New South Wales Court of Criminal Appeal CITATION : R v EA [2000] NSWCCA 550 FILE NUMBER(S) : CCA 60383/00 HEARING DATE(S) : 4 December 2000 JUDGMENT DATE : 4 December 2000 PARTIES : Regina v EA JUDGMENT OF : Meagher JA at 1; Hidden J at 13; Carruthers AJ at 19 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0456 97/21/2132 LOWER COURT JUDICIAL Sides DCJ OFFICER : COUNSEL : Crown: P G Berman SC Respondent: S Odgers SC SOLICITORS : Crown: S E O'Connor Respondent: Murphy's Lawyer Inc. CATCHWORDS : Crown appeal against sentence - armed robbery - assistance given by accused to police - breach of recognizance. DECISION : 1. Appeal allowed; 2. Sentence of Sides DCJ imposed be disallowed and in lieu thereof sentence on the indictable offence of 7 years commencing on 9 February 1999 and expiring on 18 February 2006, with a non-parole period of four years commencing on 19 February 1999 and expiring on 18 February 2003; 3. On the breach of recognisance two years commencing on 19 February 1999 and expiring 18 February 2001 with a no non parole period because of the existence of the sentences in the first matters. IN THE COURT OF CRIMINAL APPEAL CCA 60383/00 MEAGHER JA HIDDEN J CARRUTHERS AJ Monday 4 December 2000 REGINA v EA JUDGMENT 1 MEAGHER JA: This matter involves a Crown appeal from sentences imposed by Sides DCJ in the District Court on 19 May 2000. The principal incident on indictment before his Honour was one which took place at Burwood on 11 May 1999 in a case of armed robbery. 2 The armed robbery involved the present respondent attacking a person at a petrol station with a syringe full of blood and squirting it over his face. 3 The act was not only a vicious act of armed robbery itself but also was a breach of recognisance because he had previously, at Padstow only two years earlier on 24 June 1997, committed a similar armed robbery, only with a firearm instead of a syringe. He was granted bail in respect of that earlier incident and it was in breach of the recognisance on that occasion that he committed the second offence. 4 Sides DCJ sentenced him to three years' imprisonment commencing on 9 February 1999 and specified a non-parole period of fifteen months commencing on 19 February 1999. He found the breach of recognisance proved and as far as that offence was concerned, he sentenced the respondent to two and a half years' imprisonment commencing on 19 February 1999 and gave a fifteen-month non-parole period commencing on 19 February 1999 as a result of which, if one looks at the dates in question, the amount of punishment meted out to the respondent was something very close to nil. 5 His Honour reached his conclusion in a number of ways which have attracted criticism from the Crown. In my view, almost all of the Crown criticisms are fully justified. 6 The first objection, of course, is that in the case of both armed robberies the total end sentence is unduly lenient. The Courts must not give any countenance to the notion that an armed robbery is a minor offence or an offence which cannot be taken seriously. 7 There is another criticism, that a very heavy discount stretched in three different ways was given to the respondent because of assistance he rendered police. Assistance he certainly did render them and it arose in this way. He had been at Odyssey House on a scheme to detoxify himself from heroin, which did not seem to be entirely successful and led to an addiction to cocaine. In pursuit of his cocaine addiction, he borrowed money from other people in order to buy cocaine but did not pay them for the goods they supplied. They, in return, used means of the utmost violence in their attacks on him, including shooting at him and shooting at the vehicles he was driving. 8 The respondent did give assistance to the authorities that identified who these people were and undoubtedly some leniency should have been shown to that effect, but not lenience, I should have thought, of any excessive amount, bearing in mind that all he was doing was, in effect, protecting himself. He was not disclosing to the authorities the identity of people who were committing crimes against persons other than himself. 9 His Honour also made both sentences concurrent, one with another, so the total effect was a minute period of imprisonment. 10 He also found various subjective factors which seem to me to exist but to be of very little significance. For example, the situation in his family environment, the fact that he had an attention deficit disorder or personality disorder and other similar matters. There are many people in the community who get along in life with those disorders but do not have to resort to crime. 11 The end result seems to me that notwithstanding matters I have referred to and notwithstanding the respondent's attempt to rehabilitate himself, the appeal must succeed, the sentences imposed by Sides DCJ be disallowed and fresh sentences be imposed on the indictable offence of seven years, commencing on 9 February 1999 and expiring on 18 February 2006, with a non parole period of four years commencing on 19 February 1999 and expiring on 18 February 2003. 12 On the breach of recognisance matter, there should be two years commencing on 19 February 1999 and expiring on 18 February 2001 with no non parole period fixed in respect of that matter because of the existence of the sentences in the first matter. Those are the orders I would propose. He is eligible to apply for parole on 18 February 2003. 13 HIDDEN J: I am unable to agree with the orders proposed. I accept that in all the circumstances the appeal must be allowed, given the seriousness of the offences and the fact that one was committed whilst on recognisance for another of a similar kind. 14 Nevertheless, what primarily motivated his Honour to take the unusual course he did was the progress which the respondent had made towards rehabilitation at the time he appeared for sentence, he having embarked upon a drug rehabilitation program run by the Salvation Army. Evidence before us this morning demonstrates that he has completed that program successfully. 15 It may well be that his Honour did give undue weight to the respondent's benefit to his assistance to the police in identifying his attackers. Nonetheless, that assistance was not insignificant for the reasons his Honour specified. 16 Firstly, the attack was committed in circumstances in which many a victim, such as this respondent, would not have approached the police about it and would rather have lived with it in preference to exposing himself and perhaps others to reprisals. In addition, it does appear that any assistance the respondent provided in respect of that matter would inevitably disclose the involvement in serious drug offences of those persons. 17 Having said all that, however, I accept that a custodial sentence was inevitable and should have been passed. I say no more than that on this Crown appeal I would have fashioned sentences totalling five years with an effective non parole period of two-and-a-half years dating from 19 February 1999. 18 As I am aware that I am in the minority in relation to this, I do not propose to detail those sentences any further. 19 CARRUTHERS AJ: I agree with the presiding judge. I agree with the orders which his Honour proposes and his reasons. 20 MEAGHER JA: The orders of the Court therefore are the orders that I proposed. ****** 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.