R v White [2001] NSWCCA 108

New South Wales Court of Criminal Appeal

CITATION : R v White [2001] NSWCCA 108 FILE NUMBER(S) : CCA 60742/99 HEARING DATE(S) : Wednesday 21 February 2001 JUDGMENT DATE : 21 February 2001

PARTIES : Regina v John White JUDGMENT OF : Grove J at 1; Hulme J at 32

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0122 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : P.G. Berman SC (Crown) In Person ( Applicant) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : Criminal law and Procedure - Sentence - Successive Incidents Involving Robbery in Company, Stealing from the Person in Circumstances of Aggravation and Assault Occasioning Actual Bodily Harm - Encompassing Sentence Effectively 3 Years 3 Months Minimum Term - 1 Year 9 Months Additional Term Not Excessive DECISION : Application for Leave to Appear Granted; Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL

60742/99

GROVE J HULME J

Wednesday 21 February 2001

REGINA v JOHN WHITE

JUDGMENT

1 GROVE J: This is an application by John White seeking leave to appeal against the severity of sentence imposed upon him in the District Court by his Honour Judge Howie (as he then was). 2 The applicant is an aboriginal Australian and a person of some note as a manufacturer and player of the didgeridoo. He conducts such activities under his tribal name of Jarwin Jugurmurra. He is aged forty-six years having been born on 26 May 1954. 3 Following trial before Howie DCJ and a jury, he was convicted on three counts, respectively, of robbery in company, stealing from a person in circumstances of aggravation and assault occasioning actual bodily harm. The first charge related to one incident and the second and third charges related to an immediately following incident. All of these occurred on 8 December 1998 in the central business district of Sydney. 4 The applicant had been busking with his didgeridoo and had encountered a man called Curley, who was tried with him. Curley was apparently an old acquaintance of his. Regrettably, their encounter led to the consumption of a considerable amount of intoxicating liquor. 5 The busking took place at or near the Sydney Town Hall. Thereafter the applicant, in company with Mr Curley, headed up Park Street towards the Kings Cross area. The first incident occurred when they encountered a young man called Hardy. It was after midnight and Mr Hardy was a young man who had been playing that night in a band in a nearby restaurant. The facts were elaborated in considerable detail by the learned sentencing judge and I do not propose to repeat all that detail, but I would respectfully adopt what he has said. It suffices for present purposes to say that the applicant and Curley approached the young man Hardy and eventually took a small sum of money out of his pocket. 6 There was no particular violence executed upon Mr Hardy, although his Honour found that there was a threat in terms that the applicant had said to his co-offender, "Are you going to smash him or will I?" This did not occur and in fact what did take place is that after taking the money the applicant thanked Mr Hardy and hugged him. 7 Mr Hardy was actually awaiting the arrival of his brother, who was scheduled to take him home. The brother did arrive and they were observers of what I would describe as the second incident arising out of which the second and third counts in the indictment came to be charged. 8 The learned sentencing judge found that the first offence, which I have briefly described, was serious but that it was considerably overshadowed by the offences arising out of the second incident. Two young men were sitting near the fence which surrounds Hyde Park. These young men, named Mr Booth and Mr Francis, had been celebrating at a Christmas function. His Honour, who had seen the witnesses at the trial, remarked that Mr Francis was a young man of small stature and very slight physique. He was, so his Honour found, something in the order of half the size of the applicant's co-offender Curley. 9 The applicant was still carrying his didgeridoo and the offences which became the second and third counts arose out of a struggle in which the four men at various times became involved. One of the incidents was that the applicant struck Mr Booth over the head with his didgeridoo, rendering him momentarily unconscious. Observers saw both the applicant and his co-offender attacking Mr Francis with kicks and punches. The victims required some medical treatment. 10 In the event, taking into account one month of pre-sentence custody, Howie DCJ sentenced the applicant for the attack upon Mr Hardy to a fixed term of imprisonment for fourteen months commencing upon 15 July 1999 (when he was placed in custody following the trial), and on the second and third counts to concurrent sentences but cumulative upon the fourteen months, which effectively added a further two years minimum together with an additional term of one year and nine months during which the applicant will be eligible for release on parole. 11 The effect of the encompassing sentences therefore can be seen as a period of three years and two months, or three years and three months if one allows for pre-sentence custody, minimum term, together with the additional term which I have specified. 12 The applicant has appeared for himself before this court. He has articulated a number of matters orally and earlier, in response to the Registrar's direction, he had sent in written submissions, to which I will shortly turn. It has been explained to the applicant - and I should confirm - that the nature of the jurisdiction of this court is to correct error which has occurred in the court below and not to act as a court of review or a re-sentencing court acting upon findings originally made here. 13 The applicant has referred to his general background, to the circumstance that he has come from the Northern Territory originally and that he has done a lot of good in and about the areas in which he has lived. These matters were known to the sentencing judge and indeed he made express reference to them. The applicant has also mentioned to us that he is having no problems in gaol in Grafton where he is presently held. He works as a maintenance man and there is no complaint about his activity there. 14 I should also mention that his de facto wife has had a child born to her since he was committed to prison and he is anxious to be able to join her and to support his family. These are not matters which the court can take into account on a primary basis in order to analyse whether or not there has been error in the court below. 15 It will be convenient to turn to the various points which the applicant set out in his written submissions and upon which he elaborated early this morning. He pointed out he had been drinking heavily on the evening. This was undoubtedly so and his Honour was well aware that these offences arose out of the applicant and his co-offender being markedly affected by their prior ingestion of intoxicating liquor. The applicant expressed sorrow for what he has done and challenged the remark by his Honour that he had shown no contrition for what he had done. 16 It is apparent that in his remark to that effect his Honour was referring to the circumstance that the applicant had declined, as was his right, to plead guilty to any of the charges against him and, indeed, as at the time he appeared for sentence, he was still maintaining his innocence. His Honour's reference therefore can clearly be understood as being to the absence of any acknowledgment of his guilt for the crimes upon which he was found guilty by the jury. 17 The next matter to which the applicant referred was a disagreement with some evidence by Mr Hardy, the victim in relation to the first incident. There was evidence that the applicant was feeling through his pockets. In his written submission he challenged the physical capability of this occurring. The fact of the matter is that Mr Hardy gave evidence to this effect and it was for the jury to consider it and it was not outside the scope of his Honour's fact-finding jurisdiction also to find to that effect. 18 The applicant made reference to his intoxication and the fact that Mr Hardy apparently had a musical instrument with him and the applicant has said it is not unusual for a musician to obtain a loan overnight from a fellow musician. This was not an occasion of the obtaining a loan but rather the man Hardy was overborne by the two offenders who approached him. 19 The applicant refers to his unusual action in thanking and hugging Mr Hardy after the offence had been committed. The sentencing judge made express reference to this situation. He observed that there was no actual violence used on Mr Hardy and he accepted that that offence seemed to have arisen on the spur of the moment. However, he found that the applicant's reaction, his suggestion that Mr Hardy should be violently assaulted by Mr Curley in the language that I have already mentioned and then hugging him showed, in his Honour's expressed view, that the applicant had contempt for Mr Hardy's feelings. That was a matter of fact for his Honour to find. It has not been demonstrated to this court that that finding was wrong. 20 The applicant refers to the relatively small outcome of the robbery and that he obtained about $7. The amount of money is, of course, not the scale by which the seriousness of the offence of robbery is necessarily to be measured. Further, the applicant suggested that he did not believe that the trial judge gave enough consideration to the traditional ways of aboriginal people and the absence of violence in their culture generally. 21 The answer to that submission can be found in his Honour's recorded remarks on sentence. He gave express consideration to the applicant's aboriginality and said that he would take it into account and, indeed, specified how he would take it into account to the advantage of the applicant. 22 Next in his written submissions the applicant made reference to some evidence of Mr Hardy following him and his co-offender leading up to the second incident. The references are to matters of fact which were for the trial court to determine. 23 The striking of Mr Booth with the didgeridoo did not cause any damage to that instrument. Therefore the applicant invites a conclusion that there must not have been a great deal of force involved. Whether that logically follows or not would be a matter for a trial court. What is before this court is a finding by his Honour that there was an attack which involved the use of that instrument to strike Mr Booth. 24 Following that submission the applicant makes reference to his assertion that he had no recollection of kicking anyone and he points out he was not wearing shoes or anything on his feet at the time. The latter again was something which was a matter of observation. As to the issue of whether or not the applicant was involved in kicking, this is a matter of evidence and, as Howie DCJ observed, there was evidence from eye witnesses which showed that both the applicant and his co-offender were involved in the kicking of Mr Francis. 25 The applicant observes that the incident between himself and his co-offender and Mr Francis and Mr Booth was a contest between grown males. The significance of this is not immediately apparent. His Honour observed that there was no doubt that, having been importuned by the applicant and his co-offender, Mr Francis was the first to seek to involve himself with Mr Curley. Given the respective differences in their sizes, this may be regarded as a particularly foolish election on his part. Nevertheless, his Honour carefully analysed the facts in the context of the finding of the jury and came to the conclusions which he has expressed concerning the reactions of the applicant and his co-offender and in particular their using their feet to kick a man who was then on the ground. 26 The applicant himself indicates some understanding of the issues when he says candidly in his submissions that he realises he should not have used excessive force in rebutting Mr Francis' initial attack. 27 The applicant challenges a finding by his Honour that he was motivated by a criminal intent to rob any person whom he found to be a suitable victim. This is a matter not only set out in the written submissions, but one which he has repeated in the oral submissions before the Court today. The applicant has contended that the learned sentencing judge had no evidence before him of any such intent. 28 It is true that there was no specific evidence of that intent, but it is also true that being within the mind of an individual, one cannot know what somebody else's intent is unless that person chooses to say so or you can infer it from circumstances. The applicant had not said to anybody what his intent was. His Honour drew the inference from all the surrounding circumstances and for my part I perceive no error in the inference which he drew. 29 In his written submissions the applicant repeats some matters which I have already touched upon concerning his age and the arrival of his new baby. He also remarks upon his desire to support his family and to work usefully in the community once he is released from prison. 30 The applicant impressed me today as a man of some sincerity. I cannot but have sympathy for him in his plight. He perceives that after he has served his sentence and his parole period he would be happy to leave the city environment and return to his origins in the Northern Territory. However, my function is to determine whether or not there is error in the court below and whether or not the sentences imposed were in some way outside the range of sound exercise of the discretion which is reposed in the sentencing judge. I cannot find any such error. 31 In my view, the sentence was well within appropriate range and the remarks on sentence by his Honour do not bespeak any error on his part. Accordingly, I would grant the application for leave to appeal but I would dismiss the appeal 32 HULME J: I agree with the orders proposed by the presiding judge and with his Honour's reasons. 33 GROVE J: The orders of the Court therefore are, application for leave to appeal is granted but the appeal is dismissed. **********