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." 15 In the decision of R v Bakewell (unreported, Court of Criminal Appeal, 27 June 1996) the judgment of the Chief Justice as cited at p.5 of that report, with which the other presiding judge, McInerney J agreed, cited De Simoni and particularly the passage at 389, "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". 16 His Honour then underlined the fact that a victim impact statement may in fact include material which is outside the offence itself and it is implicit in that decision that the court may take into account aggravating factors providing they do not take it outside the offence. In my view that is proper application of de Simoni. 17 What Mr Byrnes contends here is that the use of the weapon to which his Honour referred on p.2 of his remarks on sentence is in fact not the offence with which the applicant was then charged and then convicted. The fact is it was a circumstance which was relevant to the findings of fact. There is an element of artificiality if the facts of the robbery, which is part of the elements of the offence, cannot be described as such. His Honour had not in fact expressly aggravated the penalty by reference to those additions aggravating factors but if his Honour had in fact taken that into account his Honour did not breach the De Simoni principle. His Honour's later reference at p.8 is in fact a reference to the exercise of a judgment under s.5(2) of the Sentencing Act 1989 and in my view it is a matter entirely appropriate for his Honour to take into account as a De Simoni factor. 18 The facts as provided by the tender of the facts sheets and statements include the fact that one of the persons, not the applicant, had a weapon. That is a surrounding fact which his Honour was entitled to consider which would not breach the De Simoni principle as it is in fact still encompassed within the same offence. There is therefore no basis at all for the contention that the De Simoni principle has been breached and therefore that ground 1 and ground 2 fails. 19 Ground 3 and ground 4 relate to the application of the R v Henry guidelines. It is important when looking at the R v Henry and the R v Jurisic, the decision which was the foundation for guideline sentences, to look at what was actually decided in those guideline decisions and what was actually said. 20 In the R v Henry His Honour the Chief Justice at p.352 cites his own judgment in the R v Jurisic and quotes where it was reported at p.220, "In my opinion guideline judgments should now be recognised in New South Wales as having a useful role to play in ensuring that an appropriate balance exists between the broad discretion that must be retained to ensure that justice is done in each individual case, on the one hand and the desirability of consistency in sentencing and the maintenance of public confidence in sentences actually imposed, and in the judiciary on the whole, on the other. 21 Such guidelines are intended to be indicative only. They are not intended to be applied to every case as if they were rules binding on sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents". 22 His Honour later in fact established the guidelines in R v Henry at p.380 of that report in p.162; "It appears from the cases that come to this Court, including the present proceedings that there is a category of case which is sufficiently common for purposes of determining a guideline: (i) Young offender with little or no criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as shopkeeper or a taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case. Whilst it is possible to determine a starting point in a case of this kind, that is, a sentence of X years imprisonment, I do not believe that the Court should identify a narrow sentencing range within which this Court would expect sentences in such to fall. "There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, for example, different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv) degree of vulnerability in (v) amount in (iv)". 23 This court should not apply the principles Henry slavishly, following only the criteria set out as numbered 1-7 on p.180. The guideline judgment is to encompass a lot of other factors other than those seven criteria established and in any event even if it were not so, the guideline judgment must have an effect even if one took a restricted view of the guideline judgment on offences of a similar character and if his Honour were wrong in his application of Henry surely an offence of being armed in company, which is within the same section and carries the same penalty, is a persuasive authority for an offence of being armed on a robbery within that same section. 24 It is put by Mr Byrnes in relation to both this and the earlier grounds of appeal that being armed is of itself more serious than being in company. That would usually be the case. However, that is not necessarily the case and in any event in these particular proceedings by sheer logic there may be circumstances in which being in company is more severe than having a weapon in committing an offence. 25 In my opinion Henry, applied to a particular case, is a very clear indication of the nature of the offences here. It must be remembered the Court was dealing with three convictions: we are not dealing with one offence and that factor of itself is the sort of matter which a sentencing court in fact will take into account. 26 This application is therefore in my view of sufficient difficulty and seriousness that the application for leave in my view should be granted. However, the court in applying the provisions of s.6(3) of the Criminal Appeal Act 1912 is obliged to consider as to whether a penalty is too severe and some other penalty ought to be imposed. In this case for the seriousness of the three offences the penalties imposed by his Honour, as submitted by the Crown, are in fact modest and are much less than one would have expected to be imposed for matters of this seriousness. 27 I do not think that his Honour's reference to the circumstances of using the knife is in fact incorrectly considered. It is a proper matter to be taken into account as a circumstance of the events and was properly taken into account in imposing sentence and that sentence is at the lower edge of the range and therefore in looking at the function of this court I would in any event not interfere with the sentences as imposed and I would grant leave and dismiss the appeal. 28 HULME J: I agree that leave to appeal should be granted but that the appeal should be dismissed. 29 In regard to the detail contained in the reasons for judgment of his Honour Dowd J it is unnecessary for me to canvass all of the matters. I shall refer briefly to only those which seem to me of most obvious importance and significance. 30 In the first place, it seems to me that the sentences which were imposed whether judged by the terms of the statute under which the applicant was charged or judged by the general standard of sentencing apparent in the judgment in the R v Henry were by no means excessive. There were after all three offences, a fact which takes the matter well outside most cases where there is only one. 31 Having regard to the terms of s.6 (3) of the Criminal Appeal Act in my view this court should not interfere. 32 That said, I think it proper to recognise that the sentencing judge does seem to me to have forgotten at times that two of the charges against the applicant were of robbery in company rather than armed robbery. That said, I do not accept the proposition that his Honour was not entitled to take into account the presence of an arm. Just as in the judgment in the Queen v Henry the Chief Justice indicated that in the case of armed robbery a court was entitled to take into account the number of offenders or in other words the company present, so in my view in a case of a charge of robbery in company the court is entitled to take into account the presence of an arm. In my view the terms of s.97(1) lead to that conclusion and I do not see in the decision in the Queen v de Simoni anything to the contrary. The reference by the Chief Justice to "a more serious offence" at p.389 of the judgment answers Mr Byrnes submission. 33 In saying that, I also reject the submission as contended that armed robbery is more serious than robbery in company. I do not believe as a general proposition that can be asserted. I do not believe, even if one conceives of the worst circumstances of armed robbery and compares it with the worst circumstances one can imagine of robbery in company, that the proposition is valid. In this connection it should not be forgotten either that in the Queen v Henry 34 Barber was charged only with robbery in company and Henry was charged with two offences, one of armed robbery and the other of robbery in company. 35 Although novelty is not necessarily an answer to a submission advanced in a court of law, I think it is of some significance that if the distinction now sought to be made by Mr Byrnes is correct, it was one which all the judges and all of the counsel in the Queen v Henry overlooked. The passages to which his Honour Dowd J referred from the judgment of the Chief Justice indicate that quite clearly the court there was of the view that one element which arises under s.97(1) can be taken into account. 36 I would expressly associate myself with the remarks of his Honour Dowd J as to the use to which the guideline judgment in the Queen v Henry may be used. The judgment is a guideline and is not to be thought to have any more restricted operation. 37 Accordingly the orders of the court are that leave to appeal is granted but the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.