R v DWIGHT [2000] NSWCCA 164

New South Wales Court of Criminal Appeal

CITATION : R v DWIGHT [2000] NSWCCA 164 FILE NUMBER(S) : CCA 60066/99 HEARING DATE(S) : 14 April 2000 JUDGMENT DATE : 14 April 2000

PARTIES : Regina Rodney John DWIGHT JUDGMENT OF : Hulme J at 1; Dowd J at 24

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/1022 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : Crown: M Grogan Appellant; C Lyons SOLICITORS : Crown: SE O'Connor Appellant: TA Murphy

DECISION : Leave to appeal granted; Appeal dismissed

- 8 - IN THE COURT OF CRIMINAL APPEAL No: 60066/99

HULME J DOWD J

Friday, 14 April 2000 REGINA -v Rodney John DWIGHT JUDGMENT 1 HULME J: On 12 February 1999, Rodney John Dwight was sentenced by Judge Luland in respect of four counts of robbery whilst armed with a dangerous weapon. Under s.97(2) of the Crimes Act, each offence carried a maximum penalty of twenty-five years imprisonment. 2 His Honour was asked to take into account the number of matters on a Form 2. These included eight further offences of armed robbery, some with a dangerous weapon and others with an offensive weapon, one count of breaking, entering and stealing and two counts of stealing a motor vehicle. The first of the offences charged occurred on 2 August 1998 and the last on 8 September 1998 and involved a liquor outlet, two newsagencies and an RSL Club. The property stolen in each offence was $7,000, $18,300, 88 cartons of cigarettes and some $12,500 respectively. It was in the course of leaving the scene of the last of these offences that the applicant was arrested. 3 The offences taken into account occurred between 24 June 1998 and 3 September 1998. In these offences over $34,000 in cash and $13,000 worth of cigarettes were stolen together with other property. Both in the case of the offences taken into account and those charged, the applicant was always in the company of at least one other offender. 4 At the time he appeared before the sentencing judge the applicant was twenty-three years of age, single, engaged in part-time work and studying. He was receiving an Austudy allowance. 5 He had been a difficult child and it would seem that his father had been physically and emotionally abusive towards him. His relationship with his mother was, however, close. His antecedents record the commission of his first offences in June 1992, these being possession and self-administration of a prohibited drug. Thereafter, up until September 1994 he committed numerous offences of dishonesty and assault, penalties imposed including a number of control orders and terms of imprisonment. The longest of these included a minimum term of eleven months imposed in October 1994. 6 Thereafter, the applicant seems to have made serious attempts at rehabilitation. He commenced a TAFE course and his mother and girlfriend gave evidence to the effect that he seemed to have turned his life around and all was going well. In the light of that evidence, one assault charge arising from an incident in January 1997 and on which the applicant was placed on a recognisance can itself be ignored. 7 At the end of 1997 the applicant was involved in a pushbike accident and was knocked unconscious. Hospital tests did not indicate that there was any brain damage but it seems clear that after the accident, the prisoner was different. He seems to have become paranoid and become depressed and that he was hearing voices. He attended upon the Wentworth Area Mental Health Service and notes from that organisation confirmed indications of paranoia. He saw a psychiatrist although does not seem to have maintained medication which was prescribed. For the purposes of the sentencing proceedings the applicant saw Dr Westmore who concluded that the applicant did suffer from a paranoid disorder of some type and was psychiatrically unwell at the time Dr Westmore saw him. In the light of the totality of evidence on the topic, the applicant was probably also psychiatrically unwell at the time of his offending behaviour. 8 Nevertheless, Dr Westmore took the view that the applicant was probably aware of the wrongness of his behaviour at the time he was offending. His Honour said that he was not satisfied that any disorder the prisoner may have had played any significant part in his criminality in respect of the matters for which he stood sentenced. His Honour also noted that Dr Westmore also recorded - and there was other evidence to like effect - that the applicant was greatly troubled by feelings of guilt and shame. 9 The applicant pleaded guilty at the first opportunity. 10 It should be recorded that the applicant does not appear to be addicted to drugs but seems to have spent all of his share of the proceeds of his crimes on gambling. His habits in this regard were unknown to his girlfriend at the time. 11 The sentences which his Honour imposed were as follows: In respect of the first count and taking into account the matters on the Form 2, the applicant was sentenced to a minimum term of imprisonment of eight years commencing on 8 September 1998 and an additional term of four years commencing on 8 September 2006. In respect of each of the other offences the applicant was sentenced to a fixed term of eight years' imprisonment commencing on 8 September 1998. His Honour indicated that he fixed those terms because of the first sentence he had imposed. In adopting the approach which he did in respect of these other offences his Honour did not follow the course which in the light of the decision of the High Court in R v Pearce he should have. However, in the circumstances of this case, that approach has no practical significance and no argument during the course of the appeal was based upon it. 12 Although the sentence imposed on the first count included a minimum term of eight years and an additional term of four years, his Honour seems not to have made a finding of special circumstances. The grounds of appeal are: Ground 1 - his Honour erred in failing to take the applicamental(sic) into account when assessing his criminality and the degree to which deterrence was a required ingredient.