conditions: alcohol dependence, major depressive disorder (single episode, unspecified) and posttraumatic stress disorder (PTSD). Mr Probets said that the PTSD was “a result of experiencing sexual assault”.

48. After his report had been the subject of critique by Drs Banks and Allnutt (addressed below), by email dated 23 July 2015 (the day before the sentencing hearing) Mr Probets withdrew his diagnoses of alcohol dependence, major depressive disorder and PTSD. He said:

In light of recently received material I have reviewed my diagnoses section contained in [the reports] ... [I]t was not intended to be a formal diagnosis and anything I said was subject to further confirmation. ... I withdraw the diagnoses but state that he was suffering symptoms of each of these three disorders.

49. Mr Probets also said in his report that the applicant “committed these offences due to his financial situation which was caused by a combination of extreme alcohol abuse and gambling”. His conclusion about these matters, however, was based on his finding (withdrawn by the time of the sentencing hearing) that the applicant “has an addiction to both alcohol and gambling”.

50. Mr Probets also opined that the applicant “presents a low risk of reoffending which would become a very low risk with the help of appropriate treatment programs”. Mr Probets recommended programs related to violent offending, anger control and abstention from alcohol and gambling. In cross examination Mr Probets agreed it was difficult to assess the applicant’s prospects of rehabilitation because he did not know what treatment the applicant would receive in prison.

Dr Banks’ evidence

51. The applicant declined to be examined by any of the Crown’s experts. Dr Banks, a clinical forensic psychologist, conducted a peer review of Mr Probets’ reports.

52. Dr Banks cast considerable doubt on Mr Probets’ conclusions (including the diagnoses that were later withdrawn). In particular, he gave evidence that there was insufficient information to conclude that the applicant had good prospects of rehabilitation. Using a widely administered test, and based on the results Mr Probets had reported, Dr Banks gave evidence that the applicant was in (at least) the moderate range of risk of recidivism. He gave evidence that the prospect of recidivism, including violent offences, far outweighs the possibility of good prospects of rehabilitation.

53. Finally, he said there was insufficient evidence to suggest that the applicant suffered any mental illness and that it was “unlikely” that the applicant suffered gambling and alcohol addictions.

Dr Allnutt

54. Dr Allnutt, a forensic psychiatrist, provided a report dated 29 June 2015 commenting on Mr Probets’ two reports. Dr Allnutt expressed disagreement, in the absence of a more guided and comprehensive assessment of risk, with Mr Probets’ conclusion about the applicant’s prospects of rehabilitation and risk of reoffending. He said there was:

... limited evidence to demonstrate that a particular sexual abuse episode forms the basis for a particular motivation to offend violently at a particular place and time and I would regard that argument as relatively weak.

Pre-Sentence Report

55. A Pre-Sentence Report was tendered which stated that the applicant had been compliant and had undertaken a number of courses in custody; it discussed his family situation, his mother’s attempts at suicide, and his reported sexual abuse; it stated that the applicant had “revealed” that “prior to custody his alcohol consumption had become problematic” and admitted to being under the influence of alcohol during the commission of all of the offences; it noted Mr Probets’ diagnoses (which had not yet been withdrawn); it noted that the offences were for financial gain and that, as a result of his gambling, the applicant “could not think of alternative way [sic] of recouping his losses”; it assessed the applicant to be a medium risk of reoffending; it stated that the applicant acknowledged he was addicted to gambling; it stated that the applicant accepted full responsibility for his actions; and it stated that the applicant expressed willingness to engage in all interventions required to address his criminogenic needs (gambling, alcohol, mental health and anger management).

Other evidence

56. Character evidence was given by the applicant’s supervisors at Structural Concrete Industries, Mr Callen and Mr Costello. They described the applicant’s work history in positive terms and noted his issues with binge drinking.

56. Mr Hamilton and Mr Jenkins made victim impact statements. Mr Hamilton said he had permanent scarring and pain. He was easily frightened and suspicious. Mr Jenkins said he experienced nightmares and had difficulty sleeping.

Submissions on the appeal

58. The applicant’s oral submissions first addressed Ground 2 (good prospects of rehabilitation), followed by Grounds 1 and 4 together (the sentence was manifestly excessive and the sentencing judge erred in addressing the applicant’s prior good character). Ground 3 (the question of taking into account victim impacts) was not addressed orally but was the subject of written submissions.

59. Those submissions are addressed in the same order.

Ground 2 – good prospects of rehabilitation

60. The applicant submitted that the sentencing judge should have found on the balance of probabilities that the applicant had good prospects of rehabilitation, within the meaning of s 21A(3)(h) of the Act.

61. The applicant points to evidence that he had undertaken courses and attended AA meetings, and that he was motivated and willing to rehabilitate himself. That evidence was primarily contained in the Pre-Sentence Report. It was submitted that his youth, and the “inexplicable reason for the offending”, both suggest that the offences were an “aberration” that was “unlikely to be repeated”. He submits that evidence of his regret should support a finding that he has good prospects of rehabilitation.

62. Counsel for the applicant also submitted that the sentencing judge’s failure to be satisfied that the applicant would not commit similar offences the next time he was short of cash “ignores the deterrent effect of the applicant’s time in custody” and the fact that he would enjoy “considerable family support in circumstances where they are now aware that the applicant has a significant problem”.

63. Finally, the applicant submits that the sentencing judge gave too much weight to Dr Banks’ report. The applicant points out that Dr Banks did not interview the applicant and did not have access to the Pre-Sentence Report. It was submitted that Dr Banks had adopted a negative attitude towards the applicant because he raised the possibility that the claim of sexual abuse may have been concocted. Dr Banks described the applicant as “malingering” in his report but in cross examination agreed that the applicant was more likely to be “feeling hopeless” and “wallowing” than “deliberately trying to exaggerate how bad things were for him” or “telling lies”.

64. The Crown submitted that the sentencing judge was entitled to reject Mr Probets’ conclusion that the applicant had good prospects of rehabilitation because:

1. Mr Probets “accepted that the applicant’s prospects of rehabilitation would depend on the conditions under which he was treated”;

2. Mr Probets accepted that “if the applicant was lying in the testing that was a factor against prospects of rehabilitation”; and

3. the Pre-Sentence Report, which was dated after Mr Probets’ report, assessed the applicant to be a medium risk of reoffending.

Grounds 4 and 1 – sentence manifestly excessive and prior good character

65. The essence of the applicant’s submission in these grounds was that:

... for such a young offender with no prior criminal record who had in custody begun to make real efforts at rehabilitating himself, it is submitted that the court moved beyond a reasonable exercise of its discretion in imposing the sentence that it did.

The applicant made a number of submissions in support of this argument.

66. The applicant also made submissions referring to the Henry guideline. In R v Henry [1999] NSWCCA 111; 46 NSWLR 346 this Court delivered a guideline judgment in relation to the offence of armed robbery pursuant to s 97(1) of the Crimes Act. Spigelman CJ said at [162]-[165]:

It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:

(i) Young offender with no or little criminal history;

(ii) Weapon like a knife, capable of killing or inflicting serious injury;

(iii) Limited degree of planning;

(iv) Limited, if any, actual violence but a real threat thereof;

(v) Victim in a vulnerable position such as a shopkeeper or taxi driver

(vi) Small amount taken;

(vii) Plea of guilty, the significance of which is limited by a strong Crown case.

Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.

There are two principal reasons why a sentencing range is appropriate for this offence:

(i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.

(ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of “limited actual violence” in (iv); degree of vulnerability in (v); amount in (vi).

In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. ...

67. The applicant submitted that Sequences 4, 7 and 8 are offences to which the Henry guideline applied (that is, offences under s 97(1) of the Crimes Act). The indicative sentences for those offences were 4 years and 6 months, 4 years and 6 months and 4 years respectively. The Henry guideline assumes:

(vii) Plea of guilty, the significance of which is limited by a strong Crown case.

68. The applicant submitted that the present case should be distinguished from the situation contemplated by the Henry guideline because the applicant entered a plea of guilty early (i.e. he was not motivated by the strength of the Crown case). Therefore the sentences were “somewhat excessive or at least on the borderline of the range”. Counsel for the applicant also acknowledged that some of the offences were above the Henry guideline.

69. Although the applicant recognised that sentencing is an “instinctive and not mathematical” process, in written submissions a series of calculations were advanced which, the applicant submitted, indicated that the sentence was manifestly excessive. In particular, the applicant submitted that on the basis of the indicative sentences, the degree of accumulation between each of the seven Sequences was one year and eight months. The applicant submitted that “notwithstanding the serious nature of the offences before the Court, that degree of accumulation is simply excessive”.

70. On the issue of totality the applicant submitted that “it would be appropriate to have regard to the fact that the offences ... were committed over a discrete period of time, as part of a single “crime spree” constituted by similar offences”. This submission was made on the basis of Qing An v R [2007] NSWCCA 53 at [102] in which Beazley JA (Hislop J agreeing) accepted the appellant’s argument that, since the offending occurred during a short space of time so as to be part of a relatively short crime spree, the partial accumulation of sentences should be less than would otherwise be the case. In the present case counsel for the applicant submitted orally that four months is “not an extended period”, although counsel conceded that “the duration is more substantial than of the nature seen in Qing An”.

71. In relation to prior good character the applicant submitted that while the sentencing judge referred to the applicant’s prior good character, his Honour did not expressly identify that as a feature of mitigation.

72. The only mitigating factors that were expressly taken into account were remorse and the pleas of guilty. The applicant submitted that the sentencing judge erred in this regard. The applicant submitted that, if the sentencing judge had given weight to good character as a mitigating factor (as his Honour should have) he could not have given the sentence that he did.

73. The applicant also submitted that in R v Gent [2005] NSWCCA 370 at [55]-[59] Johnson J had identified examples of cases in which prior good character had been given less weight. The offences in the present case are not in the class of offences frequently committed by persons of good character.

74. In oral submissions the Crown emphasised the overarching principle that sentencing must reflect the objective gravity of the offender’s misconduct and that:

... when one comes to consider the criminality involved what’s striking about this series of crimes is that the applicant was prepared to use a degree of violence well above that which was necessary to achieve his aims.

75. The Crown emphasised, in particular, holding a knife to the back of a 71-year-old’s neck and beating a victim (as an act of reprisal) with a baseball bat while he was on the ground.

76. The Crown submitted that there are a number of features which put the applicant “above” the Henry guideline in relation to a number of the offences.

77. The Crown submitted that:

To characterise the offending as part of a “single crime spree” is to overlook the objective seriousness of each of the offences. The criminality of each of the offences is distinct, they each involved separate victims. For this reason separate and distinct punishment was warranted on each.

78. The Crown submits that the sentencing judge was aware of and accepted that the applicant had prior good character. His Honour took it into account. He was not required to do more than that.

Ground 3 – taking into account harm suffered by victims

79. The applicant made written submissions about Ground 3 but did not address them orally. As has been noted, Mr Jenkins and Mr Hamilton provided victim impact statements, but no other victims did. The sentencing judge said:

I have no doubt that harm was occasioned to other victims too. I have mentioned the physical harm as I went through my description of the offences but there is also psychological harm too which is an almost inevitable consequence of being the victim of an armed robbery.

80. The applicant submits that, although not explicitly identified as an aggravating factor, these comments engaged s 21A(2)(g) of the Act (pursuant to which it is an aggravating factor that “the injury, emotional harm, loss or damage caused by the offence was substantial”). This, it was submitted, was an error: R v Youkhana [2004] NSWCCA 412. The applicant submitted that the sentencing judge erred in drawing a conclusion about the “other” victims because there was no evidence that all of the victims had suffered emotional harm. The applicant submitted the following by reference to R v Solomon [2005] NSWCCA 158 at [18]-[19]; Josefski v R [2010] NSWCCA 41 at [45]:

... the Henry guideline took into account the usual effects upon a victim of an armed robbery. Thus, if a sentencing judge applied the guideline and also took into account the usual effects upon a victim, an error of double counting would occur.

81. The Crown disputes the premise upon which the applicant’s submission was based. It was submitted that his Honour did not make any finding that the harm caused to the victims was an aggravating factor pursuant to s 21A(2)(g).

Consideration

Relevant principles governing disposition of this appeal

82. This was a case in which there was no dispute about the principles to be applied. The applicant submitted that “fundamentally, a severity appeal to the Court of Criminal Appeal is a review of an error in the exercise of a judicial discretion: House v The King (1936) 55 CLR 499”.

83. References were made by the applicant to the well-known principles in Markarian v R [2005] HCA 25; 228 CLR 357 at [25]; AB v The Queen [1999] HCA 46; 198 CLR 111 at [130]; Dinsdale v R [2000] HCA 54; 202 CLR 321 at [6]; and Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42] (per French CJ, Hayne, Bell and Keane JJ):

When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non‑parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion.

Ground 2 – good prospects of rehabilitation

84. With respect to this ground of appeal, the sentencing judge did not err in failing to conclude on the balance of probabilities that the applicant had good prospects of rehabilitation, within the meaning of s 21A(3)(h) of the Act.

85. The applicant did not give evidence before the sentencing judge and the relevant evidence on this issue was essentially confined to psychological and psychiatric evidence and the Pre-Sentence Report.

86. The sentencing judge was entitled to reject Mr Probets’ conclusion that the applicant had good prospects of rehabilitation. Mr Probets’ conclusions rested on shaky foundations even before he gave evidence. He had retracted the principal bases of his opinion, the diagnosis of PTSD and the alcohol and gambling addictions. The position did not improve following cross-examination where his ultimate conclusion about the prospects of rehabilitation was exposed as speculation.

87. The Pre-Sentence Report, which was the only other evidence upon which the applicant relied to establish error, was dated after Mr Probets’ report. It assessed the applicant to be a medium risk of reoffending.

88. The limitations inherent in the reports of Drs Banks and Allnut are also apparent, as they were not permitted to examine the applicant. Their criticisms of Mr Probets’ evidence, and his reliance upon discredited means of assessing risk were, however, compelling.

89. The sentencing judge correctly concluded that on the evidence before him he could not be satisfied on balance of probabilities that the applicant enjoyed good prospects of rehabilitation.

90. Ground 2 of the Notice of Appeal should be dismissed.

Grounds 4 and 1 – sentence manifestly excessive and prior good character

91. To describe a sentence as manifestly excessive is to express a conclusion. In Dinsdale the High Court said (at [6]):

A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

92. On this critical question, the series of offences committed by the applicant are each objectively very serious and the need for a sentence reflective of the objective seriousness of those crimes is clear.

93. No doubt the aggregate sentence imposed by the sentencing judge is a stern one, however, in light of the following matters, it is not manifestly excessive:

1. The maximum penalties for these offences ranged from 20 to 25 years. The standard non-parole period in respect of Sequence 1 was 10 years;

2. The excessively violent and escalating nature of the offences was highly relevant, particularly:

1. Sequence 1 where, after initially stabbing the victim three or four times and commencing to walk away, the applicant returned and thrust the knife into the victim’s torso a further three to four times shouting “Die! Fucken Die!”;

2. Sequence 5 where, as an act of revenge, the applicant returned to the Blackalls Park Convenience Store and, using a wooden baseball bat, broke the arm and the leg of the 62 year old shop assistant who had two weeks earlier resisted the applicant’s robbery attempt. During this attack, the applicant stopped hitting Mr Keggan and demanded cash. Mr Keggan gave the applicant some cash from a cash register. Both men then moved towards another cash register in the store and the applicant hit Mr Keggan with the baseball bat again; and

3. Sequence 3 where the applicant placed his knife at the neck of the 71 year old shop attendant and held it there while he demanded money from a 20 year old assistant;

3. The large number of very serious offences, seven, each committed in the same local area of greater Newcastle was relevant;

4. The period of time during which these offences occurred, between 2 May and 2 September 2013 was relevant. These offences cannot be viewed as part of a short term crime spree of the kind addressed by the Court in Qing An. Rather, during a four month period, the offences were carefully planned and involved an escalating level of violence, culminating in the attempted stabbing murder of Mr Hamilton; and

5. The vulnerability of the victims was relevant. In six of the sequences, the victim was working alone in a retail store. The one exception, Sequence 3, involved two staff members. In that case the applicant placed a knife to the back or the side of Mr Jenkins' neck. Those employees were also vulnerable.

94. The sentencing judge took into account subjective factors favourable to the applicant, however, correctly concluded that the sentence imposed must reflect the objective gravity of the offender’s misconduct.

95. As this was an aggregate sentence, the sentencing judge was required to announce indicative sentences for each of the individual Sequences, which his Honour did.

96. The applicant’s written submissions advanced a number of mathematical calculations based on those indicative sentences from which a degree of accumulation between each of the seven Sequences of one year and eight months was derived. This degree of accumulation was submitted to be excessive.

97. This submission should be rejected for four reasons:

1. First, the appellant correctly accepts that if individual sentences had been imposed for each of the seven sequences, partial accumulation of those sentences would have been appropriate. These offences were each very serious and involved an escalating level of violence and, in one case, a brutal act of revenge. The degree of accumulation reflected in the aggregate sentence did not give rise to a total sentence which was manifestly excessive;

1. Second, to the extent that the calculations applied the Henry guideline to the indicative sentences, counsel for the applicant also correctly accepted that a number of the offences warranted a sentence in excess of the Henry guideline;

2. Third, even if correct to assert that the degree of accumulation between each of the seven Sequences was one year and eight months, that fact of itself does not indicate that this aggregate sentence was manifestly excessive. Much is concealed by the calculation of the period of accumulation of one year and eight months for each of the Sequences;

3. Fourth, while, of course, the aggregate sentence must comply with the principle of totality, it is not appropriate to attempt to impute a degree of mathematical precision to the accumulation of each indicative sentence that was not part of the sentencing judge’s reasoning.

98. So far as the issue of the applicant’s good character is concerned, there was no error in the approach of the sentencing judge. The sentencing judge was aware of and accepted that the applicant had prior good character – he said so explicitly - “the offender had no real criminal history” – and took that matter into account.

99. A further submission made by counsel for the appellant at the hearing was that the sentencing judge appeared to treat the fact that the offences were committed “out of the blue” as a matter which was adverse to the applicant’s interests. Counsel submitted that the sentencing judge should have found the opposite: “that there was no prior indication that the applicant would commit such offences is a matter which should have operated in his favour”. As a result, the submission continues, the sentencing judge focussed on the objective seriousness of the offences without attributing any real weight to other subjective matters.

100. That is not a fair assessment of the sentencing judge’s remarks. There was a difficulty in this case in the absence of cogent evidence addressing the applicant’s subjective features. The applicant did not himself give evidence. Messrs Callen and Costello gave some character evidence, which was taken into account. The principal burden of addressing the applicant’s subjective features rested with Mr Probets, whose evidence was correctly found by the sentencing judge to be unhelpful (indeed much of it was withdrawn by Mr Probets himself).

101. For these reasons Grounds 1 and 4 of the Notice of Appeal should be dismissed.

Ground 3 – taking into account harm suffered by victims

102. As noted at the outset this was a ground of appeal which was not addressed in oral submissions. The premise upon which the applicant’s written submission is based is incorrect. The sentencing judge did not find that the harm caused to the victims was an aggravating factor pursuant to s 21A(2)(g) of the Act. His Honour’s language when addressing the question clearly reveals that he was not making such finding.

103. Ground 3 of the Notice of Appeal should be dismissed.

Conclusion

104. None of the grounds of appeal have been made out. This was a case involving seven very serious offences involving an escalating level of violence which warranted the stern aggregate sentence which was imposed.

105. Leave to appeal should be granted because of the significant length of the sentence imposed and the nature of the issues raised. However, although Ms Paingakulam put the applicant’s case with care and considerable skill, the appeal should be dismissed.

Orders

106. I propose the following orders:

1. Leave to appeal granted;

2. Appeal dismissed.

107. PRICE J: I agree with Payne JA.

108. GARLING J: I agree with Payne JA.

Amendments

09 June 2016 - paragraph [1] - "13 August 2015" changed to "13 August 2014"

paragraph [2] - "6 September 2030" changed to "5 March 2030"

paragraph [3](2) - "s 21A(2)(h)" changed to "s 21A(3)(h)"

paragraph [80] - "factor is that" changed to "factor that"

paragraph numbering corrected

Decision last updated: 09 June 2016