Regina v Jason NICHOLAS [2000] NSWCCA 11

New South Wales Court of Criminal Appeal

CITATION : Regina v Jason NICHOLAS [2000] NSWCCA 11 FILE NUMBER(S) : CCA 60048/99 HEARING DATE(S) : 14/2/2000 JUDGMENT DATE : 14 February 2000

PARTIES : Regina Jason Nicholas JUDGMENT OF : Sully J at 1; Carruthers AJ at 17

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/1004 98/11/0693 LOWER COURT JUDICIAL Latham DCJ OFFICER :

COUNSEL : L.M.B Lamprati - Crown J. Doris - Applicant SOLICITORS : S. E. O'Connor - Crown Neil J. O'Connor - Applicant

DECISION : Leave to appeal granted; appeal upheld and sentence quashed; in lieu, applicant re-sentenced to penal servitude for 5-1/2 years, that sentence apportioned between minimum term of 3 years to commence 15/8/98 and expire on 14/82001, with additional term of 2-1/2 years to commence 15/8/2001 and expire on 14/2/2004.

IN THE COURT OF CRIMINAL APPEAL

60048/99

SULLY J CARRUTHERS AJ

14 February 2000

REGINA v Jason W. NICHOLAS

JUDGMENT

1 SULLY J: Mr Jason Wayne Nicholas applies for leave to appeal against a sentence of imprisonment passed upon him by Latham DCJ sitting in the District Court at Sydney. The sentence was passed on 22 January 1999. The relevant facts are set out conveniently in part of the judgment of Simpson J dealing, in a differently constituted Bench of this Court, with an appeal against sentence of a co-offender by the name of Murchie. The facts as there summarised apply equally to the present case; and there can be taken as included in this judgment the contents of paras 6,7 and 8 at pp 2 and 3 of her Honour's judgment. 2 The indictment presented against the present applicant charged him with one count of robbery in company. Such an offence is a contravention of s 97(1) of the Crimes Act 1900; and it attracts upon conviction a statutory maximum penalty of penal servitude for 20 years. The applicant, when presented for trial upon that indictment, pleaded not guilty. He was put upon his trial accordingly by a jury; and was found, by the verdict of the jury, guilty as charged. When the applicant stood for sentence before Latham DCJ her Honour was asked to take into account in connection with sentence a matter on a form 1. That matter involved an offence of break, enter and steal committed on 15 August 1998, at a time when the applicant was at liberty on bail granted to him on 30 August 1997. 3 Her Honour, taking that matter into account, imposed upon the robbery in company matter a sentence of penal servitude of seven years, which her Honour divided between a minimum term of four years and an additional term of three years. Her Honour had before her, as well, proceedings in respect of a Community Service Order which had been imposed upon the applicant in August 1997. Her Honour revoked the Community Service Order; and replaced it with a fixed term of penal servitude for twelve months, to be served concurrently with the sentence otherwise passed in respect of the robbery matter. Nothing more need be said, for present purposes, about that aspect of her Honour's sentence. 4 Of the four people who were involved in the bank robbery in question, two, named Hayes and Smith, were dealt with in ways that are of no practical assistance for present purposes. The man Smith appears to have appealed unsuccessfully against his conviction, but not to have appealed against his sentence. The man Hayes was dealt with as a juvenile; and in accordance with well-established authority his case provides no real assistance in respect of the questions of parity which arise in the present matter. 5 The present matter has been argued upon a number of bases, but in truth, as it seems to me, the point of the attack made upon the sentence passed upon the applicant is a parity point, and it derives not so much from a comparison of the sentences initially passed upon the man Murchie, and upon the applicant, but upon the situation which has come to pass in the wake of a successful appeal against sentence by Mr Murchie. 6 Mr Murchie was sentenced initially to penal servitude for six years, divided between a minimum term of three years and an additional term of three years. On appeal to this Court that overall sentence was reduced from six years to five years; and the five years was itself apportioned between a minimum term of two and a quarter years, and an additional term of two and three-quarter years. In other words, the situation as it stands at the moment is that the applicant is subject to a sentence of seven years compared to the sentence of five years substituted by this Court in the case of Mr Murchie; and the apportionments stand at four years and three years in the case of the applicant, two and a quarter years and two and three-quarter years in the case of Mr Murchie. 7 Speaking in practical terms, it is that contrast which is said to give rise to that justifiable sense of grievance which the decision of the High Court in Lowe establishes as the essential criterion by reference to which appeals against sentence, being appeals based upon a disparity argument, have to be judged. 8 There is, of course, nothing to choose between the applicant and Mr Murchie so far as concerns the objective gravity of the offence in question. Let there be no mistake about it. Notwithstanding what was done to Mr Murchie's sentence, the offence here in question was, on its objective facts, a very serious breach of the criminal law. Differently constituted Benches of this Court have said time and time again that robbery, - whether armed robbery, or robbery in company, or a combination of the two, - is a serious criminal matter, and is to be dealt with in an appropriately severe way. The protection of the public, always the first concern of the penal system and of the sentencing system, requires that Courts consistently recognise, and consistently maintain, the public policy to put down crime of this particular kind. 9 It is true that even in cases of robbery in company, or of armed robbery, the subjective circumstances of the particular offender have their proper place in the scheme of things. It is true that in the present case there are substantial subjective matters to be brought properly to account. The applicant suffers from psychological and psychiatric deficits, the fine detail of which need not, I think, be canvassed now since it is clearly enough set out in the relevant reports that were before the primary sentencing Judge, and are before this Court. They have, I repeat, their proper place in the scheme of things, although it must always be borne in mind that to say so does not by any means entail that they are simply to sweep away in a wave of subjective emotion the objective seriousness of what has been done when crime of the kind here in question has been committed. 10 To strike a comparison between, or perhaps a contrast between, the cases of the applicant and Mr Murchie, when one attempts a general balancing of objective and subjective features, is not an easy task. While there are some obvious similarities between the two cases, there are just as obviously some differences. Thus, for example, the applicant was older than Mr Murchie. The applicant was not quite twenty years of age, Mr Murchie a few days over his eighteenth birthday. The applicant at the relevant time was subject to a recognisance which had been imposed upon him on 9 October 1996, and that ran until 8 October 1997. It hardly needs to be said, yet again, that any criminal offence, and certainly a bank robbery, committed by somebody who is at conditional liberty subject to a recognisance, has on that account a somewhat more serious aspect from the point of view of a proper sentencing for the robbery. As has been pointed out, the applicant when he stood for sentence asked the primary sentencing Judge to take into account the break, enter and steal matter, itself a matter which had occurred while he was on bail. That, too it is perhaps worth repeating, is an aggravating circumstance in the present context. 11 Mr Murchie was not subject to a recognisance at the time of the robbery. When he stood for sentence he stood in relation to three particular matters which had been charged against him in the relevant indictment. As well, he asked that there be taken into account three matters, two of them involving Goods in Custody and the other involving the possession of a prohibited spray. Those offences had apparently been committed on 11 July 1997. 12 Significantly the applicant, as has already been noted, pleaded not guilty. Mr Murchie pleaded guilty. Mr Murchie, therefore, when he stood for sentence was entitled in accordance with well-established authority to a measurable discount in return for his plea, whether the discount was justified upon the basis of some remorse properly established by credible evidence, or upon the blunt utilitarian basis which is otherwise available to support such a discount. 13 When Mr Murchie's case came to this Court for a review of the sentence that had been imposed upon him, the Court as then constituted by Simpson J and Smart AJ expressed the view that the sentence that had been imposed at first instance upon Mr Murchie stood at what their Honours described as the upper limit of the permissible relevant range of sentence. So that there will be no mistaking the point, I would wish to say plainly, for myself, that with all proper deference to my colleagues, I would not at all have been of that mind had I been dealing with Mr Murchie's appeal. I say again, the robbery here in question was on any reasonable objective judgment a very serious offence. Be all that as it may, the fact of the matter is that the Court that dealt with Mr Murchie's appeal saw fit to uphold the appeal, and to substitute the terms to which I have earlier referred for the terms of the primary sentence. For good or for ill, the plain fact of the matter is that this Court, which does not sit in any way on appeal from the Court that decided Mr Murchie's case, cannot simply close its eyes to the practical consequences of what is entailed by the course followed in Mr Murchie's case. It seems to me to be, in truth, indisputable that, if Mr Murchie's case was thought to require so substantial an intervention by this Court, it can hardly be correct to suppose that the applicant's case does not require, and justify, at least some measured intervention by this Court. 14 It is futile to pretend that one can resolve such a problem in any scientifically exact or mathematically precise kind of way. The process of sentencing, as has often been pointed out in the Court, simply does not work in that mechanical way. What is involved now is a need in this Court to strike for itself, as best it can, a reasonable revised balance in the applicant's case. 15 I have come to the view that justice would be done in that respect if the Court were to intervene in a way that reduced the total sentence imposed upon the applicant from one of penal servitude for seven years to one of penal servitude for five and a half years. That five and a half years should be apportioned between a minimum term of three years and an additional term of two and a half years. I would favour, therefore, Orders as follows: (1) That the application for leave to appeal be granted. (2) That the appeal be upheld and the sentence imposed in the Court below in respect of the crime of robbery in company be quashed. (3) That in lieu of that sentence the applicant be re-sentenced to penal servitude for five and a half years; that sentence to be apportioned between a minimum term of three years to commence on 15 August 1998 and to expire on 14 August 2001; with an accompanying additional term of two and a half years to commence on 15 august 2001 and to expire on 14 February 2004. In the events that have happened, I do not think that it is necessary for this Court to make any formal Orders respecting the fixed term of twelve months imposed in lieu of the revoked Community Service Order to which I have earlier referred. 16 I propose Orders accordingly. 17 CARRUTHERS AJ: I agree. 18 SULLY J: The Orders of the Court are as I have announced them.