New South Wales Court of Criminal Appeal CITATION : R-v-Helmrich [1999] NSWCCA 153 revised - 11/06/99 FILE NUMBER(S) : CCA 60379/98 HEARING DATE(S) : Monday 24th May 1999 JUDGMENT DATE : 24 May 1999 PARTIES : Regina-v-Mark Helmrich JUDGMENT OF : Barr J at 1; McInerney AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/1204 LOWER COURT JUDICIAL OFFICER : Neild DCJ COUNSEL : For the Appellant: PM Strickland For the Crown: DN Howard SOLICITORS : For the Appellant: TA Murphy For the Crown: CK Smith CATCHWORDS : DECISION : On the stealing charge a fixed term of one year commencing 22.05.97 and expiring 21.05.98. On the assault count a fixed term of one year commencing 22.05.98 and expiring 21.05.99. On the count of being armed with intent, a term of 2 years and 6 months, comprising a minimum ter of 1 year commencing 22.05.99 and expiring 21.05.2000, and an additional term of 1 year and 6 months commencing 22.05.2000 and expiring 21.11.2001. The Appellant will be eligible for release on parole 21.05.2000. - IN THE COURT OF CRIMINAL APPEAL BARR J McINERNEY AJ MONDAY 24 MAY 1999 60379/98 - REGINA v MARK HELMRICH JUDGMENT 1 BARR JA: In this matter I will ask Acting Justice McInerney to deliver the first judgment. 2 McINERNEY AJ: This is an application by the applicant for leave to appeal against sentences imposed on him by Judge Nield of the District Court on 2 July 1998. 3 On 10 December 1997 the applicant appeared before Judge Nield on arraignment when he was charged with having committed the following offences: on 3 January 1997 at Winmalee, armed robbery of Ms Lena Maree Harvey, (2) armed robbery of Ms Simone Severs, (3) as an alternative to the above offences, being armed with intent to commit an indictable offence, namely stealing, (4) the assault of Mrs Mary Forrest and (5) the stealing of about $2300 from a firm, Bi-Lo Pty Limited. 4 He pleaded not guilty to the armed robbery charges numbered 1 and 2 and guilty to the other charges, numbered 3, 4 and 5. The Crown accepted his plea to the alternative charge in full satisfaction and discharge of an indictment as to charges 1 and 2. As to the offences, the armed with intent offence is contrary to s 114(1)(a) of the Crimes Act for which the prescribed punishment is penal servitude for a maximum of seven years. 5 The assault offence is contrary to s 61 with the prescribed maximum of two years and the stealing offence contrary to s 117 of the Act for which the prescribed punishment was penal servitude for five years. 6 Shortly, the undisputed facts are about 2.30pm on 3 March 1997 the prisoner entered the Bi-Lo Supermarket at Winmalee through the front doors. He was earing a black stocking covering his face and a black beanie and he was holding a large kitchen knife and a cotton bag in his right hand. 7 After entering, he grabbed a shopper, Ms Forrest, around her neck with his left arm and held the knife at her throat with his right hand. Then he ordered Ms Harvey to open her cash register drawer and put the money in it into the bag which he gave to her. As Ms Harvey was putting money into the bag, she dropped the drawer and money fell to the floor. Although he was still holding Ms Forrest, the prisoner picked money off the floor and put money into the bag. Then he forced Ms Forrest along to the cash register of Ms Severs and ordered her to open the cash register drawer and put the money in it into the bag which he gave her. After this occurring he forced Ms Forrest back to the front doors of the supermarket, left her there and ran off. 8 Whilst they are the plain facts of the matter, it appears that they were not as what really was occurring. His Honour, in his Honour's remarks on sentence at page 3, recorded that both Ms Harvey and Ms Severs knew before the applicant entered the supermarket that he intended to do what he had done. The applicant had told them that he would enter the supermarket armed with a knife, although there was some dispute about that. I do not think it really matters a great deal, and he accepted the evidence of Ms Harvey and Ms Severs in preference to that of the applicant because he thought they were being naive, gullible and foolish young women who had not given any real thought to what the applicant said he intended to do, namely to use a knife. 9 His Honour did not feel it was necessary to resolve the dispute but Ms Forrest, who was the victim of the assault, did not, of course, know she was going to be grabbed and have a knife held at her throat or that Bi-Lo, who was the victim of the stealing, knew that someone was going to steal money from the cash registers operated by Ms Harvey and Ms Severs. 10 They were the short facts in relation to the matter. I think something of the order of over $2000 was in fact stolen from Bi-Lo. 11 His Honour then referred to the subjective facts of the applicant. He was born on 10 October 1965 and was aged thirty-one years four months when he committed the offences and he was then aged at the time of sentence thirty-two years and eight months. 12 His background and upbringing and education and employment was referred to in a pre-sentence referred to by Mr Carney. Other than his abuse of prohibited drugs and alcohol, there was nothing in his past relevant to the commission of the subject offences. He had a criminal record and appeared in the Courts on nine occasions and has been dealt with for eighteen offences. At the time of the commission of the subject offences he was at large in breach of a periodic detention order, which order had been imposed upon him following the breach of a Community Service Order earlier imposed upon him. 13 Nor surprisingly his Honour made the comment, "I think that it is fair to say that he has learned nothing from the various punishments imposed on him for the various offences that he has committed." 14 His Honour went on to say that the breach of the community service order and the periodic detention orders were not aggravating features of the subject offences and his Honour concluded his conduct indicates his rejection of the leniency extended to him by the Courts making those orders and his attitude and lack of motivation towards his rehabilitation. 15 He told the probation officer he committed the offences so he could return to prison because he was unhappy he could not see his son. However, he told Mr Carney he committed the offences because he was a depressed and desperate man who was involved with drugs. His Honour rejected the version given to Mr O'Connell and he did not accept all of what he told Mr Carney. He said he found he was involved with prohibited drugs but did not accept at the time of commission of the offences he was unhappy, depressed or desperate. 16 His Honour, of course, noted it was not a spontaneous spur of the moment act of a depressed and desperate man, rather it was the planned, however poorly, act of a cunning man who simply wished to obtain someone else's money in the easiest possible way. 17 His Honour noted the guilty plea which he accepted had been made at the earliest appropriate opportunity but went on to say that such a plea must be valued having regard to the strength of the Crown's case and he saw the Crown's case to be strong to the point of overwhelming and he considered that the applicant's guilty pleas merely recognised the strength of the Crown's case and the inevitability of the punishment although they had the utilitarian effect of saving the Crown the time and cost of his trial. 18 He found the applicant had remorse for his conduct towards Ms Forrest, although it came late, but he did not have any remorse for stealing Bi-Lo's money. 19 His Honour noted his steps in prison towards overcoming his drug and alcohol problems, although he was not confident, that he is motivated towards any real change in his lifestyle, although his Honour did make some allowance, albeit small allowance, on the question of his rehabilitation. 20 His Honour then went on to determine the proper approach to make in respect to these sentences. There is no attack on his Honour's assessment of facts by Mr Strickland, who appears on behalf of the applicant, but what his Honour did, his Honour set out to consider, it seems to me, in isolation each particular offence, namely armed with intent, assault and stealing. 21 His Honour on page 7, firstly with the armed with intent, that dealing with that, as I understand it in isolation, concluded an appropriate sentence was penal servitude for three years. In respect to the assault offence, his Honour concluded that it came within the worst class of common assault and assessed an appropriate penalty would be two years. In relation to the stealing offence, his Honour thought an appropriate sentence was penal servitude for two years and six months. 22 His Honour then noted, having approached the matter by adding the separate sentences for each offence, the total sentence imposed would be penal servitude for seven years and six months. His Honour then went on to note that that was not the correct approach because each offence was related to each other offence and his Honour said "one offence cannot be considered in isolation, divorced from the others", and he noted it was appropriate he determine the total sentence to reflect the total criminality. 23 Having done that, he then reduced the total head sentence to five years and six months. He then determined that the sentences should commence on 25 May and he made them cumulative. The sentences that he imposed were the following. 24 On the offence of armed with intent, he sentenced the applicant to a fixed term of one year and six months to commence on 22 May 1997 and to expire on 21 November 1998 and as to the assault offence, he sentenced the applicant to imprisonment for a fixed term of one year and six months commencing on 22 November 1998 and to expire on 21 May 2000. As to the stealing offence, he was sentenced to penal servitude for a total term of two years six months with a minimum term of nine months to commence on 22 May 2000 and to expire on 21 February 2001, on which date he was eligible to be released on parole with the additional term of one year nine months to commence on 22 February 2001 and to expire on 21 November 2002. 25 Mr Strickland who appears for the applicant has identified two grounds of appeal. It seems to me that they interlock and can be dealt with, in effect, as one ground of appeal, namely, that his Honour, when one examined the sentences that his Honour proposed, leaving aside the question of totality, showed that his Honour's sentences were excessive and, even though his Honour reduced the overall sentence by some two years, nevertheless the starting point was such that the sentences were excessive and should reflect on this Court intervening in those sentences. 26 Mr Strickland took up the submission made by the Crown in paragraph 8 of the Crown's submissions, that where the Crown submitted that the total behaviour of the applicant was worse than an armed robbery per se because the total criminality involving, as it does, a scheme with the Bi-Lo cashiers to assist in the stealing, coupled with the armed assault on an innocent shopper, is greater than a straight-out armed robbery when the person put in fear and the person from whom the property is taken is one and the same. 27 What Mr Strickland argued was that it could not be said that this offence was as serious as an armed robbery offence, and to suggest that it was worse than an armed robbery offence was an erroneous submission. 28 What, of course, made this case somewhat different was the fact that the knife being used and the assault upon the unfortunate Ms Forrest was only a stage prop to involve the other two ladies in handing over the money. His Honour concluded that there was no possibility that the knife being used would be used in relation to the stealing, and Mr Strickland submits that that diminished the seriousness of the offences and with that one would have to agree because if the knife was being used as a stage prop and was not being used in the normal way that one would anticipate weapons being used to force persons to hand over money. 29 Whilst one does not wish to diminish the seriousness of the offence in relation to Ms Forrest, it must be considered as having less criminality, in my view, than a straight-out armed robbery. 30 We have been provided with statistics in respect to these matters and it appears that when his Honour was considering the sentences he should impose before considering the question of totality, that the sentences his Honour was proposing on the statistics, show his proposed sentences were at the top of the ranges for armed robbery, armed with intent, and indeed in the assault matter his Honour found that that was the worse class of case and proposed, being dealt with alone, that it would merit a sentence of two years. 31 This is a rather unusual type of case. In my view his Honour's approach to the problem in one sense could not be criticised, although Mr Strickland submits that his Honour should not have imposed cumulative sentences. The question here is whether, in effect, the totality of sentence that his Honour imposed was outside the discretionary range. Wrapped up with that, of course, was the sentences that his Honour proposed in isolation, and in particular I am of the view that it was not open to his Honour to conclude that the assault case was one that merited the maximum sentence having regard to the circumstances. 32 In respect to the armed with intent, his Honour's sentences are in the top eleven per cent range of armed robbery offences on one count plea of guilty and it is hard to justify such a conclusion, having regard to the circumstances of this case. 33 Furthermore, there was the question of the plea of guilty. Whilst his Honour made some comments and made some allowance in respect of that plea of guilty, his Honour only referred to the fact that the Crown case was strong and that his Honour did not believe and did not give a great deal of discount for that plea of guilty but he made no reference to the fact that the witnesses, particularly Ms Forrest, were spared giving evidence in respect to this matter. 34 The Crown, on the other hand, submits that when one considers the whole of the circumstances of this case, the sentences imposed by his Honour were appropriate. 35 In my view, the sentences, when one considers all the circumstances of this case, the sentences imposed led to the total sentence being excessive and this Court should interfere and re-sentence. 36 Whilst his Honour did give some discount, it was a very parsimonious one in respect to his rehabilitation, it seems, on the material before us and in particular the affidavit material that has been tendered today, that he has taken quite deliberate steps to overcome his drug addiction. There is the evidence of Father Monaghan, the two from Mr Carney and the fact he has been at the Lyndon Community Centre being treated for drugs. 37 Whilst his Honour was not sure that he is motivated to overcome his drug addiction, certainly in my view there are distinct possibilities at least that he will overcome his drug addiction and as such he is entitled to a finding of special circumstances. 38 In my view, having regard to all of the material before me, I am of the view that this Court should intervene and quash the sentences imposed by his Honour and then re-sentence. I think it will be necessary in the manner I Have determined he should be dealt with, I would deal with the third count first, that is the stealing offence, and I would substitute a sentence of a fixed term of one year to commence on 22 May 1997 and to conclude on 21 May 1998. 39 In respect to the assault count, I would propose substitution of a fixed term of twelve months commencing on 22 May 1998 and concluding on 21 May 1998 and then on the first count, which is the most serious of the matters, I would propose that we substitute a sentence of two years and six months comprising of a minimum term of one year which would commence on 22 May 1999 and conclude on 21 May 2000, with an additional term of one year six months to commence on 22 May 2000, and he shall be entitled to be admitted to parole at the expiration of the minimum term. 40 BARR J: I agree. The orders of the Court are therefore these. The Court grants leave to appeal and allows the appel and quashes the sentences appealed from. The Court sentences the appellant to the following: 41 On the stealing charge a fixed term of one year commencing on 22 May 1997 and expiring on 21 May 1998. On the assault count, a fixed term of one year commencing on 22 May 1998 and expiring on 21 May 1999. On the count of being armed with intent, a term of two years and six months, comprising a minimum term of one year commencing on 22 May 1999 and expiring on 21 May 2000 and an additional term of one year and six months commencing on 22 May 2000 and expiring on 21 November 2001. The appellant will be eligible for release on parole on 21 May 2000. 42 The special circumstances justifying an additional term exceeding one-third of the minimum term of the sentences imposed are as stated by Acting Justice McInerney. 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