Regina v Glen Gordon KNOWLES [1999] NSWCCA 235

New South Wales Court of Criminal Appeal CITATION : Regina v Glen Gordon KNOWLES [1999] NSWCCA 235 FILE NUMBER(S) : CCA 60648 of 1997 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 6 August 1999

REGINA

PARTIES : v

GLEN GORDON KNOWLES JUDGMENT OF : Levine J at 1; Carruthers AJ at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 91/11/1838 LOWER COURT JUDICIAL OFFICER : Shillington DCJ

R D Ellis COUNSEL : (Crown)

Applicant In Person SOLICITORS : S E O'Connor (Crown) CATCHWORDS : Criminal Law - sentencing - s 97 Crimes Act 1900 ACTS CITED : Crimes Act 1900 Mill v Regina (1988) 166 CLR 59 CASES CITED: Regina v Todd (1982) 2 NSWLR 517 Regina v Larson (1989) 44 A Crim R 121 DECISION : See paragraph 13

IN THE COURT OF CRIMINAL APPEAL

60648/97

LEVINE J CARRUTHERS AJ

FRIDAY 6 AUGUST 1999

REGINA v GLENN GORDON KNOWLES

1 LEVINE J: The applicant appears in person today, seeking leave to appeal against the severity of a sentence imposed upon him by Judge Shillington in the District Court on 4 December 1997. The applicant had pleaded guilty to the offence of robbery in company, for which s 97 of the Crimes Act provides a maximum penalty of twenty years penal servitude. There was taken into account on the Form 1 four counts of assault, one count of goods in custody, one count of fail to appear, one count of fail to comply with a bail undertaking and one count of malicious wounding. 2 The factual background appears to be that on 12 September 1991, the victim was crossing Anzac Parade at Maroubra. He had on his person his takings as a carpenter, being three and a half thousand dollars in fifty dollar bills. He was approached by two unknown persons, who forced him to the ground and held him while the applicant came and went through his pockets and removed the money. The applicant was later identified and arrested by the police on 15 October 1991 and granted bail on 5 December 1991. 3 His trial was not reached on two occasions, namely 19 August 1992 and 17 March 1993, and the applicant was stood over for trial on 25 August 1993, but the victim did not appear. The trial was stood over to 21 February 1994, but there was no appearance by the applicant. 4 Between 31 January 1994 and 13 November 1997, the applicant appeared before various courts in Queensland in relation to matters including fraud, possess dangerous drug and receiving. He was arrested in Queensland on 10 November 1997 in relation to this matter, taken into custody and extradited from that State on 18 November 1997. He pleaded guilty before Judge Shillington on 3 December 1997. 5 The sentence proceedings were adjourned to the following day by his Honour to clarify a matter that is still agitating this applicant, namely an assertion by him that he had been in custody in Queensland for some period of time since 1992. This application was before this Court on 12 March, on which occasion the applicant was unrepresented and when, as I understand it, Justices Simpson and Smart and the Crown became apprised of the query in the applicant's mind as to his custodial history in the State of Queensland, in the context of what was seen by their Honours as the potential application of certain legal principles that are in cases such as Mill v Regina (1988) 166 CLR 59; Regina v Todd (1982) 2 NSWLR 517; Regina v Larson (1989) 44 A Crim R 121. 6 What was then put in train as far as this Court is concerned were inquiries made of the Queensland authorities, resulting in two affidavits being filed by Detective Senior Constable Matt Davey, one on 16 February 1999 and one on 13 May 1999, the last indicating that the earliest record of imprisonment found under the name of the applicant, also known as Brett Garry Edwards, was admission to the Arthur Gorrie Correctional Centre on 27 November 1996, an entry into bail on 23 April 1997, being remanded into custody on 19 June 1997, and the receipt by him of a three year wholly suspended sentence on 27 July 1997. An earlier letter from the Queensland Corrective Services Commission dated 15 February 1999 attached to the February 1999 affidavit again refers to the service of a period of detention at the Arthur Gorrie Correction Centre, with the following dates being recorded: admission, 27 November 1996; convicted for false pretences and sentenced to ten days; remanded until 24 April 1997 for charges of failing to appear on outstanding charges of false pretences; entered into bail 23 April 1997, remanded into custody for further charges of false pretences 19 June 1997; and on 18 July received a three year wholly suspended sentence for receiving, false pretences, misappropriation with the circumstance of aggravation, and attempted false pretences. Then there is a note that Mr Knowles was subsequently released. There is an apparently reconcilable coincidence between the dates referred to in the two letters from the Department of Corrective Services in Queensland. 7 The importance of the clarification of the applicant's custodial history is in the context of the assertion by the applicant that the effect of the sentence by the learned sentencing judge which was a minimum term of six years commencing on 10 November 1997 and an additional term of two years commencing on 10 November 2003, was to provide an overall total sentence of some eleven or so years, as I understand it. 8 The reason why the case was adjourned in March 1999 was to enable the applicant properly to explore what their Honours perceived to be a matter requiring investigation and which could conceivably affect the outcome of Mr Knowles' application for leave to appeal. Nothing of that kind has eventuated. A document has been produced to the court today, being a printout from the New South Wales Department of Corrective Services, (Conviction, Sentence and Appeals), that in relation to the relevant period indicates admission to the Metropolitan Remand Centre on 19 November 1997. Prior to that there was a remand on bail on 7 May 1992. In other words, there is a gap of five years roughly, and it is into that gap the applicant has asserted there should be inserted some period of custody in Queensland dating from 1992 but in respect of which there is no evidence before us. 9 His Honour's remarks on sentence in the instant application are brief. His Honour quite appropriately expressed some concern at the inclusion in the Form 1 of the charge of malicious wounding, but accepted in the light of certain facts placed before him that it was not inappropriate for that offence to be so included. I would add that the Particulars of Trial for the purposes of this application include in standard form the applicant's antecedents, which I will say are very, very extensive and serious. There is a reference to the imposition of a sentence of imprisonment of three years being suspended for four years in the Brisbane District Court on 18 July 1997, and the only other entry prior to that relevant to the issue in doubt is on 31 January 1994, Southport Magistrate's Court, attempted false pretences, and a fine was imposed. 10 His Honour described the offence as a very serious breach of the peace. His Honour had regard to lengthy records in this State and also entries in Queensland, the applicant's then age of thirty-six and the fact that his criminal career was to a great extent concerned with dishonesty. His Honour then dealt with the matter then raised by the applicant in his Court, later in this Court and again today, and pointed to his receiving information on adjourning the sentence that coincides, in reality, with what this Court has received today. His Honour proceeded on the basis that the applicant had been in custody since 10 November, and took into account that the applicant was in custody for some fifty-two days after his initial arrest on 15 October 1991 until 5 December 1991. His Honour quite clearly adopted the appropriate approach to the objective gravity of the offence. 11 As the Crown has submitted, in the context of the offence having been committed in 1991 and sentence imposed in 1997, given the history to which I have referred, particularly a failure to appear, any question of delay should not operate in favour of the applicant. Drug dependence at the time is not a mitigating factor in robbery offences. There was a degree of planning and pre-meditation resulting in the ambush of the victim which reflected the utmost gravity of the crime for which the applicant was sentenced. The effect on family members of the prison sentence is not usually taken into account unless there are extraordinary or exceptional circumstances. 12 The sentence imposed by his Honour Judge Shillington was a sentence of some severity, but one which conformed with the objective seriousness of the offence and one in respect of which his Honour took into account appropriate subjective matters. Any preoccupation his Honour displayed in relation to the objective seriousness of the offence in relation to this particular offender cannot be the subject of criticism. 13 I propose that in view of the fact that this matter has twice been before this Court and that an opportunity was afforded to explore the area of uncertainty to which I have referred that the application for leave to appeal be granted but that the appeal be dismissed. 14 CARRUTHERS AJ: I agree. 15 LEVINE J: The orders will be as I have proposed. ***********