Regina v Tawake [1999] NSWCCA 147

New South Wales Court of Criminal Appeal CITATION : Regina v Tawake [1999] NSWCCA 147 FILE NUMBER(S) : CCA 60540/98 HEARING DATE(S) : 7 June 1999 JUDGMENT DATE : 7 June 1999

PARTIES : Regina v Ishmael Tawake JUDGMENT OF : Grove J at 1; Carruthers AJ at 13

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/2083; 98/11/0323 LOWER COURT JUDICIAL OFFICER : O'Reilly DCJ

COUNSEL : R. D. Ellis (Crown) In person (Applicant) SOLICITORS : C. K. Smith (Crown) CATCHWORDS : Criminal Law and Procedure - Sentence - Robbery in company DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60540/98

GROVE J CARRUTHERS AJ

7 June 1999

REGINA v ISHMAEL TAWAKE JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by O'Reilly DCJ in the Liverpool District Court on 4 September 1998. On that occasion the applicant pleaded guilty to an indictment charging robbery in company contrary to s 97 of the Crimes Act. The maximum prescribed penalty for that offence is twenty years penal servitude. 2 His Honour imposed a total sentence of four years penal servitude, which he divided in accordance with the prescription in s 5(2) of the Sentencing Act, so as to impose minimum and additional term components of three years and one year respectively. At the same time his Honour cancelled a community service order to which I will make later reference. 3 The facts of the matter were that at about half past eight on the evening of Tuesday 30 September 1997 the applicant and two other males entered a video shop in Kogarah. Weapons were produced. They consisted amongst other things of a small hand gun. An employee of the video shop was forced to open a safe. He had an electrical cord tied around his neck. There was a failed attempt to open the safe and further demands were made. At one stage the victim was pushed to the ground and kicked to the chest area. 4 Of the three offenders the applicant was identified because police fingerprint staff attended the scene and were able to identify a print of the applicant upon a video recording which had been handled by him during a preparatory phase to the offence. 5 That short recitation indicates the seriousness of the offence. His Honour clearly was correct in describing the offence as being of that category. I add that a second weapon, a knife, was produced and there have been repeated observations in this Court of the seriousness with which the commission of offences with weapons of that nature must be regarded. 6 I said I would return to the cancellation of the community service order. The applicant had acted as what was described as a "cockatoo" during a theft from a bank which had occurred on 17 January 1997. The applicant was charged and pleaded guilty to two counts, one of larceny in respect of the theft of $2,500, and the other of aiding and abetting a robbery. 7 The applicant was on bail in respect of the charges relative to those offences when he committed the crime currently under consideration. 8 By coincidence the applicant also appeared before O'Reilly DCJ in respect of the matters arising out of events in January 1997. That appearance was on Friday 24 October 1997. Thus it can be seen the applicant committed the current offence approximately one month before he was due to appear in court to be dealt with for the earlier matters. As his Honour observed, the circumstances of the later offence were aggravated by reason of it having been committed whilst on bail. It is no surprise then that his Honour cancelled the community service order which he made in favour of the applicant when he appeared before him in October 1997. 9 The applicant has appeared for himself in the current application. In response to the directions of the Registrar, he has sent a letter setting out the grounds upon which he wishes to rely. He pointed out that he did not feel he could speak freely to the Probation and Parole office at the time of the preparation of the pre-sentence report. The matters set out in his letter however, do not in my view provoke intervention by this court by reason of demonstrating any error in approach or conclusion by the sentencing judge. In addition to the written submissions, the applicant has today told the Court that he has learnt his lesson, that he would like to see his family and support his mother and be a better example to his brothers and sister. That realisation, if achieved is commendable. 10 This is, of course, a court of error and its jurisdiction is invoked only in such circumstances. The matters adverted to by the applicant would be relevant to mitigation at a first instance hearing but would not be relevant unless for some reason this Court was persuaded that its jurisdiction to intervene had been provoked. 11 Given the very serious facts of the offence, added to which is the aggravating circumstance of its commission whilst on bail, it seems to me that the sentence imposed by his Honour was within the range of sound exercise of sentencing discretion, and indeed if I may respectfully say so, it represents a considerable grant of lenience towards this applicant. 12 I am unpersuaded that this Court should intervene. I propose that the application for leave to appeal be granted but the appeal be dismissed. 13 CARRUTHERS AJ: I agree. 14 GROVE J: The orders of the Court will be as I have proposed. **********