Regina v (Fuller) Thornbury [2000] NSWCCA 526

New South Wales Court of Criminal Appeal

CITATION : Regina v (Fuller) Thornbury [2000] NSWCCA 526 FILE NUMBER(S) : CCA 60087/99 HEARING DATE(S) : 06/12/00 JUDGMENT DATE : 6 December 2000

PARTIES : Regina v Jamie Edward (Fuller) Thornbury JUDGMENT OF : Simpson J at 1 & 31; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/61/0216 LOWER COURT JUDICIAL Nader DCJ OFFICER :

COUNSEL : (Applicant): J S Andrews (Crown): P Hock SOLICITORS : (Applicant) D J Humphreys (Crown): S E O'Connor CATCHWORDS : SENTENCING - Severity appeal - special circumstances - accumulation of minimum term upon pre-existing term - whether overlooked by sentencing judge. LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Sharrock [1999] NSWCCA 289 DECISION : See paragraph 30

IN THE COURT OF CRIMINAL APPEAL 60087/99

SIMPSON J CARRUTHERS AJ Wednesday 6 December 2000

REGINA v Jamie Edward (FULLER) THORNBURY

JUDGMENT

1 SIMPSON J: Justice Carruthers will deliver the first judgment. 2 CARRUTHERS AJ: Jamie Thornbury seeks leave to appeal against sentences imposed upon him by his Honour Acting Judge Nader QC at East Maitland District Court on 25 February 1999. 3 On 18 February 1999 the applicant was convicted by a jury at the District Court on one count of armed robbery under s 97(1) of the Crimes Act, 1900. The offence was committed on 27 July 1997. 4 The applicant was born on 25 April 1978 and is of aboriginal descent. He has a criminal record going back to 1994 involving diverse offences. 5 The subject offence was committed at Gilgandra. The applicant was arrested on 22 August 1997 and he remained in custody, to use the vernacular, "Bail Refused" until 22 December 1997. 6 He was then at liberty until he was re-arrested on 11 May 1998, when he went back into custody. This was in relation to other matters. On 4 June 1998 he was granted bail a second time. He was under some form of house arrest between 4 June 1998 and 24 September 1998. Then on 24 September 1998 he was again "Bail Refused" in relation to other matters. 7 On 11 November 1998 he was sentenced by the Gilgandra Local Court to a fixed term of six months imprisonment from 15 October 1998 to 14 April 1999. On 18 December 1998 he was sentenced by the Dubbo District Court to a minimum term of nine months from 25 September 1998 to 24 June 1999 with an additional term of one year and three months. These sentences were in relation to offences of break, enter and steal and robbery. 8 Thus the applicant was in custody in relation to these matters, when his trial on the subject offence commenced on 15 February 1999. 9 Taking these earlier sentences into consideration, Judge Nader sentenced the applicant on 25 February 1999 to a minimum term of three years and eight months to date from 25 June 1999 and to expire on 25 (sic) February 2000. His Honour fixed an additional term of one year and six months to date from 26 (sic) February 2003 and to expire on 25 August 2004. 10 Thus at the time of sentence by Judge Nader the applicant had been serving sentences from 25 September 1998 to 24 June 1999, a period of nine months. That nine months assumed much significance in this appeal. 11 The offence of armed robbery was a particularly serious one. His Honour found the following facts in that regard to have been proven. Mrs Patricia Fay Hutchinson, who seemed to the Judge to be beyond middle age, was working a shift alone at the Mobil service station at Gilgandra at the material time. The service station was owned by Mrs Hutchinson's employer Presnal Pty Limited. 12 Shortly before 8pm the applicant rushed into the service station and came close to Mrs Hutchinson on her side, that is the staff side of the counter. She described the applicant as "racing around the counter". He was carrying a knife estimated to be about 12 inches long with a pointed blade. He wore dark clothes and his head and face were covered with a hood. Mrs Hutchinson remembered it as a balaclava. His Honour was satisfied that it was a hood attached to the upper garment which the applicant was wearing. Under the hood the applicant wore a stocking over his head and face. By reason of this disguise Mrs Hutchinson, was not able to recognise her assailant at the time or at any time after the robbery. 13 The applicant used words like, "cash, cash, hurry up" in a voice which he attempted to disguise, bearing in mind that he and his family were customers of the service station. The applicant struck the till with his knife more than once. 14 His Honour was satisfied that Mrs Hutchinson was in extreme fear by reason of the applicant's conduct. Indeed, he said that when she was giving evidence at the trial, he noticed that she was trembling and this affected her ability to give her evidence fluently. She said in evidence, "It seemed like forever" that the applicant was at the service station. His Honour noted that she had not worked at the service station since the robbery. 15 When the applicant struck the till with his knife, Mrs Hutchinson opened it and took out the contents consisting of notes, cheques and coins. 16 At one stage the applicant held the knife against Mrs Hutchinson's chest and spoke in an angry voice. 17 The applicant decamped from the service station with the money in a pillow slip and he jumped over the back fence, returning hastily to the family home at 1 Station Street, Gilgandra where he received assistance from his parents. That assistance resulted in his parents being charged with the appropriate offences and receiving sentences in that regard. 18 It is the significant aspect of this case that the learned trial judge made the following findings. He said the facts pointed overwhelmingly towards the applicant's parents being strongly instrumental in fostering the applicant's attitude to crime. 19 In this particular instance, his mother knowingly supplied and helped him to fit the stocking that was worn as part of his disguise. She, in company with his father, burnt some of the clothing worn during the robbery shortly after the applicant returned home from committing the offence. 20 This, his Honour noted, was a factor that differentiated this applicant from an armed robber whose parents provided only good example and precept. His Honour said, "He has been deprived of that very significant benefit". 21 When sentencing the applicant, his Honour found special circumstances flowing from the applicant's youth and need for extended emotional and moral developmental assistance after release from custody. 22 In the course of helpful written submissions, Mr Andrews of counsel has analysed the sentences imposed upon the applicant in the context of the sentencing regime that I have outlined earlier in this judgment. Mr Andrews has pointed out that if one takes into account the fact that the subject minimum term was cumulative on the nine months which the applicant was serving at the time of sentence, then the ratio between the additional term of 18 months and the minimum term, together with the nine months custody upon which his Honour's sentence was accumulated (a total of 53 months) is 33.9 percent. 23 Mr Andrews submitted that the Court should also take into consideration the four months "Bail Refused" to which I have already referred but I do not accept that submission. 24 However, I do, having heard careful argument from the Crown, accept that the ratio calculated at 33.9 percent on the basis referred to above, demonstrates that his Honour erred in attempting to achieve his stated aim of special circumstances providing for a minimum term of less than 75 percent of the overall term, to use the modern formula. In this regard, see R v Sharrock [1999] NSWCCA 289. Thus in my view the intervention of this Court is called for. 25 This requires the Court to consider, not only the material that was before his Honour, but also material contained in a report dated 5 December 2000 under the hand of Elizabeth Kusch, a highly qualified psychologist and a member of the firm Duffy Barrier Robilliard, Psychologists. 26 I will not set out the detail which is contained in this report. Regrettably it contains a pattern of disadvantages associated with this young man's life in the western districts of New South Wales which is only too common. He seems to have ricocheted from problem to problem in a social and family environment from which he could obtain no support, guidance or encouragement towards achieving a stable social existence. 27 Not surprisingly, he experienced feelings of depression and has been prescribed medication for that. Regrettably, as is often the case, the medication resulted in unpleasant and undesirable side effects. He has been assessed as intellectually suffering limitations and has elevated scores on anxiety and delusional disorder. 28 He has not been wasting his time in custody and has obtained various certificates, including reading and writing, mathematical concepts, anger management, and completed a drug awareness programme. 29 It seems to me that balancing as best one can the objective and subjective circumstances and adopting as merciful an approach as one can to this problem that the appropriate sentencing regime should be as follows. 30 I would propose that the applicant be granted leave to appeal; that the sentences imposed by his Honour Judge Nader be set aside and that in lieu thereof the applicant be sentenced to an overall term of five years imprisonment to date from 25 June 1999 and to expire on 24 June 2004 with a non-parole period of two years and 9 months, to date from 25 June 1999 and to expire on 24 March 2002 on which date the applicant will be eligible to apply for parole. 31 SIMPSON J: I agree. The orders of the Court will be as proposed by Justice Carruthers. **********