R v STAHL [1999] NSWCCA 160

New South Wales Court of Criminal Appeal CITATION : R v STAHL [1999] NSWCCA 160 FILE NUMBER(S) : CCA 60194/98 HEARING DATE(S) : 26 May 1999 JUDGMENT DATE : 26 May 1999

REGINA (Crown)

PARTIES : v

Matthew Donald STAHL (Applicant) JUDGMENT OF : Barr J at 1; McInerney AJ at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0044 LOWER COURT JUDICIAL OFFICER : Nader DCJ

LMB Lamprati (Crown) COUNSEL : In Person (Applicant) CK Smith (Crown) SOLICITORS : In Person (Applicant) CATCHWORDS : Criminal Law - sentencing - armed robbery - whether sentence excessive ACTS CITED : s 21 Criminal Procedure Act CASES CITED: R v Davies, Court of Criminal Appeal 1.12.95 unrep R v Henry, Court of Criminal Appeal 12.5.99 unrep DECISION : Leave to appeal refused.

IN THE COURT OF CRIMINAL APPEAL 60194/98

BARR J McINERNEY AJ

Wednesday, 26 May 1999 REGINA v Matthew Donald STAHL JUDGMENT

1 BARR J: The applicant, Matthew Donald Stahl, seeks leave to appeal from a sentence imposed upon him in the District Court on 9 April 1998. Acting Judge Nader of Queen's Counsel convicted the applicant of robbery whilst armed with an offensive weapon and imposed a sentence of penal servitude for five years, comprising a minimum term of three years commencing on 20 January 1998 and expiring on 19 January 2001 and an additional term of two years. In sentencing the applicant, his Honour took into account under the provisions of s 21 Criminal Procedure Act an offence of creating a public mischief. 2 On 19 January 1998, the applicant hailed a taxi driven by Mr David Woodward. He directed the driver to a certain, place in Broadmeadow where he had parked his car. When the taxi stopped, the applicant took out a knife and put it to Mr Woodward's throat, demanding his car key, his wallet and his takings. Having robbed Mr Woodward of those things, he ran to his car and got away. Later on he reported his car stolen to the police station. That act constituted the offence which his Honour took into account. On the following day police went to his house and found clothing like that worn by the robber. The applicant directed the police to a place at Broadmeadow where his car was parked. In it were Mr Woodward's coin dispenser and the knife which had been used in the attack. The applicant was taken to the Newcastle Police Station and made full formal admissions. He pleaded guilty at the earliest opportunity. 3 In a careful and detailed judgment, his Honour reviewed the facts and the personal history of the applicant. He noted that the applicant had been injured in a road accident in 1989 and again in 1992. His Honour noted that he suffered from epilepsy and needed medicine to control seizures. His Honour had before him a psychiatric report of Dr Lambeth dated 17 December 1997 and apparently used by the applicant in a Court application for compensation arising out of the 1989 accident. His Honour accepted that the applicant suffered from major depression at the time of that report. His Honour also had before him the report of a psychologist, Mr J T Holland. His Honour concluded that the applicant suffered significant pain and disability, with the need to maintain a regime of medication, which was probably going to last the rest of his life. 4 However, his Honour did not accept that there was any causal connection between those conditions and the commission of the crime, which his Honour found took place because the applicant wanted to get money to spend on heroin, to which he was addicted. 5 After some hesitation, his Honour accepted that the applicant was remorseful. His Honour paid regard to the applicant's early confessions and co-operation with the police and early plea of guilty. 6 The applicant has put written submissions before the Court and has made short oral submissions to supplement them. He refers to the psychiatric report of Dr Lambeth. He reminds the Court that he suffers from epilepsy and says that he also suffers from bipolar disease. He makes mention of the drugs that he has to take. He submits that whereas he was addicted to heroin, he has stopped using the drug whilst he has been in gaol and has undergone counselling in that connection. He has progressed well in courses in the gaol and has completed his Higher School Certificate. 7 He says that he is ashamed and very sorry for what he did to Mr Woodward. He says that it would not have happened but for his drug problem. He makes reference to his early school leaving and work history. He refers to some of his experiences in prison. 8 Other than matters which have occurred since the date of sentence, all the matters referred to in the applicant's submissions were before his Honour and most of them were in terms referred to by his Honour. It is not permissible for the Court, in deciding whether the sentence imposed by his Honour fell outside his proper range of sentencing discretion, to take into account events that have happened since. 9 It is important to note, the applicant, while in gaol, has come to grips with his heroin addiction and forsworn any further involvement with the drug. His report may be accepted as demonstrating that the period of penal servitude ordered by his Honour is having good effect. 10 The applicant refers the Court to R v Davies, an unreported decision of this Court of 1 December 1995. A man convicted of holding up a service station with a kitchen knife appealed against a sentence of imprisonment of five years three months. His sentence was reduced to three years six months. However, each case is different and one case does not demonstrate the limits of a sentencing Judge's discretion. There are many cases of armed robbery in which sentences have been imposed well in excess of the one considered appropriate in that case. 11 A more useful case, I think, is R v Henry, Court of Criminal Appeal 12 May 1999, where it was said to be appropriate in cases like the present to impose a sentence between four and five years full term. 12 It has not been shown that his Honour made any error of principle or that the sentence imposed by his Honour fell outside the range of his sentencing discretion. 13 I would refuse leave to appeal. 14 McINERNEY AJ: I agree. 15 BARR J: The order of the Court is as I have proposed. **********