Regina -v- Malone [2000] NSWCCA 156

New South Wales Court of Criminal Appeal

CITATION : Regina -v- Malone [2000] NSWCCA 156 FILE NUMBER(S) : CCA 60280/99 HEARING DATE(S) : 14/04/00 JUDGMENT DATE : 14 April 2000

PARTIES : Regina Tyrone Malone JUDGMENT OF : Dowd J at 1; Hulme J at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/2168 LOWER COURT JUDICIAL Sides DCJ OFFICER :

COUNSEL : Mr M. Grogan (Crown) Mr P Bryne S.C. (App) SOLICITORS : S.E O'Connor Raves Marsh & Co CATCHWORDS : armed robbery - guideline judgments Crimes Act 1900 LEGISLATION CITED : Sentencing Act 1989 Criminal Appeal Act 1912 R v Henry & Ors (1999) 46 NSWLR 246 CASES CITED: R v De Simoni (9181) 147 CLR 383 R v Bakewell (unreported, NSW CCA, 27 June 1996) DECISION : Leave to Appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60280/99

HULME J DOWD J

FRIDAY 14 APRIL 2000

REGINA v TYRONE HENRY MALONE

1 DOWD J: This is an application for leave to appeal in relation to three convictions for offences contrary to s.97 of the Crimes Act 1900 ("the Act"). The first is armed robbery in company; the second is robbery in company; the third is armed robbery using offensive weapons, all being contrary to the same section in the Act, which carried the maximum penalty of twenty years' imprisonment. An offence of stealing from a dwelling was also taken into account on a form 1. 2 The applicant pleaded guilty to all three offences and on the first count, that is armed robbery in company, was sentenced to a minimum term of two years, to commence from date of sentence being 21 May 1999 and an additional term of two years. On the second and third counts a sentence of a minimum of two years was imposed to commence from the same date of sentence and an additional term of two years and six months. The form 1 offence was taken into account. 3 The learned trial judge acknowledged credit to which the applicant was entitled for his pleas of guilty, he having entered a plea before the matter was set down for trial. His Honour also took into account the plea of guilty as an indication of contrition. Each of the offences involved a pizza delivery person who was contacted and asked to deliver a pizza. When each arrived at point of delivery the victim was set upon. 4 In the first count the co-offender had a knife which was presented to the victim. According to the appellant he was hidden away under the stairs. That appears to be consistent with the victim's version. The blade was said to be some thirty centimetres in length. 5 The second offence was of a similar nature. A knife was held at the throat of the person delivering the pizza and at the same time another person behind that person was holding a knife, placing it into her back. Some $50 was handed over. The third offence was committed by the applicant alone and a knife was used. 6 At the time the applicant was some twenty years old. Each of the victims was vulnerable and a degree of planning was shown. The level of personal violence involved in the use of the knives was quite considerable. 7 His Honour, after consideration of the matters that he was required to consider, held on sentencing that the case falls into the recent guideline decision of R v Henry & Ors (1999) 46 NSWLR at 346, which applies to the offence of "armed robbery". His Honour further held that the Crown case was strengthened because of the admissions made by the applicant but the fact that the applicant made admissions did not mean that the case did not fall into the last of the categories of the guideline decision. That is a matter to be taken into account. 8 It is firstly necessary to look at the nature of the offence created by s.97(1) of the Act. The legislature has not in this section or in any other section created an offence of being armed with an offensive weapon and in company. Section 97(1) clearly sets out different offences: one is being armed with an offensive weapon or instrument and alternatively being in company with another person. Then the ingredient of robbery carries the same penalty. They are in my view different offences and what has been submitted to us is correct, that one often has heard of reports of counts of armed robbery in company. It is difficult to see how that offence could exist in the light of the framing of the section. 9 Of the various submissions that have been made on behalf of the applicant I should first deal with the suggestion that this is a matter which raises the sort of principles that should be dealt with by a three judge Bench rather than two. It was not made by Mr Byrnes S.C., as a formal application but the submission was made that the court may consider it a proper matter for the consideration of a three judge Bench. In my opinion the matters dealt with herein and the submissions made would not warrant the court referring it to the Chief Justice to appoint a three judge Bench. 10 The first ground of the application is that the facts of the offences on the first two counts related by his Honour appear to take into account features not reflected in the charges. Mr Byrnes points out that there was originally an indictment which involved a contention that the applicant was armed which was withdrawn and the indictment upon which he was ultimately convicted did not contain that element. It is necessary, before looking at the way in which his Honour dealt with the facts, for the court to look at the decision in R v de Simoni to determine whether there was any error on the part of his Honour in referring to facts which were, on Mr Byrnes' contention, not elements of the offences. It is also, in my view, at this stage appropriate to look at the nature of the decision in R v Henry to see precisely what the guidelines provide. 11 De Simoni is an interesting and often cited authority in this court and indeed we have been assisted by a reference submitted by Mr Byrnes in an unreported decision of R v Bakewell (unreported, Court of Criminal Appeal, 27 June 1996) 12 In R v de Simoni (1981) 147 CLR 383 at p.389 there is a passage in which Mr Byrnes refers us to the following: "However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence". 13 That is, the court said that factors can be taken into account which aggravate the offence not to include elements of a more serious offence. 14 His Honour the Chief Justice at p.392 also said; "He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment". An examination of a concurring judgment but not the principal judgment but one which was proposed, is the decision of his Honour Wilson J at p.398, "The view which I have propounded, namely that the sentencing judge is not required to ignore a circumstance of aggravation merely because it has not been charged in the indictment, has the merit of reducing the occasions when the sentence proceeds on the basis of an artificially constructed set of facts."