Regina v Griggs [2000] NSWCCA 33

Reported Decision : [2000] 111 A Crim R 233

New South Wales Court of Criminal Appeal

CITATION : Regina v Griggs [2000] NSWCCA 33 revised - 7/03/2000 FILE NUMBER(S) : CCA 60507/99 HEARING DATE(S) : 7/2/2000 JUDGMENT DATE : 29 February 2000

PARTIES : Crown - Appellant Lee Jason GRIGGS JUDGMENT OF : Grove J at 1; Sully J at 8; Simpson J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 60507/99 LOWER COURT JUDICIAL English DCJ OFFICER :

COUNSEL : C K Maxwell QC - Crown Appellant P J D Hamill - Respondent SOLICITORS : S E O'Connor - Crown Appellant T A Murphy - Respondent

LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Jurisic (1998) 45 NSWLR 209 R v Farah (NSWCCA, unreported, 11 December 1998) R v Silver (1999) NSWCCA 108 CASES CITED: R v Tsoukatos R v Kyroglou [1999] NSWCCA 106 R v Henry and Barber [1999] NSWCCA 107 R v Govinden [1999] NSWCCA 118 R v Pham (1991) 55 A Crim R 128 R v Tran [1999] NSWCCA 109 DECISION : Crown appeal against sentence upheld; recognisance granted in the District Court set aside; respondent re-sentenced for a fixed term of 18 months to be served by way of periodic detention.

IN THE COURT OF CRIMINAL APPEAL

60507/99

GROVE J SULLY J SIMPSON J

Tuesday 29 February 2000

REGINA v LEE JASON GRIGGS

JUDGMENT

1 GROVE J : I have had the advantage of reading the draft judgments of both Sully J and Simpson J. I share their conclusion that the Crown has demonstrated relevant error and I therefore turn to the remaining issue whether this Court should exercise its discretion to dismiss the appeal nevertheless or whether an adequate sentence, assessed with the restraint applicable to increased sentence consequent upon successful Crown appeal, should be imposed. 2 Simpson J sketched the facts of the offence. I would add some detail. Anna Bay is a village to the east of the trunk road which passes between Port Stephens and Stockton. It is relatively isolated. Although the respondent claimed to police that it started as a joke, the intention to rob the store was discussed by the three offenders who ultimately were involved, earlier in the day when they were gathered at the house of a friend. It had obviously become serious when they equipped themselves with balaclavas, gloves and knives. 3 The raid on the store took place just before the scheduled 8 pm closing time. The older of the two male staff members who became the immediate victims was aged twenty one years. I extract description of part of his ordeal from his statement to police: "The person who had come around the back of the counter, grabbed me with his right arm and held me by my right bicep. He then pulled me to the floor, and said, 'Get onto the ground.' At first I went down onto my knees, then he pushed me down onto the floor. Then I heard the sound of masking tape being torn from a roll. I then felt it being wrapped around my wrists with my arms behind my back. ………The person at my back had a piece of blue wrapping tape, and commenced to tie my wrists. He saw that I was looking at them, and he said, 'Put your head down, put your head down.' He then pushed his knee further into my back. Because of his weight I couldn't move my head, so he tried to cover my eyes with one of his hands. ……… After the three men left, whilst I was on the floor I forced the tape on my hands to snap and freed myself by rolling my wrists out of the blue packing tape." 4 The second staff member was a school student aged sixteen years who worked on weekends and sometimes on a couple of week nights, unfortunately this occasion being one of those nights. I also extract some of his description: "Each one of the guys was carrying a large kitchen knife. I'm pretty sure they were all exactly the same. They had black plastic handles with I'd say about twenty centimetre silver blades. ……… One of them said to Alister, (the older staff member) 'get down on the ground'. Their voices were authoritative. They weren't loud, they just made themselves heard. Alister got down on his knees and looked over his right shoulder. One of them said, 'lie down'. Alister then laid flat on the ground on his stomach. Just after they told Alister to lie down the second guy who crawled over the counter pointed towards the floor next to Alister and said to me, 'over there and on the floor'. I went over to the left side of Alister and laid flat on the ground on my stomach. Then the second guy said to me, 'get your hands behind your back'. I put my hands behind my back and he grabbed both my hands and pulled them up and started to tape them together. It was a rough job and I could move my wrists pretty easily. ………I could see that there was one guy on top of Alister. It was the first guy who came in behind the counter. He was right over the top of Alister. He had his right foot on the ground but his knee was in the back of Alister's neck holding him down. He was tying him up. He spent ages trying to tie him up. At first he used masking tape around Alister's wrists. Then he used blue packing tape. ……… As soon as I knew they were gone I looked at Alister and he was getting up. I stayed on the ground a bit longer probably because I was scared. ……… I was just standing there in shock waiting for the police to arrive. My heart was beating rapidly and I still couldn't believe what had happened." 5 The objective seriousness of the offence demands condign punishment and the proper approach to the assessment of it has been specified in the judgments in R v Henry & Ors 1999 46 NSWLR 346. In my view the offence ought be reflected in a sentence of full time imprisonment and, giving all possible weight to the efforts of the respondent towards rehabilitation which he has engaged in since the commission of the offence, I cannot conclude that such circumstances can properly reduce punishment to that which is no more onerous than release upon recognizance. 6 Nor do I conclude that a weighing of the objective and subjective circumstances leads to a substitution of sentence of imprisonment to be served by way of periodic detention and, even such a sentence were to be imposed, it should be for the maximum available period of three years. 7 The divergence of views between Sully J and Simpson J finds expression in proposals of a sentence of eighteen months imprisonment to be served by way of periodic detention or discretionary dismissal of the Crown appeal. In the light of my opinion that severer punishment is called for, I consider that the appropriate course is to agree with the orders proposed by Sully J and I express my assent accordingly.