New South Wales Court of Criminal Appeal CITATION : Regina v Carroll [1999] NSWCCA 176 FILE NUMBER(S) : CCA 60462/98 HEARING DATE(S) : 30 June 1999 JUDGMENT DATE : 30 June 1999 PARTIES : Regina v Jason Carroll JUDGMENT OF : Sully J at 34; Bell J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Christie DCJ COUNSEL : Appellant: J.C. Nicholson SC Respondent: C.K. Maxwell QC SOLICITORS : Appellant: T.A. Murphy Respondent: C.K. Smith CATCHWORDS : CRIMINAL LAW AND PROCEDURE; sentencing; appeal against severity; sentence 'manifestly excessive' ACTS CITED : Crimes Act 1900 Criminal Procedure Act 1986 Pearce v The Queen (1998) 72 ALJR 1416 The Queen v Henry & Ors [1999] NSWCCA 111 CASES CITED: Regina v Jarman (unreported, NSWCCA, 31 July 1995 Regina v Thomson (unreported, NSWCCA, 21 June 1994 Regina v Morgan (unreported, NSWCCA, 24 June 1998 Regina v Ali (unreported, NSWCCA, 9 November 1998) DECISION : See para 34 - 7 - IN THE COURT OF CRIMINAL APPEAL 60462/98 SULLY J BELL J Wednesday, 30 June 1999 REGINA v Jason Robert CARROLL JUDGMENT 1 BELL J: Jason Robert Carroll seeks leave to appeal against the severity of a sentence imposed on him in the Sydney District Court on 17 August 1998 upon his plea of guilty to a charge of assault with intent to rob contrary to s 94 of the Crimes Act 1900. 2 On that occasion the applicant was also sentenced upon his pleas of guilty in respect of one count of larceny and one count of assault with intent to prevent detention contrary to s 58 of the Crimes Act. He was sentenced to fixed terms of imprisonment for six months and twelve months respectively to date from 3 March 1998 in relation to these two matters. Those sentences are wholly subsumed in the sentence the subject of the present application and no challenge is made to them. 3 On the charge of assault with intent to rob the applicant was sentenced to a total term of six years penal servitude comprising a minimum term of three years together with an additional term of three years. The minimum term was expressed to commence on 3 March 1998 and to expire on 2 March 2001. 4 The applicant asked the sentencing judge to take into account four matters on a schedule pursuant to s 21 of the Criminal Procedure Act 1986. Those matters comprise two counts of stealing, one count of goods in custody, and one count of possession of implements capable of being used to enter and drive a conveyance. 5 The facts of the assault with intent to rob are as follows. At about 9.45am on 9 February 1998 the applicant was present in Short Street, Double Bay. He approached a woman who was carrying a blue bag from behind and punched her in the back while attempting to take hold of the bag. The bag contained $10,000 in cash, being the takings of the Royal Oak Hotel, Double Bay. The sentencing judge accepted that the applicant was unaware that his intended victim was carrying a substantial sum of cash. His Honour accepted that the applicant had gone to Double Bay that morning looking for shoplifting opportunities. 6 The victim resisted and struggled against the applicant while at the same time calling for help. A number of passers-by apprehended the applicant and held him until the arrival of police. 7 He was spoken to by police at the scene and he said: "I tried to take the lady's bag but I wasn't going to hurt her. I've got a kid of my own." The sentencing judge accepted the applicant had not intended to hurt his victim and had not done so. 8 At the time of the commission of this offence the applicant was on parole. He was released to parole on 8 April 1997, having completed the minimum term of two years and six months imposed on him following his conviction for an offence of armed robbery. As at the date of sentence he had approximately twelve months balance of parole remaining to be served. The additional term was due to expire on 2 November 1999. 9 Although not the subject of an application before this court, it is appropriate to briefly refer to the facts concerning the larceny and the charge of using an offensive weapon to prevent lawful detention. On 3 March 1998, while the applicant was on bail in relation to the assault with intent to rob charge, he went to the Rebel Sports Store at Bondi Junction. He was seen by security staff to leave the store, taking a Nike brand shirt. He was stopped immediately outside the store by security staff who gave chase when he ran away. He jumped into the rear of a convertible Mercedes. A security officer took hold of his legs and pulled him out of the vehicle. 10 He was escorted back to the store, where an incident occurred while he was being detained pending the arrival of the police. He opened his hand and produced a syringe, saying, "I'm going to walk. I'm not waiting for the police. I'm going to leave now." The security officer picked up a chair and struck the applicant across the shoulder in an attempt to dislodge the syringe. The officer struck the applicant a second time and on this occasion the syringe fell to the floor. Thereafter, the police arrived and the applicant was arrested and charged in respect of the larceny and the use of the syringe to avoid lawful apprehension. 11 In the light of the challenge advanced on this application, it is necessary to refer to the offences taken into account on the schedule. The first of these was committed on 30 December 1997. On that occasion the applicant stole some Sheridan brand bed linen from Grace Bros at Hurstville. He was released on bail on the day of his arrest. Thus, the assault with intent to rob offence the subject of the present application was committed whilst the applicant was on bail. 12 Both offences were committed whilst the applicant was on parole. 13 The sentencing judge noted that the applicant had been at liberty on parole for about eight months on the day of the commission of the first of the offences which he was asked to take into account on the schedule. 14 Four days after the applicant's release on bail in relation to the charge of assault with intent to rob he was arrested and charged with being in possession of implements capable of being used to enter and drive a conveyance. He was again granted bail. On 26 February 1998 the applicant was arrested and charged with one count of goods in custody, being Sheridan brand bed linen, and with one count of stealing relating to six pairs of sports shorts the property of Insport, Miranda Fair. He was on that date again granted bail. 15 It is submitted on the applicant's behalf that the sentence imposed on the charge of assault with intent to rob is manifestly excessive. The maximum penalty prescribed for this offence is one of fourteen years penal servitude. It is contended by Mr Nicholson QC, who appears for the applicant, that the sentencing judge must have started with a sentence well in excess of six years, assuming that he discounted the sentence for the following matters: · The plea of guilty. · The presence of significant remorse. · The presence of some prospects of rehabilitation. · The supportive family. · The prisoner's use of his time in custody to address his drug dependence. 16 Reference is made in Mr Nicholson's written submissions to the observations of the majority in Pearce v The Queen (1998) 72 ALJR 1416, and in particular to the passage at 1423/4, which requires a judge sentencing a prisoner for more than one offence to fix an appropriate sentence for each offence and then to consider questions of cumulation or concurrence as well as the question of totality. 17 On the applicant's behalf it is submitted that the criminality of the larceny was assessed at a fixed term of six years and the criminality of the assault with intent to prevent lawful detention at a fixed term of twelve months. The submission is made that the sentencing judge did not consider the criminality of these offences as "adding much to the total sentence". Further, it is submitted that the matters on the schedule which were taken into account in relation to the sentence the subject of challenge were all summary offences which could not have added a great deal to the overall criminality with which his Honour was dealing. 18 In his written submissions Mr Nicholson seeks to call in aid this court's recent guideline judgment in The Queen v Henry & Ors [1999] NSWCCA 111. It is submitted that the sentence imposed in relation to the present offence is in excess of sentences recommended in the guideline judgment as appropriate in certain circumstances for the more serious offence created by s 97(1) of the Crimes Act. 19 In Henry, the court, inter alia, considered an appropriate sentence which might be imposed on a young offender with little relevant criminal history who was being dealt with for the first time for an armed robbery offence involving limited, if any, actual violence. There are a number of criteria set out in para 162 of that judgment which illustrate the profile of an offender who is to be considered as falling within the range proposed in para 165. The present offence, namely an offence contrary to s 94, is self-evidently less serious than an offence under s 97(1). It does not follow that it is inappropriate to impose on a person pleading guilty to an offence contrary to s 94 a more severe penalty than may be appropriate for a first-time offender being dealt with for an offence contrary to s 97. The submissions advanced in relation to the guideline judgment in Henry do not assist the applicant in the circumstances of this case. 20 A further challenge advanced by Mr Nicholson on the hearing of this application was that the applicant was at the date of sentence serving the balance of a five year sentence imposed upon him by Judge Viney in the District Court. It was submitted that in the present matter the sentencing judge should in some way have reflected considerations of totality with respect to that earlier sentence. 21 The applicant had been released to parole and, as I have noted, had been at liberty in the community for some eight months before the present spree of offending commenced. It is contrary to principle to suggest that the sentence in relation to the subsequent offences ought to have been reduced in order to take into account that at the time of commission the applicant was on parole and accordingly subject to the earlier sentence. 22 No other error has been identified in the approach that the sentencing judge took to the present matter. The substance of the challenge advanced by Mr Nicholson is that the sentence is manifestly excessive. This must be evaluated by reference to the maximum penalty provided by the legislature for offences of this type, together with a consideration of the pattern of sentencing in like cases, if such can be discerned. 23 In this regard Mr Nicholson has handed up a table setting out details of twenty-four cases in which this court has considered sentences for offences under s 94 of the Crimes Act in the period between 1994 and to date. It is Mr Nicholson's submission that an examination of those cases supports the contention that a sentence of six years, even having regard to the four matters the subject of the schedule, was manifestly excessive in the sense of being outside the range of the exercise of the sentencing judge's discretion. 24 The pattern recorded by reference to that schedule does suggest that the present sentence was at the high end of the range. The issue for determination is whether the sentence falls outside the range. In that respect it is noteworthy that cases where the court considered s 94 offences in the context of offenders who were on parole at the date of the commission of the offence attracted heavy sentences of the sort the subject of challenge here. 25 In that regard I note the decision of Regina v Jarman (unreported, NSWCCA, 31 July 1995) and Regina v Thomson (unreported, NSWCCA, 21 June 1994). It may not be without significance that in two relatively recent matters, Regina v Morgan (unreported, NSWCCA, 24 June 1998) and Regina v Ali (unreported, NSWCCA, 9 November 1998), this court did not consider sentences of five years to be manifestly excessive imposed in each instance in relation to a single count contrary to s 94. 26 Returning to the matters that it was submitted would go to discounting the sentence in this case, it is appropriate to make the following observations. The plea of guilty was entered in the face of what was described by the sentencing judge as an overwhelming or irresistible Crown case. The applicant was apprehended at the scene and held until the arrival of police and there were a number of witnesses to the incident. The reference to the applicant's significant remorse appears to depend on an observation made by the sentencing judge when dealing with this question of the applicant's plea of guilty. His Honour made this observation: "The prisoner's pleas of guilty, I think it would be fair to say, have been entered in the face of what could be described as an overwhelming or irresistible Crown case but in saying that one cannot disregard the plea of guilty and I certainly do not disregard it as being demonstrative of significant remorse." 27 Beyond this consideration, namely that the plea in itself might be taken as evidencing some contrition, no other material appears to have been before the sentencing judge in support of the contention that this was a case where the applicant had exhibited significant remorse. 28 The question of prospects of rehabilitation was addressed by the sentencing judge towards the end of his remarks on sentence. His Honour referred to there being: "...some evidence upon which I would be entitled to assume that he is taking some steps in terms of rehabilitation." The reference to the applicant's supportive family relates to his Honour's observation: "He still has a supportive family and he has a child who needs looking after and of course who will be looked after during the course of his custodial sentence I gather by his mother." I should note that reference appears to relate to the details of the applicant's family as disclosed in the pre-sentence report of a Mr Miles. I do not read that report or his Honour's reasons as suggesting that the applicant's family circumstances were such as to call for a significant discount of sentence. The submissions advanced on the applicant's behalf that in determining the appropriate sentence his Honour must have had in mind a sentence well in excess of six years if he gave an appropriate discount for the various subjective features, in my view, overstates the position. 29 The applicant presented on sentence as a twenty-seven year old man with a significant criminal record for offences of dishonesty. In July 1995 he had appeared before the Sydney District Court charged with armed robbery, together with a number of offences of break, enter and steal, demanding money with menaces, assault, and the possession of housebreaking implements. That was the first occasion on which he was sentenced to a term of imprisonment. He had previously been placed on a recognizance and had undertaken community service work. The sentence imposed in relation to the armed robbery was one of five years, comprising a minimum term of two and a half years and an additional term of two and a half years. 30 The decision of the court in Pearce had not been handed down at the time the applicant stood for sentence before the District Court. In the circumstances of this case I do not see that a great deal turns on that. Pearce was concerned with the approach to sentencing on multiple counts where a single act is common to more than one offence. The sentences imposed in this case with respect to the counts of larceny and of use weapon to avoid apprehension do, as Mr Nicholson submits, reflect his Honour's view that the individual criminality of this act was of less moment than the assault with intent to rob. 31 The sentence with respect to the assault with intent to rob was a sentence which took into account four further offences. All were summary offences but a significant aggravating feature was that each was committed while the applicant was on parole and each offence after the stealing matter of 30 December 1997 was committed whilst the applicant was on bail in relation to the previous matters. 32 Having regard to those circumstances, and notably that the applicant was on parole at the date of the commission of the present offence and that he had previously been sentenced to a term of five years penal servitude in relation to a matter of armed robbery, I do not consider that the challenge that this sentence is manifestly excessive has been made out. 33 I would propose that leave to appeal be allowed but that the appeal be dismissed. 34 SULLY J: I agree with the orders proposed by Bell J and the reasons given by her Honour. The court orders: 1. That leave to appeal against sentence be granted. 2. That the appeal against sentence be 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.