Regina v Lennox [2000] NSWCCA 449

New South Wales Court of Criminal Appeal

CITATION : Regina v Lennox [2000] NSWCCA 449 revised - 07/11/2000 FILE NUMBER(S) : CCA 60682/99 HEARING DATE(S) : 27/10/00 JUDGMENT DATE : 27 October 2000

PARTIES : Regina v Michael John Lennox JUDGMENT OF : Wood CJ at CL at 27; Whealy J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0509 LOWER COURT JUDICIAL Judge Shadbolt OFFICER :

COUNSEL : Ms P Hock - Crown J. S. Andrews - Appellant SOLICITORS : S E. O'Connor - DPP D. J. Humphreys - Legal Aid Commission

LEGISLATION CITED : Crimes Act 1900 The Queen v Thomson (2000) NSWCCA 309 at para 160 The Queen v Winchester (1992) 58 A Crim R 345 CASES CITED: The Queen v Ranse (NSWCCA 8 August 1994, unreported) Veen v The Queen (No 2) (1987-1988) 164 CLR 465 The Queen v GDR (1994-1995) 35 NSWLR 376 at 378 R v Taylor 2000 NSWCCA 442 DECISION : Leave should be granted but the appeal should be dismissed.

- 11 - IN THE COURT

OF CRIMINAL APPEAL

69682/99

WOOD CJ at CL WHEALY J

FRIDAY 27 October 2000

REGINA v Michael John LENNOX

JUDGMENT

1 WHEALY J: This is an application for leave to appeal by Michael John Lennox against a sentence imposed by Shadbolt DCJ on 29 October 1999 in the District Court at Sydney. The applicant had adhered to his plea of guilty entered before the local magistrate to one count of attempt robbery pursuant to ss 94 and 344A of the Crimes Act. The maximum penalty was fourteen years penal servitude (now fourteen years imprisonment). In addition, the applicant asked that the matter of having housebreaking implements in his possession (s 114(b) of the Crimes Act) be taken into account as well. 2 The learned sentencing judge sentenced the applicant to a period of five years penal servitude, consisting of a minimum term of four years to commence on 22 June 1999, the day on which the applicant went into custody, and an additional term of one year. For the reasons explained by the sentencing judge, he departed from the normal one-third for the additional term thereby increasing the minimum term to four years. His Honour said, for reasons he explained, that he saw very little point in giving the applicant a third let alone any longer period for the additional term. 3 I shall briefly set out the grounds relied upon by the applicant. These are: 1. His Honour erred in finding that the applicant was "knocked to the ground". The basic submission in this regard is that the sentencing judge categorised the attack on the victim in a more severe way than was warranted by the evidence. 2. His Honour erred in giving no weight to the plea of guilty. In this regard, reliance is placed upon the statement in the guideline judgment of The Queen v Thomson (2000) NSWCCA 309 at par 160, namely, that failure to specifically state that a plea of guilty has been taken into account would generally be taken to indicate that the plea was not given weight. 3. His Honour erred in reducing the minimum term to less than the statutory relationship. It is submitted that the subjective features of the applicant's position, in particular his need for a structured residential program, required an additional term in excess of twelve months. It is submitted that the applicant was a "prime candidate" for special circumstances. 4. The final ground is that the sentence is manifestly excessive. Particular reliance was placed upon certain statistical material from the Judicial Commission's statistics. The applicant repeats that the level of violence involved in the attempted robbery was relatively slight and no injury was sustained by the victim. 4 I shall deal with each of these grounds separately. 5 The first ground turns upon one statement in the reasons for sentence, which is in these terms: "Nothing in fact was lost by the woman victim but it must have been a terrifying experience for her, being knocked to the ground as she was in a public street in the city of Sydney." 6 It is necessary, in my opinion, however, to read the reasons of the sentencing judge fairly. The sentencing judge had set out earlier in his reasons at some length the circumstances of the offence. He pointed to the fact that the offence occurred at 11.50am on Tuesday 22 June 1999 when the victim, a Chinese woman, withdrew $650 from the ATM at the Commonwealth Bank at King Street, Newtown. She placed the money in her purse and then proceeded to walk along King Street with the purse tucked under her left arm. She had her arms crossed. When she came in front of the book shop on King Street she felt someone pull the purse from behind. She then heard a voice say "Give me your money". She screamed for help and at this time the applicant placed his arm around the front of the woman to try and grab the purse. A struggle ensued and, as a result of that, she fell to the ground in front of the book store, or perhaps in the entrance to it, and still held on to her purse. I interpolate to say that this statement is taken directly from the reasons of the learned sentencing judge. Assistance arrived and the applicant then ran away. 7 The sentencing judge had not only the evidence of the victim and the statement from the applicant, there were also statements from an employee of the book shop, Mr Healy; one from Amy Stuart-Brown, a legal secretary who witnessed the incident; Victoria Shvachkini, a nurse who witnessed the attack, and Paul O'Sullivan, who chased the applicant and detained him until the police arrived. 8 Mr O'Sullivan's statement indicated that he watched the attack quite closely. He says he saw the applicant struggling with the victim and he saw him push her against the shop front. Mr Healy saw the two people struggling outside the shop. He said the woman was screaming very loudly. At first they were both standing up and during the struggle they fell. The woman fell over the step and into the entrance of the shop. Ms Stuart-Brown says she saw the applicant slam the victim against the wall outside the book shop, they struggled and then he flung her into the book shop. Ms Shvachkini said the two people were standing on the footpath struggling. She could see that the applicant had his right arm around the woman's chest and he was grabbing her from behind. She says she saw the woman struggle into the book store in King Street just next to where she, Ms Shvachkini was standing. The applicant still had hold of her and as soon as she was inside the doorway she fell to the ground and the man stood over her. 9 The victim herself of course, as has appeared from the submissions put by counsel for the applicant, gave a slightly different version. She said: "Then I felt someone pulling my purse from behind me and I heard a male voice say 'give me your money'. I held on very tight, I don't want to be robbed and I screamed very loudly 'help me'. I felt the man pulling from behind by my clothes and at the same time he was trying to pull my purse. I tried to go forward and pull away but I can't, so I just crouched down and the man was still trying to pull my purse. I leaned up against the book shop doorway and I saw the guy who worked in the shop come out. At this time the robber let go of my purse and ran away down King Street." 10 In the light of these varying statements, in my opinion his Honour was entitled to make the findings he did. Read fairly, his Honour's decision in the passage under attack does no more than record the fact that the victim was, as a consequence of the sustained attack upon her by the applicant in the course of an attempted robbery, forced to the ground. In my opinion there is no substance in this ground. 11 The second ground does not make sufficient allowance for the fact that his Honour did note that the applicant had pleaded guilty to the count of attempted robbery and noted also that the applicant had asked that the Court take into account the additional matter of having housebreaking implements in his possession. The transcript of the proceedings shows that the Crown had indicated to the Court that the applicant had been committed for sentence from Central Local Court on 24 August 1999. The sentencing judge found that the applicant had been quickly apprehended at the time of the attempted robbery and taken into custody. His Honour also found that the applicant had made full admissions in an ERISP interview. 12 The applicant was, of course, sentenced before the guideline judgment in The Queen v Thomson (supra). As a consequence no criticism can be levelled at him for not following the guidelines. In the circumstances outlined by the sentencing judge, the plea which he took into account must be categorised as "a recognition of the inevitable" (The Queen v Winchester (1992) 58 A Crim R 345 at 350). Little, if any, weight could be given to it as evidencing a degree of contrition. It is not demonstrated, in my opinion, that his Honour did not make an allowance for the utilitarian value of the plea. This ground is also without merit. 13 The submission in relation to the third ground is that it was inappropriate to set a minimum term for more than three-quarters of the total sentence. It is argued there was a need for a structured residential program to support the applicant upon his eventual release. In this context the sentencing judge reviewed, at considerable length, the applicant's history. He noted that he had been convicted on sixty-five different occasions and had been given gaol sentences varying from five years to three months. His list of convictions stretched virtually without a break from 1974 to the time of sentence. His Honour said: "He is now thirty-nine years old ... and it really does not seem there is a great deal of hope that he can maintain any kind of existence outside prison. It is said in his report, which has been prepared by Mr Mark O'Neil, a probation officer, that Mr Lennox had been subjected to the supervision of the Service on a number of occasions after being released to parole. On each occasion it appears that Mr Lennox returned to illicit drug use and former patterns of behaviour that resulted in the revocation of parole. His most recent attempt on parole commenced upon his release from custody on 26 November 1997. His response to supervision was poor and he was resistant to the intervention of the Service. He quickly returned to illicit drug use, as indicated by a urine sample taken on 11 December 1998 which returned positive to the use of amphetamines and cannabis. He subsequently failed to maintain contact with the Service and parole was eventually revoked." 14 At the end of his remarks the sentencing judge said: "There is nothing that society can do, very little that the prisons can do and absolutely nothing that the Probation and Parole Service can do if the prisoner is not prepared to remain drug free once he is at large." 15 It was essentially for these reasons the sentencing judge took the view he did that the services of the Probation and Parole Service would be wasted on the applicant and to conclude that a period of one year was the sufficient and appropriate additional term. In The Queen v GDR (1994-1995) 35 NSWLR 376 at 378 line B, the Court said: "If, in a given case, the Court of Criminal Appeal considers that there has been an error in the exercise of sentencing discretion concerning the relationship between minimum and additional terms, it may, in its exercise of its own discretion, decide that the appropriate course is to leave the head sentence as it is, reduce the minimum term and increase the additional term. On the other hand, as was conceded in argument, there may be cases in which the Court will consider that no lesser minimum term could reasonably be imposed and dismiss the appeal." 16 In the present case, the sentencing judge clearly took into account those matters which are now sought to be relied upon as special circumstances. However, his Honour was not bound to find special circumstances. He gave a clear indication in his reasons as to why he departed from the percentage of one-third and to conclude that a period of one year was a sufficient and appropriate additional term. 17 It is clear that his Honour took the view that because of the seriousness of the offence no less a minimum term than four years was appropriate. It appears that he also took the view that one year was a long enough period for parole or potential parole. He explained why it was that he considered there was a limit to the length of time over which parole would be of utility to the present applicant. He clearly thought that an additional term of more than twelve months was simply not warranted. 18 In these circumstances, I am of the opinion that the sentencing judge has not been shown to be in error in declining to treat the case as one in which there were special circumstances which called for the setting of an additional term which was in excess of one-third of the minimum term. Nor was he in error in coming to the conclusion he did that the additional term should be less than one-third of the minimum term. 19 This brings me to the last ground of appeal. The question asked is whether the sentence was manifestly excessive. 20 The offence for which the applicant was sentenced was a serious incident of attempted robbery. The sentencing judge so found, and I agree. The victim, fortuitously, did not suffer any physical injury. As the sentencing judge rightly observed, however, it must have been a terrifying experience for her. She was in a public street in the suburbs of Sydney attending to her banking business when she was physically and persistently assaulted. This Court has made it clear that the offence of bag snatching, where associated with any element of violence, is an offence which, absent exceptional circumstances, calls for a full-time custodial order. (R v Ranse, NSWCCA 8 August 1994, unreported). 21 This type of offence was considered recently in this Court in R v Taylor, 2000 NSWCCA 442. Wood CJ at CL in that case said: - "The view of the Court of Criminal Appeal in R v Ranse is necessary to reflect the element of general deterrence which has a particular significance for the offence in question in view of its prevalence and in view of the fact that the victims are most often the aged and the infirm." 22 The judicial statistics provided by the applicant in the written submissions are of very limited assistance because of the small size of the sample. It is to be recalled, of course, that the maximum penalty for this offence was fourteen years penal servitude. The sentence which was imposed in this case was, in my opinion, towards the top of the range but it was within the range. It appears that the applicant was on parole at the time of the offence. He had been released from custody on 18 June 1999, only four days before the offence. He was also on a recognisance imposed at Wyong Local Court only a month earlier. These were aggravating factors. The applicant's previous criminal history, which was appalling, disentitled him to leniency. The sentencing judge, quite rightly in my opinion, declined to show leniency. 23 In Veen v The Queen (No 2) (1987-1988) 164 CLR 465, the majority judgment at p 47 made clear that the antecedent criminal history of an offender may be relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested a continuing attitude to disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. 24 Of course the previous criminal history of an offender should not be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. It is clear, however, that a sentencing court may have regard to the antecedent criminal history of the offender in the way referred to by the High Court in Veen (No 2) and is not confined to limit the use of the history to the issue of claimed leniency. 25 The applicant was fortunate in this matter that his Honour did not make use of the applicant's criminal history in that way; but in fact simply confined himself to holding that the record was relevant to dismiss the applicant's claim for leniency. In my opinion, no error of principle has been shown in relation to this ground and I am of the opinion the penalty was not manifestly excessive for the reasons I have stated. 26 I propose that leave should be granted but that the appeal should be dismissed. 27 WOOD CJ at CL: I agree with the orders proposed and with the reasons that have been announced by Whealy J. I do, however, observe that some question might arise as to whether in fact the applicant was at large and still subject to the requirements of parole at the time of the offence. There is a reference in his Honour's remarks on sentence to a possible administrative slip and there certainly was an appearance in the Wyong Local Court in May, proximate to the time of the offence charged. 28 Whatever be the case in relation to that, it does not alter my view as to the appropriateness of the sentence and as to the absence of any appealable error. The fact is that on a number of occasions the applicant had been granted the opportunity of parole and also recognisance but had re-offended on each occasion. Clearly, in the case of the present offence, he was subject to a recognisance to be of good behaviour for four years in respect of offences of possess car breaking implements and also receiving stolen property. 29 Having regard to that record and the other matters identified by Whealy J, I am of the view that no error was exposed in relation to the sentence and that the appeal should be dismissed. 30 The order of the Court will be as proposed.