New South Wales Court of Criminal Appeal CITATION : R v Daniels [2001] NSWCCA 181 revised - 18/05/2001 FILE NUMBER(S) : CCA 60113/00 HEARING DATE(S) : 11.5.01 JUDGMENT DATE : 11 May 2001 PARTIES : Regina Garry Daniels JUDGMENT OF : Carruthers AJ at 1; Badgery-Parker AJ at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0434 LOWER COURT JUDICIAL Coolahan DCJ OFFICER : COUNSEL : W L Robinson QC (Crown) P R Boulton (App) SOLICITORS : S E O'Connor (Crown) D H Cohen & Co (App) CATCHWORDS : Appeal against severity - robbery - using an offensive instrument to prevent lawful apprehension - Judge overlooked s439 of the Crimes Act 1900 (now s 22 of the Crimes (Sentencing Procedure) Act 1999 - On appeal discount allowed for plea of guilty on second day of trial. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 R v Barton [2001] NSWCCA 63 CASES CITED: R v Hamilton (1993) 66 A Crim R 575 R v Perez (Unreported, NSWCCA 11 December 1991) R v Tooth [2000] NSWCCA 482 DECISION : Sentence on the first count confirmed. For s 33B matter: leave to appeal granted, appeal allowed. Applicant re-sentenced to an overall period of 5 years, from 2 October 2002 - 1 October 2007. Non-parole period of 3 years, from 2 October 2002 - 1 October 2005. - 10 -1 CARRUTHERS AJ: Garry Richard Daniels seeks leave to appeal against sentences imposed upon him by his Honour Judge Coolahan at the Newcastle District Court on 21 March 2000. On 28 February 2000 the applicant was arraigned before his Honour and a jury of twelve upon an indictment containing two counts. The first count was one of robbery pursuant to s 94 of the Crimes Act 1900 (hereinafter called "the Act" which offence carries a maximum penalty of 14 years imprisonment. The second count was one of use offensive instrument to prevent lawful apprehension pursuant to s 33B of the Act, which offence carries a maximum penalty of 12 years imprisonment. 2 The applicant pleaded not guilty to each count and the trial proceeded with the Crown calling evidence in relation to the first count. However, on the second day of the trial the applicant sought to be re-arraigned on the second count and then pleaded guilty to that count. On the same day the jury later returned a verdict of guilty on the first count. 3 When the matter came before his Honour for sentence on 21 March 2000, his Honour was asked to take into account when sentencing the applicant in relation to the first count, the following matters on a Form 1, one offence of steal a motor vehicle, one offence of possess cannabis leaf, one offence of drive with mid-range PCA, and one offence of drive whilst disqualified. 4 In relation to the first count and taking into account the Form 1 matters, his Honour sentenced the applicant to imprisonment for four years, commencing on 2 October 1999 (on which date the applicant was taken into custody) and to expire on 1 October 2003. His Honour fixed a non-parole period of three years commencing on 21 October 1999 and expiring on 1 October 2002. 5 With regard to the second count, his Honour sentenced the applicant to six years imprisonment commencing on 2 October 2002 and expiring on 1 October 2008. His Honour fixed a non-parole period of four years commencing on 2 October 2002 and expiring on 1 October 2006. His Honour, therefore, took the view that there were no special circumstances. 6 The applicant does not seek leave to appeal against the sentence in relation to the first count. 7 He does, however, seek leave to appeal against the sentence imposed in relation to the second count. Regrettably, when sentencing the applicant his Honour (and Counsel appearing before him) overlooked the requirements of s 439 of the Act, which was, relevantly, in the following terms: - " (1) In passing sentence for defence of a person who pleaded guilty to the offence, a Court must take into account: (a) the fact that the person pleaded guilty; and (b) when the person pleaded guilty or indicated an intention to plead guilty, and may accordingly reduce the sentence that it would otherwise have passed. (2) A Court which does not, as a result of this section, reduce the sentence that it passes on a person who pleaded guilty to an offence must state that fact and its reasons for not reducing the sentence when passing sentence. (3) The failure of a Court to comply with this section does not invalidate any sentence imposed by the Court. (4)… .." Section 439 has now been replaced by s 22 of the Crimes (Sentencing Procedure) Act , 1999. 8 The effect of the omission was that there was an error of law which requires the intervention of this Court: See Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 265. 9 This Court is accordingly charged with the responsibility of determining the appropriate sentence in relation to the offence under the second count, in light of the relevant evidence. His Honour correctly said that "the facts of these offences disclose that they were very serious". 10 It is appropriate to refer to the brief facts relating to the first count, as found by his Honour: - "The evidence of the victim in relation to the robbery was that at about 3.45am on 2 October 1999 she was working as a sex worker in Maitland Road at Islington. A creamy white 80's model Laser sedan drove up and she spoke to the driver who turned out to be the applicant. Negotiations ensued as a result of which she got into the vehicle and was driven to a place where sex was to take place. The applicant told her that he only had a $100 note and asked if she had change. She reached down into her handbag and withdrew either $250 or $300 in $50 bills. As soon as she did this, the applicant placed his hand around her throat. She deposed that he did this in a manner which was very hard and it made it difficult for her to breathe and the applicant was also holding his forearm across her chest. He demanded the money and she said that because of the way in which she was held, she actually had to feel for it to get it out of her wallet. The applicant took the money and then pushed the victim out of the motor vehicle. She stumbled and fell. The vehicle then drove off without lights but she managed, because it was quite close to her, to get the number plate of the vehicle. She memorised this initially then wrote it on to a piece of paper from her handbag and then called the Police. A description of the vehicle was issued and at about 6.10am that day it was seen by Police to be driving north along the Pacific Highway in the vicinity of the Taree by-pass." 11 I will now refer to the Facts Sheet which was before his Honour in relation to the second count. When the vehicle was sighted by Police officers about ten kilometres south of Taree, he was travelling about 120 kilometres per hour. It was followed by Police until assistance could be obtained. At a point about one kilometre south of Cundletown where two lanes merge into one, three Police vehicles attempted to stop the applicant in the stolen vehicle. Prior to the merging of the lanes, all Police vehicles which were appropriately marked, activated their warning devices. On approaching another vehicle, the applicant slowed down. Police believed that he was stopping and a Police vehicle was positioned behind, in front of and alongside the stolen vehicle whilst it was pulling to the side of the Highway. 12 The civilian motorist in front, thinking he was required to pull over, slowed down also and moved to the left of the roadway. The applicant then suddenly accelerated on the nearside of the Police vehicle in front of his vehicle, and forced his way between that vehicle and the civilian vehicle. He collided with both vehicles in so doing. The applicant continued back towards the centre of the roadway and collided with the nearside of a second Police vehicle. The two Police vehicles he collided with were extensively damaged and were both undrivable. The civilian motor vehicle was also extensively damaged. 13 The applicant continued north on the Pacific Highway with a Police vehicle maintaining a safe distance to the rear. The applicant pulled away from the following Police vehicle and continued travelling north until near Croki where a HWP vehicle commenced to follow him. All warning devices were activated and the applicant reached speeds of up to 170 km/hr and overtook numerous vehicles over double unbroken centre lines and also overtook a vehicle on the Coopernook Bridge, which is a very narrow bridge. 14 The vehicle was pursued until reaching the township of Moorland where the applicant's vehicle started to blow a large amount of smoke from underneath. The vehicle then came to a stop and the applicant was arrested. The total distance the applicant travelled after having first been sighted by Police south of Taree was about 40 kilometres, and, as indicated, he reached speeds of up to 175 km/hr. He travelled onto the incorrect side of the roadway on numerous occasions and crossed unbroken separation lines, forcing oncoming traffic to take evasive action and move to the left to avoid a collision. 15 Although there is only minimal doubt about it, the applicant is entitled to the benefit of the doubt to the effect that he may have stopped of his own volition rather than the fact that the vehicle's engine had ceased to function, as indicated by the emission of black smoke. 16 In relation to the second count, his Honour expressed the view that the appropriate sentence was one of 7 years imprisonment. That would make a total of 12 years taking into account the first matter. He then said that in order to reflect the total criminality involved in the commission of the 2 offences, an overall period of 10 years was appropriate. 17 The applicant was born on 2 December 1954. He is single with a child of about the age of five from a relationship, which no longer exists. His prior criminal record is, to use his Honour's words, "long and serious". It includes a number of armed robberies as well as a number of crimes of violence and dishonesty. He has served many custodial sentences. In 1979 he was sentenced to an aggregate of nine years in relation to robberies whilst being armed. The cumulative non-parole period in relation to these offences seems to be of the order of five years, but this is not clear. 18 He has also has a history for escapes and attempted escapes. This is a far from an exhaustive summary of his shocking record. 19 The applicant grew up in the Central Coast attending Wyong High School. From time to time he engaged in casual employment. However, for the two years prior to the commission of these offences he had been in receipt of a disability pension for alcoholism. 20 It is necessary for this Court in re-sentencing, to take into account that the applicant's ultimate plea of guilty to the second count. However, in accordance with the statute, the Court is also required to take into account "when the person pleaded guilty": see s 22(1)(a) of the Crimes (Sentencing Procedure) Act 1999. Bearing in mind the late stage at which this plea of guilty was entered, it can only be looked upon as having a modest utilitarian value. However, as Madam Crown realistically and responsibly observed, the applicant is nevertheless entitled to some discount. Irrespective of how late it is entered, a plea of guilty may always be considered to have some utilitarian value, and, of course, apart from anything else, it resolves any possible doubt as to the way in which the jury will return their verdict. 21 This Court has stressed in numerous authorities that the use of weapons to prevent lawful apprehension when the lives and safety of Police officers discharging their duty is put in danger, is to be regarded as an extremely serious matter by the criminal law. To my mind, there may often be little difference, when sentencing an offender as to whether the weapon was a firearm or whether the instrument was a motor vehicle. In some circumstances, one can envisage the use of a vehicle as the instrument could be more dangerous and more likely to cause harm than the discharge of a firearm. Each case depends upon its own circumstances. 22 It should be recalled that in R v Hamilton (1993) 66 A Crim R 575 at 581, Gleeson CJ said:- "In that regard I should make it clear that offences against s 33B which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension are regarded by the Court extremely seriously. It is incumbent upon the Court in dealing with offences of this nature to show an appropriate measure of support for Police officers who undertake a difficult, dangerous and usually thankless task." 23 Reference should also be made to Perez (Unreported, NSWCCA 11 December 1991) in which Kirby P made remarks to a similar effect. See also R v Barton [2001] NSWCCA 63. 24 Mr Boulten, counsel for the applicant, has provided the Court with summaries of some earlier decisions by this Court in relation to s 33B. In respect of some of those matters it might be thought at first blush, that there was a remarkable degree of leniency both at first instance and on appeal. One could comment in this regard that often sentences for s 33B matters are cumulative upon the subject offence in respect of which the Police are seeking to arrest the offender and this may have a bearing on the sentence. In any event, the instant case is a very bad example of this particular offence. 25 Mr Boulten for the applicant suggested that this Court should allow a discount to the order of ten percent when sentencing the applicant, to take account ofthe late plea of guilty. Ms Robinson QC for the Crown, suggested a lesser percentage. 26 I would propose that the sentence in relation to the s 33B matter imposed by his Honour be quashed, and allowing a discount to the order of six months for the plea of guilty, I would propose an appropriate overall sentence of imprisonment for five years. There are, however, special circumstances because of the accumulation of this sentence on the earlier sentence for the robbery matter: see R v Tooth [2000] NSWCCA 482 at par 66. The overall sentence of five years would date from 2 October 2002 and expire on 1 October 2007. Because of the accumulation, I would propose a non-parole period of three years to date from 2 October 2002 and to expire on 1 October 2005. The sentence on the first count is, of course, confirmed. 27 BADGERY-PARKER AJ: I agree. 28 CARRUTHERS AJ: The orders of the Court are as I 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.