REGINA v. STEIN [1999] NSWCCA 250

New South Wales Court of Criminal Appeal CITATION : REGINA v. STEIN [1999] NSWCCA 250 FILE NUMBER(S) : CCA 60311 of 1998 HEARING DATE(S) : Monday 16 August 1999 JUDGMENT DATE : 16 August 1999

PARTIES : REGINA v. STEIN, Chad Norman JUDGMENT OF : Wood CJ at CL at 16; Greg James J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0099 LOWER COURT JUDICIAL OFFICER : Job, DCJ.

COUNSEL : Crown: L. Lamprati App: S. Odgers SOLICITORS : Crown: S.E. O'Connor App: T.A. Murphy CATCHWORDS : Sentencing - factual error as to number of offences - disparity with sentence of co-offender - sentence to reflect trial judge's intent. CASES CITED: Hodges (1997) 95 A. Crim R. 85; Hajjo (CCA, unreported 31 August 1992) DECISION : Appeal upheld

- 4 - IN THE COURT OF CRIMINAL APPEAL

No. 60311 of 1998 CORAM: WOOD CJ. at CL. GREG JAMES, J. MONDAY 16 AUGUST 1999

REGINA v. CHAD NORMAN STEIN

JUDGMENT

1 WOOD, CJ. at CL: I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: This is an application for leave to appeal against sentences for offences of firstly, armed robbery in company and secondly, being armed did assault with intent to rob, imposed by Judge Job, QC. in the District Court at Newcastle on 19 June 1998. His Honour, for each offence, sentenced the applicant to a total term of five years penal servitude commencing on 25 January 1998. His Honour divided that sentence into a minimum term of three years and an additional term of two years, his Honour having found special circumstances. That finding was clearly open. 3 His Honour found the facts of the offences as follows:- "At about 11.40 pm on 5 January, the prisoner, in company with a co-offender Allan Michael Morris and a juvenile, broke into the Video-Ezy story at Kotara. The prisoner was armed with a knife, all three were disguised with stocking masks. The prisoner jumped the counter and proceeded to pull out various drawers before locating the cash till. The juvenile also jumped the counter and he held both store attendants, who were two young women, by a headlock, pushing their heads together to prevent them seeing anything. The co-offender Morris remained on the customer side of the counter near the confectionery stand. When the prisoner had completed emptying the contents of the cash till into a bag, he passed that bag to the co-offender Morris. Morris grabbed the bag containing the money and all then ran from the store and went back to where they had been staying." 4 His Honour pointed out that the robbery had been planned, that there was evidence from a Miss Date, who had been living in a relationship with Mr. Morris, that she had said to Mr Morris during the planning phase, "Choose now, choose your kids or gaol". 5 There was clear evidence, and his Honour so found, that the robbery at the video shop had been planned. His Honour received victims impact statements from the two young females who were at the video store. Those statements revealed that both of those persons had had engendered in them by the robbery a state of continuous fear. 6 The second offence involved the prisoner at about 6.15 pm on 23 January 1998 entering Tommo's Store at Mark's Point Road, Mark's Point, when armed with a 30 centimetre knife with a brown handle which resembled a small machete. The prisoner approached the shop assistant and placed a note on the counter which bore the words "money or life", produced the machete and said, "Open the till, open the till". The victim turned, called for help, went to the back of the store and the prisoner ran from the shop, no money or property being taken. 7 A victim's impact statement was also provided to his Honour by the attendant at that shop and she too had experienced anxiety symptoms as a consequence of the robbery. 8 The co-offender was charged with the Kotara robbery and the crime of conceal serious offence in relation to the Mark's Point robbery was taken into account on a schedule. 9 The applicant was just short of his nineteenth birthday at the time of the robbery. There was some evidence that shortly before the offences the applicant had formed a friendship with the co-offender who was two years older than he and who, at the time of the offences, was on a recognisance and had a criminal record, including for attempted robbery while armed. There was some evidence that the co-offender introduced the applicant to drugs and that he had committed the offences to obtain them. The applicant has been threatened, apparently, by someone who thought he had put his co-offender in and, as a result, is liable to serve most of his sentence, notwithstanding his youth and that it is his first period in custody, in strict protection. 10 His Honour had sentenced the applicant prior to sentencing his co-offender. He came to a number of significant findings in the applicant's favour, including as to early plea, personal deterrent, family support, the absence of entrenched anti-social attitudes or behaviour and that the applicant had committed the crime in the context of having suffered a deeply affecting emotional experience. His Honour found that the applicant clearly had prospects for rehabilitation. 11 When his Honour came to sentence the co-offender, he said:- "Ms. McMahon, on behalf of the prisoner, submitted that I impose a lesser penalty than that imposed upon his co-offender because his co-offender was being dealt with for a series of offences rather than one. Parity should exist when all things are equal. In this case, all things are not equal. The co-offender was two years younger, he was not on a recognisance. The other prisoner will be mainly serving his sentence in strict custody on protection because of threats said to have been made to him because it was thought by somebody that he had put this particular prisoner in. I do not believe that I should give a lesser penalty to this offender, I do not intend so to do." 12 His Honour, however, sentenced the co-offender to four years penal servitude to date from 25 January 1998, comprising a minimum term of two years six months and an additional term of 18 months. 13 It is clear that his Honour was cognisant of the applicant being sentenced for the two robberies and the difference in charges between the two offenders when he made the remarks I have set out. It is clear that his Honour intended at all times an equality of sentence. The challenge to the sentences imposed is brought on this very basis. Notwithstanding the differences in charges, I am of the view that in all the circumstances the trial judge was correct to conclude there should be an equality of treatment. It is open to this court in such a circumstance to intervene (Regina v. Hodges (1997) 95 A. Crim. R. 85) and in my view we should do so to the extent necessary to uphold the trial judge's intent. 14 This was the course taken in this court in Regina v. Hajjo (unreported 31 August 1992). 15 I propose that leave be granted, the appeal be upheld, the sentences be quashed and in lieu the applicant be sentenced to four years penal servitude to date from 25 January 1998, comprising a minimum term of two and a half years and an additional term of 18 months. 16 WOOD, CJ. at CL: I agree with the orders proposed by Justice Greg James and with the reasons therefor. 17 The order of the court will be accordingly as proposed by Justice Greg James.