FEDERAL COURT OF AUSTRALIA Nurzynski v The Queen [2000] FCA 1860 CRIMINAL LAW – attempted armed robbery – appeal against severity of sentence of five years imprisonment with two and a half years non-parole – sentencing judge's omission to mention possibility of treatment order – whether a failure to consider all other available penalties under s 429C of the Crimes Act 1900 (ACT) – whether reference to "leniency" indicative of error – whether reference to appellant "hoodwinking jury" indicative of error – no error demonstrated. Crimes Act 1900 (ACT), s 429, s 429A, s 429B, s 429C Drugs of Dependence Act 1989 (ACT), s 122, s 124 Sentencing Act 1991(Vic), s 5 Sentencing Act 1995 (WA) Crimes Act 1914, s 16A Stafford v The Queen (1997) 79 FCR 1 Dinsdale v The Queen [2000] HCA 54; 175 ALR 315 R v Dole [1975] VR 754 Ferrier-Ellis (1991) 55 A Crim R 231 ADAM PAUL NURZYNSKI v THE QUEEN A 39 of 2000 MILES, O'LOUGHLIN and MATHEWS JJ 18 DECEMBER 2000 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A39 OF 2000 On Appeal from the Supreme Court of the Australian Capital Territory BETWEEN: ADAM PAUL NURZYNSKI Appellant AND: THE QUEEN Respondent JUDGES: MILES, O'LOUGHLIN and MATHEWS JJ DATE OF ORDER: 17 NOVEMBER 2000 DATE OF JUDGMENT: 18 DECEMBER 2000 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be dismissed and the sentence be confirmed. 2. There be no order as to costs. 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 A39 OF 2000 On Appeal from the Supreme Court of the Australian Capital Territory BETWEEN: ADAM PAUL NURZYNSKI Appellant AND: THE QUEEN Respondent JUDGES: MILES, O'LOUGHLIN and MATHEWS JJ DATE OF ORDER: 17 NOVEMBER 2000 DATE OF JUDGMENT: 18 DECEMBER 2000 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT: 1 On 17 November 2000 the Court ordered that this appeal be dismissed, no order as to costs, and indicated that reasons would be given later. These are the reasons. 2 The appellant appealed against the severity of a sentence imposed by the Supreme Court of the Australian Capital Territory on 17 May 2000. The appellant was convicted after trial on a charge of attempted armed robbery. He was sentenced to five years imprisonment with a non-parole period of two years and six months. Facts 3 On 1 March 1998 at about 7.30 pm the appellant approached the box office at the Electric Shadows Cinema in Civic. He demanded money from the cashier, who was alone in the office. At the same time he began to remove the top from a syringe filled with red liquid. He wore a black balaclava over his face. The cashier went to lock the door to the office. The appellant climbed over the counter. The cashier called for help. The appellant stopped and ran into the adjacent car park. Shortly afterwards police arrived at the cinema. 4 The appellant went to a house in O'Connor where he was then living with his wife. He telephoned the box office. According to the cashier's evidence, the appellant said words to the effect of, "When they go I'll get you". 5 The Police searched the house on 5 March 1998 and located clothing which was generally consistent with the description given by the cashier and included a black balaclava with two eye holes cut from it. 6 When interviewed by the police later that day, the appellant denied committing the offence. Police observed at the time of interview that the appellant had a red stain on his left thumb. He conceded that he had telephoned the box office on the night of the offence, but only to inquire about the current program. He claimed he had ended the call before speaking to anybody. He said that when making the call he was distracted by an argument with his girlfriend and yelled at her about spending money. He claimed to a corrections officer who prepared a pre-sentence report that he had said, "You fucking bitch, you should have given me the money". He gave evidence to similar effect, but it was rejected by the jury. History and previous offences 7 At the time of the offence the appellant was 31 years of age. He has a long history of convictions and drug abuse. He has had little experience of employment. Some ten years previously he commenced the second year of a degree course at university, but discontinued because of his drug abuse. He contracted Hepatitis C and was receiving a disability support pension . In his early years the appellant had used various illicit drugs, but heroin became what the pre-sentence report describes as his drug of choice. 8 On 27 February 1992 the appellant was sentenced in the Supreme Court for an offence of armed robbery to four years imprisonment suspended immediately on entering into a recognizance to be of good behaviour for four years. The Court also made a treatment order under s 124 of the Drugs of Dependence Act 1989 (ACT) (the Drugs of Dependence Act) that he accept two years supervision from the Alcohol and Drugs Service at Woden Hospital, that he complete a residential rehabilitation program at the Lyndon Community, Canowindra, New South Wales, and that he attend a panel appointed under the Drugs of Dependence Act at regular intervals. The appellant attended the Lyndon Community and otherwise complied with the treatment order. He committed no breach of the recognizance. However, on 8 March 1996, some 10 days after the expiry of the recognizance, he committed an offence of burglary and was placed on another recognizance for a period of 18 months. Within that period he committed an offence of possessing cannabis for the purpose of sale. For that offence he was fined by a magistrate. It is not clear whether there was any action for breach of the then current recognizance. 9 At the time of the attempted robbery on 1 March 1998 the appellant had been undergoing a methadone maintenance program for some two years. He continued on the methadone maintenance program when he was released on bail, but ceased to participate at the beginning of 2000 when he and his wife entered a residential program at West Mount, a drug dependency treatment centre at Katoomba, New South Wales. By the time of the trial they had completed the first module of the program and were continuing in the second module of three months duration. That, if successful, was to be followed by a further 12 months of treatment whilst residing in the general community. 10 On 15 December 1997 a magistrate ordered the appellant to serve 208 hours community service for breach of a recognizance entered into on 28 March 1990 for an offence of burglary. The appellant performed the community service order, but it is not clear whether the order was effective at the time of the offence on 1 March 1998. 11 The respondent did not give evidence at the sentencing stage, but the learned sentencing judge had had the opportunity to observe him giving evidence at the trial. The remarks of his Honour which accompanied the imposition of the sentence were relatively brief and, one might think, to the point. However, the submission is made on behalf of the appellant that the remarks do not constitute adequate reasons to support the sentence and are otherwise indicative of error. 12 The relevant remarks were: "It is always hard to sentence somebody who has never been in gaol before, but this accused has been skating around a gaol for a considerable time and so far he has been able to avoid it. Particularly, he avoided it in 1992 when he was convicted of armed robbery in the circumstances set out in a document which has been produced by the Crown and admitted in evidence. On that occasion he robbed the Watson Grocery and Deli of $461 whilst armed with an imitation pistol, and he used the weapon to threaten two staff in the shop, one of whom was a 12 year old boy, who was extremely frightened. He took the money from two cash registers and left, fled the scene on a motor bike, but was apprehended when the bike was traced back to him. Nothing new about his drug addiction, armed robbers seem to think that they have got some sort of a licence to commit armed robbery because they are addicted to drugs. This accused has been struggling with his drug addiction for a long time and unfortunately at 33 years of age he still has not rehabilitated himself from drugs, notwithstanding his efforts. Well, it has been said many times drug addiction is not an excuse, it is not even mitigating in considering the offence of armed robbery or attempted armed robbery. So I take it into account but I do not find it mitigating. He has other convictions as well and they do not do him much credit. There is some drugs involved and his prior convictions and this is the end of the road, so far as leniency is concerned. I think there is some prospect that he is likely to reform once he has served his gaol sentence. He appears to be a responsible parent, he has an 18 month old child, and he might like to think about what he has done to his relationship with his 18 months old child, by reason of the commission of this offence." Submissions on behalf of the appellant 13 Ms Gabriel, who did not appear for the appellant at the trial, put as her major submission that his Honour was in error in failing to consider the option of a non-custodial sentence which would have incorporated a treatment order under s 124 of the Drugs of Dependence Act. It was submitted that His Honour's remark that the appellant's drug addiction was not mitigating, indicated a failure to appreciate the relevance of the appellant's addiction to heroin. The relevance, so it was submitted, was not simply whether the addiction was mitigating but whether the role of the addiction in the commission of the offence was such that it activated, or should have activated, the potential application of the Drugs of Dependence Act and the making of a treatment order rather than an immediate sentence of imprisonment. 14 It was submitted that his Honour's reasons do not disclose that he had given consideration to an available penalty other than imprisonment, namely a treatment order. Thus, so it was submitted, given the circumstances of the offence and the evidence of rehabilitation being successfully undertaken by the appellant, in failing to give consideration to the option of a treatment order, or otherwise to express reasons why there was no other appropriate penalty apart from immediate imprisonment, his Honour fell into error. 15 Ms Gabriel submitted that this error arose from a misunderstanding on the part of his Honour that the various sentencing options available involved varying degrees of leniency and that to impose a sentence other than immediate imprisonment would have extended undue leniency to the appellant. 16 Ms Gabriel further submitted that in referring to the appellant attempting "to hoodwink the jury", his Honour wrongly took into account certain matter prohibited by s 429B of the Crimes Act 1900 (ACT) (the Crimes Act). Submissions for the respondent 17. The Director of Public Prosecutions (ACT) submitted that the reference to leniency did not indicate error on the part of the sentencing judge and that the remarks on sentence showed that his Honour had taken into account the appellant's drug dependency as well as all other sentencing options. The Director also submitted that in any event the appellant did not come within the scope of the provisions of the Drugs of Dependence Act relating to assessment orders. The Director further submitted that the reference to the appellant "attempting to hoodwink the jury" was simply a statement of fact, which had no effect on the sentence. Leniency, drug dependency and statutory provisions 18. The relevant provisions of the Crimes Act are as follows: "429 Purposes for which sentence imposed The only purposes for which a sentence may be imposed are – (a) to punish the offender to an extent and in a way that is just and appropriate in all the circumstances; or (b) to deter the offender or other persons from committing the same or a similar offence; or (c) to rehabilitate the offender; or (d) to make it clear that the community, acting through the court, denounces the type of conduct in which the offender engaged; or (e) to protect the community from the offender; or (f) a combination of 2 or more of the purposes referred to in paragraphs (a) to (e) inclusive. 429A Matters to which court to have regard (1) 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: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct; (d) where the personal circumstances of any victim of the offence were known to the offender at the time of committing the offence – those circumstances; (e) any injury, loss or damage resulting from the offence; (f) any action the person may have taken to make reparation for any injury, loss or damage resulting from the offence; (g) the degree of responsibility of the person for the commission of the offence; (h) the degree to which the person has cooperated, or undertaken to cooperate, with law enforcement agencies in the investigation of the offence or other offences; (k) the cultural background, character, antecedents, age, means and physical or mental condition of the person; (m) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants; (n) whether the person was affected by a drug or alcohol and the circumstances in which the person became so affected; (o) the degree to which the offence was the result of provocation, duress or entrapment; (p) whether the recording of a conviction or the imposition of a particular sanction would be likely to cause particular hardship to the person; (q) a jury recommendation for mercy; (r) whether the person is voluntarily seeking treatment for any physical or mental condition which may have contributed to the commission of the offence; (s) whether the person was in a position of trust or authority at the time of the commission of the offence; (t) current sentencing practice; (u) whether the person has pleaded guilty and, if so, the stage of the proceedings at which the person did so or indicated an intention to do so; (v) whether the person has demonstrated remorse; (w) the reason or reasons why the person committed the offence; (x) whether the person has paid the prescribed penalty in accordance with an offence notice served, under section 575, on him or her for an offence. (2) Without limiting the generality of subsection (1), in determining whether a sentence or order under subsection 556A(1) or 556B(1) is appropriate in respect of an offence against a law of the Territory, the court shall have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the person, under that sentence or order. 429B Matters not to be taken into account The court shall not, in determining the sentence to be imposed on a person, increase the severity of the sentence that would otherwise be imposed because of any of the following: … (f) the person's behaviour in court; (g) that the person chose to plead not guilty. 429C Restriction on imposing sentences of imprisonment (1) A court shall not pass a sentence of imprisonment on any person for an offence against a law of the Territory unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case." 19. The relevant provisions of the Drugs of Dependence Act are as follows: "122. Assessment orders (1) Where a court finds an offence under this Act or under any other law in force in the Territory proved against a person, the court may, having regard to whether the person may have been – (a) under the influence of a drug of dependence or a prohibited substance when he or she committed the offence; or (b) motivated to commit the offence by a desire – (i) to administer a drug of dependence or prohibited substance to himself or herself; (ii) to obtain such a drug or substance for administration to himself or herself; or (iii) to obtain resources to enable him or her to obtain such a drug or substance for administration to himself or herself; order the person to submit himself or herself for assessment by a panel and, if so required by the panel, for assessment at an approved treatment centre or centres. (2) A court shall only make an order under subsection (1) – (a) with the consent of the offender; and (b) before convicting or sentencing the offender; or otherwise disposing of the matter. (3) Where a court makes an order under subsection (1) in relation to an offender, the proper officer of the court shall – (a) cause the order to be written down in accordance with Form 5; and (b) cause a copy of the order to be given to the offender and to the Director." 20. If an assessment panel issues a recommendation for treatment, the Court may, under s 123 order that the offender submit to treatment without undergoing imprisonment. 21. Some of the issues raised by the statutory regime of sentencing contained in the above provisions of the Crimes Act were considered by a Full Court of this Court in Stafford v The Queen (1997) 79 FCR 1. At that time s 429 provided that: "429.(1) The sentence imposed by a court for an offence shall be just and appropriate. (2) Without limiting the generality of subsection (1), the sentence shall, as far as practicable, be such as to – (a) facilitate the offender's rehabilitation into society; and (b) encourage the offender to make appropriate reparation to any victim of the offence. 22. Drummond J, with whom O'Loughlin J was in substantial agreement, said at 14 that: "… the fundamental objective of sentencing recorded in s 429(1) is that the sentence, must, in its punitive effect, be just and appropriate for the particular offence, that is, punishment remains the fundamental objective of sentencing. … Section 429(2) cannot be read as authorising the Court to give effect to considerations raised by the matter of rehabilitation and the matter of reparation in a way which would conflict with the fundamental objective of imposing, by its sentence, a punishment appropriate to the particular offence. The qualification that the Court is only obliged to facilitate rehabilitation and encourage reparation, as far as practicable, also recognises that the Court cannot allow rehabilitation or reparation to dictate the sentence, where the result would be to conflict with the Court's overriding duty to impose a sentence that sets an appropriate punishment for the particular offence." 23. By amendments to the Crimes Act which came into force on 10 June 1998 s 429 was re-enacted in its present form. The former provision that a sentence be "just and appropriate" was removed, but is reflected in the amendment which provides in s 429(a) that one of the purposes for which a sentence may be imposed is "to punish the offender to an extent and in a way that is just and appropriate in all the circumstances". The amendments result in provisions which are very similar to those of s 5 of the Sentencing Act 1991(Vic). 24. The scope and operation of statutory provisions as to sentencing were considered by the High Court of Australia in Dinsdale v The Queen [2000] HCA 54; 175 ALR 315. Kirby J with whom Gaudron and Gummow JJ agreed, held that the provisions of the Sentencing Act 1995 (Western Australia) concerning suspended imprisonment required a reconsideration by the sentencing judge of "all the circumstances", even though the sentencing judge had already considered those same circumstances before coming to a conclusion that imprisonment was the appropriate option to use. All Justices of the High Court agreed in the opinion that the Court of Criminal Appeal had wrongly approached the consideration of whether a sentence of imprisonment should be suspended by concentrating on issues of the offender's rehabilitation when the statute required "all the circumstances" to be considered. Gleeson CJ and Hayne J held that the statute required the options to be considered in the order in which they are set out in the legislation, and that the Court of Criminal Appeal, in setting aside the sentence at first instance, had wrongly inverted the order in which the statute required the options to be considered. 25. Dinsdale is instructive, since, like Stafford, it illustrates the duty of a sentencing court to have regard to relevant statutory provisions relating to sentencing before exercising the ultimate discretionary choice of the particular sentencing option to be imposed. Although there is no longer any express statutory provision that the sentence be "just and appropriate", there can be no doubt that this is what the law requires, as it always has. The present restriction of the use of the term "just and appropriate" in s 429(a) to the extent and the way in which punishment is to be imposed by means of the sentence does not appear to be intended to make any difference. To suggest that there is a difference between ensuring that a sentence is just and appropriate and ensuring that punishment is just and appropriate, seems to impute a sophistication and subtlety to the sentencing process that was never intended by the legislature. 26. Nevertheless, the present provision that it is the objective of punishment which is to be just and appropriate, rather than the sentence itself, is a clear indication that leniency is not an irrelevant consideration. A sentencing judge is required by the statute to consider both the extent and method of punishment as it may be achieved by the sentence to be imposed. Almost inevitably the consideration will involve an assessment of the varying degrees of relative leniency or severity of the possible options to the extent that they may tend to attain the objective of punishment. A short prison sentence will almost always be regarded as less severe and more lenient than a long prison sentence. A non-custodial outcome may well be regarded as more lenient and less severe than an immediate prison sentence. Whilst the sentencer must strive to achieve all the purposes of sentencing as prescribed by s 429, the sentencer may well decide that in all the circumstances one or more purposes are more important or more achievable than others and that ultimately a just and appropriate punishment requires a sentence in which leniency can play little or no part. 27. Similar considerations apply, depending on the circumstances of the case, to the purposes of deterrence and denunciation, also prescribed by s 429, since in many cases these may properly be accommodated by a sentence in which severity rather than leniency is a characteristic. 28. Nevertheless it is true, as submitted by Ms Gabriel, that the term leniency is not to be found in the statutory regime of sentencing as prescribed by the Crimes Act. Further, it is also true that conceptually leniency and severity are not absolute, but relative. Hence whilst concentration on leniency, or the lack of it, may be confusing and indeed may even deter the sentencer from proper attention to the purposes of sentencing and the factors to be taken into account as prescribed by s 429 and s 429A, a simple reference to leniency during the sentencing process does not of itself constitute error. His Honour's remark that the appellant's prior convictions for drug offences and his failure to rehabilitate himself meant that leniency could not be extended does not constitute error. 29. Similarly, the failure of his Honour to state that he had considered the possibility of proceeding in accordance with the provisions of the Drugs of Dependence Act, only to reject that possibility, does not indicate error. An omission to mention a matter does not necessarily indicate a failure to consider it: R v Dole [1975] VR 754. 30. In Ferrier-Ellis (1991) 55 A Crim R 231, Hunt J, with whom the other members of the NSW Court of Criminal Appeal agreed, referred to the "check list" provided by s 16A of the Crimes Act 1914, similar in terms to s 429A. Hunt J continued at 237: "It should be said that the legislation only requires the sentencing judge to take those matters into account; it does not require judges always to refer to each of them when explaining the sentence imposed. Indeed, the act of sentencing is to a large extent incapable of being fitted into such a straight-jacket, and in most cases it is unnecessary for the judge to expose the precise reasoning by which the ultimate sentence has been reached: Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. It is only where the judge has formed a particular view in relation to one or more of these items which would not otherwise be apparent in the circumstances of the case that reference should be made to the particular items in the judge's remarks on sentence, so that no erroneous conclusion would otherwise be drawn in relation to those matters." 31. It is significant that counsel for the appellant at the trial did not seek an assessment order, a necessary step towards the making of a treatment order. Nevertheless the sentencing judge specifically turned his mind to the long term prospects and stated that, in the context of his past criminal behaviour which was closely bound up with his drug addiction, the appellant stood a prospect of reform once he had served his gaol sentence. Even if it is assumed that an assessment panel would have assessed the appellant to be drug dependent and would have recommended treatment, it is obvious that his Honour would have been of the view that the eventual disposition of the case by treatment order rather than by imprisonment would have been inappropriate. 32. Furthermore, it is not apparent that the appellant came within the provisions of s 123 of the Drugs of Dependence Act. In accordance with the section, an assessment order may be made where the person may have been under the influence of a drug of dependence at the time of the offence, or motivated to commit the offence by a desire to administer a drug of dependence to himself or herself, or obtain the drug for administration to himself or herself, or even to obtain resources to enable him or her to obtain the drug for administration to himself or herself. On the appellant's own case in the present matter, however, he was seeking to obtain money for his wife to overcome the symptoms of withdrawal from heroin. 33. Lastly, there was the reference by his Honour to the appellant's attempt to "hoodwink the jury" by his evidence in the trial that he had telephoned the cinema innocently and that he had nothing to do with the robbery. The evidence was later contradicted by what he told the corrections officer. The provisions of s 429C require that a court shall not increase the sentence because of an offender's choice to plead not guilty or because of the offender's behaviour in court. It is true that the fact that his Honour made reference to the offender's false account to the jury suggests that his Honour was conscious of it and thought it important enough to mention, but it has not been shown for the purposes of the section that there was, as a result, any increase in the severity of the sentence that would otherwise have been imposed. The section is somewhat misleadingly headed "Matters not to be taken into account", but its precise requirements are somewhat different from what the heading suggests. 34. There is no challenge to the sentence on the ground that it is manifestly excessive. 35. For these reasons the appeal was dismissed and the sentenced confirmed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 18 December 2000 Counsel for the Appellant: Ms L Gabriel Solicitor for the Appellant: A C Bell & Co Counsel for the Respondent: Mr R Refshauge SC Solicitor for the Respondent: ACT Director of Public Prosecutions Date of Hearing: 17 November 2000 Date of Judgment: 18 December 2000