R v Doorey [2000] NSWCCA 456

New South Wales Court of Criminal Appeal

CITATION : R v Doorey [2000] NSWCCA 456 FILE NUMBER(S) : CCA 60630/00 HEARING DATE(S) : 27 October 2000 JUDGMENT DATE : 27 October 2000

PARTIES : Peter James Christian Doorey JUDGMENT OF : Wood CJ at CL at 1; Whealy J at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0084 LOWER COURT JUDICIAL Coolahan DCJ OFFICER :

COUNSEL : Ms P. Hock Ms R Burgess SOLICITORS : S.,E. O'Connor D.J. Humprhey

DECISION : Leave to appeal granted; Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60630/99 WOOD CJ at CL WHEALY J Friday, 27 October 2000

REGINA V PETER JAMES CHRISTIAN DOOREY JUDGMENT

1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence of four years' penal servitude comprising a minimum term of two years and an additional term of two years imposed on him by his Honour Judge Coolahan on 13 October 1999. This followed his plea of guilty to one count of attempt armed robbery. The offence, which was charged under S 97(1) of the Crimes Act, carries a maximum penalty of 20 years' imprisonment.

Facts

2 The facts, as found by his Honour, were follows: 3 During the afternoon of Saturday, 17 May 1997, the applicant attended a backyard party at premises at Tanilba Bay. These premises were approximately 50 metres from the Ampol Service Station. The applicant began to drink Bourbon on his arrival at the party and then moved on to Rum, before drinking beer in the early hours of the evening. 4 About 8.30pm the applicant, wearing a borrowed jumper and a black beanie with some holes cut in it, walked from the party to the service station. He was carrying a black handled pocket knife which was partly concealed up the right hand sleeve of his jumper with a narrow blade protruding. This blade, was described by the service station attendant, who was the victim of the attempted robbery, as appearing to be about four inches long. 5 Once the appellant reached the service station he spoke to the attendant and demanded that she open the drawer of the cash register. She refused and reached for the telephone to dial 000. He then leant across the counter, took hold of the telephone cord, and cut it with a pocket knife. The attendant said that she saw the knife both before and when that act occurred. Not surprisingly she ran from the service station. 6 The applicant attempted to open the cash register by forcing the till "open" button, but this failed. He then walked from the service station and returned to the party. 7 He was spoken to by police later that evening and participated in a record of interview, the following day, in which he freely admitted the commission of the offence. In that record of interview he gave an account which included an admission that when he saw the look on the face of the attendant and observed her leave the premises, he realised what he was doing; that he decided he could not go through with it, and then abandoned the attempt. 8 Elsewhere in the record of interview he indicated that he assumed that he had carried out the offence to support one of his various habits, although he did not know which one. He accepted that his conduct was "pretty stupid" as he did not need the money for any such purpose. 9 Aggravating features of the offences, as his Honour appropriately found, were that it was committed at night; that it was directed at a service station attendant who was alone and therefore in a vulnerable position; and that the applicant carried and used a knife. There was no doubt in his Honour's mind, nor could there have reasonably been a doubt, that the attendant must have been significantly frightened by this incident despite her obvious courage in dealing with it. The production of a knife and the cutting of a telephone line were appropriately recorded as a manifestation of the applicant's seriousness in his endeavour to rob the service station. 10 While the offence may properly be regarded as impulsive, the taking of a knife to the premises and the borrowing of a jumper which was used to conceal it, did indicate some degree of premeditation. It may be accepted, as the applicant explained, having seen the obvious distress on the part of the attendant, that he was unable to bring himself to hurt her and that it was for this reason that he walked off. I would add, however, not before endeavouring, without success, to open the till. No doubt had he been successful in that regard, its contents or portion of them would have been removed. 11 His Honour accepted that the applicant did not intend to harm the attendant, however, as he noted, it is he often the case in offences of this type that there is no intention to do more than frighten the victim. That circumstance does not, to my mind, significantly detract from the objective seriousness of the offence. 12 Following the record of interview, the applicant was charged and was due to appear at Raymond Terrace Local Court on 13 January 1998. On that date he failed to appear and he was subsequently arrested on a bench warrant. He eventually appeared at the Local Court on 1 March 1999 when he was committed for trial. Thereafter he made numerous appearances in the District Court before offering a plea of guilty upon his arraignment on 22 July 1999. 13 He was aged 25 years when he appeared for sentence. He had a criminal history going back to 1991 which included offences of receiving, break enter and steal, common assault, assault occasioning actual bodily harm, stealing, supply prohibited drug and making false representation. There were some other minor offences on his record but no entry for an offence of the serious kind before the Court. 14 He explained that his plea of guilty was entered late because his legal advisers had raised with him the possibility of relying upon intoxication as a defence and because they needed time to investigate that possibility. The applicant also explained that he had failed to appear at the Raymond Terrace Local Court because he was in hospital at the time. He said, in effect, that he had not understood why he committed the attempted robbery and he wanted to gain that understanding. He added that he had a long standing problem with alcohol and drugs, but since his arrest in relation to this offence, he had undergone some periods of rehabilitation with the consequence that his condition had become controllable. 15 The explanations which I have mentioned were accepted by his Honour, but neither of them materially alters the fact that his plea was late, and offered in circumstances where a conviction was inevitable. He was entitled to the benefit of the utilitarian value that attaches to that plea for the reasons explained in Thomson and Houlten 2000 NSWCCA 309. He was also entitled to the benefit of the remorse which he displayed. Neither matter was overlooked by his Honour who clearly was cognisant of the fact of the plea and of the explanation offered for its lateness. 16 After noting the subjective circumstances and after making reference to the guideline judgment of this Court in Henry (1999) 46 NSWLR 346, his Honour observed: "The sentence which I would normally have imposed is one of five years, but it seems to me in this case that a full term of four years is appropriate".