Regina -v- Iddles [2000] NSWCCA 128

New South Wales Court of Criminal Appeal

CITATION : Regina -v- Iddles [2000] NSWCCA 128 FILE NUMBER(S) : CCA 60405 of 1999 HEARING DATE(S) : 10/04/00 JUDGMENT DATE : 10 April 2000

PARTIES : Regina Matthew iddles JUDGMENT OF : Dowd J at 1; Hulme J at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Tupman DCJ OFFICER :

COUNSEL : Mr M. Grogan - Crown Applicant in person SOLICITORS : S.E. O'Connor CATCHWORDS : Sentence appeal - Robbery in company - Subjective features - no error Crimes Act 1900 LEGISLATION CITED : Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R -v- Henry (1999) 45 NSWLR 346 DECISION : Leave granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

No. 60405 of 1999 HULME J DOWD J

REGINA -v- Matthew Iddles

1 DOWD J: This is an application for leave to appeal by the applicant, Matthew John Iddles, who is 20 years of age. He entered a plea and was sentenced on 19 April 1999 before Tupman DCJ to an offence of robbery in company contrary to s.79(1) of the Crimes Act 1900 ("the Act") , for which the maximum penalty is 20 years penal servitude. Her Honour imposed a minimum term of 18 months penal servitude to commence on 19 April 1999 and to expire on 19 October 2000 and an additional term of 18 months to commence on 19 October 2000 and to expire on 18 April 2002. 2 The applicant's appeal is for a reduction of the sentence by, effectively, three months and 14 days. The applicant does not say that he should not have been punished, he admits his wrongdoing and blames himself. He wishes to make amends and to get on with his life, as he feels he has a need to bond with his young son and he has many goals in life he wishes to accomplish. 3 The facts of the offence were that on 13 August 1998, in company with a person who has yet to be identified, the applicant robbed an employee of the Jewel Food Stores of some $550. The applicant and the other person went to the food store in Doonside. Her Honour accepted that the other person was not known to him and that the applicant did the best that he could to identify that person. 4 The applicant pushed the employee and took the money from the till. The applicant was grabbed by another customer but broke free of the grip, with the assistance of the co-offender. The applicant was subsequently identified as the offender as a result of a fingerprint being located and identified on the premises. The applicant made a full confession and her Honour accepted his story that he was beginning to experience withdrawal symptoms as a result of his heroin addiction and the fact that he had committed the offence so that he could obtain money to buy drugs. Her Honour also took into account in sentencing that the police accepted that he was being cooperative but her Honour noted that he had been arrested on other matters on 5 January 1999 and had remained in custody since that time. Her Honour also took into account that there were no additional aggravating factors and that it was not the most serious example of this offence. However, her Honour noted that the effect of this offence is that people, such as the cash register operator, should be able to go about their daily work and that customers should be able to go to supermarkets without being confronted by people such as the applicant. 5 Her Honour took the view that it was a serious matter, as indicated by the extent of the maximum penalty involved. Her Honour took into account the very young age of the applicant and the difficulties he has had in his childhood as a result of a psychological report that was put before him. There have been several periods of control orders in juvenile institutions and it is sad that someone, who I accept wants to make a go of his life, has already racked up such a serious history at such an early stage of his life. 6 This offence was the most serious offence that her Honour could see on his record. Her Honour took into account the various subjective matters that were put before her and indeed, in her sentence, found special circumstances based on his youth and his need for rehabilitation. The applicant's grounds of appeal assert a heavy addiction of heroin at the time. There is no issue that this was, in fact, the case. However, the fact that the offence was committed whilst subject to drug addiction is not, of itself, a mitigating factor and I note that the Crown in that respect relies on the Crown v Henry (1999) 45 NSWLR 346. 7 The applicant's second ground of appeal was that he was dealt with more harshly than if he had been dealt with the co-offender. It is clear, however, on the facts as found by her Honour, that it was the applicant who was the major participant in the offence and I can see no grounds whatsoever made out that he has been dealt with more harshly. In fact, I suspect the contrary is the case. 8 The third ground of appeal is that there should be a back-dating of the sentence. Her Honour, in fact, carefully considered this question and gave the applicant five and a half months reduction by dating the sentence from 19 April 1999, it being concurrent with other offences already imposed. 9 The further ground that the applicant puts forward is that he has reached a turning point in his life. This is not an uncommon matter to be placed before the courts. I suspect the seriousness of this offence might well have caused him to reach that point. However, the record of the applicant disentitles him to rely entirely on his youth and her Honour did, in fact, look at the applicant's history. Her Honour accepted that he had good rehabilitation prospects and for that reason made the order under the then s 5(2) of the Sentencing Act 1989. 10 Clearly, the suggestion made that home detention may be appropriate is incorrect because any sentence, to attract the provisions of the Home Detention Act, would not reflect the seriousness of this offence. 11 The applicant has said and I accept that he has been remorseful. However, it is clear that this type of offence has to be deterred. His plea of guilty was entered at the earliest opportunity and her Honour dealt with that in very careful reasoning. Notwithstanding that, it is only a fairly short period that the applicant wishes to have taken into account. To interfere, however, this Court should first establish error. 12 I can see no error on the part of her Honour, other than there is a failure to direct that the applicant be released to custody at the conclusion of the non-parole period, since the total term here imposed is three years and I would therefore propose that leave be granted and an appeal allowed to the extent that it is necessary to correct that matter. 13 I appreciate that the prison authorities almost invariably take into account an entitlement to be released to parole but as a matter of law, the court should direct it lest there be some problem foreseen by the parole authorities. I would therefore grant leave to lodge the appeal. I would note the only lesser severity that is warranted is the adjustment of the non-parole period and would otherwise impose the same sentence which her Honour imposed. 14 I therefore would allow the appeal against sentence but am of the opinion that the proper term to be imposed on the inmate under the Act, it being clear in terms of s 5 of the Crimes (Sentencing Procedure) Act 1999, that no penalty other than prison is appropriate. That is, sentence of imprisonment of 18 months non-parole be imposed to commence on 19 April 1999, to expire on 18 October 2000 from which date the now appellant will be eligible for release to parole in accordance with s 50(1) of the Crimes (Sentencing Procedure) Act 1999 and a period of parole to commence on 19 October 2000 of 18 months to expire on 18 April 2002, from which date the court directs that he be released to parole. 15 HULME J: I agree with the orders proposed and with his Honour's reasons. Accordingly, the orders of the court are as his Honour foreshadowed.