Regina v Ernst [1999] NSWCCA 84

New South Wales Court of Criminal Appeal CITATION : Regina v Ernst [1999] NSWCCA 84 FILE NUMBER(S) : CCA 60123/98 HEARING DATE(S) : 14 April 1999 JUDGMENT DATE : 14 April 1999

PARTIES : Regina Jason Sidney Ernst JUDGMENT OF : Grove J at 11; Kirby J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0240 LOWER COURT JUDICIAL OFFICER : Nader ADCJ

COUNSEL : L M B Lamprati (Crown) In Person (Appl) SOLICITORS : R Gray (Crown) ---- CATCHWORDS : CRIMINAL LAW; Practice & Procedure; Sentence appeal ACTS CITED : Crimes Act 1900 DECISION : Appeal allowed

IN THE COURT OF

CRIMINAL APPEAL 60123/98

GROVE J KIRBY J

Wednesday 14 April 1999

REGINA v Jason Sidney ERNST JUDGMENT

1 KIRBY J: This is an application for leave to appeal by Jason Sidney Ernst who came before his Honour Judge Nader in the District Court at East Maitland on 27 February 1998. The applicant was charged with the offence of assault with intent to rob, that being a charge under s 94 Crimes Act 1900. 2 The circumstances giving rise to the charge are set out in his Honour's remarks on sentence. The victim was a young woman, working as a waitress in Newcastle. She lived in Maitland. She caught a train at 10.30 pm and set out for Maitland. The applicant was also on that train. He had been drinking. Indeed, it is plain that he was significantly affected by alcohol. It is also plain that he had the victim under surveillance during the course of that journey. He observed that she had a bag. He also observed that she had a wallet containing money. He alighted from the train, as did the victim, at Maitland. The victim then went to a taxi rank. She had seen the applicant in the shadows, and was afraid for her safety. She used a mobile phone to phone a taxi. Whilst she was waiting the applicant approached her, and struck her. He struck her a number of times. He said to his Honour, and repeated to this Court, that when striking the victim he used his bare fists. The evidence from the victim, however, was that he had used an empty beer bottle. That evidence was accepted by his Honour. 3 It is not surprising that his Honour should have preferred the victim's account to that of the applicant. The applicant acknowledged that his memory was vague, since he was clearly affected by alcohol. The victim fell to the ground heavily. She continued to fight because she was plainly terrified. The applicant repeatedly asked her to get to her feet. She did not do so, and ultimately he snatched her bag and ran off. 4 The applicant was later apprehended by a number of bystanders who either heard the screams of the victim or who were close by. He was handed to police. The victim was described as shaking and sobbing. She had a number of physical injuries. Apparently they were relatively minor, although the psychological terror has remained with her. She declined to come to Court when the matter proceeded approximately one year later, since she had no wish to relive the experience of that evening. 5 There are a number of circumstances of aggravation in the crime of the applicant. First, his Honour accepted that the applicant used a beer bottle. Secondly there is an element of pre-meditation. The applicant had the woman under surveillance, followed her and ultimately attacked her. Thirdly, it was an attack upon a defenceless woman, late at night after she had used the train. There is no question that it was a most serious offence. 6 The applicant has appeared before this Court in person. He furnished the Court with a letter which set out in some detail the various matters which he wished to bring to the attention of the Court. He has elaborated upon those matters today, and indeed done so at some length, and with some force. He has indicated that, since going to gaol, he has undertaken a public speaking course. It is plain from the way in which he delivered the speech which he made on his own behalf that he has learned a good deal from that course. 7 In essence, his complaints amount to the following. First, there are complaints about his lawyers, and the fact that they in some way inhibited him from pleading guilty at the earliest opportunity. However, as the presiding Judge drew to the applicant's attention, the applicant was given the benefit of having pleaded guilty, and indeed a substantial discount by his Honour. There can be no suggestion that his Honour overlooked that aspect. Secondly the applicant drew attention to the fact that he recognised that alcohol, and indeed drugs, were a significant problem in his life. When one looks at his criminal record, and it is not inconsiderable, the offences with which he has been charged over the years are all drug and alcohol related. The offence on this evening was plainly alcohol related. The applicant tells this Court, as he told his Honour, that he is seeking to address that problem. The remarks on sentence by his Honour clearly reflect that his Honour was conscious of that aspect, and the ultimate need for the rehabilitation of this prisoner. The third matter which is raised relates to paint fumes which the applicant speculates may have in some way exacerbated or aggravated his condition on this evening. However whilst one can appreciate his opinion, as a lay person, the Court cannot act upon such speculation. There is nothing in the record of the Court below which suggests that, in respect of the causes of the incident of this evening, there was error. 8 The next aspect which the applicant draws to the attention of the Court is a matter of some significance. His father is a retired prison officer, and because of that, that being on his prison file, he has been classified by the gaol authorities as a person in need of protection. He is therefore serving his sentence in protection, and has been sent to Junee Gaol. At Junee Gaol he is separated geographically from his family, who are located in Maitland. He, therefore, only sees his children every three months. It is recognised, as the Crown fairly points out, that protection does result in a prisoner experiencing somewhat harsher conditions, in terms of privileges and other aspects, than might otherwise be the case. 9 The prisoner referred to this matter when he gave evidence. However, his Honour did not specifically advert to it in his remarks on sentence. It is not apparent from those remarks, therefore, that he took this aspect into account, and made an appropriate adjustment to the overall sentence by reason of it. For that reason, I would be inclined to give leave to appeal, and to allow the appeal, and to adjust the sentence in order to take account of that matter. 10 The appropriate adjustment, it seems to me, is to reduce the four years to a total of three, with a division between the minimum term and the additional term in accordance with Statute (s 5(2) Sentencing Act 1989). 11 GROVE J: I would seek to record the following comments. Given the facts and circumstances of this crime, the sentence imposed by the District Court Judge was well warranted. 12 The learned Crown prosecutor very fairly raised the circumstance that it is generally recognised that it is more onerous to serve a sentence in protection than in the mainstream. The applicant had made reference to the circumstances of his being in protection, but until the intervention by the Crown prosecutor, the matter was left somewhat as unelaborated as it was before the sentencing Judge. In passing evidence in the District Court the applicant mentioned that his father had been a recently retired prison officer and it was said that he would opt to go into protection. The inquiry that was made and confirmed by the Crown prosecutor shows that that is not quite the system. The applicant's file has marked upon it the circumstance of his relationship to a recently retired member of the custody staff. In those circumstances he is automatically placed into protection. It is true that he could apply to opt out of protection rather than having to opt into protection in the first place, but of course that would involve the risks in the mainstream which protection itself is designed to avoid. 13 As Kirby J has pointed out, a coincidental result of the applicant's situation is that he has been geographically removed from his family. On protection he is kept in custody at Junee, his family are in Maitland and he sees his children only every three months. In his submissions to the Court he mentioned that his children are now in the custody of his mother and that the children's natural mother has apparently ceased caring for them. 14 In those circumstances, whilst I perceive no error in his Honour's approach and readily understand why he made no reference to the circumstances of the applicant being on protection, this Court has been advantaged by the more detailed material now able to be assessed. Therefore in those circumstances the ends of justice, in my view, will be met by adjusting the sentence in accordance with the proposal of Kirby J. 15 The orders of the Court, therefore, will be as follows. The application for leave to appeal is granted. The appeal is allowed. The sentence in the District Court is quashed and, in lieu thereof, the applicant is sentenced to a total term of three years penal servitude to comprise a minimum term of two years and three months to commence on 27 February 1998, and to expire on 26 May 2000, together with an additional term of nine months commencing on 27 May 2000. We direct the release of the applicant on parole on 26 May 2000, and whilst on parole, he is to be subject to the supervision of the Probation and Parole Service. **********