R v Shaw [2000] NSWCCA 326

New South Wales Court of Criminal Appeal

CITATION : R v Shaw [2000] NSWCCA 326 FILE NUMBER(S) : CCA 60223/99 HEARING DATE(S) : 23/08/00 JUDGMENT DATE : 23 August 2000

PARTIES : Regina Lee Anthony Shaw JUDGMENT OF : Heydon JA at 1, 27; Smart AJ at 25; Ireland AJ at 26

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1188 LOWER COURT JUDICIAL Backhouse DCJ OFFICER :

COUNSEL : Applicant in person P Hock (Respondent) SOLICITORS : Applicant in person S E O'Connor (Respondent)

R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Morgan (1993) 70 A Crim R 368 Veen v R (No 2) (1988) 164 CLR 465 DECISION : See para 24

IN THE COURT OF

CRIMINAL APPEAL

60223/99

HEYDON JA SMART AJ IRELAND AJ

Wednesday, 23 August 2000

REGINA v Lee Anthony SHAW JUDGMENT

1 HEYDON JA: This is an application by Lee Anthony Shaw for leave to appeal against sentences imposed on him by Backhouse DCJ on 13 April 1999. In substance the sentences were as follows. First, on a charge that on 29 January 1998 the applicant, being armed with an offensive instrument, namely a liquid filled syringe, robbed Terrence Tung-Yep of cash, the applicant was given a head sentence of six years' penal servitude with a minimum term of three years and an additional term of three years. Secondly, on a charge that on 4 April 1997 the applicant broke into and entered Loyola College Mt Druitt with intent to steal, the applicant was given the same sentence, to be served concurrently. In relation to the first offence, the sentencing judge took into account an offence committed on 30 January 1998 of attempting to rob Eva Abdo of cash at her place of work, a hairdressing salon, by threatening her with a screwdriver. 2 The applicant pleaded guilty to the first and second offences, and asked for the third to be taken into account. 3 The facts of the first two offences are set out sufficiently in the reasons for judgment of the sentencing judge. It need only be noted of the first offence that the syringe was apparently filled with a red liquid; that the applicant told the victim the liquid was blood; that apart from the threats of stabbing with the syringe implicit in the six demands for money which the applicant made, the applicant three times expressly threatened to stab with the syringe; that the victim was alone while the applicant was accompanied by a female companion; that the hour was 10.10pm; and that there were circumstances pointing to premeditation in that, apart from the syringe with which the applicant was armed, he told the victim that he had been following him all day. The offence taken into account took place on the following day. The victim was female. The hour was 6.30pm. The weapon was a screwdriver. The applicant was accompanied by the same co-offender. These offences were committed while the applicant was on parole: he had been released from prison on 22 January 1998. 4 The applicant put two arguments in writing. 5 The first argument related to the armed robbery charge. He pointed to R v Henry (1999) 46 NSWLR 346, a case decided on 12 May 1999, after he was sentenced. In that case Spigelman CJ, with whom Wood CJ at CL, Newman J and Simpson J agreed (Hulme J dissenting), said that a sentencing range of a full term of four to five years should apply for a category of case which has the following features (at 380 and [162]): "(i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case." 6 In the case of the armed robbery with which the applicant was charged, factors (iii)-(vii) apply. Factor (i) does not, for though the applicant is young, he has a substantial criminal history. In one sense factor (ii) does not apply either because it would be difficult to kill or inflict serious injury with a syringe not filled with AIDS-infected blood; however, the victim no doubt feared that death or serious injury might result from being infected with blood of that character. In the case of the armed robbery which was taken into consideration, factors (ii)-(v) and (vii) apply. Factor (vi) does not, since nothing was taken. Factor (i) does not, for the reasons already given. 7 However, though the armed robbery offence committed by the applicant does not fit completely into the category identified in R v Henry, the Crown was generous enough to concede that it fell "broadly" within it, and it is convenient to assume that it does. Accordingly the applicant submits that his sentence should be reduced "to fit that of the sentencing guideline". 8 As Spigelman CJ said in R v Henry (1999) 46 NSWLR 346 at 357 ([29]-[31]): "A guideline judgment on the subject of sentencing should not lay down a requirement or anything in the nature of a rule. The failure to sentence in accordance with a guideline is not itself a ground of appeal. Guidelines are not rules of universal application. They may be departed from when the justice of a particular case requires such departure. I made this clear in R v Jurisic when I said (at 220): 'Such guidelines are intended to be indicative only. They are not intended to be applied in every case as if they were rules binding on sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents.' In this respect I refer to my adoption in R v Jurisic [(1998) 45 NSWLR 209] (at 220) of the analysis by Dunn LJ in R v De Havilland (1993) 5 Cr App R (S) 109 at 114, to the effect that decisions on sentencing are not authorities binding on lower courts in the way decisions on substantive law are binding. I went on to say (at 220-221): '… such guidelines are not binding in any formal sense. They represent a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator.' Nevertheless, where a guideline is not to be applied by a trial judge, this Court would expect that the reasons for that decision be articulated, so that the public interest in the perception of consistency in sentencing decisions can be served and this Court can be properly informed in the exercise of its appellate jurisdiction." 9 The sentencing judge obviously cannot be criticised for having failed to apply the guideline in the applicant's case, it having been enunciated after the applicant was sentenced. The primary relevance of the guideline would appear to be that it is a tool which may be useful in determining whether any appellable error took place in the discretionary judgment of the sentencing judge. 10 Spigelman CJ's reference to departure from guidelines when the justice of a particular case requires it is amplified at 381 [169]), where he said: "Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point."