REGINA v HAMILTON [2000] NSWCCA 31

New South Wales Court of Criminal Appeal

CITATION : REGINA v HAMILTON [2000] NSWCCA 31 FILE NUMBER(S) : CCA 60596/99 HEARING DATE(S) : 16 February 2000 JUDGMENT DATE : 16 February 2000

PARTIES : Regina v William Edward HAMILTON JUDGMENT OF : Spigelman CJ at 1; Hulme J at 19; Smart AJ at 23

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0214 LOWER COURT JUDICIAL Coolahan DCJ OFFICER :

COUNSEL : P G Berman (Crown) F P Thraves (Respondent) SOLICITORS : S E O'Connor (Crown) Parke Maher (Respondent) CATCHWORDS : CRIMINAL LAW - sentencing - Crown appeal - robbery armed with an offensive weapon - manifestly inadequate sentence - Crimes Act 1900, s97(1) - CRIMINAL LAW - sentencing - "special circumstances" - Sentencing Act 1989, s5(2) LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 DECISION : Crown appeal allowed, sentence quashed and new sentence substituted. Respondent sentenced to a minimum term of two years penal servitude commencing on 3 April 1999, with an additional term of three years commencing on 3 April 2001.

IN THE COURT OF CRIMINAL APPEAL

60596/99

SPIGELMAN CJ HULME J SMART AJ

Wednesday 16 February 2000 REGINA v William Edward HAMILTON JUDGMENT 1 SPIGELMAN CJ: This is an appeal by the Crown against the alleged inadequacy of the sentence imposed on the Respondent by Judge Coolahan, sitting in East Maitland District Court on 24 August 1999. 2 The Respondent pleaded guilty to four counts of robbery whilst armed with an offensive weapon, contrary to s97(1) of the Crimes Act 1900. The maximum penalty for each offence is penal servitude for twenty years. The judge sentenced the Respondent on each count to a minimum term of twelve months penal servitude, to commence on 3 April 1999 and an additional term of three years, to commence on 3 April 2000, expiring on 2 April 2003. 3 There were four separate armed robberies committed over a period in excess of one month as follows: · On 27 February 1999 at 8.00 am, the Respondent entered the Shell Service Station at Rutherford. The service station was then being attended by a twenty year old woman. The Respondent approached her, told her to get to the ground, at which time she noticed he was holding in his left hand a large knife about 40cms in length. She said that during the robbery she was very scared and thought that the Respondent was going to hurt her. The Respondent removed notes and coins to the value of about $300. As he left, the Respondent said "I'm sorry for scaring you, but I'm desperate". · On 27 March 1999 at about 11.45 pm, the Respondent returned to the same service station, which was then attended by an eighteen year old male employee. The Respondent said "OK buddy open the till and sit on the floor". He produced the 40cm knife. The attendant said he became scared and was worried that he would be hurt. The Respondent took about $250 from the till. On his departure, the Respondent said "Do me a favour and give the cops a shitty description of me." · On 28 March 1999 at 4.42 am, at the Ampol Service Station in East Maitland, the Respondent confronted a twenty-four year old female employee with the 40cm knife. The employee said that she was afraid that if she did not remain calm and do what he was telling her, the Respondent might have used the knife on her. About $60 was taken. · On 3 April 1999 at about 3.00 pm, the Respondent approached a forty-five year old female employee, who was then serving a twelve year old boy in the Mobil Service Station at Cessnock. Another woman was also in the shop. The Respondent pushed the boy out of the way, pushed the employee against the brick wall. When she called him "a mongrel", he told her to "shut up". He held a 7cm knife in his right hand and pointed it at her waist. The boy ran out of the shop. The employee said that she was hysterical and shaking after the event and in a total state of shock. She indicated that she had feared for her life. On this occasion, the Respondent removed about $350 from the till. 4 On each of the occasions, the Respondent made no effort to conceal his identity. When apprehended, shortly after the last robbery, he admitted to the four offences. He said that he had been armed so as to scare the employees. He said that he had formed an intention to commit each robbery shortly before actually committing it. He said he had needed the money for drugs. 5 The objective circumstances of each offence indicates that each must be treated as serious offences. The cumulative impact of the four separate offences is also of considerable significance. The degree of violence threatened was, on each occasion, of a significant order and, on the last occasion, aggravated by an escalation in the level of aggressiveness and the presence of a twelve year old boy. 6 In the course of his remarks on sentence, the sentencing judge found that all of the offences were drug related in the sense that the Respondent was using the proceeds of the robberies to support his habit. He also found that the words he used at the time of the first offence, namely, "I'm sorry if I scared you but I'm desperate", reflected his state of mind at the time of the offences. 7 The Respondent was twenty-one years old at the time. The evidence presented before the sentencing judge indicated a supportive family background and a youth of generally good character until his addiction overwhelmed him. It is a common tale nonetheless regrettable in the individual case, by reason of the frequency of its occurrence. 8 In his evidence before the sentencing judge, the Respondent indicated that he had not partaken of illicit drugs of any description while in prison, notwithstanding their availability to him in prison. He asserted that on any release he would accept guidance and help from the Probation and Parole Service. 9 One of the factors which, it appears, had brought this young man to pursue the calamitous path of addiction, was the separation from his family, which had moved to Queensland. He gave evidence that he intended to live with his parents in Queensland on his release. 10 The Respondent's father gave evidence about the availability of drug counselling and rehabilitation in the area in Brisbane where he lives. The Crown indicated that by reciprocal arrangement between the States, the parole authorities in the State of Queensland would be able to supervise a person serving an additional term under supervision. 11 His Honour accepted the Respondent's expressions of remorse as genuine. Furthermore, his Honour correctly gave weight to the fact that the Crown was unlikely to be able to prove two of the offences without the confession. In these cases the plea of guilty is entitled to real consideration. 12 In his reasons for sentence, the sentencing judge stressed the subjective features. He accepted the Respondent's evidence that he would undertake drug rehabilitation and would also attempt to further his education. He went on to find "special circumstances" for the purpose of s5(2) of the Sentencing Act and said : "The additional term exceeds one-third of the minimum term because of the special circumstances to which I have referred earlier, namely the relative youth of the prisoner and the strong desire that he undertake extended supervision for his drug addiction." 13 His Honour's conclusion was to radically alter the statutory relationship so that the additional term was increased from one-third of the minimum term to three times the minimum term. 14 No particular error in the reasoning has been identified. The Crown case was essentially that of manifest inadequacy by reason of the total sentence and, in particular, by reason of the short period imposed by way of a minimum term. 15 The issue of whether or not all four of the sentences should have been made concurrent, was raised in the Crown's submissions. It was, in my opinion, open for his Honour to make the sentences concurrent by applying the principle of totality, so long as the final result reflected the substantial criminality involved in the commission of four offences. In particular, the minimum term must itself reflect the seriousness of the offences. 16 In my opinion, the Crown's submissions are correct. The sentence imposed by his Honour, and in particular the minimum term, is manifestly inadequate in the requisite sense. The objective circumstances of the offences were very serious. The degree of violence threatened to the four individual attendants, and especially so in the case of the last offence, was of such an order that a minimum term of twelve months is manifestly inadequate. Furthermore, the total term of four years does not reflect the degree of criminality involved in the four offences. 17 On this appeal, the principle of double jeopardy must be applied. Further, the Respondent has served a very substantial proportion of his minimum term. Although he was only sentenced on 24 August 1999, the sentence was back-dated to 3 April 1999 when he was arrested. I take into account the consequences on him of adding to the Respondent's minimum term only a few months before its expiry. But for this factor I would have imposed a minimum term, even on appeal, of three years. 18 In my opinion, the least sentence that could properly have been imposed in all of the circumstances is a minimum term of two years and an additional term of three years. Accordingly, the orders I propose are: