REGINA v ROHRICK [1999] NSWCCA 58

New South Wales Court of Criminal Appeal CITATION : REGINA v ROHRICK [1999] NSWCCA 58 FILE NUMBER(S) : CCA 60202/98 HEARING DATE(S) : 10 March 1999 JUDGMENT DATE : 10 March 1999

Gregory Luke ROHRICK (Applicant) PARTIES : v The Crown (Respondent) JUDGMENT OF : Simpson J at 1; Smart AJ at 22

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1026 LOWER COURT JUDICIAL OFFICER : Judge Coleman DCJ

COUNSEL : P Winch - (Applicant) L M B Lamprati - Crown (Respondent) SOLICITORS : T A Murphy (Applicant) S E O'Connor (Respondent) CATCHWORDS : ACTS CITED : Sentencing Act 1989 Crimes Act 1900 CASES CITED: R v De Simoni (1987) 147 CLR 383 DECISION : Leave to appeal granted. Sentence varied.

IN THE COURT OF CRIMINAL APPEAL

60202/98

SIMPSON J SMART AJ

Wednesday 10 March 1999

REGINA v Gregory Luke ROHRICK Judgment

SIMPSON J : 1 In this matter the applicant seeks leave to appeal the sentence imposed by Judge Coleman in the Penrith District Court on 20 April 1998 following the applicant's plea of guilty to a charge of stealing from the person, brought under s 94 of the Crimes Act 1900. The section provides for a maximum penalty of penal servitude for fourteen years. Judge Coleman imposed a sentence of five years which, having found special circumstances pursuant to s 5 of the Sentencing Act 1989 , he divided into a minimum term of three years and an additional term of two years. 2 The circumstances of the offence were these. On 10 October 1997 the applicant was present in the Commonwealth Bank at Blacktown when he observed the victim of the offence, who had with her her four young children, withdraw $700 in cash from the automatic teller machine in the foyer of the bank. He followed her from the bank and grabbed her bag, shouting at her to give it to him. 3 The victim's eleven year old son grabbed the bag which the applicant was carrying and swung the applicant around and her fourteen year old daughter began to hit the applicant around the body. The victim was screaming. The applicant put his hand in his pocket and a knife fell out. He then ran off and was pursued by a number of observers and was eventually persuaded to emerge from a staircase where he had sought to hide and then returned with the observers to the police station where he was electronically interviewed and admitted attempting to steal the purse. He denied using a knife in the incident and denied being in possession of a knife. 4 Initially, it seems, the applicant was charged with assault with intent to rob whilst armed with a dangerous weapon, pursuant to s 97 of the Crimes Act , but when he came to be charged a plea was accepted to the charge brought under s 94. 5 Although four grounds of appeal were enumerated, the appeal centred around two issues. The first concerned the admission and the use made of evidence concerning the knife and the second concerned the argument that the sentence imposed was, in any event, manifestly excessive. 6 At an early stage in the sentencing proceedings counsel appearing for the applicant objected to admission of evidence concerning the knife. The argument was, in essence, that references to the knife did not form any part of any element of the offence to which the applicant had pleaded guilty and could go only to establishing the commission of a more serious offence and its use would, therefore, be contrary to the principle stated in R v De Simoni (1987) 147 CLR 383. 7 Counsel then appearing for the Crown pressed the tender of that part of the evidence, not as evidence of an aggravating feature of the offence, inclusion of which would contravene the De Simoni principle, but of evidence from which an inference of premeditation might be drawn. His Honour admitted the evidence, observing that he was familiar with the principle in De Simoni , that he was called upon to sentence the applicant for an offence against s 94, and not a more serious offence, and that he would bear this obligation firmly in mind. He did, however, appear to accept the Crown contention that the evidence might go to an element of premeditation. 8 The applicant gave evidence in the sentencing proceedings and the presence of the knife was the subject of examination in chief and cross-examination. 9 The written submissions filed on behalf of the applicant concentrated heavily upon what was said, both during the sentencing proceedings and by his Honour in the remarks on sentence, about the knife. In this respect it is important to note that his Honour, having already made clear his familiarity with the rule in De Simoni , declared himself in the remarks on sentence satisfied that at the time the applicant took the purse from the victim he had the knife in his pocket but not satisfied that he used it at all during the course of the offence. He stated that he had put that matter aside. However, shortly after outlining the facts of the offence, he said that he was satisfied that when the applicant fell to the ground, after being struck by the victim's children, and that when the applicant stood up, and shortly after that, he was holding a knife in his hand. He made no further comment about the knife or the use of the knife. 10 It was this passage in the remarks on sentence that prompted that part of the application which relied upon the evidence and the use of the knife. There is nothing in the passage from which it could be inferred that his Honour was contradicting his earlier twice stated intention of putting aside any suggestion that the applicant used the knife in the commission of the offence. 11 A second matter that was argued in the application was that the sentence itself was so lengthy that from it an inference could and should be drawn that his Honour did impermissibly take into account the existence of the knife. 12 I must confess to initially having been troubled about this aspect of the remarks on sentence but in the end I see no reason not to take at face value what his Honour twice clearly stated which was that he did not have regard to the use of the knife in the commission of the offence in the sentence he imposed and I would, accordingly, reject the grounds of appeal that depend upon that argument. The second limb of the application was that the sentence itself was so lengthy as to be outside the available range. 13 Counsel was conscious of the seriousness of the offence and we were reminded of what has been said by this court on a number of occasions concerning offences of this kind, which are commonly referred to as bag-snatching offences. Three features of the offence should not be overlooked. Firstly there was a degree of violence used by the applicant in this offence when he engaged in what seems to have been a fairly short struggle with the victim to obtain possession of the bag. Secondly, there was at least some degree of premeditation in that the applicant was watching the victim as she withdrew the money. Thirdly, the victim had four children present with her and they, in fact, became embroiled in the struggle which took place. 14 A fourth matter that had to be taken into account in relation to the sentence is the applicant's criminal history. The most significant feature of it is that in August 1990 he was convicted of one charge of break, enter and steal, four counts of robbery, one of assault and rob and one of larceny of a motor vehicle, in relation to which he was sentenced to a total term of imprisonment of six years and eight months incorporating a minimum term of five years. He was released on 7 February 1995 and continued to serve the additional term of his sentence in the community until 7 October 1996. He had, therefore, completed serving his additional term just twelve months before the commission of this offence. 15 Plainly, his record entitles him to no leniency in relation to this offence. 16 The applicant was born on 25 February 1967 and is now thirty-two years of age. I have mentioned his record and there is no need to go into the other details of it. He has had problems with heroin addiction and he has been on a methadone program in order to control that addiction. He did express contrition for his actions, which appears to have been accepted as genuine by the sentencing judge. 17 There was a pre-sentence report which referred to previous periods of supervision by the Probation and Parole Service and notes his repeated use of illegal drugs and commission of offences. There is also reference to his disturbed upbringing, with little or no contact with his father but the adverse influence of an older brother. 18 We have had the benefit of quite extensive sentencing statistics which, in my view, show that the sentence imposed - in this I refer to the total sentence - was at the very upper end of the range that was available to his Honour. 19 I have concluded that although it was at the upper end of the range it was just within the appropriate range and should not be disturbed. 20 However, having regard to the other matters to which I have referred and particularly his history of imprisonment and release and the fact that following his release in 1995 he was able to remain free of criminal convictions until this occurred, it is my view that the evidence before his Honour demonstrated that the applicant has benefited from extensive supervision and will, on his release from this sentence, benefit from and indeed need further supervision such as to require a reduction in the minimum term that was imposed. 21 The orders I propose, therefore, are that leave to appeal be granted, the total term imposed be confirmed, but that the sentence be varied so as to comprise a minimum term of two and a half years to commence on 10 October 1997 and expire on 9 April 2000 and an additional term of two and a half years to commence on 10 April 2000 and expire on 9 October 2002. SMART AJ : 22 I agree that leave to appeal should be granted and that the orders proposed by Simpson J should be made. SIMPSON J : 23 The orders, therefore, will be as I have proposed. **********