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." Having sentenced the applicant his Honour then said: "Upon the prisoner being released to parole he is to subject himself to all directions of the officers of the Probation Service. He is to faithfully undertake a residential rehabilitation program. He is to subject himself to urinalyses." 8 Mr Ellis, Deputy Senior Crown Prosecutor, has drawn our attention to the decision of this Court in R v Rainbow , (unreported, 20 December 1996) in which it was pointed out that in the case of sentences in excess of three years, it is solely the Parole Board which has the power to make the parole order. Accordingly, McGuire DCJ had no jurisdiction to make the orders which he did in relation to the proposed parole order, well meaning as his Honour undoubtedly was. 9 Essentially, Mr Stephen Hodges has submitted that although his Honour indicated that rehabilitation was a priority, he structured the sentence in such a way that he failed to give due regard to the applicant's rehabilitation. 10 Mr Hodges referred to the comments of this Court in R v Merritt , (unreported, 10 March 1999) that is must be accepted with regret that custody in gaol has an " oppressive and brutalising effect ... on inmates ," and " overcrowding and lack of rehabilitation, psychological and educational programs and facilities are endemic ." 11 The Court was there referring to portion of a report of the New South Wales Law Reform Commission, DP33 para 3.26. 12 Therefore, the Judge minimised the applicant's prospects of rehabilitation by imposing a period of full time custody. 13 Thus, in a bold submission, if I may respectfully say so, Mr Hodges submitted the appeal should be upheld and the sentence of McGuire DCJ be quashed and, in lieu thereof, the applicant's minimum term be ordered to expire as at this date. 14 An alternative submission was that there was not a sufficient evidentiary basis before his Honour upon which he could have concluded that it was an appropriate case for the additional term to exceed one-third of the minimum term, and accordingly the additional term should be reduced to seven months and ten days. 15 In my respectful view these submissions misconceive the role which his Honour was required to discharge when sentencing the applicant. It has been pointed out time and time again by this Court that deterrence plays a predominant role when sentencing prisoners for offences such as those under section 97 of the Act. Indeed, as far back as 1984 in Lorenzo and Royal , CCA, 8 November 1984, Street CJ said: "The powerful emotional attraction of seeking the reformation and rehabilitation of the criminal cannot be permitted to predominate in arriving at the sentencing decision." 16 As has been pointed out forcefully in recent cases in this Court, the minimum term itself must necessarily reflect the objective seriousness of the offence. 17 The reality is that McGuire DCJ structured the existing sentence in such a way that he gave the maximum emphasis which he could to the rehabilitation prospects and needs of the applicant. As was pointed out by the presiding judge, an additional term of two years and two months as against a minimum term of one year and ten months is far in excess of the statutory norm under s 5(2) of the Sentencing Act. This is the most eloquent indication one could have of the fact that McGuire DCJ gave the maximum emphasis which he could to rehabilitation whilst remaining conscious of the need to impose a sentence which would reflect the gravity of the offence and the element of deterrence which had to predominate. Indeed, I would respectfully go so far as to say that the sentence imposed by his Honour was very much at the lower end of the range available to him. 18 Accordingly, I would propose that the applicant be granted leave to appeal but that the appeal be dismissed. 19 GROVE J: I agree. The orders of the court will be as proposed by Carruthers AJ. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.