New South Wales Court of Criminal Appeal CITATION : Regina v English [2000] NSWCCA 245 revised - 11/07/2000 FILE NUMBER(S) : CCA 60453/99 HEARING DATE(S) : 16 June 2000 JUDGMENT DATE : 16 June 2000 PARTIES : Regina v Jason Wayne English JUDGMENT OF : Giles JA at 1; Adams J at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0099 LOWER COURT JUDICIAL Armitage DCJ OFFICER : COUNSEL : Crown - M Grogan Applicant in person SOLICITORS : S E O'Connor - Crown Applicant in person CATCHWORDS : SENTENCING - offender sentenced on basis he only stood by - co-offender later sentenced on basis co-offender was the one who only stood by - could not be justifiable sense of grievance - Postiglione v The Queen (1997) 189 CLR 295 referred to - pre-sentence custody taken into account but sentence not backdated - no statement of reasons for not backdating - practice to backdate or state why not emphasised - R v McHugh (1985) 1 NSWLR 588, R v Deeble 19 September 1991, unreported - sentence nonetheless appropriate - minor adjustment made. DECISION : (1) Sentence is quashed. (2) The applicant is sentenced in substitution to a term of imprisonment of two years less seven days to commence on 26 July 1999 and to expire on 18 July 2000. (3) The Court sets a non parole period of eighteen months less seven days and the earliest date upon which the applicant will become eligible to be released on parole is 18 January 2001. (4) The applicant is to be released on parole at the end of the non-parole period. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 60453/99 DC 99/31/0099 GILES JA ADAMS AJA Friday 16 June 2000 REGINA v Jason Wayne ENGLISH JUDGMENT 1 GILES JA: The applicant applies for leave to appeal against the sentence of a minimum term of eighteen months penal servitude with an additional term of six months for the offence of robbery in company under s 97 of the Crimes Act, 1900. The sentence was imposed by Judge Armitage on 26 July 1999 following a plea of guilty to the offence. 2 The applicant and Warren Cary Ninness pleaded guilty to the charge that on 9 January 1999 at Tamworth in New South Wales being in company with each other they robbed Indrani Swarnalatha Stevens of a sum of money. Natasha Lee Watt pleaded guilty to a charge of aiding, abetting and counselling Mr Ninness and the applicant in the commission of that offence. 3 The sentencing took place over a number of days. Given the basis of the application, only a short description of what occurred is necessary. 4 On 19 July 1999 the judge was told that the applicant wished to proceed to a determination of his sentence, but that the other two offenders wished to have pre-sentence reports which would probably not be available that day. After some discussion his Honour decided to go "as far as we can". The Crown tendered and there were admitted against each of the offenders a statement of facts and a brief of evidence comprising a number of witness statements. As to one of the witness statements it was said that only the portion relating to the particular offender was tendered against that offender. Transcripts of interviews were tendered and admitted against the respective offenders. 5 In brief, the facts appearing from those materials were as follows. 6 The applicant and Ms Watt were in a de facto relationship, and were acquainted with Mr Ninness. All three offenders had drug habits, and needed money to pay for drugs. 7 Ms Watt went into a florist and gift shop at which she had earlier obtained change for a telephone call, and on a pretext ascertained that the only person present was Ms Stevens. She then left the shop. About two minutes later the applicant and Mr Ninness went into the shop and asked Ms Stevens for change. Ms Stevens opened the till and turned to give the change to Mr Ninness, and Mr Ninness pushed Ms Stevens away and demanded that she open the till, which, presumably, had been closed again, and take all the money out. When Ms Stevens declined and started to walk away, Mr Ninness followed her and produced a knife. Mr Ninness then told Ms Stevens, "Open the till or you will get hurt". He took hold of her from behind and held the knife to her neck and said "Open it, get the money out." 8 Ms Stevens returned to the till with the knife held near her neck. She opened it and Mr Ninness took money from it. This apparently included Mr Ninness demanding the $100 notes. When Ms Stevens reached for the telephone, Mr Ninness told her that if she rang the police "we will come back and kill you". The applicant and Mr Ninness then left the shop taking $460. 9 In giving this account, I should foreshadow that at a later time it was Mr Ninness's position that it was not he who had produced a knife but rather that the applicant had, see later in these reasons. 10 Still on 19 July 1999, Ms Watt gave evidence. Her evidence was to the effect that the applicant asked her to see who was in the shop and that she did so; that she told the applicant that there was only the lady there, presumably Ms Stevens; and that the applicant asked whether the man was there and Ms Watt replied that he was not. Ms Watt agreed that she knew "what was on in a sense", but denied knowing that either of the other offenders had a knife. Submissions as to penalty were then made on behalf of the applicant. 11 The judge returned to the sentencing on 22 and 23 July 1999, a deal of the time on those days being taken up with discussion on how and when the sentencing could proceed. At least by 23 July 1999, it seems to have become common ground that it was proposed that Mr Ninness give evidence according to which the applicant produced and wielded the knife. The three offenders were, of course, separately represented. On behalf of the applicant it was submitted in response to this that the sentencing of the applicant had been dealt with save for his Honour's decision, and that his Honour should proceed immediately to sentencing the applicant on the materials and submissions to that time unaffected by what might thereafter occur in relation to the sentencing of Mr Ninness. 12 This clearly involved that the sentencing of the applicant should proceed before there had been any further evidence which might be taken into account in relation to his sentencing, being evidence from Mr Ninness to the effect that the applicant rather than Mr Ninness produced and wielded the knife. A similar submission was made in relation to Ms Watts' sentencing. After discussion, his Honour determined to take the course suggested. 13 The judge gave his decision on the sentencing of the applicant and Ms Watt on 26 July 1999. In his remarks on sentencing he said that he accepted the submissions on behalf of the applicant as to the extent of the applicant's involvement, in particular the absence of knowledge on his part that Mr Ninness intended to produce a knife. He said that he accepted that the applicant "did no more than lend support by being present". He imposed on the applicant the sentence to which I have referred. 14 Either later on 26 July 1999 or on 27 July 1999, the judge took evidence from Mr Ninness and he sentenced Mr Ninness, on 27 July 1999. We do not have the evidence, but we do have his Honour's remarks on the sentencing of Mr Ninness. In those remarks his Honour said that Mr Ninness gave evidence in which he claimed that it was the applicant who obtained the knife from certain premises shortly prior to the robbery and that it was the applicant who had control of it when they entered the shop and who threatened Ms Stevens with it. His Honour recorded that the Crown had fairly conceded that it would be difficult for him to find beyond reasonable doubt, given the evidence (which he described) from Ms Stevens on which the identification of Mr Ninness as the person with the knife was founded and the evidence which he had received from Mr Ninness that Mr Ninness was the man holding the knife. His Honour said that he was of the view that he could not possibly make the finding that Mr Ninness was the man holding the knife and was not satisfied as to that, and said that it followed that he had to find that Mr Ninness may well have been the person who was standing there in the shop doing nothing other than lending his support by his mere presence. 15 Coming to the application presently before us, the applicant was not represented. The basis for his application appeared from a facsimile dated 5 May 2000 to which he added some oral submissions. 16 In the first paragraph of the facsimile the applicant said that he wanted his appeal to go forward "on the grounds that I believe that robbery in company that I was sentenced on was not just to my co-offender, Warren Ninness" (I have corrected some spelling and other errors in this). Understanding this in the light of what followed in the facsimile and the oral submissions, the applicant's complaint was that Mr Ninness had received the same sentence as the applicant had received. The substance of the complaint was that the applicant had been sentenced as the person who did not know that Mr Ninness intended to produce a knife and as a person who did no more than lend support by being present, and that it was unfair that the applicant and Mr Ninness should have the same sentence when Mr Ninness had produced and wielded the knife. I think a statement in the oral submissions expressed the nub of the complaint, namely, that the applicant "did not deserve the same time as the man who held the knife that was violent on the day". 17 The basis of the application, in my opinion, is misconceived. It appears to invoke the parity principle, as a complaint that there was disparity in that the applicant and Mr Ninness received the same sentence although the culpability of Mr Ninness as the person who produced and wielded the knife was greater than that of the applicant. There is no parity issue. At the urging of the applicant, the sentencing proceeded in the knowledge that the sentencing of Mr Ninness would be separately addressed and could well be addressed on a different set of facts, depending on the resolution of the factual dispute of which his Honour was told. The sentences were each appropriate on the facts as found in the respective sentencing exercises. The applicant can not have a justifiable sense of grievance of the kind referred to in Postiglione v The Queen (1997) 189 CLR 295 at 308, 309 and 323 - 338 when, to his advantage, he was sentenced on facts favourable to him notwithstanding that by reason of what thereafter occurred Mr Ninness was sentenced on the basis that there was a real doubt that Mr Ninness was the person with the knife and the applicant may have been the person with the knife. 18 In the notice of appeal as originally filed the applicant raised as matters for reduction of his sentence that he did not play any role in the robbery and that he would like to have the Court consider rehabilitation so that he could fix his heroin problem whilst in gaol. From the facsimile to which I have referred, which was confirmed as containing the matters on which the applicant wished to rely, it does not seem that these matters were maintained. However, I think something should be said about them, and about two further matters which were mentioned in the course of the oral submissions. 19 One of the further matters was the suggestion that the judge had taken into account, as a matter adverse to the applicant, that he had broken bail conditions. The answer to that is that there is no indication in his Honour's remarks on sentence that he did take that into account. The other of the further matters was that the applicant said that he denied that he had said anything to Ms Watt about her going into the shop, in effect to make sure that only Ms Stevens was there, and that his then legal representative declined to cross-examine Ms Watt on that subject. The answer to that is that the applicant is bound by the conduct of the sentencing procedure on his behalf, and one can readily enough understand the course taken by his legal representative. 20 Returning otherwise to the applicant's sentence, subject to the adjustment to which I will come it seems to me that the sentence imposed was well within the range open to his Honour. I can see no error as to the regard paid by his Honour to the applicant's part in the robbery or as to the circumstance of his drug habit. 21 Although not referred to by the applicant, the Crown raised a further matter for the Court's consideration. The judge said that he took into account the 155 days the applicant had spent in custody prior to 26 July 1999. When pronouncing the sentence his Honour said that it was to commence on 26 July 1999. The matter raised by the Crown was that there was "an arguable element of ambiguity", in that it may have been that the applicant did not receive the benefit of his pre-sentence custody. 22 This Court has on a number of occasions said that it is desirable that a sentencing judge back-date a sentence to take into account pre-sentence custody. It is not necessary to go further back than R v McHugh (1985) 1 NSWLR 588 and what may be regarded as the definitive decision in R v Deeble (19 September 1991, unreported), in which the reasons for the practice are outlined: they need not be repeated here. Subsequent cases included R v Reid (26 March 1997, unreported) and R v Foster (30 October 1996, unreported). The desirability is put not as something which is mandatory, but as a rule of practice of importance, and in my view the importance should be emphasised once again. If a sentence is not back-dated to take into account pre-sentence custody the reason or reasons for not doing so should be clearly stated. 23 It may be that in this case there was good reason for not back-dating the sentence, in that there was not a continuous period of custody from the applicant's initial arrest. It may also be that, when his Honour pronounced sentence almost immediately after saying that he took into account the time spent in custody, he meant that the sentence would have been greater but for the period of pre-sentence custody. It should be noted that his Honour took the same course in his remarks on sentencing of Mr Ninness, that is, he referred to the period of pre-sentence custody as something he took into account but stated that the sentence should commence on 27 July 1999. 24 While there probably a departure from the desirable practice which should not have occurred, in my view even if regard be had to the 155 days the sentence was still well within the range open to his Honour and was still an appropriate sentence. Despite the departure from the practice, there is no occasion for interference with the sentence. 25 The Crown has pointed out that in taking into account the 155 days his Honour was working on the figure calculated to 19 July 1999, and omitted to note that a further seven days of custody had elapsed prior to the actual date of sentence. This requires the sentence to be adjusted. The orders which I propose are as follows: (1) The sentence is quashed. (2) The applicant is sentenced in substitution to a term of imprisonment of two years less seven days to commence on 26 July 1999 and to expire on 18 July 2000. (3) The Court sets a non parole period of eighteen months less seven days and the earliest date upon which the applicant will become eligible to be released on parole is 18 January 2001. (4) The offender is to be released on parole at the end of the non-parole period. 26 Having regard to the short variation involved in these orders, it is not appropriate strictly to apply the formula provided by s 44(1) of the Crimes (Sentencing Procedure) Act 1999. 27 ADAMS J: I agree with the orders proposed by the learned presiding Judge and with his Honour's reasons for them. I desire to add a short remark of my own. The applicant submitted that he scarcely knew what was going on as he was affected by drugs at the time. His plea of guilty admits all the necessary foundational facts including intent. His Honour accepted that the applicant was affected by drugs on the occasion in question. In the end, the learned sentencing Judge was unable to determine which of the two robbers used the knife. He gave each of them the benefit of the doubt. 28 It follows there is no basis for the applicant's grievance in this regard. The mere presence of the applicant, who is a large man of imposing physique, with the intention of assisting in the robbery in the shop must have been very frightening indeed for the victim. This was a very serious offence. I agree that the sentence was well within the range available to the learned sentencing Judge. 29 GILES JA: The orders of the Court will therefore be as I proposed. ______________ 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.