New South Wales Court of Criminal Appeal CITATION : Regina v Flood [1999] NSWCCA 240 FILE NUMBER(S) : CCA 60333/98; 60334/98 HEARING DATE(S) : 28 June 1999 JUDGMENT DATE : 28 June 1999 PARTIES : Regina v Jeffrey James Flood Regina v Scott Joseph Flood JUDGMENT OF : Sully J; Bell J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0074 LOWER COURT JUDICIAL OFFICER : Hosking DCJ COUNSEL : J. C Nicholson SC/C. Lyons (Appellant) L. M. B. Lamprati (Crown) SOLICITORS : T. A. Murphy (Appellant) C. K. Smith (Crown) CATCHWORDS : R v Coleman (1990) 47 ACrimR 306; CASES CITED: R v Fletcher-Jones (1994) 75 ACrimR 381 at 387; R v Johnson [1917] 17 SR(NSW)481-4; and R v Sorlie [1925] 25 SR(NSW) 532 at 539 DECISION : Leave to appeal granted in each case.; Appeal dismissed in each case. IN THE COURT OF CRIMINAL APPEAL 60333/98 60334/98 SULLY J BELL J 28 June 1999 REGINA v Jeffrey James FLOOD REGINA v Scott Joseph FLOOD JUDGMENT 1 SULLY J: On 2 June 1998 the present applicants, who are brothers, stood for sentence before his Honour Judge W.D Hosking QC, then sitting in the District Court at Coffs Harbour. Each applicant had pleaded guilty before his Honour to four offences which were related offences arising out of one set of circumstances. 2 The first offfence to which each applicant pleaded guilty was an offence of armed robbery, an offence which contravenes s 97(1) of the Crimes Act and attracts a statutory maximum penalty of penal servitude for twenty years. The second and third matters involved the stealing of a motor vehicle, a contravention of s 154AA(1) of the Crimes Act and attracting a statutory maximum penalty of penal servitude for ten years. The fourth offence was that of detaining a person with intent to hold for advantage, a contravention of s 90A of the Crimes Act and attracting a statutory maximum penalty of penal servitude for fourteen years 3 In respect of the offence of armed robbery, the learned sentencing Judge imposed a penalty in the case of each applicant of penal servitude for six years apportioned between a minimum term of three years and six months and an additional term of two years and six months. In respect of the two offences relating to the stealing of a motor vehicle, his Honour imposed a fixed term of penal servitude for two years and to be served concurrently with the sentence imposed in respect of the armed robbery. In respect of the detaining with intent to hold for advantage offence, his Honour fixed a term of penal servitude for three years imposed as a fixed term and to be served concurrently with the other penalties. 4 Each applicant seeks leave to appeal against the severity of those sentences. 5 The objective facts can be shortly stated as follows: on the day in question, which was 7 March 1998, the two applicants approached a young man called Bottero in a public carpark. Put simply, they told him they were intending to rob him; forced him into the back seat of his parents' vehicle, which was then in his charge; drove him for some time to a variety of locations; and robbed him of various property. There is no precise evidence as to the total length of time occupied by that sequence of events; but it is reasonable to infer from the evidence, otherwise, that it was not, so to speak, over in the twinkling of an eye, but did entail some not insignificant passage of time. 6 The victim in question was a nineteen-year old youth. He gave a statement to the police which describes graphically what happened. He says he was approached "from either side" by the two applicants. One of them produced "a large hunting-style knife" which was in fact a fishing knife. What then occurred is set out in Mr Bottero's statement as follows: "The one carrying the knife said, 'Give me the keys and your wallet. I am serious'. I then handed him my keys and I took my wallet out of my back pocket and gave it to him. He then grabbed me by the right arm and shoved me towards the back passenger's side of the vehicle. The other fellow open the doors with the key as the vehicle has central locking. He then shoved me into the back of the vehicle and pushed me across to the driver's side. The one with the knife got in the back beside me and the other fellow got in the driver's seat. The fellow in the front went through my wallet and took $35 that I had in my wallet, which was a $20 note, a $10 note and a $5 note. There was also about $5 of coin. They proceeded to drive off and the fellow in the back was saying, 'I am serious, don't go telling the cops, don't do anything stupid. This is my knife'. With that he rammed the knife through the front passenger's seat of the vehicle and withdrew it and then he drove it through the seat between his legs. He then said, 'Give me your watch, your chain, your ring'. I then took me watch off which was a black watch with a black velcro band. I think it was a Casio brand. I also took off a silver fob chain necklace and silver ring. He then continued to threaten me with the knife and verbally and then the fellow in the front started to threaten me. The bloke in the back then said to the fellow in the front, 'Settle down and drive'. The fellow sitting in the back said, 'The fellow in the front is more psycho than I am'. They then drove my mother's vehicle towards the Coffs Harbour airport and went past the turnoff. The fellow in the back with the knife said, 'Turn around, Scott'. Then he said, 'Don't think that is his real name'. The fellow driving then made a u-turn and drove back to the airport turnoff. He drove in towards the airport and turned right towards a gate. He stopped the car and the fellow in the back kept threatening me, saying, 'You're not getting out yet. I want to search your wallet in case you have more money'. About this time the fellow in the front passed the wallet to the fellow in the back. The fellow in the back searched my wallet, he already had my Banana Coast Credit Union card. I am not sure at what stage he got that. He then found my National Australia Bank card and said, 'Why didn't you tell me you had another card?' I didn't answer him as I didn't want him to take that card. He then kept my Banana Coast Credit Union card and said, 'What's the PIN number?' I said, '5045'. He then tried to carve the number into the back of a McDonalds drink carry tray with the knife. I then picked a pen up off the floor and handed it to him. He then wrote the number down. He said, 'Have you got any more money?' He then felt my left shorts pocket and said, 'You had better not be lying or I will carve you up and throw you in the bushes'. I said, 'Can I get out now?' He said, 'Yes, you don't normally hear this from a crim, thanks a lot' and shook my hand. I then picked up my shoes to get out of the car and he said, 'What type of shoes are they?' I then showed him the shoes and he said, 'They are a bit ratty'. I then got out of the car. They then drove off and the fellow in the back turned and was banging the knife against the back window and waving it in a threatening manner towards me." 7 It is trite that the present applicants, if they are to succeed, must succeed by demonstrating an error of law on the part of the sentencing Judge. It is equally trite that the applicants must establish, given that they can demonstrate some such error of law as would justify the intervention of this Court, that this Court itself should come to a conclusion, as contemplated by s 6 of the Criminal Appeal Act that some other and more lenient sentence is "warranted in law" in the case of each applicant. 8 The applicants point to two matters which they say demonstrate in the requisite sense an error of law on the part of the sentencing Judge. 9 His Honour says in his remarks on sentence and, in terms, that "It is not a mitigating feature that they were alcohol-affected at the time". It has been submitted that this is a manifest error of law in the sense that relevant authority, and particularly the decision in R v Coleman (1990) 47 A Crim R 306, requires intoxication to be treated upon the basis that it is always, at least to some extent, "a mitigating feature". 10 I have read the remarks on sentence; and my impression is that what the learned sentencing Judge was intending to convey by that single sentence, embedded in the way it is in the overall context of the remarks on sentence, was no more than was said by McInerney J in R v Fletcher-Jones (1994) 75 A Crim R 381 at 387, that: "Whilst being affected by alcohol may explain why an offence occurred, it is not a licence to commit crimes". 11 The learned sentencing Judge, in the sentence that precedes immediately the sentence now criticised in the submissions put for the applicants, says: "The offences against Mr Bottero were brazen and outrageous." I entirely agree, and I think that it needs to be spelt out firmly and clearly that alcohol "is not a licence to commit crimes" of any kind, let alone crimes correctly described as "brazen and outrageous". 12 I am not persuaded that the point taken in connection with his Honour's comments about intoxication has been made good. 13 The second point argued for the applicants is that his Honour's discretion miscarried in the approach his Honour took to the gravity of the kidnapping, if I may describe it in that comprehensive way. His Honour referred to it as a matter of "grave aggravation". The submission is put that the description "grave" connotes a level of aggravation far exceeding what could reasonably be found as the fact in the context of the present matters. I think that the short answer to that submission is to read the entirety of the remarks on sentence in a level-headed kind of way that takes account of the fact that the sentencing Judge was dealing on country circuit with these particular matters as part of what I imagine was a not inconsiderable District Court list. 14 It is not, I think, to the point to take such remarks on sentence and subject them to that kind of semantic analysis in the hope of finding somewhere or other a word here or there, or a phrase here or there, that might have been more happily put. There is authority extending back seventy years and more in the Court of Criminal Appeal that sets the face of that Court firmly against that kind of approach: see R v Johnson [1917] 17 SR (NSW) 481 at 482-4; and R v Sorlie [1925] 25 SR(NSW) 532 at 539,. 15 I would understand his Honour to have meant by the word "grave", understood sensibly in the context in which it appears, that in his Honour's perception the kidnapping was in a real, substantial and significant sense an aggravating feature overall in the conduct of the applicants on the occasion in question. With that perception expressed in those terms I, at least, would entirely agree. I do not think that the second particular point of attack on the remarks on sentence has been made good. 16 Even had I been of the contrary view, I would nevertheless not have been persuaded that some other, and lesser, sentence is "warranted in law". 17 The learned sentencing Judge reviewed in terms which were faithful to the evidence, and with which I respectfully agree, the relevant subjective features proffered in the case of each individual applicant. It has to be borne carefully in mind that, at the time that the instant offences were committed, one of the applicants was on parole, and the other was on a bond. No doubt those facts are not determinative in the sense that they are to be looked at in a vacuum and disassociated from all the other relevant evidence, objective and subjective. 18 It is trite law that a person who offends while on a bond, or while on parole, or while subject to a recognizance, or indeed while having been offered the benefit of any deliberate leniency from another Court, cannot complain justly if his later offences, committed in breach of his relevant undertaking, are regarded as being, by reason of the breach of the undertaking, proportionately more serious than they might otherwise have been. People who are given a bond, people who are released on parole, cannot be heard to say that they do not understand at least the basics of what is involved in each of those cases. Those basics embrace the principal proposition that, while at liberty on parole or subject to the bond, there are to be no breaches of the law, and certainly no breaches of the comparative gravity of the offences that were committed on the occasion of which I have been speaking in connection with the present case. 19 It is said that the sentence imposed on count 1, which has to be understood, of course, as expressing the primary Judge's final perception of the overall criminality of what was involved on the occasion in question, is a severe sentence. It is a severe sentence, and for myself I do not see that it is open to any fair criticism on that account. These were serious offences. A citizen going about his lawful affairs was set upon by two adults, forced into his motor vehicle at knifepoint, robbed at knifepoint, detained at knifepoint for some measurable time. These are not schoolboy pranks or larks, or things that have no real significance. They are a serious infraction of public order, and that is how they are to be seen; and when properly detected and brought to justice, that is how they are to be punished. 20 I would grant in each case leave to appeal because of the seriousness of what is involved to each of the applicants; but for myself I would dismiss in each case the substantive appeal against the sentence. 21 BELL J: I agree. 22 SULLY J: Before leaving the matters, the Court should take note of the affidavits which were made by each of the applicants and which were received by the Court this morning. Each applicant sets out in his affidavit a brief but clear description of what he has attempted to do while in present custody. There is a suggestion in each affidavit that there have been, from time to time at least, some impediments in the path of each applicant's opportunity to take part in particular, and it might be thought useful, rehabilitative courses. I think that it should be brought to the attention of the relevant authorities, and I so direct the Registrar, that the Court has taken note of what is said in the affidavits, and recommends in strong terms that the applicants be given every opportunity, consistent with proper prison administration and discipline, to take part in any course that might contribute in a real sense to their eventual rehabilitation. I propose, accordingly, that this recommendation be appended to the orders of the Court. 23 BELL J: I agree. 24 SULLY J: They will be the orders of the Court. *********** 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. 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