New South Wales Court of Criminal Appeal CITATION : R v Bethune [2001] NSWCCA 303 FILE NUMBER(S) : CCA 60320/00 HEARING DATE(S) : 2 August 2001 JUDGMENT DATE : 31 August 2001 PARTIES : Regina Matthew James Bethune (Respondent) JUDGMENT OF : Mason P at 1; Sully J at 2; Newman AJ at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/1045; 99/21/1056; 99/21/1104; 99/41/0111 LOWER COURT JUDICIAL Garling DCJ OFFICER : COUNSEL : R.A. Hulme (Crown) A.J. Bellanto QC (Respondent) SOLICITORS : S.E. O'Connor (Crown) Patricia White & Associates (Respondent) CATCHWORDS : Sentence - Crown appeal - Armed robbery - Malicious wounding - Inadequacy of sentence - Double jeopardy - Resentence Criminal Appeal Act 1912 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Pearce v The Queen 194 CLR 610 R v Bragias 92 A Crim R 330 @ 331 DECISION : Appeal upheld; Sentence varied IN THE COURT OF CRIMINAL APPEAL 60320/00 MASON P SULLY J NEWMAN AJ Friday, 31 August 2001 Regina v BETHUNE JUDGMENT 1 MASON P: I agree with Newman AJ. 2 SULLY J: I agree with Newman AJ. 3 NEWMAN AJ: This is a Crown appeal brought pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent by Garling DCJ in the Sydney District Court on 17 April 2000. 4 The sentences imposed by his Honour dealt with offences which may be conveniently divided into four groups. The first group though not in chronological order involved offences at Vincentia on 22 March 1998. Originally the respondent pleaded not guilty to these offences but was found guilty by a jury following the trial which took place between 8 - 13 March 2000. This group involved three offences: first the offence of Robbery whilst Armed contrary to s 97(1) of the Crimes Act 1900 which carries a maximum term of 20 years imprisonment; second the charge of Malicious Wounding contrary to s 35 of the Crimes Act which carries a maximum term of seven years imprisonment and finally Larceny of a Motor Vehicle contrary to s 154A(1)(b) of the Crimes Act which carries a maximum term of five years imprisonment. In relation to these offences his Honour sentenced the respondent on the charge of Robbery whilst Armed to a head sentence of six years with a non-parole period of three years and six months. The sentence was dated to commence on 6 August 1998 and will thus end on 5 February 2002 as far as the non-parole period is concerned. On the charge of Malicious Wounding his Honour imposed a fixed term of three years imprisonment commencing on 6 August 1998 and expiring on 5 August this year. In relation the charge of Larceny of a Motor Vehicle his Honour imposed a fixed term of 12 months commencing on 6 August 1998 and expiring on 5 August 1999. 5 The second group of offences involved events which took place at North Sydney on 26 December 1996. These involved one offence of Robbery contrary to s 94 of the Crimes Act which carries a maximum of 14 years imprisonment and for which his Honour imposed a sentence of three years imprisonment by way of a fixed term commencing on 6 August 1998 and expiring on 5 August this year. The second charge of Larceny of a Motor Vehicle contrary to s 154A of the Act carrying a maximum penalty of five years imprisonment resulted in his Honour imposing a fixed term of one year again commencing on 6 August 1998 and expiring on 5 August 1999. In respect of these offences the prisoner pleaded guilty. 6 He also pleaded guilty to three charges arising out of events at Penrith on 21 May 1998. The first of those charges was one of Assaulting a Police Officer occasioning Actual Bodily Harm contrary to s 60(2) of the Act which carries a maximum of seven years imprisonment. His Honour there imposed a fixed term of 18 months imprisonment commencing once more on 6 August 1998 and expiring on 5 February 2000. The second charge was one of Threaten to use Offensive Instrument with intent to Prevent Lawful Apprehension contrary to s 33B(a) of the Act. That carries a maximum of 12 years imprisonment and for which his Honour imposed a fixed term of 18 months again commencing on 6 August 1998 and expiring on 5 February 2000. Finally in relation to events of 21 May 1998 the prisoner pleaded guilty to the Common law offence of Escape Lawful Custody for which the penalty is at large and his Honour imposed again a fixed term of 12 months imprisonment commencing on 6 August 1998 and was completed on 5 August 1999. Finally the respondent pleaded guilty to an offence of Break, Enter and Steal at Gymea which took place on 8 June 1998 contrary to the provisions of s 112(1) of the Act. That offence carries a maximum term of 14 years. Originally the respondent had pleaded guilty in the Local Court and adhered to his plea before his Honour. His Honour imposed another fixed term of three years commencing on 6 August 1998 and finishing on 5 August this year. 7 Thus his Honour in relation to all offences imposed a total head sentence of six years with a non-parole period of three and a half years. In other words for head sentences which totalled in all 21 years his Honour imposed a concurrent total head sentence of six years with a non-parole period of three and a half years. I turn then to the facts relating to the various offences. 8 In regard to the offences at Vincentia the respondent was seen by various witnesses earlier in the day in an apparent drug affected state. At about 4.15pm he went to the Vincentia Supermarket where Mr Phillip Bennet was working on his own. He purchased some cigarettes and when the cash register was opened he thrust a blood filled syringe in front of the proprietor saying "it's full of AIDS, get back, get back". He grabbed the cash tray but was prevented from leaving the store by the proprietor standing in his way. At this point the respondent threatened the proprietor by thrusting or jabbing the syringe in the direction of his face. The proprietor moved aside and the respondent ran. 9 The events inside the store were witnessed by Mr Steven Goode who was standing outside. When the respondent ran out of the store Mr Goode endeavoured to get out of his way but the respondent lunged at him and stabbed him in the upper abdomen with the syringe. The respondent then dropped the syringe and ran. 10 Mr Bennet chased the respondent and saw him enter a Hyundai motor vehicle. Mr Bennet kicked the driver's window in and tried to restrain the respondent but the car drove off and Mr Bennet fell away. A witness obtained the registration number of the car which was found to have been stolen at Vincentia at some time since 14 March 1998. 11 The respondent was spoken to by police on 6 August 1998 and denied involvement in this matter. On 9 September 1998 a blood sample was obtained. The blood in the syringe was found to contain DNA identical to the respondent's DNA. Such DNA was said to come from fewer than 1 in 10 billion in the general population. 12 After months of waiting Mr Goode came to learn that the had not contracted anything deleterious from the stabbing with the syringe. The stolen Hyundai was recovered with damage to the driver's door and window. 13 In regard to the offences at North Sydney in December 1996 at about 4.15pm on Boxing Day the respondent entered The Cheese Cake shop in Union Street, North Sydney where the 21 year old female victim was working by herself. He purchased an apple strudel. When the cash register was open he pushed the victim hard backwards, causing her to hit a wall. He then grabbed the cash tray containing $634.00 and ran out of the shop. He was followed by the victim who saw him entering a Ford Laser (PJY-129) which was driven by another male. That vehicle had been stolen earlier the same day from Darling Point. 14 The victim suffered pain and discomfort for several weeks to her shoulder and neck. She said she feared for her safety during the incident. 15 The Ford Laser was abandoned in Walker Street, North Sydney. The lock and ignition switch were damaged. Police recovered the now empty cash tray and a paper bag containing an apple strudel from the car. The strudel wrapper was found to have the respondent's fingerprints. 16 The respondent was spoken to on 5 November 1998 at Silverwater Correctional Centre about this matter but declined to answer police questions. He was charged when he next appeared at Court on 20 November 1998. 17 On 21 May 1998 an off duty Senior Constable Matthew McQueen saw the respondent in High Street, Penrith at about midday. He knew the respondent had outstanding first instance warrants. The respondent ran and ultimately made good his escape. During the course of the chase there was one incident in which the respondent stopped and appeared to submit but upon being informed he was under arrest he commenced to struggle, bit the officer on the forearm, punched him to the head and kicked him. Later during the chase the respondent turned on the officer and threatened him with a half a house brick to "just fuck off and leave me alone". 18 The respondent was found at a house in Cranebrook on 6 August 1998. He ran out the back door but was arrested after a foot chase. He declined to be interviewed. 19 On 8 June 1998 the home of a 72 year old woman at Gymea was burgled whilst she was out visiting a friend between 3.15pm and 4.50pm. A large quantity of jewellery valued at $6,900.00 was taken. The respondent's fingerprints were found at the point of entry, a forced rear window and on a biscuit tin. 20 The respondent was spoken to by police on 29 September 1998. He denied knowledge of the offence and refused to answer questions. 21 The learned sentencing judge took into account a number of subjective features which were advanced on behalf of the respondent. Principal amongst those matters was the fact that the respondent had for a long time before the commission of the first of the offences which I have referred to above had been addicted to the drug heroin. He had a criminal history which his Honour described as not being shocking. At the time of sentence he was 27. While in the past he had a difficult relationship with his parents his father gave evidence on his behalf in the sentencing proceedings. His father acknowledged the difficulty confronting the respondent in dealing with his drug addiction but promised his full support in assisting his son. 22 In its submissions the Crown conceded that the individual sentences passed by his Honour could not be the subject of challenge. In my view this is not necessarily so. In my view the fixed terms of three years for the robbery at North Sydney and the crime of malicious wounding at Vincentia are exceptionally lenient. However, as the Crown had mounted no challenge to the individual sentences passed I shall make no further reference to this aspect. 23 In Pearce v The Queen (1998) 194 CLR 610 in the judgment of McHugh, Hayne and Callinan JJ at 623 the following statement of principle is found: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 24 While it is true that his Honour made no specific reference to Pearce in his remarks on sentence the fact is that he did fix what he found to be an appropriate sentence for each offence. While the Crown has submitted that his Honour while dealing correctly in terms of procedure with the first step adumbrated by the High Court in Pearce he failed to consider properly questions of cumulation or concurrence as well as the question of totality, however, in his remarks on sentence his Honour did observe: "When sentencing the prisoner I look at the overall criminality of all the offences and I have elected to deal with it in that way." 25 On the other hand, his Honour made no reference to the power imposed upon him by s 55(2) of the Crimes (Sentencing Procedure) Act 1999 to impose sentences which could be served consecutively or partly concurrently and partly consecutively. As may be seen from the analysis of his Honour's sentencing order which I have set out above his Honour in fact did not accumulate any of the sentences for the various crimes but in fact dealt with all concurrently. 26 There was no issue that his Honour's sentence was lenient. However, even undue leniency will not on a Crown appeal of itself be sufficient cause for this Court to interfere. Before this Court will interfere with a sentence passed on a Crown appeal it must be satisfied that the totality of the respondent's criminality is so far from being reflected in the sentence passed that 'a material error in point of principle' is established. See R v Bragias (1997) 92 A Crim R 330 @ 331. 27 The objective facts which I have narrated above demonstrate a major breach of the criminal law by the respondent when he his offences are viewed in totality. So much so that I am of the view that the total sentence passed was not merely lenient but did in fact represent a material error in point of principle. Accordingly, I am of the view that this Court should interfere. 28 In interfering this Court must pay due regard to the concept of double jeopardy. In so doing the sentence which this Court would impose on a successful Crown appeal will in the most part not represent the sentence which should have been passed in the first instance. Here I am of the view that his total criminality would require that he serve a minimum term of no less than five years. However, because of the concept of double jeopardy this Court should discount that figure. In my view a discount of six months for double jeopardy would be appropriate. It may be seen that as at the date of hearing of this appeal, namely 2 August 2001, the respondent had been incarcerated for a period of almost three years. Indeed with the exception of the sentence for the robbery at Vincentia the terms of imprisonment imposed for his other offences being fixed terms were to expire on 5 August 2001 - before these reasons are given. An appropriate sentencing order in this case would involve the exercise of the powers to impose consecutive sentences given by s 55(2) of the Crimes (Sentencing Procedure) Act 1999 to which I have made reference earlier in these reasons. Utilising that power I would commence the sentence of six years imprisonment with a non-parole period of three years and six months imposed by his Honour in respect of the charge of robbery whilst armed at Vincentia to commence, not as his Honour set the commencement date on 6 August 1998, but on 6 August 1999. This would mean that the respondent would be eligible to be released on parole on 5 February 2003. Accordingly, I propose the following orders: 1. Appeal upheld. 2. Sentencing order varied by quashing the sentence of six years imprisonment consisting of a non-parole period of three years and six months commencing on 6 August 1998 and expiring on 5 February 2002 and substituting in lieu thereof a sentence of six years imprisonment with a non-parole period of three years and six months commencing on 6 August 1999 and expiring on 5 February 2003. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.