R. v Walker [1999] NSWCCA 144

New South Wales Court of Criminal Appeal CITATION : R. v Walker [1999] NSWCCA 144 FILE NUMBER(S) : CCA 60599/98 HEARING DATE(S) : 9 June 1999 JUDGMENT DATE : 9 June 1999

PARTIES : Regina v John Frederick Walker JUDGMENT OF : Grove J at 10; Carruthers AJ at 1-9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0586 LOWER COURT JUDICIAL OFFICER : Blanch CJ of DC

COUNSEL : P.G. Berman for the Crown Applicant appearing in person SOLICITORS : C.K. Smith for the Crown Applicant appearing in person CATCHWORDS : Criminal law - sentence appeal against severity; 1 count robbery in company; Driving stolen motor vehicle ; On a schedule breach of community service order; Addiction (heroin). DECISION : Leave to appeal granted.; Appeal dismissed.

- 3 - IN THE COURT OF CRIMINAL APPEAL

No 60599/98

GROVE J CARRUTHERS AJ

WEDNESDAY 9 JUNE 1999

REGINA V JOHN FREDERICK WALKER

JUDGMENT:

1 CARRUTHERS AJ: John Frederick Walker seeks leave to appeal against the sentence imposed upon him by Justice Blanch, the Chief Justice of the District Court, on 11 September 1998. On that occasion the applicant pleaded guilty to one count of robbery in company and was sentenced to an overall term of three years consisting of a minimum term of twenty-one months and an additional term of fifteen months. His Honour also took into account under a Form 2, one charge of driving a vehicle knowing the same to have been stolen and one count of entering a vehicle by opening an unlocked door. 2 At the time of the subject offence, on 12 February 1998, the applicant was twenty five years old. He was unemployed and addicted to heroin and in breach of a community service order. However, he had not previously served a custodial sentence when he came forward for sentence by the Chief Judge. 3 The Chief Judge took a sympathetic approach. His Honour was satisfied that the applicant had ceased taking heroin. There were a number of other subjective factors which his Honour took into consideration but they had to be balanced with the serious objective circumstances relating both to the robbery in company charge and the two matters on the Form 2. 4 Briefly stated, the robbery in company matters involved the applicant acting as the car driver for two robbers whom he knew had each armed themselves with wrenches. They robbed a store keeper of $350 and the applicant received $80 as his reward for participating in the venture. 5 The applicant has been unable to demonstrate to this court that, in imposing the sentence which he did, the Chief Judge had erred either as to the fixing of the minimum term, the additional term or the relationship between them. 6 The problem which has arisen is that the applicant is the father of five young children; one of them, unhappily, has two holes in the heart. Not surprisingly, with his incarceration, the children and his de facto wife are suffering considerable hardship. Unfortunately this is a story one hears so often in the criminal jurisdiction but, in any event, the applicant asks that the minimum term be reduced and the additional term appropriately increased so that he can get back into the community to attend to his significant family responsibilities and undertake a trade course to enhance his employability. 7 However, this court would (sympathetic as it may be to the plight of the applicant, his children and his common law partner) be failing in its responsibilities to the community at large if it were to accede to this application. Indeed, I agree completely with the submission on behalf of the Crown that if the Chief Judge erred it was not on the side of severity but on the side of leniency. Indeed, I also agree with the Crown submission that it was fortunate that the applicant was sentenced before the guidelines approach to armed robbery was adopted by this Court. 8 It is my view therefore that no sentencing error has been demonstrated. In all respects this sentence was well within the discretion available to the Chief Judge. 9 I would propose in the circumstances that the application for leave to appeal be granted but that the appeal be dismissed. 10 GROVE J: I agree. The orders of the court will be as proposed by Mr Justice Carruthers. **********