New South Wales Court of Criminal Appeal CITATION : Regina v Stanley [2000] NSWCCA 432 FILE NUMBER(S) : CCA 60043/99 HEARING DATE(S) : 16 February 2000 JUDGMENT DATE : 16 February 2000 PARTIES : Regina v Peter Kenneth Stanley JUDGMENT OF : Sully J at 1,20; Carruthers AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0183 LOWER COURT JUDICIAL Twigg DCJ OFFICER : COUNSEL : Unrepresented (Applicant) C K Maxwell QC (Crown/Respondent) SOLICITORS : In Person (Applicant) S E O'Connor (Crown/Respondent) CATCHWORDS : Criminal law - sentence appeal against severity - one count of armed robbery - reference to Judicial Commission statistics LEGISLATION CITED : Crimes Act 1900 CASES CITED: Regina v Henry (1999) 47 NSWLR 346 DECISION : Appeal upheld - minimum and additional terms varied IN THE COURT OF CRIMINAL APPEAL CCA60043/99 SULLY J CARRUTHERS AJ Wednesday, 16 February 2000 REGINA v Peter Kenneth STANLEY JUDGMENT: 1 SULLY J: The Court has come to a view about this matter. Carruthers AJ will deliver the first judgment. 2 CARRUTHERS AJ: Peter Kenneth Stanley applies for leave to appeal against a sentence imposed upon him by Judge Twigg QC at the Coffs Harbour District Court on 1 February 1999. The applicant had earlier pleaded guilty to one count of robbery armed with an offensive weapon, namely, a knife under s 97(1) of the Crimes Act 1900 as amended. That offence carries a maximum penalty of 20 years penal servitude. 3 His Honour sentenced the applicant to a minimum term of four years penal servitude to commence on 10 September 1998 which was the date of the offence and the date upon which the applicant was taken into custody, and to expire on 9 September 2002. His Honour imposed an additional term of three years to commence on 10 September 2002 and to expire on 9 September 2005. 4 I have found this to be, speaking for myself, a troublesome matter, made more troublesome by the fact that the applicant was unrepresented, although we have had the benefit of considerable assistance by Mr Maxwell QC on behalf of the respondent Crown. 5 The applicant, who regards himself as an Aboriginal, was born on 6 November 1968. He has led an itinerant life and has convictions in this State, the Northern Territory and other States. His prior record commenced on 15 February 1985, when he was aged 16, and his litany of offences concludes on 13 August 1998 when he was given the benefit of a recognizance in relation to assault matters and stealing property in a dwelling house. Interestingly, however, prior to the subject sentence, he has not served more than three months by way of a custodial sentence which was imposed upon him on 3 August 1998. He has, in a disturbing way, referred to his earlier itinerant life, flowing from a dysfunctional family background, living on the streets in Melbourne, becoming addicted to drugs and the heavy consumption of alcohol. 6 He told the sentencing Judge that he has always had a problem with alcohol and drugs and that is to block out a lot of things which happened to him as a child, including sexual abuse. Without, in any sense, criticising anyone, I note that at the time he appeared before the sentencing Judge a pre-sentence report was not available and one had never been sought. The applicant has explained today to this court that because of his incarceration whilst "bail refused" at Grafton, facilities were not available he contends, for a pre-sentence report to be obtained. In any event, whatever the explanation one has never been obtained although this Court knows something of his background from the evidence which the applicant gave before Judge Twigg. 7 Judge Twigg did have the benefit of a report from the methadone unit at the Long Bay Complex, which appears to be undated, but certainly refers to the fact that the applicant sought to be placed on a community Methadone Program. However, the best that could be done for him was to be put on a waiting list. It has been extremely helpful in determining with the sentence imposed on him was within the range available to the sentencing Judge, from a discretionary point of view, by reference to the Judicial Commission statistics and I will refer to them shortly. 8 Firstly, may I refer to the facts of the subject offence. On about 7 September 1998 the applicant was released from the three months gaol sentence to which I have already referred. He was at Coffs Harbour which may fairly be categorised somewhat generally as his home base. He was staying with friends in Coffs Harbour. However, having been released from gaol, the first thing he did was to commence consuming excessive amounts of alcohol and ingesting some drugs. He obviously felt the need to obtain more drugs and he was misinformed, it would appear, that the male occupant of the house next door had drugs in those premises. 9 The applicant then embarked upon an inept attempt to threaten the male occupant of those premises with a knife, whilst partially disguised in order to obtain access to the drugs which he believed were on the premises. He, therefore, possessed himself of a beanie and cut a hole in the beanie and obtained a 14cm knife from the premises where he was residing and went into the next door premises. However, the male occupant happened to be down the road doing some shopping and a young friend of his, Mr Colley, who was only 18 years of age, was outside the house. 10 The applicant approached him and forced him to go inside the house. 11 Then he punched him to the throat and cheek area and asked for the "gooey" several times. The victim had no knowledge of there being any drugs in the premises. He was fearful for his safety and he was fearful for the safety of the two young children who were in the premises and who were no doubt terrified by what was happening. After a short time, Mr Colley opened his wallet to show the applicant that he did not reside in the subject premises and gave him $20 from his wallet to get rid of him and asked him to get out of the house. The applicant took the money and left the house. 12 The victim's friend, the occupant of the house, returned and armed himself with a iron bar to confront the applicant who had readily been identified by the two children. As it turns out, it was not necessary to use the iron bar because police officers immediately came to the premises. Although the applicant denied any involvement in the offence, the police, because of the identification available to them, arrested him and he has remained in custody ever since. It was not until he came before the District Court, as I understand it, that he actually admitted the offence. 13 He has explained to us today, if one accepts it, that this was because it was not really until some six months after the commission of the offence that his memory came back, such was the extent to which he was affected by alcohol and drugs at the time of the commission of the offence. 14 Understandably, in his remarks on sentence, Judge Twigg stressed the strong deterrent element involved in sentencing for this offence, and the necessity, to use his Honour's words, to send out a strong warning to the community that those who would commit such violent crimes for their drug habit must be punished, and a strong deterrent must be given to the prisoner and the community at large that such offences will not be tolerated. 15 Turning then to the judicial commission statistics, firstly, if one looks at the statistics for the full terms, of offenders in relation to robbery being armed, or in company, of the higher courts between December 1994 and July 1999, one notes that in 920 cases full term custodial sentence were imposed. That is an extremely reliable group. They demonstrate that a full term of seven years was imposed on only 5% of offenders. That is a total of 46 out of 920 cases. There was another 4%four percent of eight years, 1% of nine years, 1%of ten years and 1% of 12 years. Albeit, the sentences before the Court today will require some minor adjustment when one goes to the minimum terms for all offenders over the same period and with the same total number of sample cases because a minimum term of four years involved only 2% of all offenders, namely, 21 out of the 920. There were only some 63 of the 920 total cases who received more than a minimum term of four years. 16 It seems to me that when one looks at the subjective considerations here, (albeit the ingestion of alcohol and drugs can never be an excuse for the commission of such a serious crime as armed robbery), and balances those subjective circumstances against the objective circumstances, they do not put the applicant in the elite class of 2% to 4% disclosed by those statistics. 17 No doubt Judge Twigg did not have these helpful statistics available to him. I have concluded, not without some anxiety because of the serious nature of the offence, that the imposition of the minimum term of four years and an additional term of three years upon this particular applicant went beyond the sentencing discretion available to his Honour, and, therefore, I would conclude that the intervention of this Court is called for. 18 It would be wrong of me not to say that I was impressed by what the applicant, unrepresented, has put to us. He presents as looking physically well and mentally alert and a somewhat different person to the one who committed the subject offence. He has produced various certificates indicative of the fact that over the period of his incarceration he has of his own motivation and assisted by those persons within the Corrective Services Institution who care for the welfare of prisoners, made a determined effort to rehabilitate himself. 19 He seems to determined to come to terms with his past conduct. Whether he will or not, we do not know. One can only hope that he will. But they are matters which he is entitled to have taken into consideration in the re sentencing process. Regard must, of course, be had to the guideline judgment in Regina v Henry. (1999) 46 NSWLR 346. It would seem to me that applying the principles in Henry and adverting to the particular subjective and objective circumstances of this case that an appropriate minimum term for this court to imposed upon the applicant is one of three years penal servitude and an appropriate additional term is two years. Accordingly, I would propose that the application for leave to appeal be granted, that the appeal be upheld and that the minimum and additional terms imposed by his Honour Judge Twigg be quashed and, in lieu thereof, a minimum term of three years penal servitude be imposed to commence on 10 September 1998 and to expire on 9 September 2001 and an additional term of two years to commence on 10 September 2001 and to expire on 9 September 2003. 20 SULLY J: I am content to join in the making of the orders as proposed by Carruthers AJ. I must say that, for myself, I regard this case as very much on the borderline, not least of all because of the fact that the offence in question was committed at a time when the applicant was subject to the recognizance, of which his Honour has spoken, granted on 13 August 1998; and that he was, as well, barely two days into his parole period, as explained by his Honour. 21 But I think that, for the reasons given by his Honour, such doubts as one might have about the applicant deserve, in the circumstances of this case, to be resolved in his favour. Not without some hesitation I think it is appropriate to intervene in the way his Honour proposes. 22 I agree with the orders proposed; and the orders will, therefore be as his Honour has announced them. 23 Mr Stanley, we have intervened and we have taken your overall sentence down from seven years to five; and we have taken your minimum term down from four to three; and your additional term down from three to two. Do you understand? 24 APPLICANT: Yes. 25 SULLY, J: I hope it won't be thought untoward if I say that you are lucky to have got that concession. It gives you the chance that you want to make something of your future. We hope you don't throw it away. 26 APPLICANT: Thank you. 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.