New South Wales Court of Criminal Appeal CITATION : Regina -v- Johnstone [2000] NSWCCA 129 FILE NUMBER(S) : CCA 60355 of 1999 HEARING DATE(S) : 12/04/00 JUDGMENT DATE : 12 April 2000 PARTIES : Regina Dean Andrew Johnstone JUDGMENT OF : Dowd J at 1; Hulme J at 19 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0120 LOWER COURT JUDICIAL Coleman DCJ OFFICER : COUNSEL : Mr Berman - Crown Mr Manuel - Applicant SOLICITORS : S E O'Connor - Crown J Manuel - Applicant CATCHWORDS : Sentence appeal - Robbery whilst armed with an offesive weapon - Failure to give sufficient credit for plea and cooperation LEGISLATION CITED : Crimes Act 1900 CASES CITED: R -v- Ellis (9186) 6 NSWLR 603 DECISION : Leave granted; Sentence imposed on the first and second count quashed IN THE COURT OF CRIMINAL APPEAL 60355/99 HULME J DOWD J WEDNESDAY 12 APRIL 2000 REGINA v DEAN ANDREW JOHNSTONE 1 DOWD J: This application for leave to appeal is in respect of three counts of robbery whilst armed with an offensive weapon, contrary to section 97(1) of the Crimes Act 1900 ("the Act"). Each offence carries a maximum penalty of penal servitude for twenty years. 2 The applicant pleaded guilty before Coleman DCJ at the Newcastle District Court and was sentenced to a minimum term on the first count of three years and six months penal servitude, and an additional term of two years, on the second count, four years minimum term and an additional term of two years and six months and on the third count a minimum term of four and a half years and an additional term of three years. The sentences being imposed in that fashion as an application of the R v Pearce 1998, 72 ALJR, at 1416. The application is made on several bases. The first ground being that the sentencing judge failed to take into account the applicant's voluntary admissions in relation to the first two offences and did not have regard to the principles contained in R v Ellis, 1986, 6 NSWLR at 603. 3 The second ground is in effect an extrapolation of that ground which is in failing to properly consider the applicant's confessions his Honour derogated from the significance of the guilty pleas. 4 The facts of the matter have been extensively set out in a very careful judgment by his Honour Coleman DCJ in his remarks on sentence of 19 May 1999. However the offences which were similar in nature involved the applicant being armed with a blood-filled syringe and robbing his victims cash. The second offence, some six days later, when armed similarly with a blood-filled syringe the applicant robbed a male person of $370 from a pharmacy, and the third offence occurred the following day on 24 January in that he robbed a young woman of $435 from a chain store. 5 Each of the offences involving a blood-filled syringe must have been for each of the victims extremely serious and terrifying incidents. The prevalence of this offence is serious. The effect is quite catastrophic and people should be able to go about their normal commercial lives without having this sort of offence inflicted on them. For that reason the legislature has seen fit to place a very high penalty of twenty years for each offence. 6 As his Honour said on sentence at page 3 of his Remarks On Sentence, in relation to the first matter, "The fear and dread that was induced in the young shop assistant is a matter that cannot be ignored and the need to deter this type of offence is something which must be borne in mind. Similarly for the other two offences". 7 The difference between the three offences for sentencing purposes, although similar in character, was the fact that the applicant having been arrested on the third of the three offences confessed and apprised the arresting officers of the first two offences. It has been submitted that he may well have in effect been quite practical in so confessing because of a similar modus operandi of the other offences in a similar area and that it was likely that he would be caught, in any event and that there would probably have been sufficient evidence to convict him. 8 The Court has been referred particularly to the decision in R v Ellis (1986) 6 NSWLR at 603 and in particular the judgment of the Chief Justice with whom the other judges agree at page 604 "This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given. When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as the guilt being established against the person concerned" 9 Part of that decision has been subsumed into s.439 of the Act, and it is clear from an examination of the judgment that his Honour did take into account the high level of co-operation and the fact of the plea of guilty insofar. His Honour averted to the fact of the plea of guilty and that it was taken into account, and also the other provisions of s.439 which is when the person pleaded guilty and in one case here it was at arraignment not at the magistrate's Court, or indicate an intention to plead guilty, which one could infer from the co-operative way in which the applicant co-operated with the police in this matter. 10 The primary point to which the application refers is that as referred to by counsel for the applicant in a decision of Panowitcz, this Court then presided over by Finlay J with Levine J examined a similar decision of Coleman DCJ where it was noted that his Honour did not specifically advert to the principles in Ellis and taking that and other matters into account, the Court allowed an appeal from a sentence imposed by his Honour. 11 It is of course as set out in s.439 of the Act, the Court must only advert to a failure to apply a credit or a reduction of a plea of guilty, or an indication of an intention to plead guilty, if in fact the Court does not so apply. That, however, does not detract from the matter that the Court in not referring to R v Ellis in fact should have failed to apply a principle of law which was applicable to this case. In respect of the first and second offences there has, in my view, been an error by his Honour in not applying the principles of R v Ellis. 12 The difficulty however in this particular application, is that the task of this Court, which if it is of the opinion that some other sentence in this case less severe is warranted in law should have been passed should quash the sentence and pass such other sentence in substitution therefor and otherwise should dismiss the appeal. 13 The difficulty in the case insofar as his Honour has applied the principles in R v Pearce, is that in the first three offences in failing to give a credit by reduction for the assistance provided in respect of that matter is that the Court has therefore imposed a sentence which for that offence is too high, is manifestly in error. Similarly for the second offence. However, the third offence insofar as the second and third offences for the purposes of the R v Pearce is the more serious of the three offences, warrants in fact a more severe penalty because it is not, as it were, infected by the failure to take Ellis into account. His Honour in applying R v Pearce has the difficult task therefore of accumulating for sentencing purposes, three separate penalties. His starting point was, in my view, too low in the first of the three sentences. Similarly, in the second of the three sentences but in effect, because of the non-application of Ellis to the third, his final sentence was in fact not so affected. 14 In my view therefore, the manifest error is in the first two. But taking into account the fact that the total of the three sentences was intended to be accumulative to reflect the totality of criminality of the three offences, it is my view that in terms of the sentence which is the effective sentence, namely the third sentence, is not such as to warrant intervention by this Court. 15 I am of the view that although a less severe sentence is warranted in law on the first two, that in fact because of the seriousness of the accumulative effect of the three that the third sentence should not be quashed and should stand. 16 In my view the Court should intervene to grant leave and should allow the appeal only insofar as it affects the first and second sentences and should re-sentence reflecting those two only and that in effect the third sentence should stand and I would propose therefore that the first and second sentences be quashed and in lieu of the first sentence now taking into account the principles of Ellis that in terms of the Crime Sentencing Procedures Act, a sentence of imprisonment is the only sentence. 17 I would sentence the prisoner to imprisonment for a non-parole period of three years and an additional term of one and a half years. On the second sentence I would impose a term of imprisonment of three and a half years and an additional term of two years. On the third offence I would not interfere but I think perhaps although in sentencing terms it is different terminology, I would not interfere with that term. 18 Accordingly, on the first count the appellant is sentenced to imprisonment for a term of four and a half years to comprise a non-parole period of three years commencing on 24 January 1999 and expiring on 23 January 2002 and an additional term of two years expiring on 23 July 2003. For the second sentence the appellant is convicted and he is sentenced for a term of five and a half years comprising a non-parole period of three and a half years to commence on 24 January 1999 and to expire on 23 July 2002 and a non-parole period of two years to expire on 23 July 2004. That sentence to be served concurrently with the first sentence which I have imposed. The third sentence will therefore remain as imposed. 19 HULME J: I agree with the orders proposed and with his Honour's reasons, subject to one possible qualification. I am not sure that they were expressed in precisely the terms required under the recent legislation. That is a matter which we will fix up in the formal order of the Court. In effect, the orders of the Court are that leave to appeal is granted. The sentence imposed on the first and second counts is quashed. In respect of the first charge the applicant is sentenced to imprisonment for a period of four and a half years, including a non-parole period of three years, both the full term and the non-parole period to commence on 24 January 1999. The second count is sentenced to imprisonment for a full term of five and half years, including a non-parole period of three and a half years. Both such periods commencing on 24 January 1999. ********** 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.