R v West [2000] NSWCCA 545

New South Wales Court of Criminal Appeal

CITATION : R v West [2000] NSWCCA 545 FILE NUMBER(S) : CCA 60299/2000 HEARING DATE(S) : 6 December 2000 JUDGMENT DATE : 6 December 2000

PARTIES : Crown - Respondent John WEST - Applicant JUDGMENT OF : Simpson J at 1; Carruthers AJ at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0386 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : M G Pincott - Applicant Ms P Hock - Crown SOLICITORS : Sydney Regional Aboriginal Corporation Legal Service S E O'Connor - Crown

LEGISLATION CITED : Crimes Act 1900 R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 346 Wright v R (1989) 45 A Crim R 423 CASES CITED: R v Todd [1982] 2 NSWLR 517 R v Micallef [1990] 50 ACrimR 465 R v Edwards (1996) 90 A Crim R 510 R v Edwards (1996) 90 A Crim R 510 DECISION : Leave to appeal granted, appeal allowed, the sentence quashed to the extent that the non-parole period be reduced, in substitution thereof the applicant sentenced to a period of imprisonment of six years with a non-parole period of three years.

IN THE COURT OF CRIMINAL APPEAL 60299/00

SIMPSON J CARRUTHERS AJ

6 December 2000

REGINA v John WEST Judgment SIMPSON J : 1 The applicant seeks leave to appeal against the severity of a sentence imposed upon him on 17 May 2000 by Kinchington DCJ following his plea of guilty to a charge of assault with intent to rob whilst armed with an offensive instrument. Pursuant to s 97(1) of the Crimes Act 1900 the applicant was liable to a maximum penalty of imprisonment for twenty years. Judge Kinchington imposed a term of six years with a non parole period of three and a half years commencing 12 May 2000, the date the applicant was taken into custody. 2 The facts of the offence can be shortly stated. It was committed on Sunday 27 September 1998 at about 12.30 pm. The applicant entered a pharmacy in Auburn on three occasions. On the first two occasions he purchased, or looked at roles of adhesive tape and then left the store. On the third occasion he returned and selected a role of tape and approached the counter behind which the female pharmacist was standing. She sought to assist him with his purchase. The applicant hand over some coins to pay for the purchase and she opened the cash register. The applicant produced a blood filled syringe and jumped over the counter, causing the pharmacist to fall backwards on the floor. It seems that, although the pharmacist was aware that the applicant was holding something in the nature of a weapon and he alluded to what it was, it was not until two days later that she found the syringe on the shelf in the pharmacy and appreciated what it was that she had been threatened with. It is also to be observed that her fall to the floor was caused, not by a punch or a kick, but by the applicant's body coming into collision with hers, presumably as he leapt the counter. 3 The applicant was born on 23 January 1970. He was aged twenty-eight years at the time of the offence. He was interviewed by police on 4 March 199 but declined to answer questions until he had obtained legal advice. However, he willingly permitted the taking of a blood sample for comparison purposes. 4 On 13 December 1999 the applicant wrote a letter to the victim apologising for the trauma he had caused and saying that he understood that his actions must have terrorised her and left her scarred for life. 5 Also before the sentencing judge was a letter written by a family friend who lives in Orange, a Mr J Sampson. The most significant details that emerged from this letter concern the applicant's background. He was described as an Aboriginal boy from a broken family who barely knew his father. Mr Sampson also referred to the applicant's current family situation, information which also emerges from other material produced. This included three progressive presentence reports. 6 The applicant is the father of a five year old daughter who has been in the care of her grandparents, and a two year old daughter of whom he had sole custody. The mother of the children was then serving a lengthy term of imprisonment. In his letter Mr Sampson spoke of the applicant's devotion to and care for his daughter and her dependence of and need for him. 7 The applicant has a criminal record which began in 1985 when he was fifteen years of age. It contained offences of dishonesty, motor vehicle offences and drug offences. Most significantly, it discloses that he was subject to a recognisance imposed in 1996 when he committed this offence. According to the pre-sentence report, he began using heroin at the age of sixteen, and continued this until approximately twenty-five years of age. He subsequently entered a methadone programme. However, his explanation for the present offence was that he had recently used, and was then in need of, drugs. Analysis in September and October 1999 disclosed no illegal drug use. It does not appear that he has any alcohol problem. 8 During the course of oral submissions it was pointed out that analysis of the record shows that while there were far too many offences prior to 1991 there was then a gap until 1996 when the applicant was convicted of larceny and subjected to a recognisance and thereafter he remained free of offences until 1998 when he committed this offence. 9 Supplementary pre-sentence reports described the applicant's compliance with his remand conditions as "compliant but superficial" and this is a description that was repeated throughout the reports made by the Probation and Parole Service. 10 The reports also show that in 1991 the applicant was subjected to a community service order which he breached, but in 1996 a further community service order was successfully completed, and it was suggested that this gave rise to an inference that the applicant's rehabilitation, although marred, had been progressing since 1991. 11 It has been observed that the offence was committed on 27 September 1998. The applicant was arrested on 4 March 1999 and he thereafter remained on bail, subject to conditions including reporting conditions, until 12 May 2000. He has not been the subject of any additional charges during that time. 12 He gave evidence in the sentencing proceedings. He explained his drug use as having begun when he was told to leave school in the country and he came to Sydney to complete his education and, to use his words, "I met the wrong people I suppose". He said he had no real memory of his father and of his mother he said "She was just a mother who wasn't around". He had lived with different relatives during his childhood and adolescence, and this was because of his mother's alcohol problem. 13 His explanation for his relapse into drug use was that his de facto's brother had been released from gaol and persisted in offering him cocaine and heroin. 14 The applicant has had employment at times in the city and in the early 1990's during which time he was drug free. 15 At the time of sentencing he had commenced an apprenticeship with the Aboriginal Housing Corporation in conjunction with TAFE in carpentry, and had full time employment. The course involves two years of study, made up of two days in the classroom and three days of practical work. He was continuing to look after his daughter with the assistance of a young cousin. 16 He anticipated that on his incarceration he would find it necessary to call upon his mother for assistance although she is sixty-four years of age and not in very good health, being asthmatic and suffering from "a bad heart". 17 The sentence imposed by his Honour is, on its face, in conformity with the guideline judgment promulgated in R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 346 at para 165, at least when the features which distinguish this case from the profile set forth in Henry are taken into account. The guideline pronounced in Henry was of a full term of between four and five years. In para 162 seven features of the profiles to which that guideline applied were specified. These included a young offender and limited criminal history. The applicant does not really fall into either of these categories. Moreover, this offence was committed while he was subject to a recognisance imposed in February 1996 requiring him to be of good behaviour for three years. 18 It was not argued on the appeal that the head sentence was excessive or that the applicant could expect anything other than a full time custodial sentence. The principal matter argued on behalf of the applicant concerns the effect of the rather lengthy period between the date of the commission of the offence and the date of sentencing, and the steps he had taken towards rehabilitation during that time, and it also incorporated reference to the apparent partially successful rehabilitation as evidenced from his record from 1991 to 1998 which was marred only by a single conviction for larceny. 19 On behalf of the applicant, reliance was placed upon a passage from a judgment of Justice Badgery-Parker, in Wright v R (1989) 45 A Crim R, 423 as follows:: "The second aspect of Todd's case [ R v Todd [1982] 2 NSWLR 517] is the need to have regard to what has transpired during the period of delay prior to sentence. I have referred, as a relevant consideration, to the effect of such delay, on the state of mind of a prisoner who is left in uncertainty as to what the future may hold for her. Nothing in particular was made of this in the evidence here but it is a fact that has been given some weight and it is, in my view of some significance here because of the interplay of that factor and the question of rehabilitation. The principal way in which the lapse of time between offence and sentence may operate to attract leniency is by the opportunity which it provides to asses the prisoner's prospects of rehabilitation and progress towards rehabilitation",