R v PPB [1999] NSWCCA 360

New South Wales Court of Criminal Appeal CITATION : R v PPB [1999] NSWCCA 360 FILE NUMBER(S) : CCA 60271/98 HEARING DATE(S) : 29 October 1999 JUDGMENT DATE : 29 October 1999

PARTIES : Regina PPB JUDGMENT OF : Simpson J; Kirby J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0168 LOWER COURT JUDICIAL OFFICER : Dodd DCJ

COUNSEL : P G Berman (Crown) J S Andrews (Appl) SOLICITORS : S E O'Connor (Crown) T Murphy (Appl - LAC) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE; Application for leave to appeal against severity of sentence; discount for assistance; desirability of Judge including arithmetic where discount for assistance Crimes Act 1900 - s97(1), s97(2), s442B ACTS CITED : Criminal Appeal Act 1912 - s5DA Sentencing Act 1989 - s5(2) Regina v Henry (1999) 46 NSWLR 346 Regina v Jarrott (CCA, unreported, 27.9.93) Regina v Moran (CCA, unreported, 30.11.94) Regina v Bishell (CCA, unreported, 18.2.92) Regina v Begnell (CCA, unreported, 26.11.92) CASES CITED: Regina v Stanford (CCA, unreported, 23.1.93) Regina v Thwaites (CCA, unreported, 6.10.93) Regina v Ellis (1986) 6 NSWLR 603 Regina v Cartwright (1989) 17 NSWLR 243 Regina v Gallagher (1991) 23 NSWLR 220 Regina v Daryl Bruce Lewis 100 A Crim R 361 DECISION : Appeal allowed; Refer para 35

IN THE COURT OF

CRIMINAL APPEAL 60271/98

SIMPSON J KIRBY J FRIDAY 29 OCTOBER 1999

REGINA v "PPB"

JUDGMENT

1 KIRBY J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court by his Honour Judge Dodd on 22 May 1998. 2 The applicant, Mr B, pleaded guilty to a significant number of offences. He also asked his Honour to take account of an additional eight offences which were set out in two Form 1 documents. 3 Shortly stated, Mr B acknowledged his guilt in respect of seven armed robberies. The robberies were, in each case, committed in company. Two of the charges were for robbery whilst armed with an offensive weapon, the weapon being a knife (s97(1) Crimes Act 1900). The remaining five were robbery whilst armed with a dangerous weapon, the dangerous weapon being a sawn-off .22 rifle (s97(2) Crimes Act 1900). 4 The plea included an acknowledgment of guilt in respect of seven counts of stealing a motor vehicle. In addition, the Form 1 offences included assault, larceny and break and enter and steal on two occasions. 5 In respect of the counts of armed robbery with an offensive weapon, the maximum penalty prescribed by s97(1) of the Crimes Act 1900 is twenty years' penal servitude. In respect of the offence of aggravated armed robbery, that is armed robbery with a dangerous weapon, the maximum penalty prescribed by s97(2) Crimes Act is twenty-five years' penal servitude. 6 His Honour imposed a sentence of eight years' penal servitude in respect of each count of armed robbery, consisting of a minimum term of six years and an additional term of two years, each sentence concurrent. A fixed term of penal servitude for twelve months was imposed in respect of the three counts of stealing a motor vehicle. 7 The grounds of appeal identify two matters: · First, it is said that his Honour was in error in the discount he applied for certain assistance given by the applicant to the police in respect of a number of matters. His Honour did not identify precisely the discount he had allowed beyond describing it as "significant". Either it was not an adequate recognition of the assistance which Mr B had provided, or his Honour's starting point before applying the discount was too high. · Secondly, his Honour was invited to find special circumstances under s5(2) of the Sentencing Act 1989. He declined to do so. He provided no reasons for his disinclination. There was material before him which was capable of being regarded as special circumstances. It is said that his Honour was in error in not so regarding that material. 8 Before dealing with these grounds, I should briefly describe the circumstances in which the offences were committed. They are described by his Honour. My description is, to some extent, taken from his Honour's remarks on sentence, enlarged by reference to the statements which were tendered in respect of each matter. I have rearranged the various counts so that they appear in chronological order. I have done so in order that one can more readily understand the breadth of the applicant's criminality which his Honour was obliged to assess. 9 The offences to which Mr B pleaded guilty began on 10 March 1997. They span a period of six months, ending on 9 September 1997 when Mr B was arrested. Dealing with the first matter on 10 March 1997, Mr B and a co-offender stole a vehicle. The vehicle was driven to the Kellyville post office where it was parked outside. Mr B and his co-accused entered the post office. An employee was behind the counter and another in the back room. The employees were directed to lie on the floor whilst cash was removed from the cash drawer. It rather appears that the co-offender, rather than Mr B, had the knife. Nonetheless, clearly both shared the same purpose. The knife was waved around as directions were given. It was described as a small knife. One of the offenders at least was wearing gloves. No one was injured. However, a person who witnessed the incident from outside the post office endeavoured to disable the getaway car by switching off the ignition. He was chased for some distance by Mr B's co-offender. Ultimately they drove away from the scene. 10 The second armed robbery occurred the next day. It, likewise, involved a post office and the same co-offender. The target on this occasion was the Telopea post office. Some planning was evident. Mr B entered the post office to check that there were no surveillance cameras. He thereafter left, and then together, he and his co-offender, entered the post office, one of them carrying a knife. A demand was made for money. The employees were made to lie on the floor. One of the two placed his hand on the neck of the employee concerned. Later the knife was held against the back of that person's neck. The knife was again described as small. Presumably it was the same knife as used the day before. The sum of $652 was stolen. 11 On 23 August 1997 Mr B and three others robbed Electronic Sales and Services in Castlereagh Road, Penrith. Once more a stolen vehicle was used as a means of conveyance to and from the robbery. On this occasion, however, one of the group had a .22 calibre sawn-off rifle. Two males, including the applicant, were seen to enter the store. Both were thought to be armed, although Mr B insisted that he had a metal bar about twelve inches long which may have been mistaken for a rifle. There was only one rifle, and that in the hands of a co-offender. A demand was made that the employee of the store open the safe. Approximately $1,500 was said to have been stolen, although Mr B maintains that the proceeds, which they later divided, were less than $1,000. Three video cameras were also stolen, and later sold. During the course of the robbery the co-offender struck a customer who was within the store. The customer fell forward. His head struck the floor fracturing his nose. Both Mr B and his co-accused were wearing black balaclavas and gloves. Mr B used his share of the proceeds to discharge a debt to a person who had supplied him with heroin, and to purchase further heroin. 12 Three days later, on 26 August 1997, Mr B and the person with whom he was then living, who later became his wife, carried out a further armed robbery. Together they entered the Emu Plains newsagency with a .22 rifle. They demanded that the shop assistant open the till. They thereafter stole $1,500. A stolen vehicle was used to commit the crime. 13 The next robbery occurred on 8 September 1997. Again it was robbery in company, and again with a dangerous weapon, namely the .22 sawn-off shotgun. The weapon was in the hands of the co-offender. Mr B told police that the gun was incapable of being fired. Attempts to load it had been unsuccessful. The bullets were said to fall out of the chamber. However that may be, each was wearing a black balaclava, and other means of disguise, including black gloves. Mr B had a club. $876 was stolen. 14 The next day, on 9 September 1997, Mr B was involved in yet another robbery. Again he was in company, and again the robbery involved a dangerous weapon, namely a .22 sawn-off shotgun. Mr B and his co-offender, wearing balaclavas, entered the post office and newsagency, threatened the staff, demanding that they lie on the floor. His wife was also involved. The sawn-off shotgun was loaded with one round of ammunition. The proprietor of the store handed over $3,180 in cash. There was a customer within the store who had placed $150 upon the counter shortly before. That money was taken as well. It was the subject of a separate count under s97(2). 15 The applicant and his co-offender stole a number of vehicles that day. One vehicle was used to drive to the premises where the robbery took place. As the car was driven away, it was followed by someone who had witnessed these events. Mr B was driving the vehicle. Those within the car became aware that they were being followed. The vehicle stopped. It reversed. One of the co-offenders leaned out of the vehicle pointing the gun at the citizen who had followed them. That person then chose not to continue the chase, so that the applicant and his co-offenders were able to escape. 16 Soon thereafter the police received information which led to the arrest of Mr B and his co-offenders the same day. At the time of their arrest, the bag which contained the sawn-off shotgun, the balaclavas and other gear worn during the various robberies, was thrown from the unit which they occupied. It was later retrieved. Mr B has remained in custody since that time. 17 Against this background I should turn to the grounds of appeal. His Honour in his remarks on sentence said this: "There is no question that these offences are extremely serious and they warrant an extended custodial sentence." 18 The applicant did not suggest otherwise. The primary submission concerned the discount which had been made by his Honour to what was described by the applicant's counsel as "the extraordinary level of assistance" that he has given the police in respect of a variety of offences. 19 There is no question that the applicant has provided significant assistance to the police, which they readily acknowledge. The nature of that assistance, one gathers, is largely in the public domain. The applicant, therefore, is vulnerable to reprisals from those in respect of whom he has provided information. The details of that assistance have been provided to this Court, as they were to his Honour. I will not, in this judgment, elaborate upon the nature of the assistance, beyond saying that it was substantial, and admitted to be substantial by the Crown. Indeed, on this appeal, the Crown acknowledged that the assistance warranted a discount of fifty per cent from whatever sentence would otherwise be appropriate in the circumstances. 20 It should also be said that the provision of this assistance has been at some significant cost to Mr B. · First, in June 1997, when it became known that Mr B had provided the police with certain information in respect of a particular individual, his car was fire bombed outside his wife's flat. He later received a message that next time it would be "closer to home". · Secondly, having been arrested and whilst being transported to Court, he was assaulted in the prison van. He received a fracture to his cheek bone. · Thirdly, he described to his Honour how he had been provided with a heroin shot which caused him to become gravely ill. On admission to hospital it was found that it had been laced with battery acid. 21 Mr B described to his Honour the conditions of his incarceration. He is on protection. His exposure to other prisoners is necessarily limited, and he is geographically confined to quite a small area. He cannot, unlike other prisoners, proceed through the classifications and obtain benefits available to prisoners in the wider gaol community. An affidavit has been filed in Court, and provisionally admitted, which describes in greater detail the nature of that incarceration. One gathers that there are various levels of protection within the gaol system. Mr B, because of the assistance that he has given, has been provided with the most extreme level of that protection. He is known not by name but by number. 22 His Honour Judge Dodd acknowledged that a significant discount was appropriate for the assistance provided by Mr B. He then passed sentence, having taken account of such assistance. His Honour did not include in his remarks his starting point. Nor did he quantify the discount which he thought appropriate. 23 Nonetheless, there having been a challenge to the sentence, it is appropriate that this Court should address two issues: · First, what is the appropriate head sentence reflecting the totality of the criminality involved? · Secondly, what is an appropriate discount for the assistance provided by Mr B? 24 Dealing with the first issue, the guideline judgment (Regina v Henry (1999) 46 NSWLR 346) is a useful starting point. It assumes one offence where the profile of the offender conforms to the following description provided by his Honour the Chief Justice at p 380 in these terms: "(i) young offender with no or little criminal history; (ii) weapons like a knife capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken." 25 The majority (Spigelman CJ, Wood CJ at CL, Newman and Simpson JJ) thought, in these circumstances, that a sentence in the range of four to five years' imprisonment was appropriate. 26 As will be described later in these reasons, the position of Mr B was plainly very difficult. First, although relatively young, he was, at the time of these offences, aged thirty-two years (born 30 November 1965). He had a significant criminal history for offences of dishonesty. He had been in prison many times before. The weapons involved were, in two cases, a knife, and in five, a sawn-off shotgun. There was clearly some planning, including the use of gloves and disguise, and resort to stolen vehicles as a means of concealing identity. There was violence to a bystander on one occasion, although by a co-offender. Those robbed were persons vulnerable and relatively small sums were taken. Drug addiction was the root cause of many of the offences, although that is not of itself a mitigating factor (Regina v Henry). Most importantly, there were multiple offences, some separated by only days. On the principle of totality, an extended custodial sentence was called for. 27 The subjective circumstances of Mr B are in many respects tragic. His childhood was unhappy. He was subjected to physical and emotional abuse. He left home at an early age, thirteen years, and lived on the streets. He has gone from institution to institution ever since, spending only short times out of gaol. He was on parole when these offences occurred, and that is an aggravating circumstance. He was on bail when some of these offences occurred and that, likewise, is an aggravating circumstance. I will have more to say in the context of the second ground of appeal about the subjective circumstances of Mr B. 28 Looking at the Judicial Commission statistics, the sentences range up to about twelve years before any discount is applied. In my view, a sentence of more than twelve years is warranted, based upon the principle of totality. The Crown has drawn attention to the fact that these statistics commence in 1994, and they are also statistics which largely depend upon the accumulation of cases before the guideline judgment, Regina v Henry. In my view, a sentence of at least fourteen years was warranted based upon the principle of totality. The Crown has suggested that an appropriate starting point is sixteen years. It points to comparable sentences imposed upon those convicted of less serious crimes in Regina v Jarrott (CCA, unreported, 27.9.93); Regina v Moran (CCA, unreported, 30.11.94); Regina v Bishell (CCA, unreported, 18.2.92); Regina v Begnell (CCA, unreported, 26.11.92); Regina v Stanford (CCA, unreported, 23.1.93); Regina v Thwaites (CCA, unreported, 6.10.93). However, I am inclined to believe that there are certain points of distinction between some of those cases, at least, and that of the present applicant. Some of the offences for which he stood charged were the consequence of the full and frank disclosures made by him when he chose to change the direction of his life, and provide significant assistance to the authorities. Some charges may never have been pursued but for those admissions (Regina v Ellis (1986) 6 NSWLR 603, per Street CJ at 604). For that reason, as I have said, it seems to me that an appropriate starting point, in the circumstances, is a sentence of fourteen years. 29 What discount is appropriate? The issue has been considered in a number of cases. In Regina v Cartwright (1989) 17 NSWLR 243, the Court considered an appeal against a discount of one third given by the trial judge in that case. The Court (Mahoney JA, Hunt and Badgery-Parker JJ) acknowledged that there was a clear public interest that offenders should be encouraged to supply information that will assist authorities to bring others to justice. The extent of the discount will depend, to a large extent, upon the willingness with which the disclosures are made. If they are tailored to avoid uncomfortable subjects, the discount will plainly be less. It will rarely be substantial unless the offender discloses everything that he knows (at p 252). The discount is designed, amongst other things, to compensate the prisoner for the deprivations which will inevitably attend the need for him to be protected whilst in custody (at p 255) (Regina v Gallagher (1991) 23 NSWLR 220, per Gleeson CJ at 225). The threat of reprisals, including after release, is a factor. In Regina v Cartwright the Court determined that an appropriate discount of fifty per cent of the sentence which would otherwise be served was appropriate. It was said to be unnecessary to quantify the precise level of the discount (Regina v Gallagher, per Gleeson CJ at p 227), although that remark was made before the Crimes Act and the Criminal Appeals Act were amended. In 1992 s442B was introduced into the Crimes Act, and s5DA into the Criminal Appeals Act. I believe, in the light of these provisions, it is prudent for a sentencing judge to include the arithmetic by which he or she arrives at the appropriate sentence. When the starting point is not identified, and the discount not specified, a person who has provided assistance may be left with a sense of grievance. That appears to be the position in this case. 30 Counsel for the applicant has urged a discount of at least fifty per cent and, indeed, has suggested, although faintly, that perhaps more than fifty per cent may be warranted. Counsel for the Crown, as I have indicated, has acknowledged that a discount of fifty per cent is warranted. It seems to me, in view of the material which has been read by the Court, and which is a confidential exhibit, that a discount of fifty per cent is appropriate. Applying a fifty per cent discount to the starting point of fourteen years, one reaches a sentence of seven years. His Honour, on the other hand, imposed a sentence of eight years. His Honour, it has to be said, had a discretion. There was no one sentence which was appropriate. An appellate Court should not lightly interfere with a sentence of a lower Court judge which is within the sentencing range. Nonetheless, I am inclined to the view that his Honour's starting point was either too high, or the discount allowed to this applicant too low, and that the appropriate sentence in all the circumstances was seven years. 31 Turning to the second ground, it was argued that his Honour was in error in not determining that there were special circumstances in Mr B's case, justifying a departure from the usual division between the head sentence and the minimum term suggested by s5(2) of the Sentencing Act. 32 The applicant had a significant history of drug dependence and abuse over much of his adult life. He has, on a number of occasions, attempted without success to substitute methadone for heroin. When seen by Ms Duffy, psychologist, in March 1998, he was found to be suffering from considerable anxiety and depression. Having disowned his former associates, against many of whom he has either given evidence, or signified a willingness to give evidence, he has suffered a sense of isolation. He has recognised that upon his release he must make a new life elsewhere in Australia. Ms Duffy said this: "When released from custody, the supervision of this Service appears warranted to monitor his transition into the community. Supervision will focus upon personal development, alcohol and other drug counselling and employment issues." 33 His imprisonment, as mentioned, is likely to be more harsh because there will be a need for it to be served in protection. This aspect was recognised in Regina v Daryl Bruce Lewis 100 A Crim R 361 by the Court as itself warranting the recognition of special circumstances, and a more extensive additional term. His Honour, Mr Justice Dunford, in that case, said this at p 365: "Generally the need for such a longer period will be to facilitate rehabilitation by way of supervision in the community, including overcoming the drug and alcohol addiction but special circumstances are not limited to this and another situation which may constitute special circumstances is where because of the prisoner's particular circumstances his imprisonment can be expected to be unduly harsh such as being served in protection or other restrictive custody." 34 There is no question that there was material before his Honour, the sentencing judge, which was capable of being regarded by him as justifying a finding of special circumstances. The issue is whether he was in error in not doing so. For my part I do not doubt that the transition from gaol to the community will be difficult for Mr B, partly because of his isolation, partly because of his drug dependence, or former drug dependence, and partly because of the institutionalisation which is the inevitable consequence of his very considerable gaol record. 35 For that reason I believe that a minor adjustment is appropriate under s5(2), and I would therefore propose the following orders: