R v MAJSTROVIC [2000] NSWCCA 420

New South Wales Court of Criminal Appeal

CITATION : R v MAJSTROVIC [2000] NSWCCA 420 FILE NUMBER(S) : CCA 60775 of 1999 HEARING DATE(S) : 9 October 2000 JUDGMENT DATE : 9 October 2000

PARTIES : Regina Peter Majstrovic JUDGMENT OF : Hulme J at 1; Barr J at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/3084 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER :

COUNSEL : Crown: RD Cogswell SC Appellant: PJD Hamill SOLICITORS : Crown: SE O'Connor Appellant: TA Murphy

DECISION : Leave to appeal granted; Appeal allowed; Sentence of Judge Shadbolt quashed; Applicant sentenced to imprisonment for a term of 6 years from 28 March 1999 concluding on 27 March 2005; The court fixes a non-parole period of 3 years commencing on 28 March 1999 and expiring on 27 March 2002; Applicant eligible for parole on 27 March 2002

- 2 - IN THE COURT OF CRIMINAL APPEAL No: 60775/99

HULME J BARR J Monday, 9 October 2000 REGINA -v- Peter MAJSTROVIC JUDGMENT 1 HULME J: On 28 March 1999 this applicant for leave to appeal threatened a saleswoman at a bottle shop at Casula with a pistol and robbed her of $270. There is evidence of I think $450, but the difference is not significant for present purposes. 2 The registration number of the car he was driving was taken and he was shortly afterwards arrested, interviewed, and admitted his guilt. In due course he pleaded guilty to a charge of armed robbery, an offence carrying a maximum penalty of twenty years' imprisonment. 3 On 26 November 1999 Judge Shadbolt sentenced the applicant to penal servitude for a minimum term of four and a half years commencing on the day of the applicant's arrest, namely 28 March 1999, and an additional term of eighteen months. 4 The applicant seeks leave to appeal against sentence, and in written submissions advanced on his behalf four matters are relied on. The first is what is said to have been an error in his Honour's understanding of the applicant's record. The second is inadequate recognition of the applicant's plea of guilty. The third is inadequate recognition of the fact that, on the unchallenged statements of the applicant, the pistol used was a toy. Finally it was submitted that in light of all of these matters the sentence imposed was too high by comparison with the range of sentences identified in the guideline judgment of R v Henry & Ors (1999) 46 NSWLR 346. 5 In oral submissions there was some expansion of the matters relied upon. In particular, issue was taken with statements made in the course of his Honour's remarks on sentence to the effect that the applicant's evidence was "in reality a litany of complaint and a welter of self-justification, much of which can be seen in his psychological report", and the absence of reference by his Honour to some other matters. 6 In its terms the first ground is in my view made out. His Honour, in referring to the applicant's record, stated that he has two breaches of parole. That statement accurately reflected the copy of the applicant's antecedents which was before his Honour, but that document did not reflect a decision of Badgery-Parker J in proceedings between the applicant and the State, where his Honour on 23 October 1995 held that the sentence which included the parole service had either expired or was invalid and held there could not in law have been a breach of the so-called parole period. 7 Although Judge Shadbolt did not in terms indicate that he was allowing a discount for, or otherwise taking into account, the applicant's plea of guilty, he mentioned the fact in the opening sentence of his remarks and also referred later to the applicant having admitted his guilt in his interview with police. 8 His Honour's remarks on sentence occupy but two printed pages, and were made on the day on which the hearing on sentence was held, and although recognising what was said in R v Thomson at para 160(1), I find it impossible to believe that this very experienced judge overlooked whatever benefit the applicant was entitled to by reason of his plea. 9 In light of the material which was before his Honour and this Court, the matter should have been, and must be, approached upon the basis that the weapon used by the applicant in the robbery was a toy. It thus imposed no physical risk to his victim or victims, or members of the public. In this respect the applicant's offence was less serious than those where a weapon such as a loaded gun, or a knife, is used, and the applicant was fairly entitled to have this difference taken into account. 10 On the other hand, it must still be recognised that the applicant's use of the weapon was no doubt designed to strike fear in his victim or victims and, given that they apparently complied with his demands, did so. Although there was no evidence before the court of their subsequent reaction to this fear, it must be recognised that not all members of the public readily recover from such traumatic incidents. 11 Thus the offence remained serious although, as I have said, the applicant must be given, as it were, credit for the weapon being a toy. Judge Shadbolt's reference to the weapon was to refer to it merely as a "silver pistol", a phrase contained within the statement of facts tendered before his Honour. The applicant's evidence, and a later paragraph in the statement of facts, does amount to evidence that the pistol used was a toy. There was no contrary evidence. The difference is material, and given his Honour's silence on the topic, other than to refer to the weapon as a "silver pistol", I think this Court should proceed on the basis that his Honour erred in this respect. 12 I turn to his Honour's reference to the applicant's evidence. It is not clear what were the particular factors which his Honour had in mind when he referred to "a litany of complaint and a welter of self-justification". It may be that he meant to encompass an attempt by the applicant to inform his Honour of the fact that the parole period was in error, or "clerical error", to use the applicant's phrase in evidence. It may be that it included some evidence in the form of contents of a psychologist's report to the effect that the applicant had sought help with drug rehabilitation, but unsuccessfully. 13 It may be that his Honour had in mind other matters to which the applicant referred, wherein he described things or events in his life which had not worked out. However, while undoubtedly the applicant did refer to events or matters which had affected his life, I do not regard it as accurate to describe his evidence, including that information emanating from him which is contained in the psychologist's report, as "a litany of complaint and a welter of self-justification". Thus it seems to me there is a third basis of error to be seen in his Honour's reasons. 14 Another matter to which I should refer is a finding of his Honour, "It is about time the prisoner of thirty-five saw himself as responsible for his own actions. Until that realisation dawns I do not see any chance of rehabilitation". His Honour did not refer to information emanating from the applicant that prior to his commission of the subject offence he had made, it seems, some serious attempts to obtain assistance in rehabilitating himself from a heroin addiction. 15 It seems to me that if his Honour was to make the finding which I have quoted, the obligation on him to give reasons required him to address the evidence to which I have referred. It may be his Honour would have been entitled to reject it, although no obvious ground for doing so occurs to me, but as I have said, I am certainly of the view that the topic was one which should have been addressed. 16 The guideline judgment in R v Henry stated that sentences for armed robbery, having the characteristics there identified, should generally fall between four and five years by way of full term. The applicant's situation and offence required attention to four of those characteristics, namely limited degree of planning, young offender with no or little criminal history, weapon like a knife capable of killing or inflicting serious injury and, finally, plea of guilt, the significance of which is limited by a strong Crown case. 17 It is clear, I think, that there was limited, indeed almost no planning in respect of the robbery which actually occurred. It seems to have arisen because of the applicant's irritation that shopkeepers would not provide him with access to toilets in the centre, which he felt the need to use. However, it is apparent that he was out and about that day, and one may infer had the weapon to which I have referred with him, inter alia, for the purpose of robbing a heroin dealer. I thus think that that characteristic referred to in R v Henry was not one which provides any ground for differentiation here. 18 As I have indicated, the appellant is entitled to some credit by comparison with the decision in R v Henry, by reason of his choice of weapon. Furthermore, his plea was earlier than that envisaged by the guideline in R v Henry or R v Thomson, para 160(1), and entitled him to a greater discount than that envisaged in R v Henry. However, being aged thirty-four at the time of his offence, he was not a young offender and certainly did not fulfil the criteria of having little criminal history. 19 Judge Shadbolt recorded that since 1983 the applicant had thirty-two convictions in New South Wales, fifteen in Queensland and one in the Australian Capital Territory. His convictions include numerous, in excess of twenty, offences of dishonesty extending from 1983 to 1998. They include a conviction in October 1996 for robbery, in respect of which the applicant was sentenced to imprisonment for a minimum term of eighteen months and an additional term of eighteen months. 20 Judge Shadbolt said that he looked at the applicant's record to see if any leniency could be extended to him, and concluded that it could not. With respect to his Honour he seems to have neglected to also consider whether the applicant's history indicated that "The instant offence is an uncharacteristic aberration or whether he has manifested in his commission of the instant offence a continuing attitude of disobedience of the law, and whether retribution, deterrence and protection of society indicate that a more severe penalty is warranted". R v Veen (No 2) 164 CLR 466 at 477. 21 As the High Court went on to say: "It is legitimate to take account of the antecedent criminal history when it illuminates the moral capability of the offender in the instant case, or shows his dangerous propensity, or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 22 Against the totality of the applicant's record his Honour's error in taking account of two instances of revocation of parole of itself pales into insignificance. His omission to refer to, and presumably take into account, the fact that the weapon was a toy is of more significance, and in any comparison with the decision in R v Henry, so does the time of the applicant's acknowledgment of his involvement in the offence. 23 The other errors to which I have referred, namely his Honour's reference to "a litany of complaint and a welter of self-justification", and his omission to refer to the evidence concerning rehabilitation efforts, are not matters which have a parallel in the decision in R v Henry. Because of the errors or omissions to which I have referred, it seems to me that subject to the terms of s 6(3) of the Criminal Appeal Act, the application for leave to appeal should be allowed. That subsection behoves the Court to dismiss an appeal against sentence unless it is of the opinion that some sentence should have been passed. Having regard to the applicant's record, which in my view can only be described as appalling, and to the seriousness of any offence of armed robbery, I do not believe that any lower sentence than one of a total period of six years should have been passed. 24 The leniency which is extended to offenders on the occasion of their first or first few convictions is not insubstantial. Those persons who come outside that situation of their first or first few times in court are not entitled to it. Those who offend with the frequency and consistency which the applicant has merit, in light of the principles laid down in Veen, significantly increased penalties. 25 I would myself not have thought a sentence significantly greater than the six years imposed by Judge Shadbolt was excessive. It is clear that the penalties which have been imposed on the applicant to date have had little effect in deterring him from committing like offences. 26 However, I do think that the question of special circumstances requires revisiting. Judge Shadbolt found none and I would infer in that decision was influenced at least in part by the matters wherein I have found error. A matter which I find of significance in this regard is the applicant's attempts, without the threat of a gaol sentence or an offence for which he has been arrested hanging over his head, to obtain assistance with his rehabilitation. Those efforts are I think not subject to the same scepticism as I incline towards those which only appear once an applicant finds a need to impress a judge before whom he is about to come. There is reference in a pre-sentence report of 17 November 1999 to the possibility that the applicant may have reached a turning point with regard to his pattern of substance abuse, and the efforts to which I have referred point in the same direction. 27 Those matters lead me to the view that this is a case where, although because of the seriousness of the offence a substantial gaol sentence is still required, it is a case where it should be left to the parole authorities, and to the applicant to some degree, to define how long he stays in prison. In my view there are special circumstances, and I would propose that the applicant's minimum sentence or non-parole period be three years and there be a further sentence of three years additional term. 28 BARR J: The sentence proceeded on a basis of fact which contained one sure error, namely that the applicant had twice breached his parole, and probably others. The remarks of the learned sentencing judge, referred to by the presiding judge, show that his Honour rejected a number of self-justifying claims made by the applicant. One of them may have been the claim that the pistol was only a toy. I am left unsure about that, because his Honour made no express finding whether the pistol was real or a toy. 29 Another may have been the applicant's claim to be serious about his attitude towards rehabilitation and his desire to get himself off the illegal drugs which had been his, and the rest of society's, bane for so long. In the end I am so unsure about his Honour's findings of fact that I think the sentencing proceedings miscarried. 30 I agree with the orders proposed by the presiding judge. 31 HULME J: The orders of the Court are that the applicant should have leave to appeal; the appeal is allowed and the sentence of Judge Shadbolt is quashed. 32 The applicant is sentenced to imprisonment for a term of six years from 28 March 1999, concluding on 27 March 2005. The Court fixes a non-parole period of three years commencing on 28 March 1999 and expiring on 27 March 2002. He will be eligible for parole on 27 March 2002.