R v CAMPBELL [2000] NSWCCA 157

New South Wales Court of Criminal Appeal

CITATION : R v CAMPBELL [2000] NSWCCA 157 FILE NUMBER(S) : CCA 60007/00 HEARING DATE(S) : 3 May 2000 JUDGMENT DATE : 3 May 2000

PARTIES : Crown (Appellant) Scott John CAMPBELL (Respondent) JUDGMENT OF : Dunford J at 1; Foster AJA at 33; Smart AJ at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0208 LOWER COURT JUDICIAL Nader DCJ OFFICER :

COUNSEL : CK Maxwell QC (Crown) P Winch (Respondent) SOLICITORS : SE O'Connor (Crown) TA Murphy (Respondent) CATCHWORDS : CRIMINAL LAW - sentencing - Crown appeal - robbery whilst armed with a dangerous weapon with wounding - application of guideline judgment. LEGISLATION CITED : Crimes Act 1900, s 98 Criminal Appeal Act 1912, s 5D R v Henry [1999] NSWCCA 111, (1999) 46 NSWLR 346 CASES CITED: R v Readman (1990) 47 A Crim R 181 R v Allpass (1993) 72 A Crim R 561 DECISION : Crown appeal allowed, sentence quashed. Respondent re-sentenced (see para 32).

IN THE COURT OF CRIMINAL APPEAL

60007/00

DUNFORD J FOSTER AJA SMART AJ Wednesday, 3 MAY 2000 R v Scott John CAMPBELL JUDGMENT 1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on the respondent by Acting Judge Nader QC in the District Court at Newcastle on 22 October 1999 following his plea of guilty to a charge of robbery whilst armed with a dangerous weapon with wounding, contrary to s 98 of the Crimes Act 1900, which offence carries a maximum penalty of twenty-five years. The respondent also pleaded guilty to a charge of common assault contrary to s 61 of the said Act, but after he had been sentenced (apparently only in respect of the offence under s 98) he was permitted to withdraw his plea to the common assault charge, on the ground that the preferring of the two charges was duplicitous. 2 His Honour sentenced the respondent to a sentence of six and a half years penal servitude consisting of a minimum term of four and a half years and an additional term of two years. 3 The notice of appeal was signed on 24 December 1999 and was served on the respondent on 5 January 2000. 4 At about 12.30 am on 10 February 1999 the respondent and his co-offender, Natalie Jane Davies, travelled to premises at 18 Wilton Road, Awaba. The co-offender knocked on the door and spoke with one of the victims, Mr Leslie Wellard, asking him for some water because her car had broken down. He gave her some water. She returned to the car and appeared to put water in the radiator. She then got into the front passenger seat and the car was driven away. 5 At about 1.15 am the same night Mr Wellard was watching television when he heard his dog barking. He opened the front door and saw the co-offender, who told him that her car had broken down again and asked if she could use the telephone to ring the NRMA. Mr Wellard turned towards the phone, which was in the lounge room, and gave the co-offender permission to use it. As he turned back towards the front door he saw the respondent standing about a metre away from him, holding a sawn-off shotgun to his left shoulder, pointed at Mr Wellard's head. The respondent's finger was on the trigger. He told Mr Wellard to lie face down on the floor, which he did, and the respondent then sat on his back and placed the barrel of the gun to the back of his head. Mr Wellard believed that he was about to be shot in the head. 6 The respondent demanded money. Mr Wellard told him that he only had $1, so the respondent then taped his hands with duct tape behind his back. His legs were taped together as well and tape was placed around his mouth. He then told the co-offender to steal the video recorder from the television cabinet. 7 At that time Mr Wellard's brother, Allyn Wellard, was in his bedroom. He heard raised voices and opened the bedroom door. The respondent pointed the shotgun at Mr Allyn Wellard and told him to lie down or he would shoot him. Mr Allyn Wellard replied that he would go back to his room, which he did, and closed the door. As Mr Allyn Wellard stood behind his bedroom door with his left hand extended holding the door shut by the door handle the respondent discharged the shotgun. The shot penetrated the door and Mr Allyn Wellard was struck in the upper chest and chin by a number of pellets. 8 The respondent and the co-offender then left the premises and drove away in a silver-coloured Camira sedan. Later police and ambulance arrived and Mr Allyn Wellard was taken to hospital and treated for his injury; namely, three puncture wounds to the right pectoral region and one puncture wound to the right side of his chin and some grazes. 9 On about 6 March the respondent and the co-offender were arrested and taken to Cessnock police station where the co-offender was interviewed. Later police interviewed the respondent and he denied any knowledge or involvement in the crime, and also denied pawning the stolen video recorder. 10 Whilst he was being interviewed police executed a search warrant on premises belonging to the respondent's mother and located a sawn-off 12 gauge shotgun. They then informed the respondent what they had found and conducted a further interview with him in which he admitted that he had gone with the co-offender to the victim's premises with the intention of stealing money and cannabis. He stated that when they went there he was in possession of a shortened shotgun and cartridge. 11 The respondent said that when the co-offender was allowed into the premises he loaded a single cartridge into the shotgun and approached the first victim, pointing the shotgun at him. He said he tied the victim up with duct tape and looked under the lounge for money and cannabis. He said at that stage the second victim came out of the bedroom and he asked him to lie on the floor but when the victim closed the door and returned to his bedroom he swung around and the shotgun went off which passed through the door. He said that he did not intend to discharge the firearm, but his Honour expressly found that he fired it deliberately. 12 The respondent said that the co-offender had stolen the video recorder from the lounge room at his request and he also admitted pawning it for the sum of $50, which was spent on food, and he said that after the incident he secreted the shotgun in the washing machine in his mother's garage. 13 The respondent was born on 23 April 1971 and was, accordingly, aged twenty-eight at the time he stood for sentencing. He was the eldest of three children. His parents separated when he was young and both his father and grandfather were heavy drinkers and prone to violence. He was raised principally by his mother and stepfather, but he felt the latter never accepted him and flogged him so that he often ran away to his grandparents' home. 14 The respondent told the psychologist, Ms Barrier, that he played up at school but did not have a lot of trouble with school work. He completed Year 10 but was not awarded the School Certificate on account of disciplinary reasons. Since leaving school he has generally been in employment but shortly before the offence, due to a back injury and retrenchment, he became unemployed with the result that he and his co-offender, who was his de facto wife, lost the rented premises in which they were living; and at the time of the offence they were living in a tent in a caravan park. He had known his de facto wife for fifteen years and been in a relationship with her for six. There is one child of the union, aged three. 15 He said that he used alcohol to excess and also used amphetamines and cannabis but was not addicted to either. 16 The psychologist concluded that he suffered a personality disorder with paranoid features with the result that he would be wary and distrustful of others and felt characteristically embittered and resentful and tended to be over-sensitive and defensive. 17 The respondent has a criminal record going back for many years, involving assault and robbery as a juvenile, whilst as an adult he has a number of relevant offences including eight convictions for assault, including assault police, four for malicious damage, two for assault occasioning actual bodily harm, two for malicious wounding and one for stealing. He has served a number of terms of imprisonment. The longest was a minimum term of nine months with an additional term of three months in 1993 to a charge of malicious wounding and most recently, three months on two counts of assault police in 1994. Although his record showed a bad and very alarming propensity to violence, there was only one previous stealing offence as an adult and nothing which, on the face of it, indicated a prior use of firearms, although it may be expected that the charges of malicious wounding probably involved a weapon of some nature. 18 This was the first time he had committed an offence which was dealt with on indictment, and after his prison sentence in 1994 for assaulting police he did not return to prison until apprehended for the present matter. 19 He pleaded guilty at the first opportunity and was originally committed to the District Court for sentence pursuant to s 51A of the Justices Act 1902 but the Crown presented an indictment containing reframed counts. 20 In his favour it can be said that he was not a drug addict committing armed robberies on a regular basis as a means of supporting a drug habit and, notwithstanding his propensity to violent criminal behaviour, he had generally been in honest and regular employment and in a stable domestic relationship. 21 As his Honour correctly acknowledged, the starting point in a matter such as this is the guideline judgment in R v Henry [1999] NSWCCA 111, (1999) 46 NSWLR 346, although his Honour correctly acknowledged that that was a case under s 97(1); namely, robbery armed with an offensive weapon or in company and it carries a maximum of twenty years imprisonment, whereas this offence is under s 98 and carries a maximum of twenty-five years imprisonment. It also involves the additional elements of assault or wounding a person and, therefore, generally the range of penalties should be higher than the penalties for offences under s 97(1). 22 In Henry at paras [161] to [165] this Court laid down a guideline penalty of four to five years for the full term in cases under s 97(1) involving: (1) Young offender with little or no criminal history. (2) Weapon like a knife capable of killing or inflicting serious injury. (3) Limited degree of planning. (4) Limited, if not actual, violence but a real threat thereof. (5) Victim in a vulnerable position such as a shopkeeper or taxi driver. (6) Small amount taken. (7) Plea of guilty, the significance of which is limited by a strong Crown case.