Regina v Steer [2000] NSWCCA 233

New South Wales Court of Criminal Appeal

CITATION : Regina v Steer [2000] NSWCCA 233 FILE NUMBER(S) : CCA 60329/99 HEARING DATE(S) : Monday 19 June 2000 JUDGMENT DATE : 19 June 2000

PARTIES : Regina v Brian James Steer JUDGMENT OF : Grove J at 1; Newman J at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/31/0414; 93/31/0136 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : P.G. Berman (Crown) In Person (Applicant) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : Criminal Law and Procedure - Sentence - No Special Matter of Principle LEGISLATION CITED : s97(1) Crimes Act s97(2) Crimes Act CASES CITED: R v Henry 1999 46 NSWLR 346 DECISION : Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL

60329/99

GROVE J NEWMAN J

Monday 19 June 2000

REGINA v BRIAN JAMES STEER

JUDGMENT

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Howie DCJ in the Sydney District Court. 2 Two indictments were before his Honour. In order to record a matter which has been clarified as a result of investigation, it is appropriate to state some circumstances concerning what is called the first indictment. 3 The applicant appeared before the Tamworth District Court then presided over by Coleman DCJ on 12 August 1996. Upon that occasion there was apparently prepared and signed by the Crown Prosecutor in attendance an indictment charging the applicant with the aggravated form of offence pursuant to s97(2) of the Crimes Act. However, the Crown Prosecutor amended the indictment to read in terms of a charge under s97(1) of that Act. No plea was taken on that occasion and it appears that the indictment was not presented. 4 On 1 June 1998 the applicant appeared again before the Tamworth District Court, on this occasion presided over by Ducker DCJ. An indictment was presented charging the applicant with an offence contrary to s97(2) of the Crimes Act, that is the aggravated form of armed robbery. To that indictment the applicant pleaded guilty. 5 The reason that some record should be made is that in preparation for this hearing the applicant sought access to documentary records and it appears that, in error, a copy of the indictment of 12 August, amended in the fashion I have indicated, was sent to him. It should be noted that the applicant is appearing for himself in these proceedings and it is hardly surprising therefore that he concluded that it was erroneous to suggest that he had pleaded guilty to the aggravated form of armed robbery. 6 The circumstances which I have delineated show that indeed the applicant did plead guilty to an offence contrary to s 97(2) of the Crimes Act and it was in respect of such an offence that Howie DCJ dealt with him as his remarks on sentence make clear. Therefore, no error occurred of the nature suggested, namely that his Honour mistakenly believed that the applicant was to be dealt with for the aggravated form of armed robbery rather than the lesser form. 7 It is fair to note that no fault should be attributed to the applicant for advancing this matter as his position was no doubt confused by the dispatch to him of the unpresented but amended indictment. I can pass, therefore, from the submission advanced on his behalf that there was an error in dealing with him for an offence of aggravated armed robbery. 8 That offence occurred in Tamworth on 13 February 1996. At the time of the offence there was current a recognisance granted to the applicant to be of good behaviour for a specified period of time. That recognisance was not in respect of an offence like armed robbery nevertheless he was on conditional liberty to be of good behaviour and it is an aggravating circumstance of the offence that it was so committed. 9 The second indictment charged two offences contrary to s97(1) of the Crimes Act, shortly able to be described as armed robbery of an unaggravated kind. Those offences occurred respectively on 17 April 1998 and 20 April 1998. When each of those offences occurred the applicant was on bail in respect of the matter charged on the first indictment. Again it is an aggravating circumstance that the applicant was on bail when he committed those offences. 10 As I have indicated the applicant pleaded guilty to all the charges on the indictments. On the first indictment the applicant was sentenced to a fixed term of two years and three months penal servitude to commence on 23 April 1998, and on the second indictment in respect of both counts to concurrent minimum terms of two years and six months commencing at the expiry of the fixed term in respect of the first indictment together with an additional term during which the applicant will be considered eligible for release on parole. It should be noted that his Honour took into account a period of nine months previous custody. 11 The arguments advanced by the applicant other than that to which I have already made reference, were set out in his written submissions. In the circumstances I can deal with them in relatively brief form. 12 He has submitted that whilst at the time he dispatched his response to the Registrar he had been in protection that that had now altered to strict protection. That is an occurrence subsequent to the imposition of sentence and in any event is not a matter which would provoke the exercise of the powers of this Court. 13 The applicant had his attention drawn to the guideline judgment in R v Henry (1999) 46 NSWLR 346. He points out, as is common ground, that that judgment was not handed down until after he was dealt with and accordingly those guidelines were not taken into account. 14 The applicant has challenged the assertion by the Crown that that case demonstrated that previous sentencing practice demonstrated systematic leniency and he has contended that there was in fact systematic error in what one might describe as the other direction. 15 It suffices to observe that the sentencing guidelines are relevant to all offences and what was found in that case was that there had been some systematic leniency. The issue for this Court is whether or not there is error in the sentence actually imposed and from the point of view of plain assessment I am unpersuaded that this is so. I would regard the sentences imposed as well within the range of his Honour's exercise of sentencing discretion from any point of view. 16 The applicant has drawn attention to his entitlement to consideration along the lines of those factors discussed in cases such as R v Cartwright and R v Gallagher . It is not a matter of any present confidentiality that he has offered to give evidence in relation to charges to be preferred against his wife for her participation in one of the offences. When I refer to his wife, I refer to a relationship which is obviously no longer current. 17 Although the applicant has submitted that he received insufficient consideration for this matter, his Honour's remarks on sentence demonstrate that they were appropriately taken into account. 18 The next matter adverted to by the applicant refers to what in effect was his Honour's concentration, as he submitted, upon the objective circumstances of the offences rather than looking at the reasons for it, which can be detected in the opinions of Dr White, a psychiatrist, whose report and material was before his Honour. 19 Mr Steer pointed out that he wished to contend that his Honour failed to understand the mental anguish which he was suffering and rather came to the conclusion that the offences were committed for the purpose of gaining money. His Honour explicitly found that the offences were provoked by greed; in that finding I am unable to detect error. 20 It is true, as the applicant has said, that he was distressed to a large degree by the acquittal of an alleged offender of sexual offences against a member of his family. It is difficult to perceive how mental anguish provoked by such circumstances would lead to armed robbery. 21 I understand Mr Steer's contention that he was prepared to do anything for his then wife and that she wanted money from him but the nexus between the offence and these circumstances seems to me to be remote in the extreme. 22 Be that as it may, there is manifest no error in the way the learned sentencing judge dealt with this matter. 23 Reference was made to what was described as a letter of comfort which had been dispatched from the Taree Police Station. The applicant has submitted that his Honour was somehow in error in failing to disclose the dispatch of this letter. The material is with the papers, it really adds nothing to the material which was made known at the hearing and public in any event and I see nothing in this appeal that can turn upon that matter. 24 As was submitted by the Crown Prosecutor it is important that the minimum term reflect the criminality involved in the offences. To the extent that his Honour paid regard to the objective circumstances I would endorse his approach. Given that three separate offences were involved it seems to me that no successful challenge could be mounted against the ultimate result. 25 Before departing from the matter I should observe, as I have noted, that the applicant was on a recognisance at the time of the first offence and that recognisance was not granted in respect of the only offence on the applicant's record. I would comment that the applicant's record is not what one would describe in terms of what is frequently seen in this Court as a bad record, nevertheless it is sufficient in itself to deny to the applicant any particular leniency derivable therefrom. 26 Insofar as discounts should be given for the pleas of guilty to the offences offered by the applicant, it seems to me that his Honour properly weighed them and took them into account. 27 I propose that the application for leave to appeal be granted but the appeal be dismissed. 28 NEWMAN J: I agree 29 GROVE J: The orders of the Court will be as I proposed. **********