New South Wales Court of Criminal Appeal CITATION : REGINA v. HENRY [2001] NSWCCA 521 FILE NUMBER(S) : CCA No. 60707 of 2000 HEARING DATE(S) : Wednesday 12 December 2001 JUDGMENT DATE : 12 December 2001 PARTIES : REGINA v. HENRY, Mark Simon JUDGMENT OF : Greg James J at 1; Bell J at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0653 LOWER COURT JUDICIAL Twigg, DCJ. OFFICER : COUNSEL : Crown: M.C. Grogan App: C.B. Craigie, SC. SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys CATCHWORDS : Criminal law - appeal - sentence - robbery - early plea - application of principles in Regina v. Henry - no error in exercise of discretion. LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 CASES CITED: Thomson & Houlton (2000) 49 NSWLR 383 Henry (1999) 46 NSWLR 346 DECISION : Leave to appeal granted; appeal dismissed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL No. 60707 of 2000 GREG JAMES, J. BELL, J. WEDNESDAY 12 DECEMBER 2001 REGINA v. MARK SIMON HENRY JUDGMENT 1 GREG JAMES, J: The present applicant for leave to appeal against sentence pleaded guilty in the District Court of New South Wales to one count of commit robbery in circumstances of aggravation contrary to s.97 of the Crimes Act 1900. He had earlier pleaded guilty before a magistrate. 2 The circumstance of aggravation was that in the course of a robbery of a shopkeeper he used an offensive weapon; that is to say, a syringe. That offence is punishable by a maximum penalty of 20 years' imprisonment. He was sentenced to imprisonment for four years, commencing on 4 June 2000 and expiring on 3 June 2004. A non-parole period was imposed of two years, expiring on 3 June 2002. He had been arrested and charged on 4 June 2000. His Honour back-dated the sentence to commence on the day that the applicant first entered custody. 3 The short facts were set out by the learned trial judge in his remarks on sentence. They were taken to an extent from the appellant's recorded interview. I summarise them. 4 Shortly prior to nine o'clock on Sunday 4 June 2000 the offender went into the Wang Sheng mixed business at Marrickville. The victim, Yong Pei Wang, was behind the counter. There were customers in the store. The applicant posed as a customer. He had at the time an uncapped syringe with him (the trial judge did not conclude that it was a dirty syringe). He produced the syringe, contending in the record of interview, he was keeping it far away from his victim so it would not hurt him but hoping, as the trial judge found, to put the victim in fear. 5 He sought money. The wife of the victim came in with a Club lock. He had sought to open the cash register. Being unable to do it, he saw money in a cardboard box and he picked up a quantity of that money in his right hand. He was struck on the hand by the wife with the Club lock and in the course of his being restrained a struggle ensued. He was pinned to the floor and held until police were obtained with the assistance of the other customers. 6 The victim sustained bruises and grazes at the top of his head, a sore neck and minor cuts to his head. The offender got nothing. 7 He had a minimal prior criminal record, having arrived in Australia in 1996 from New Zealand, but had embarked since the beginning of 2000 upon crime, committing various offences of shoplifting. 8 He was one of eleven children, having been born in New Zealand on 28 August 1961. His family reside in New Zealand, except that when he came to Australia he came with his elder son but his relationship with that son commenced to deteriorate in 1998. He plans to return to New Zealand in due course. 9 He has a narcotic problem, as his Honour found, but it is said that the narcotic use commenced only after the problem had manifested itself with his elder son; that is, in the two years prior to the commission of the offence. Whilst in custody he had been seeking to reduce his drug dependence and apparently was having some degree of success in that regard. In particular he sought that the non-parole period and parole period ratio be varied so as to permit him the opportunity of treatment once he leaves custody. 10 The trial judge found that he had displayed remorse in the witness box, not only remorse for what harm he had done to the shopkeeper and for the distress and embarrassment he caused to his family, but also for his having offended against the community. 11 His Honour took into account the limited degree of planning, limited actual violence and the early plea, as well as the requirements for general deterrence. Those matters, he pointed out, can, in particular circumstances, lead, to some substantial degree, to rehabilitation. His Honour also referred to the requirements of particular deterrence but, regrettably, one passage in his Honour's remarks dealing with particular deterrence does not appear to have been accurately recorded. 12 However his Honour treated particular deterrence, it does seem, having regard to the general sense and the context of the passage, to have been affected to some degree by a view that particular deterrence should be mitigated in favour of rehabilitation. He found special circumstances, namely, the need for rehabilitation, as warranting an adjustment of the ratio of the non-parole period to the parole period. It is contended, however, that his Honour fell into error, particularly in two respects. 13 Firstly, his Honour gave the prisoner the benefit of an early plea. He referred to the judgment of this court in Regina v. Thomson & Houlton (2000) 49 NSWLR 383. His Honour expressed the relevant discount as being a discount of 30%. His Honour noted, however:- "That is not to say that I should merely show what the penalty should be and reduce it down to 30 per cent. The fact is that still I must take into account a number of other circumstances before determining sentence." 14 Thirty per cent, much less down to 30%, is a discount well in excess of what an early plea simpliciter would receive applying this court's decision in Thomson & Houlton (supra). Nevertheless, his Honour referred to that 30% discount in the context of referring to "the old principle" that one must consider whether or not it is inevitable an offender would be convicted. His Honour said:- "A court should not go overboard in giving a percentage because the plea is at the earliest time and adhered to throughout when it was perfectly clear he was guilty of the offence and in this instance the offender was caught red-handed during the offence." 15 Subsequent decisions of this court have established the principle that the utilitarian discount referred to in Thomson & Houlton (supra) is not to be reduced by reference to the strength of the Crown case. Such discount as is provided for contrition or remorse may be reduced. It is perfectly apparent here, however, that his Honour was not talking about that latter discount. It seems on a literal reading of what his Honour said, that after discounting the early plea his Honour provided for a discount figure of some 30%. All of this on its face seems to be far too favourable in the discounting process to the applicant. 16 On the other hand, his Honour also had reference to the decision of this court in Regina v. Henry & Ors (1999) 46 NSWLR 346 and expressed his view of that decision as embodying a starting point of six years or at least no less than five years of what they used to call the head sentence. 17 His Honour adverts to certain of the matters discussed in Henry (supra) as appropriate to the range of sentences approved in that decision. It is contended that his Honour fell into error in applying the decision in Henry (supra) as he did and in particular fell into error in accepting that that decision provided for a starting point head sentence of six years. 18 Nonetheless, when one considers what his Honour did and the sentences imposed as a whole and has regard to the duty cast on this court to review the sentences in accordance with s.6(3) of the Criminal Appeal Act 1912, it is necessary, before the court can interfere with what is an exercise by a trial judge of that trial judge's discretion, to reach a conclusion that there is some other sentence warranted in law and which should have been passed. So that it is not merely enough to show error, particularly error counter-balancing error, in what the trial judge did. It is necessary there be shown such error in the result as shows that the sentence exceeds the permissible lawful range of sentence to be imposed by the trial judge in the exercise of a lawful discretion. 19 In the present case a non-parole period of two years has been the primary focus of the submissions. It is understandable that reference might be made to all those favourable matters which might show that the offender is coming to a point in his life, albeit late, in which rehabilitation might be achieved and the drug abuse and criminality set aside. Whilst one can appreciate those considerations moving the argument, it remains that the court cannot interfere unless persuaded of error in the legal sense required for the court to intervene in the exercise of the trial judge's discretion. 20 I am unpersuaded that there is error in the upshot of this sentence. I would propose that leave to appeal be granted but that the appeal be dismissed. 21 BELL, J: I agree. 22 GREG JAMES, J: The orders will be as I have proposed. ******** 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.