Regina v Donald Conrad SWEETMAN [2000] NSWCCA 228

New South Wales Court of Criminal Appeal

CITATION : Regina v Donald Conrad SWEETMAN [2000] NSWCCA 228 FILE NUMBER(S) : CCA 60536/99 HEARING DATE(S) : 31 May 2000 JUDGMENT DATE : 31 May 2000

PARTIES : Regina Donald Conrad SWEETMAN JUDGMENT OF : Sully J at 1; Adams J at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0299 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : M.C. Marien - Crown R.J. Button - Applicant SOLICITORS : S. E. O'Connor - Crown T. A. Murphy - Applicant

LEGISLATION CITED : Crimes Act 1901 Regina v Fraser (1999) NSW CCA 212 CASES CITED: Stephen Lorne Astill No. 2 64 A Crim R 289 Regina v Kingsbear (unreported: CCA NSW 29.7.1998) R v Roberts, Lewis & McVeen 73 A Crim R 306 DECISION : Leave to appeal against sentence granted; Appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL

60536/99

SULLY J ADAMS J

31 May 2000

REGINA v Donald Conrad SWEETMAN

JUDGMENT

1 SULLY J: This is an application by Mr Donald Conrad Sweetman for leave to appeal against a sentence of imprisonment that was passed upon his by his Honour Judge Gibson QC sitting in the Sydney District Court on 2 September 1999. 2 The applicant had pleaded guilty before a magistrate, and had adhered before his Honour to that plea, in respect of an offence of robbery. That offence contravenes s.94 of the Crimes Act 1901, and it attracts upon conviction a statutory maximum penalty of imprisonment for fourteen years. The sentence, in fact, passed upon Mr Sweetman was one of two and a half years, proportioned between a minimum term of twelve months and an additional term of eighteen months. 3 The facts can be shortly stated as follows: at about 9.30pm on Sunday 21 March 1999 the applicant entered a 711 store at Matraville. His entry into the store, and what he then did, were recorded by a video camera then installed upon the premises. There was in consequence little, if indeed any, room for argument about the actual course of the relevant events. That course of events is canvassed in all necessary detail by two statements that were before his Honour. 4 One is a statement from Mr Young Gin Kim who was the owner/manager of the store. The other was from Mr Jae Huang Kim who was at the relevant time working as a cashier in the store. Mr Kim, the owner/manager, describes as follows what happened: "The male has been locked inside the counter area with his right hand under his shirt. I do not remember him saying anything. All I remember was he having his hand under his shirt. The man has pushed me and the staff back and grabbed all the notes from the cash register which was open at the time." 5 Mr Kim, the cashier, puts a slightly more detailed version of what happened. That version is as follows: "At 9.30pm on that day the man coming running behind the counter towards the register. I tried to close the register but he pushed me a little bit and he scratched my hand a little bit. I saw him with his right hand beneath his shirt. I did not know what he had under his shirt. He told us 'Move on'. My boss was on the phone so we did move back. Then the man stole money from the register with his left hand. When he came behind the counter I was scared because I did not know what he had beneath his shirt; he might have had a gun. He was also a very big guy. After he grabbed the money he pointed at us again with his right hand and told us again "Move back'. So we did. He then walked outside." 6 The learned sentencing Judge accepted, correctly, that the incident, as I have described it, was in his Honour's words "probably a spur of the moment situation". His Honour accepted, correctly, that the applicant had been affected by alcohol at the relevant time. His Honour accepted as a fact, and correctly so, that the applicant had not been armed in fact on the occasion in question 7 His Honour observed, as the evidence clearly established, that the applicant, although not in fact, armed, had managed to convey to the people in charge of the shop that he either was armed, or that there was, from their point of view, an unacceptable risk that he was armed, and that he had thereby succeeded in putting them in fear in a real sense. 8 His Honour accepted, correctly, that the applicant had demonstrated, by his plea and by the fact that he had gone to some length to receive alcohol counselling and to make good otherwise and as best he could, that he was remorseful for the consequences of his offence. 9 The remarks on sentence were delivered by his Honour ex tempore. As is normally the case with ex tempore remarks, they are fairly brief and to the point. They contain the following statement upon which the applicant relies in order to demonstrate such an error on the part of the sentencing Judge as would justify intervention at all by this Court. His Honour said: "However, the Court of Criminal Appeal in this State has said on numerous occasions that that is not sufficient to enable a person, who carries out the type of offence that this prisoner has carried out, to escape a custodial sentence. There have to be exceptional circumstances. The fact that it was unplanned and his efforts to rehabilitate do not seem to be sufficient to consider this being a case in which I could find exceptional circumstances in relation to it. That being so, it seems to me that I have got no alternative other than give him a custodial sentence." 10 It is contended that his Honour fell into error by reason of his perception that the only thing that could justify a non-custodial sentence in the present case was a finding by his Honour of "exceptional circumstances". It is contended that this incorrectly overstated the relevant test in the case of an offence of simple robbery as contrasted with an offence of robbery while armed, or some other particular form of aggravated robbery. Support for that contention is found in a decision of a differently constituted Bench of the Court in Regina v Fraser (1999) NSWCCA 212. In that matter, too, the primary sentencing Judge had referred to "exceptional circumstances" in the same way as was done by the primary sentencing Judge in the present case. 11 Of that approach, Smart AJ, delivering the judgment of the Court said this: "Generally the offence of robbery would attract a custodial sentence as it should do in this case but the offence, whilst serious, is slightly less grave than armed robbery or robbery with circumstances of aggravation. In cases where the robbery is at the bottom of the range of robbery offences and there are compelling subjective features, a full-time custodial sentence may not always be required. The judge has slightly overstated the position for offences of robbery."