Regina v Archer [2000] NSWCCA 176

New South Wales Court of Criminal Appeal

CITATION : Regina v Archer [2000] NSWCCA 176 FILE NUMBER(S) : CCA 60794/99 HEARING DATE(S) : 12.04.2000 JUDGMENT DATE : 11 July 2000

PARTIES : Regina v Mathew Archer JUDGMENT OF : Priestley JA at 1; Foster AJA at 14; Smart AJ at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0445 LOWER COURT JUDICIAL Coolahan DCJ OFFICER :

COUNSEL : M C Marien for the appellant Crown T.A. Game SC for the respondent SOLICITORS : S E O'Connor for the appellant Crown T A Murphy for the respondent CATCHWORDS : Appeal by the DPP against leniency of sentence imposed. Vulnerability of the victim. - The nature of the weapon and the way it was used, holding the knife to the throat of the victim. LEGISLATION CITED : 5D of the Criminal Appeal Act CASES CITED: R. v Henry (1999) 46 NSWLR 346, 106 A Crim R 149 R. v Jurisic (1998) 45 NSWLR 209 at 266 DECISION : The appeal be dismissed.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60794/99

PRIESTLEY JA FOSTER AJA SMART AJ

Tuesday, 11 July 2000

REGINA v Mathew ARCHER

1 PRIESTLEY JA: This is an appeal by the Director of Public Prosecutions (the DPP) pursuant to s 5D of the Criminal Appeal Act against the sentence imposed on the respondent on 12 November 1999 in the District Court at Newcastle by his Honour Judge Coolahan. 2 The respondent had pleaded guilty to a charge of robbery in company the maximum penalty for which is penal servitude for twenty years. 3 The offence was committed in Maitland Park on 22 August 1998 shortly after midnight. The respondent at that time was eighteen. He was in company with a man. The two of them approached the victim who was sitting in the park. The respondent and his co-offender demanded the victim's wallet. A knife was held to the victim's throat. The sentencing judge found that the respondent kept his thumb between the blade of the knife and the victim's throat. Although the trial judge said he was satisfied that the respondent did not intend to use the knife to inflict any actual bodily harm upon the victim he nevertheless recognised that the respondent intended to frighten the victim with the knife and succeeded in doing so. The two offenders then bullied the victim seeking anything of value he had on him. They were particularly interested in getting any credit cards and forcing the victim to give the relevant PIN. While this was going on the co-offender kneed the victim in the groin and the face and punched him. The offenders found two cards in the victim's wallet. He gave an incorrect PIN for one of them. The offenders were meeting rather resourceful defences to their efforts. Eventually the co-offender said "Shall we tell him its only a joke". The respondent said "Yeah its only a joke man. Let's go to Raymond Terrace". The victim asked for his wallet back. The offenders left it on the ground saying everything was still there and walked away. In collecting his possessions the victim realised two cash cards were missing. He got in touch with the police and they drove around Maitland until they found the offenders in a car park. The cash cards were found on the co-offender. 4 The co-offender pleaded guilty and was sentenced by another judge before the respondent came up for sentence. The co-offender was sentenced to six years penal servitude with a minimum term of three and a half years and an additional term of two and a half years. These facts were mentioned by the sentencing judge in the present case in his reasons for sentencing the respondent. The respondent was sentenced to three years penal servitude with a minimum term of twelve months to commence on the date of sentence and an additional term of two years. This change to the statutory ratio was based on his Honour's finding that special circumstances existed consisting of the respondent's need for an extended period of supervised rehabilitation upon his release. 5 His Honour directed that the respondent's release on parole be subject to certain conditions pursuant to the Sentencing Regulations 1989 and also to a condition that he submit himself to the supervision and guidance of the New South Wales Probation and Parole Service and obey all reasonable directions of officers of that Service including but not limited to directions as to psychiatric assessment and/or treatment, compliance with medication regimes, adherence to treatment plans and drug and alcohol counselling. His Honour also recommended that the respondent serve his sentence in a facility which would provide the least stress and also have the facilities to continue with treatment that he had commenced while on bail pending the sentencing hearing. 6 The sentencing judge gave detailed reasons explaining the sentence he imposed upon the respondent. He acknowledged that the facts relating to the respondent fell into the category of case dealt with in this court's guideline judgment of Henry (1999) 46 NSWLR 346, also reported in 106 A Crim R 149. The headnote to the latter report summarises one main aspect of the court's decision, in my opinion accurately, as follows: " Sentences for an offence of this character should generally fall between four to five years for the full term. Aggravating and mitigating factors will justify a sentence below or above the range, which is itself a starting point. " 7 The leading opinion in Henry, supported by a majority of the court of five, was that of Spigelman CJ. In it, he repeated what he had earlier said in Jurisic (1998) 45 NSWLR 209 at 266: " ... guidelines are intended to be indicative only. They are not intended to be applied in every case as if they were rules binding on sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents. 8 The principal arguments for the DPP in the present appeal were that the minimum term imposed by the sentencing judge did not adequately reflect the very serious nature of the offence or the importance of general deterrence and that there was an unsupportable disparity between the sentence imposed upon the respondent and that earlier imposed upon the co-offender. 9 The sentencing judge had considered these matters in his remarks on sentence. As I have earlier noted, these gave detailed reasons for his decision, and to me they read persuasively. I do not think it necessary to give a full summary of them. The succinct written submissions for the respondent seem to me to bring out the necessary points for dealing with the appeal. The respondent's written submissions pointed out that the DPP did not complain about the overall sentence of three years nor the finding of special circumstances but primarily about the minimum term. The written submissions later went on: " His Honour was sentencing a first offender, who was eighteen years of age at the time of the offence and who had entered what the sentencing judge described as an early plea of guilty. He was an offender with particular psychological and psychiatric problems, one of which, (claustrophobia) would make a custodial sentence "a great deal more difficult for him that for the general community" (p 13, remarks on sentence). As to the respondent's youth, this was not merely a case of a youthful offender but, one who from all the reports was, clearly, emotionally immature (see for example, Kama [2000] NSW CCA 23). Nor can the finding of the sentencing judge (p 13) that the respondent will require an extended period of supervision upon release be questioned. In the circumstances the fixing of the minimum term at twelve months is unexceptional. " 10 The written submissions then dealt with the disparity argument. This argument only works if this court assumes or is otherwise persuaded that the sentence with which a comparison is being made was itself an acceptable one. The written submissions raised a substantial question whether that was so in the present matter. The sentence on the co-offender had been imposed before the decision in Henry and may well have been outside the Henry guidelines. Even if this be not so, there were a number of points of distinction between the circumstances of the co-offender and the respondent quite sufficient to justify the marked disparity. The reasons for the sentence in the present case depended very substantially on the particular circumstances of the respondent and the view the judge took of them. 11 I accept the arguments put for the respondent in this matter, both in the passage set out verbatim above and in regard to the separate issue of disparity. 12 In my opinion what the sentencing judge did in this case was within the area of sound sentencing discretion and was not inconsistent with the sentencing guideline considerations explained in Henry. 13 I would dismiss the appeal. 14 FOSTER AJA: I agree. 15 SMART AJ: The background is set out in the reasons of Priestley JA. I do not agree with his view that the sentence was not manifestly inadequate. Despite Mr Archer's strong subjective features, the objective seriousness of the offence was such that a longer minimum term was required. 16 The essential matters as to the seriousness of the robbery in company were: