Webster v R

[2006] NSWCCA 346

CITATION:	Michael Paul Webster v Regina [2006] NSWCCA 346
HEARING DATE(S):	30 October 2006
JUDGMENT DATE:	8 November 2006
JUDGMENT OF:	Beazley JA at 1; Sully J at 2; Hislop J at 16
DECISION:	Leave granted to appeal against sentence; Appeal allowed to extent only of setting aside parole order and conditions attached; Otherwise, appeal against sentence dismissed
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
PARTIES:	Michael Paul Webster Regina
FILE NUMBER(S):	CCA 2006/1785
COUNSEL:	J. Dwyer - Crown P. Winch - Appellant
SOLICITORS:	S. Kavanagh - Crown D. Anderson - Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0269 04/21/0266
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ
LOWER COURT DATE OF DECISION:	29 July 2005

2006/1785

BEAZLEY JA
SULLY J
HISLOP J

8 November 2006

Michael Paul WEBSTER v REGINA

Judgment

1 BEAZLEY JA: I agree with Sully J.

2 SULLY J: The applicant, Mr. Webster, applies for leave to appeal against sentences of imprisonment passed upon him in the Parramatta District Court on 12 August 2005.

3 The applicant had earlier pleaded guilty in that Court to each of three charges preferred against him on indictment. The first charge thus preferred against the applicant charged him with having robbed a named victim of property while being armed with an offensive weapon, namely a knife. Such an offence contravenes section 97(1) of the Crimes Act 1900 (NSW) and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. The second charge thus preferred against the applicant charged him with having assaulted the same victim at the same time and place and with having committed upon her at the time of the assault an act of indecency. Such an offence contravenes section 61L of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 5 years. The third charge thus preferred against the applicant charged him with having threatened to inflict actual bodily harm on the same victim, by use of an offensive weapon namely a knife, with intent to have sexual intercourse with the victim. Such an offence contravenes section 61K(b) of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years.

4 The applicant had pleaded guilty in the Local Court to the first two of those three charges. He pleaded not guilty to the third charge and maintained that plea until he was formally arraigned in the District Court, at which time he pleaded guilty to the third charge.

5 The applicant was sentenced, in respect of the section 97(1) matter, to imprisonment for a fixed term of 4 years and 6 months. He was sentenced in respect of the second matter to a fixed term of imprisonment of 2 years and 3 months. He was sentenced in respect of the third matter to imprisonment for 8 years with a non-parole period of 6 years. The second and third of those sentences were ordered to be served concurrently. Those two concurrent sentences were accumulated upon the sentence passed in connection with the first charge, the accumulation being one of 3 years. The end result of the sentences as thus structured was to pass upon the applicant an effective aggregate head sentence of imprisonment for 11 years with an effective aggregate non-parole period of 9 years.

6 The applicant contends that the sentences thus passed upon him were manifestly excessive. He takes as well a point, based upon sections 50 and 51 of the Crimes (Sentencing Procedure) Act 1999 (NSW), concerning the making by the learned sentencing Judge of a formal parole order to which his Honour attached certain parole conditions.

7 In the District Court the sentencing proceedings were conducted upon the basis of an agreed statement of facts. The statement is reproduced in full in the remarks on sentence; and it is convenient to reproduce it here:

“About 11.40 pm on Wednesday May 19 2004 ….(the victim)….boarded a train at Central Railway Station which was Penrith bound. As the train left the station at 11.42 pm ….(the victim)….fell asleep. A short time later while the train was stopped at Burwood Station ….(the victim)….awoke to see the offender sitting directly across from her.
(The victim) ….described the offender as being a Caucasian male who had a deeply lined face, was about 40 years old, had a slight build, was about 5 foot 8 inches to 5 foot 10 inches in height, had short hair that was light in colour and had facial hair around his mouth area. (The victim) ….also stated the offender’s teeth were discoloured and crooked.
The offender started a conversation with ….(the victim)….about university and other unrelated matters. At no time did the offender say his name. Just before the train arrived at Clyde Station the offender asked ….(the victim)…., ‘Where do you live?’. She replied ‘At Granville’. He said ‘I’m getting off at Granville’. However since Clyde Station is closer to ….(the victim’s)….home than Granville Station, she got up and alighted from the train at Clyde Station.
As ….(the victim)….began to walk along the platform she noted the offender also got off the train just as the doors were closing. (The victim….) began to feel uncomfortable and nervous since the offender had earlier stated he was getting off at Granville Station. (The victim)….walked down the ramp from the station towards Factory Street and continued to walk south on the western side of Factory Street.
At the junction of William and Factory Streets she realised the offender was still behind her about 30 to 40 metres away. She stopped and turned around and could see him standing on the roadway on the footpath on the other side of the road. He had his hand up to his ear as if he were talking on a mobile phone and she heard the offender say words to the effect of, ‘Just come and pick me up from Parramatta Road.’.(The victim) ….called out to him, ‘Parramatta Road is the other way’. The offender replied, ‘I’m just going to follow the street lights’.
(The victim)….did not say anything further but continued to walk down Factory Street. When ….(the victim)….was about 5 metres south of the laneway between First and Second Streets, Granville the offender approached her from behind and took hold of her left shoulder with his left hand with his body up against the right hand side of her back. The offender then said, ‘You need to give me your money or I will stab you’. (The victim)….initially tried to fight off the offender as she didn’t realise he had a knife, then felt he was holding a knife in his right hand up against the left side of her throat.
(The victim)….described the knife as having a black handle with a 10 centimetre long blade. She pulled out her wallet and tried to shove it into the hands of the offender saying, ‘You’ve got the wallet, now just go’. The offender took hold of (….the victim’s)….jacket and dragged her into the laneway between First and Second Streets. (The victim)….was concerned because the laneway was out of visibility and attempted to stop the offender saying, ‘I’m not going to do that, we’re not going to do this’. He replied, ‘It’s safer’. Then he said, ‘Don’t fuck with me’.
He continued to say this throughout the incident. The offender placed ….(the victim)….in a corner between against a garage door and a fence. The offender then asked how much money was in her wallet. (The victim)….replied that there was less than $20. The offender told ….(the victim)…., ‘Give me all your jewellery’ and she replied, ‘I don’t have any’ showing him her hands which he felt with his free hand. He then felt around her neck.
The offender continued to have the knife positioned against the left side of ….(the victim’s)….neck. The offender then said, ‘We’re going to fuck. Take my cock out of my pants and stroke it’. (The victim)….said, ‘Mate, you don’t want to do this, it’s not that bad but if you do this it will be much worse’. As she said this she realised the offender had removed his penis from his pants and it was erect. (The victim)….was afraid and so began stroking his penis with her left hand. As she did this the offender kissed ….(the victim)….continually on her neck. (The victim)….tried to grab the knife with her right hand away from her neck, but he held her right side to keep her still. The offender continually said, ‘Don’t fuck with me’ and then, ‘I can’t get girls any other way’.
(The victim)….then released the grip she had on the offender’s penis and made further attempts to remove the knife from her throat. While grabbing for the knife she cut the middle index finger on her right hand. The offender appeared to become angry and tried to shove her up against the wall rather than kiss her.
His tone throughout was forceful and demanding and he continued to say, ‘Don’t fuck with me’. The offender then said, ‘Now you’re going to put it in your mouth’. (The victim)….again tried to calm the offender down and continued to struggle with the knife. As she did this a dog began to bark from one of the premises attached to the laneway. A light then came on and she heard a male voice. The offender paused and ….(the victim)….was able to break his grip. She ran down towards the premises with the light on calling for help. As she did this the offender ran up the laneway and back toward the railway station.
(The victim)….rang the police who arrived a short time later and she informed them what had happened. Police identified at the crime scene a black and brown baseball cap which was located in the middle of the roadway. Police attended Clyde Railway Station where the offender was seen to be sitting on a bench on platform 3. Police approached the offender who at the time was wearing a black and blue jacket, black track pants with a white stripe down each leg but no hat. Police searched the bin which was located directly next to the seat the offender was sitting on and located ….(the victim’s)….black wallet and some personal papers.
The offender was arrested and searched. Police located a black handle kitchen knife with a 15 centimetre silver blade. They also located a number of personal cards in the offender’s front right jacket pocket belonging to ….(the victim)…. . The offender was cautioned and when asked about the cards in his pocket stated that they were his property. When asked about the name on the cards he then said they were not his stuff and the police had put them there.
The offender was escorted back to Parramatta Police Station where he was issued his Part 10 caution and booked into custody. While being searched the offender was hostile and uncooperative. Investigating police made further inquiries and identified through the CCTV that ….(the victim)….and the offender exited the train at Clyde Railway Station at 12.09 am.
Within this footage the offender is seen wearing a black and brown baseball cap which was very similar to the one found in the laneway. At 12.20 am on the same date the offender is again depicted on the CCTV returning to the station from the Factory Street area. The offender is depicted walking down the steps onto platform 3. As he walks along platform 3 the offender is depicted looking through a black wallet similar to the one stolen from ….(the victim)….and then later found in the bin directly next to where the offender was arrested. Police also identified that the offender was wearing the same clothes that was missing, the black and brown baseball cap.
While in custody police spoke with the offender who refused to be interviewed in relation to the matter. Police obtained both ….(the victim’s)….and the offender’s clothing. The offender was then charged with the matters now before the Court.”

8 Leaving aside for the moment the particular point taken in connection with the parole order and its conditions, the challenge made to the sentences passed upon the applicant is very narrowly based. It is accepted by the applicant that each of the three sentences, standing alone, could not be said to be appellably excessive. It is submitted, however, that the extent of the accumulation built into the overall structuring of the sentences has yielded an effective aggregate result, both as to head sentence and as to non-parole period, that is manifestly excessive.

9 In my opinion, this submission can be disposed of shortly and on the basis of the following propositions:

[1] The learned sentencing Judge was, in my respectful opinion, entitled to regard the second and third of the three offences as having been so connected as to justify an order that the sentences passed in respect of each of those offences should be served concurrently.

[2] The learned primary Judge was, in my respectful opinion, amply justified in taking the view that at least some measure of accumulation was appropriate as between the two concurrent sentences and the remaining sentence passed in connection with the first of the three offences. That first, armed robbery, offence was in my opinion quite separate from the two subsequent offences. The applicant, having carried out the intended armed robbery, had two practical choices then open to him. One was to decamp with the spoils of the armed robbery. The other, and the choice which the applicant deliberately made, was not to decamp with the spoils of the robbery but to embark upon some fresh crime or crimes. In those circumstances it would have been, in my opinion, artificial and incorrect in principle to have treated all three offences as though they had constituted, so to speak, one seamless sequence of criminal behaviour.

[3] In deciding upon the measure of accumulation, the learned primary Judge had a broad discretion with which this Court ought, as a matter of principle, not lightly to interfere. His Honour was required to proceed in that connection, and it is plain from the remarks on sentence that his Honour did in fact so proceed, in a way that recognised properly what is conventionally described as the principle of totality.

[4] A proper assessment of the totality of the applicant’s criminal behaviour on the occasion in question could not be divorced from a proper consideration of the objective gravity of the offences themselves; and of the criminal antecedents of the applicant.

[5] The learned primary Judge took the view, and correctly so in my respectful opinion, that each of the three offences was serious and that the first and third of them were very serious indeed.

[6] The learned primary Judge took the view, and in my respectful opinion correctly so, that the criminal antecedents of the applicant were of particular concern. The applicant had a long and bad criminal record. It included convictions in December 1996, and in the Parramatta District Court, of four offences: an offence of threatening to inflict actual bodily harm by a weapon with intent to have sexual intercourse; a second offence of threatening to inflict actual bodily harm by a weapon with intent to have sexual intercourse; an offence of aggravated sexual intercourse without consent; and an offence of assault occasioning actual bodily harm. In respect of those matters various sentences of imprisonment were passed upon the applicant, their aggregate effect being a total sentence of 11 years comprising a minimum term of 5 years and an additional term of 6 years. The applicant was at liberty on parole at the time he committed the offences of 20 May 2004. It is trite that criminal offences are to be treated as being the more serious by reason of the fact that they were committed in breach of parole.

[7] The remarks on sentence, read fairly overall, place great emphasis upon the need to sentence the applicant in a way giving proper recognition to the imperative need to protect members of the public, and especially members of the public described by his Honour as “innocent young girls”, from offences of the kind committed by the applicant in May 2004.

10 I am unpersuaded that the measure of accumulation upon which the learned sentencing Judge settled, was appellably excessive. The overall result was, undoubtedly, a severe one, but so it ought to have been, given the nature of the particular offences; and given, also, the troubling features of the particular offender’s criminal antecedents.

11 It remains only to deal with the point taken in connection with the parole order.

12 Section 50 of the Crimes (Sentencing Procedure) Act 1999 provides:

“50(1) When a court imposes a sentence of imprisonment for a term of 3 years or less, being a sentence that has a non-parole period, the court must make an order directing the release of the offender on parole at the end of the non-parole period.
(2) A parole order may be made under this section even though at the time it is made it appears that the offender may not be eligible for release at the end of the non-parole period because of some other sentence to which the offender is subject.
(3) The failure of a court to comply with the requirements of this section with respect to a sentence does not invalidate the sentence.

13 Section 51 of the same Act deals with the types of conditions that may be attached to a parole order. It is not necessary to consider the detail of section 51.

14 In my opinion, the point now taken by the applicant is sound. It seems to me that the better construction of the provisions of, in particular, sub-section (1) of section 50 is that whenever a Court imposes a sentence of imprisonment for a term greater than 3 years, then the legislation contemplates that the Court itself will not make a parole order, thus leaving the question of parole to be decided in due time by the relevant parole authority. It would be, in my opinion, proper to make the necessary correction to the orders of the District Court.

15 To that end, and generally as to the present application, I am of the opinion that the Court should order:

1. that leave be granted to appeal against sentence;

2. that the appeal be allowed to the extent only of setting aside the parole order and the conditions attached thereto;

3. that otherwise, the appeal against sentence be dismissed.

HISLOP J: I agree with Sully J.

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