R v LONDON [2000] NSWCCA 165

New South Wales Court of Criminal Appeal

CITATION : R v LONDON [2000] NSWCCA 165 FILE NUMBER(S) : CCA 60139/99 HEARING DATE(S) : 5 May 2000 JUDGMENT DATE : 5 May 2000

PARTIES : Regina Darren Robert London JUDGMENT OF : Hulme J at 1; Carruthers AJ at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0026; 98/11/0027 LOWER COURT JUDICIAL English DCJ OFFICER :

COUNSEL : Crown: LMB Lamprati Appellant PM Winch SOLICITORS : Crown: SE O'Connor Appellant: -

DECISION : Leave to appeal is refused

IN THE COURT OF CRIMINAL APPEAL No: 60139/99 HULME J CARRUTHERS AJ

Friday, 5 May 2000 REGINA -v-Darren Robert LONDON

JUDGMENT

1 HULME J : On 19 March 1999 Judge English sentenced the applicant, who pleaded guilty in respect of two offences, namely: (1) That on 27 October 199 at Glebe..., being then armed with an offensive weapon, namely a firearm, did assault Orazio Racit with intent to rob him and at the time of such assault did wound the said Orazio Raciti. (2) That on 6 November 1996 at Sefton..., being then armed with an offensive weapon, namely a firearm, did rob Christopher Mark Finch of certain property, namely certain monies the property of Shirone Holdings Pty Ltd trading as the Sefton Hotel and at the time of such robbery did wound the said Christopher Mark Finch. 2 Pursuant to Section 98 of the Crimes Act, each of these offences rendered the applicant liable to a maximum penalty of 25 years imprisonment. 3 In respect of the first count, the applicant was sentenced to imprisonment for a minimum term of twelve years commencing on 11 November 1996 and an additional term of four years. In respect of the second count, the applicant was sentenced to a fixed term of imprisonment of eight years also commencing on 11 November 1996. In deciding to impose these penalties, her Honour noted that the crimes were separate and deserving of cumulative penalties. She decided, however, not to "enter into an exercise of accumulation" and fixed an overall head sentence reflecting the applicant's total criminality. 4 In arriving at the sentence which she did, her Honour took into account something over 20 matters on two Form 1's. These included five counts of armed robbery, including two whilst armed with a dangerous weapon and two accompanied by wounding; one of assault with intent to rob whilst armed with a dangerous weapon; one of possessing a shortened firearm, and at least two of possession of an unlicensed pistol. 5 Very briefly, the circumstances of the first offence were that while in the shop of a second hand dealer at Annandale, the applicant produced a gun and demanded money. In the office of the premises, Mr Raciti said there was no money there and opened the till to demonstrate that fact. After more demand and responses to similar effect, the applicant said, "Don't stuff me around. I'll shoot you in the leg first and then I'll shoot you in the head and I'll kill you." He then lowered his gun, shot Mr Raciti in the leg, and decamped. 6 The circumstances of the second offence were that at 9.40am one morning, the applicant, holding a gun, bailed up a number of employees working within the Sefton Hotel, demanded that the door to the office and that the safe be opened, and while Mr Finch, the day manager, was engaged in opening the safe, the applicant shot him in the arm. Her Honour recorded that Mr Finch continued to suffer from both psychological and physical injuries. 7 I do not see it necessary to detail the circumstances of the offences also taken into the account. 8 The applicant was born on 27 April 1970. His antecedents commenced in 1984 when he was convicted of stealing, breaking, entering and stealing and illegally using a motor vehicle. He was in court on numerous occasions over the next six years, although between 1990 and the subject offences, only two convictions are recorded and the longer sentence imposed in respect of these was for a minimum term of 18 months and an additional term of six months on two counts of breaking, entering and stealing. However, it is not unlikely that the explanation for at least part of this period was the fact that the applicant was in custody from 1989 until 11 October 1992 for a series of offences including one described in his antecedents as "assault and rob with striking". 9 The grounds of appeal are:- (1) That her Honour failed to give sufficient weight to the subjective circumstances of the applicant. (2) That her Honour erred by giving inappropriate weight to the applicant's criminal history. (3) That her Honour erred by failing to give reasons for her decision to impose a fixed term of imprisonment. (4) That the sentence is manifestly excessive. 10 The first and fourth of these grounds merit attention to the applicant's subjective circumstances. The applicant did not, himself, give evidence about these, but a report by Susan Hayes, psychologist, was tendered. Presumably on the basis of what the applicant told her, she recorded that the applicant grew up in an intact family. His childhood was fairly good until about 14 when he began to mix with the wrong crowd, truanted from school and misbehaved at home to the extent he was thrown out. Thereafter he lived on the streets for a number of years except for periods when he was in a boys' home. He started drinking from about age 16 or 17, often to excess, and began to smoke marijuana. After 1986 alcohol was a major feature in the applicant's life, although in 1994 or 1995 he seems to have commenced substituting LSD and ecstasy for it. In August 1995 he was charged with possessing a shortened firearm and was on the run from the police thereafter. 11 In 1996 he commenced a relationship with a woman who was an injecting drug user and thereafter he commenced to inject amphetamines - to the extent of 3 or 4 grams a day, and cocaine. In this period he became aggressive, paranoid and did not care what he was doing. At the time Miss Hayes saw the applicant he was severely clinically depressed and had been suicidal. Miss Hayes recorded that the applicant was then showing insight into his past behaviour and empathy with his victims and was giving some indications of future responsibility, for example, his relationship with his son. 12 Despite these matters, Mr London's application to this court is hopeless. Section 6(3) of the Criminal Appeal Act provides that in the circumstances presently relevant, "The court - if it is of opinion that some other sentence whether more or less severe is warranted in law and should have been passed - shall quash the sentence and pass such other sentence and substitution therefore and in any other case shall dismiss the appeal." 13 This Court has made it clear that the subjective circumstances of an offender cannot be allowed to inappropriately outweigh the objective circumstances of an offence or offences. 14 When one has regard to the statutory penalties which Parliament has prescribed and to the magnitude of the applicant's offending, no sentence lower than 16 years (with a minimum term of twelve years) could reasonably have been imposed. As her Honour said:- "The community has a rightful expectation that repeat offenders will be dealt with severely by sentencing officers...this man has not been deterred by previous sentences and leniency has not touched him. Courts must sentence to take into account the seriousness of the crime and in a way so as to deter the prisoner from re-offending and also to send a strong message to those in the community who would be of like mind to the prisoner." 15 In Regina v Morgan (1993) 70 A Crim R 368 this Court made it clear that appropriate recognition should be given to offences included on a Form 1 rather than being charged. 16 In Regina v Henry (1999) 46 NSWLR 346 this Court indicated that a sentence of four to five years was appropriate for offences of armed robbery far less serious than many of the offences committed by the applicant. These decisions and others to which the written submissions on behalf of the Crown referred, demonstrate that heavy though the sentences imposed on the applicant were, they were not disproportionate to his criminality. 17 To what I have said, I should, perhaps, add one further remark. Her Honour fixed the period proposed in respect of the first offence having regard to the applicant's criminality. In light of the decision of the High Court in the Regina v Pearce it seems to me that although, of course, she was entitled to take into account the criminality involved in the charges on the Form 1's, she should not have taken into account the criminality inherent in the second offence charged. However, in light of the concurrency of the sentence imposed in respect of that second count, the applicant has not been disadvantaged. Were I to approach the matter as required by Pearce 's case, I would not have imposed any lesser sentence. 18 The application for leave to appeal is hopeless and in my view should be refused. 19 CARRUTHERS AJ: I agree. 20 HULME J: The order of the Court is the application for leave to appeal is refused. …………