Regina v GCT [1999] NSWCCA 228

New South Wales Court of Criminal Appeal CITATION : Regina v GCT [1999] NSWCCA 228 FILE NUMBER(S) : CCA 60171 of 1999 HEARING DATE(S) : 4 August 1999 JUDGMENT DATE : 4 August 1999

REGINA

PARTIES : v

GCT JUDGMENT OF : Levine J at 1; Smart AJ at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/1075 LOWER COURT JUDICIAL OFFICER : Downs DCJ

P G Berman (Crown) COUNSEL : T J Golding (Applicant) S E O'Connor (Crown) SOLICITORS : T A Murphy (Legal Aid Commission - Applicant) CATCHWORDS : Criminal Law - sentencing - assistance to police Crimes Act 1900 s 114(1)(a) - armed with intent to rob - s 442B DECISION : See paragraphs 18-21

IN THE COURT OF CRIMINAL APPEAL

60171/99

LEVINE J SMART AJ

WEDNESDAY 4 AUGUST 1999

REGINA v G.C.T JUDGMENT CLOSED COURT

1 LEVINE J: The applicant seeks leave to appeal against the severity of the sentence imposed upon him by his Honour Judge Downs QC in the District Court on 2 February 1998. 2 The applicant pleaded guilty to one count under s 114 (1)(a) of the Crimes Act which provides a maximum penalty of seven years penal servitude for the offence of being armed with intent to commit, in this instance, robbery. 3 The applicant was sentenced to a minimum term of two years and six months, to commence on 1 May 1998, with an additional term of ten months. 4 The facts as found by his Honour are as follows: "… at approximately 7.30am on Monday 24 March 1997 the prisoner [GCT] and a co-offender came to the back door, the loading dock door of Franklins supermarket at the Emerton Shopping Village. They were each dressed as police officer. The store manager … was called to the door and observed that one of the two men was carrying a black nylon Adidas bag and one was seen to have what is said to be an air pistol in a holder. They indicated to [the manager] that they wished to speak … about a member of the staff and [the manager] took them to [the] office. Whilst proceeding to the office [the manager] was asked not to alert the staff and so when [reaching the] office [the manager] asked the staff member who was in there to leave. The prisoner and [co-offender] indicated that detectives would be coming to the premises at a later stage and they then began to discuss with the manager when, by whom and in what manner the store takings were collected and taken from the premises. They were told that the sage could only be opened by the use of two keys, one of which was held by Franklins at the store and the other by Brambles, a security firm who came to collect the takings. At some stage whilst this was taking place staff members became suspicious when they could not see a police car and so police were contacted. After being told about the situation with the keys the prisoner and his co-offender left the premises." 5 On 1 November 1997 the applicant was spoken to by police, initially making full admissions. Later there was a denial of those admissions. However on the same day another interview produced admissions as to the role of this applicant in the offence. He implicated his co-offender and a corrupt police officer. 6 Three bases are relied upon in support of the application for leave to appeal. The first is that the learned sentencing judge failed properly to characterise the level of criminality. Second, that his Honour failed properly to consider the provisions and effect of s 442B of the Crimes Act, and third, failed to consider at all whether a finding of special circumstances should be made under s 5 of the Sentencing Act 1989. 7 With respect to the first basis, namely the asserted error in his Honour's characterisation of the level of criminality involved in this extraordinary enterprise, his Honour said: "The prisoner co-operated with the authorities whereby he probably would not have been charged with this offence had he not made admissions and were it not for the fact that he generally co-operated with the authorities, pleaded guilty and has given the undertaking to give evidence in the proceedings concerning the co-offender. And knowing that he has given his undertaking and will give that evidence has thereby placed his safety in jeopardy, particularly whilst he is in custody. Were it not for those facts the penalty I would have imposed would have been close to the maximum that the law provides, namely penal servitude of seven years. However, having regard to all the facts but particularly those matters I have just mentioned, I propose to significantly reduce the sentence." 8 I myself am persuaded that that cited component of his Honour's remarks on sentence reflects error on his part in characterising the level of criminality. Matters affecting his Honour's conclusion in that regard seem to have been taken into account which would apply de hors or after a proper characterisation of the level of criminality for the purposes of the commencement of the sentencing exercise for the offence itself. 9 The offence to which the applicant pleaded guilty is one in which, of course, intent plays a critical part. Care must be taken, in my respectful view, not to look at any matters in aggravation or in mitigation that would constitute a departure from the discrete crime provided for by s 114(1)(a). As the Crown submitted during the course of argument today, had a robbery been attempted then another charge would have been laid; had a robbery been effected then another charge would have been laid. 10 But there are in this case, in my view, three matters properly available to mitigate the seriousness of the offence, and I will shortly state them. It is clear that the requisite intention was abandoned. It is clear that the pistol, an air-pistol, was unloaded and it is clear that there was no evidence that anyone was put in fear. Those matters lead, in my view, to a characterisation of this offence not below, not at, but above the mid-range; but certainly, with respect to his Honour, not close to the top of the range attracting the maximum penalty that the law provides. The serious components were the degree of planning, and in my view the impersonation of police officers. Thus the first basis has been made out. The second basis of the application was, as I have said, the failure of the learned sentencing judge to have regard to the components to be taken into account under s 442B of the Crimes Act, which clearly had been enlivened by the tendering of material, some in the usual way, in relation to admissions made by the applicant, and assistance in respect of the co-offender and the corrupt police officer. His Honour does not expressly refer to the section, nor to any of its component parts. It is clear, nonetheless, that his Honour purported to give a substantial discount to the applicant from that erroneous starting point to which I have referred. 11 The material before his Honour, as I understand it, seems to indicate that the questions of identity were not unknown to the authorities at the time of the applicant's co-operation with them. It certainly must be acknowledged however that in relation to the co-offender the applicant promised to give evidence. We have been informed that he did give evidence in the committal proceedings, and an inference is available as to its effectiveness by reason of the decamping of that co-offender before the date fixed for his trial. He is apparently still at large. Further, the corrupt police officer, who provided the police paraphernalia for the commission of this offence whilst he was on suspension at the time, we have now been informed, has resigned from the police service. One can observe that it must be inferred to the applicant's advantage that notwithstanding the status of that officer at the time of the commission of this offence, the applicant must have played some useful part in ridding the service of such a member. For myself, the degree of assistance and co-operation would warrant an element of reduction almost coinciding with that imposed by his Honour, with the effect which I will state: that an appropriate overall sentence taking it into account can be regarded as three years penal servitude, representing a discount if one quantifies it of in excess of forty per cent. 12 The third basis in support of the application for leave is the matter of special circumstances. His Honour, in the course of his remarks, did two things of relevance to this area. First he indicated that he had particular regard to the material provided by Ms Robilliard, that: "In choosing to co-operate with the authorities at this stage he is signalling that he is making a determined effort to change his ways. She advised that he should remain on the methadone programme and that he should continue to receive treatment and counselling for his drug addiction." 13 Otherwise, save for that to which I will come in a moment, his Honour made no reference to or finding of special circumstances. 14 The other matter his Honour did was to direct the Probation and Parole authority to act in a particular way concerning counselling and treatment during the period of the additional term. Such a course was not open to his Honour under the Sentencing Act. As Mr Golding rightly submitted, in my view, it does point to his Honour having considered the requirement for counselling and drug rehabilitation as one of special significance. That, it is submitted for the applicant, can properly be accommodated by the adjustment that is usually made when such special circumstances are found. There clearly was before the learned sentencing judge a basis therefor in the material placed before him from Ms Robilliard. 15 Reverting for the moment to the s 442B component of this application, it has to be acknowledged that at the sentencing level some circumspection, as was conceded by the Crown in written submissions, must be exercised by a sentencing judge; a quality that must attend, in my view also, the judgment of an appellate court when it is focusing, as it is in this application, on such a matter. 16 It is desirable, bearing in mind that constraint, that nonetheless a sentencing judge, in circumstances of the kind that attended this applicant's sentence and its background, refer specifically to the section and identify those matters enumerated in the subparagraphs that affect the awarding of the benefit provided by the section. In the instant case his Honour, without reference to the section or its subparagraphs, it must be said, clearly had in mind some of the matters referred to in subsection 3, one of them being, of course, the effect on the offender in terms of the quality of his incarceration. Further, for example, paragraph (d): "The nature and extent of his assistance," and it must be taken that his Honour had regard to the material handed to him in the usual way in regard to such matters as are referred to in paragraph (b). 17 Without embarking upon the useful enumeration of the various subparagraphs referred to by counsel for the applicant, the significance vis a vis the authorities of the assistance and the effect vis a vis the applicant, to cover the two broad areas encompassed by the subsection, are in my view such as to warrant that degree of reduction in terms of percentage to which I have referred. In the end, therefore, I am persuaded that the three bases for the grant of leave have been made out. 18 Taking into account the characterisation of the level of criminality, the degree of assistance and its effect, and making allowance for the special circumstance constituted by the requirement for continuing and on-going drug counselling and rehabilitation, I would propose that leave to appeal be granted, that the appeal be abandoned and that the sentences imposed by his Honour be quashed. 19 In lieu I propose that there be an overall sentence of three years penal servitude, the minimum term of which will be eighteen months and the additional term, by reason of the special circumstances to which I have referred, will be of the same duration. Thus, the minimum term will commence on 1 May 1998 and expire on 31 October 1999, and the additional term will commence on 1 November 1999 and expire on 30 April 2001. 20 SMART AJ: I agree. 21 LEVINE J: The Orders will therefore be as I have proposed. The material in the envelope is to be returned to the Crown. ***********