New South Wales Court of Criminal Appeal CITATION : R-v-Christie [1999] NSWCCA 159 FILE NUMBER(S) : CCA 60214/98 HEARING DATE(S) : 28/05/99 JUDGMENT DATE : 28 May 1999 PARTIES : Regina -v-Wayne Carl Christie JUDGMENT OF : Barr J at 1; McInerney AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0564 LOWER COURT JUDICIAL OFFICER : Job DCJ COUNSEL : For the Crown; Mr PG Berman For the Applicant:Mr PR Zahra SOLICITORS : For the Crown: Mr CK Smith For the Applicant: Mr.TA Murphy CATCHWORDS : DECISION : Leave to appeal granted.; Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL BARR J MCINERNEY AJ FRIDAY 28TH MAY 1999 REGINA v WAYNE CARL CHRISTIE JUDGMENT 1 BARR J: I will ask McInerney A/J to give the first judgment. 2 MCINERNEY AJ: The applicant in this matter, Wayne Carl Christie, seeks leave to appeal against two sentences imposed on him by his Honour Judge Job of the District Court on 16 April 1998. 3 The first offence of demanding money with menaces was committed on 27 February 1997 when he obtained $1500 from an employee of the Newcastle Permanent Building Society. The second count on 18 November 1997 at the same premises he did obtain further money, something in the order of in excess of $1,000. 4 The facts are that on 27 September he entered the Newcastle Permanent Building Society with a pre-written note which had written on it "This is a robbery money." He approached a teller and after passing the note across said "I want your money." The teller removed notes from the drawer and placed it on the counter and then he said "I want what's in the drawer." The victim took some larger notes and placed them on the counter and he then said "I have a gun" and he placed his hand across his body to indicate that he indeed did have a gun. The money was produced and he left the premises. Surveillance photographs showed that the prisoner was wearing what looked like a pink coloured beanie and he placed a type of pig tail under that. 5 When arrested the applicant was asked what he had done with the money and he said he had gone to hotels and spent it mainly on alcohol. 6 His Honour, in his remarks on sentence at page 2 in respect to the second offence said: "It may be that because of the success of that particular offence that the prisoner again, this time on 18 October, again in the morning and again on a Saturday, went to the Newcastle Permanent Building Society branch at Adamstown. He awaited outside for some time to enable him to go into the branch when the branch was empty of customers. He then entered the branch and was attended by a female teller. He produced a plastic shopping bag and said `Fill the bag.' At that time he was seen to be carrying a rolled up newspaper in order to indicate that he may well have a gun inside. He actually placed his hand inside the paper to give the impression that he did have a gun. The teller started to fill the bag with small notes and he said `The big notes.' So he then emptied fifty dollar notes into the bag and put them on the counter and he took possession and left the bank." 7 Those are shortly the facts relating to these two offences. The legislature has provided a maximum sentence of ten years penal servitude for such offences. His Honour categorised them in his remarks on sentence at page 3 as "very serious offences easy to commit and difficult to guard against." In favour of the objective criminality he noted that no weapon was used but there was no doubt, he concluded that the persons confronted believed he had a weapon and it was his intention to lead them to that belief. 8 At the time of sentencing he was 38 years of age. He had some old offences that his Honour disregarded but unfortunately for him on 28 August 1992 at the Sydney District Court he was sentenced in respect of two charges of sexual intercourse with a child under the age of 10 and he was given a fixed term of one of six months on one count and a minimum term of 15 months with an additional term of 18 months on the second count. 9 It also appears that on 13 November 1992 he was dealt with on an assault with intent to rob whilst armed and other offences and he was sentenced to a minimum term of 12 months. His Honour concluded that he would have been released, although it is not precise, about the middle of 1995 and it is two years later that these offences were committed. 10 It appears he is quite an intelligent young man and following his release from prison he commenced a university course but apparently, in some way or another because of an overpayment of Austudy, there was a halt of all payments which left him penniless and he had to rely on his mother for food and accommodation. He alleged to the Judge in evidence that he committed the first offence on the basis that he would use the money to perhaps purchase books, although he was not attending the university, but he thought if he did some work they would give him some credit should he return to the university. 11 He has had a long history of alcoholism and his Honour, at page 5 of his remarks on sentence, accepted that he did have such a problem but his Honour could not determine the motive for stealing on the first occasion. His Honour believed because he was successful in carrying out the first offence, he was embolden to carry out the second offence but he told the police that whilst he was intoxicated when he carried out the first offence, he was not intoxicated when he committed the second one. It appears, with respect to the submissions made, that there was a certain amount of planning in these two offences and in particular the evidence of the second offence where he waited outside having determined to steal money from the premises, until everyone was clear and so in my view, there was planning in these particular offences and he attempted to disguise himself. 12 As I have said earlier, the basis of the leave to appeal application before us is that because of his alcoholism his Honour should have found special circumstances reducing the minimum term and lengthening the additional term in order for him to undertake alcohol counselling. It appears that, as I have said earlier, that he did have an alcohol problem. There were some occasions previously where he had attempted to detoxify but he apparently did not persist. He was an inmate of the Lowrey Lodge Non-Medical Detoxification Unit for two days from 17 November 1995 to 19 November 1995. The course usually took three to seven days but he did not complete that course, leaving the unit. He also went to the Newcastle Mater Hospital for a drug and alcohol assessment on 6 August 1992. It appears he told the doctor there that he had been abstaining from alcohol for a period of two months and he was asked to participate in the lifestyle program at the Mater Hospital but he said that was not necessary as he felt he could handle the matter on his own. There may be a query here as to whether that was undertaken because of the pending hearing of other offences. 13 When in custody for these offences he certainly wrote to the Manager of the Newcastle Building Society and expressed sorrow and contrition for the mental trauma he had caused the staff members and he offered sincere apologies which his Honour accepted. 14 A pre-sentence report referred to him being in contact with Probation and Parole Service in relation to his sexual offences and it was said on release on parole he was cooperative and performed his responsibilities. His father apparently had an alcohol problem and there were problems in his upbringing. As I have said earlier he is considered to be quite intelligent and completed his adult matriculation in 1994 and 1996. He commenced a bachelor of commerce degree at the University of Newcastle but he only completed two semesters and was unable to continue. A prison based education officer described him as a brilliant student and a trusted prisoner. It was said in this report that in 1992 he was assessed as suffering a mild to severe alcohol dependence which resulted in insomnia, anxiety and blackouts and it was felt that he had a tendency to mask his problems with the consumption of alcohol. He was advised by the service that whilst in prison to take advantage of prison based alcohol and other drug services. 15 The attack made on his Honour's sentence by counsel appearing for the applicant who has given us very full written submissions, referred to the record of interview undertaken with the applicant. He referred to the fact that he said that it was not planned, it was an impulsive act and that he had spent the proceeds on alcohol. He conceded that he had had an alcohol problem for some time but denied he was affected by alcohol as I have said earlier at the Adamstown offence. He said in respect to the Hamilton offence he was significantly affected by alcohol. He had no idea how many drinks he had had before he committed the offence he said because if he had been sober "I'd have never walked into a bank with people" but certainly in the second offence he did not walk into a bank with people. He made sure there was nobody present. 16 It is submitted that on the face of it when one examines his background, that his whole background is permeated by this alcohol problem. He said that "The main reason I resort to it is I let the problems get on top of me and I can cheer myself with alcohol. It's like an anaesthetic to my problems whilst I was consuming." It is submitted by Mr Zahra on his behalf that in the light of the pattern of alcohol abuse and offending and the pervasive quality of the applicant's alcohol problem, a lengthy period of parole supervision was necessary in order to assist him in overcoming his alcohol problem. In the circumstances it is submitted that his Honour therefore was obliged to find special circumstances in respect to this question in order to assist in his rehabilitation. His Honour noted that it appears at the hearing that this matter was not pressed before him but nevertheless his Honour considered the question and came to the conclusion that a finding of special circumstances was not justified. 17 He made it clear that an offence as motivated by a need of alcohol, may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as the impulsibility of the offence and the extent of any planning for it and it may also be relevant as subjective circumstances in so far as the origin or extent of the addiction or any attempts to overcome it might impact upon the prospects of recidivism or rehabilitation and that in particular if it is a case where if a person is at the cross-roads, that may give rise to special circumstances, as I understand the judgment. In my view in assessing the whole of the evidence here it is hard to come to the conclusion in the light of the background and even accepting his expressence here, that he is at the cross-roads. 18 It must be pointed out that the question of special circumstances is a discretionary matter for the trial judge. The trial judge in this case was an experienced District Court Judge. When one examines his attempts at overcoming his alcohol prior to these matters being convicted, they were desultory in the extreme and certainly not persisted in by the applicant. Despite his protestations to the contrary there is little to suggest that he would do much in the future to overcome his alcohol problem. There was no evidence before the Judge as to how long it would take for him to have supervision in respect to his alcohol addiction. It is a common factor that we all know that to overcome such an addiction takes a long time. In any event, his Honour having considered the matter, in my view there is no material before this Court to suggest that his Honour's exercise of discretion in failing to find special circumstances miscarried. It must be pointed out that these were very serious offences and to reduce the minimum term below already imposed by his Honour, would not in my view reflect the objective gravity of the offences and in all the circumstances, whilst I would grant leave to appeal, I would propose that the appeal be dismissed. 19 BARR J: I agree. The orders of the Court therefore are as proposed by Acting Justice McInerney. 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. 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