Regina v Collier [1999] NSWCCA 137

New South Wales Court of Criminal Appeal CITATION : Regina v Collier [1999] NSWCCA 137 FILE NUMBER(S) : CCA 60577/98 HEARING DATE(S) : 07.6.99 JUDGMENT DATE : 7 June 1999

PARTIES : Regina v Wayne Collier JUDGMENT OF : Grove J at 19; Carruthers AJ at 1-18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/31/0310 LOWER COURT JUDICIAL OFFICER : McGuire DCJ

COUNSEL : R.D. Ellis for the Crown. S.P. Hodges (solicitor) for the Applicant. SOLICITORS : C.K. Smith for the Crown. Kinleys for the Applicant. CATCHWORDS : Appeal against severity of sentence; Armed robbery; Larceny; Intravenous drug addiction; Prior record of drug & drug-related offences ACTS CITED : 97(1) of Crimes Act, 1900 s 5(2) of the Sentencing Act R v Rainbow (CCA, unreported 20/12/96) CASES CITED: R v Merritt (CCA, unreported 10/3/99) Lorenzo & Royal (CCA, unreported 8/11/84) DECISION : Leave to appeal granted.; Appeal dismissed.

- 6 - IN THE COURT OF CRIMINAL APPEAL 60577/98

GROVE J CARRUTHERS AJ

Monday, 7 June, 1999

REGINA v Wayne Stephen COLLIER

JUDGMENT

1 CARRUTHERS J: Wayne Stephen Collier seeks leave to appeal against a sentence imposed on him by McGuire DCJ at the Newcastle District Court on 10 September 1998. On that occasion the applicant pleaded guilty to one count of armed robbery under s 97(1) of the Crimes Act, 1900 which carries a maximum penalty of penal servitude for twenty years. The applicant also asked his Honour to take into account one count of larceny on a Form 1. Each offence occurred on 15 May 1998. 2 His Honour sentenced the applicant to a minimum term of one year and ten months penal servitude to commence on 15 May 1998 (when he was taken into custody) and expiring on 14 March 2000. His Honour imposed an additional term of two years and two months commencing on 15 March 2000 and expiring on 14 May 2002. 3 The applicant was born on 16 April 1974 and was accordingly twenty-four years of age at the date of the subject offences. He had a long history of intravenous drug addiction and a prior criminal record of drug and drug-related offences. 4 The armed robbery was a serious one. The applicant entered the Day/Night chemist at Cooks Hill in the Newcastle area. He was wearing a bright red long-sleeve sloppy joe with a hood pulled over his head partially covering his face. He said, "This is a stick-up, I want Rohypnol and money." The pharmacist in charge was concerned that one member of his staff was pregnant, and requested that she be allowed to go to the back room. The applicant became agitated and he exclaimed, "If you don't hurry, I'll stick you with this and give you AIDS." He then produced in his left hand a syringe which contained ten units of a red-coloured fluid. 5 It is sufficient to say the applicant stole eleven boxes of Normison capsules, three boxes of Rohypnol and two boxes of Mersyndol. At the time of the robbery the applicant was affected by drugs. As Mr Hodges, on his behalf, has pointed out, the events of the night were quite bizarre. Prior to the robbery he attended a care clinic and indicated he was going to rob the chemist, and indeed later in the day after the robbery he returned to the chemist shop, making some trivial request unassociated with the robbery. 6 There was evidence before his Honour, to which he was particularly sensitive, with regard to an asserted desire on the part of the applicant to rehabilitate himself. 7 In his remarks on sentence his Honour, understandably, referred to the objective seriousness of the offence and then stated: "I will give the prisoner every credit that I can in conscience and I will vary the prima facie relationship between the minimal and the additional terms as I consider in the interests of the prisoner and the community that he be afforded the maximum opportunity for rehabilitation. He claims that he wants to be rehabilitated, he claims that he wants to become drug free. Well, he has made those claims before and hasn't taken very effective steps to back those claims. I will make it a condition of his parole that he undertake a residential drug rehabilitation program and that he be kept to close supervision by the officers of the Probation Service."