R v Dormer [2001] NSWCCA 263

New South Wales Court of Criminal Appeal

CITATION : R v Dormer [2001] NSWCCA 263 FILE NUMBER(S) : CCA 60866/00 HEARING DATE(S) : 6 July 2001 JUDGMENT DATE : 6 July 2001

PARTIES : Regina v Leslie William Dormer JUDGMENT OF : Studdert J at 1; McClellan J at 30

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0285 LOWER COURT JUDICIAL Coleman DCJ OFFICER :

COUNSEL : D.M. Woodburne (Crown) P.M. Strickland (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LEGISLATION CITED : Crimes Act CASES CITED: R v Henry (1999) 46 NSWLR 346 DECISION : Leave to appeal granted; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60866/00 STUDDERT J McCLELLAN J

Friday 6 July 2001

REGINA v LESLIE WILLIAM DORMER

JUDGMENT

1 STUDDERT J: The applicant, Leslie William Dormer, pleaded guilty before his Honour Judge Coleman QC on 24 November 2000 to an indictment charging him with a count of armed robbery. The offence was one for which s 97(2) of the Crimes Act provided a maximum penalty of twenty-five years imprisonment. The learned sentencing judge sentenced the applicant to imprisonment for six years and, having found special circumstances, set a non parole period of four years. The sentence was backdated to 9 June 1998, since which time the applicant has continuously been in custody. 2 The applicant now seeks leave to appeal against the sentence imposed upon the ground that such sentence was manifestly excessive and upon the further ground that a shorter non parole period should, in any event, have been set. 3 At the outset it is necessary to consider the objective features of this crime. 4 The offence was committed in a carpark off Church Street, Maitland at about 1.20 pm on Tuesday 9 June 1998. Ms Atkins, who managed the BP Service Station at Rutherford, was on her way to the bank to deposit the takings of the service station over the preceding long weekend. Those takings were in excess of $38,500 and, having left her vehicle, she was carrying the money in a banking bag. The applicant and a co-offender, who was in mobile telephone communication with a third person who apparently had alerted the offenders concerning the victim's movements, approached Ms Atkins as she walked along. The victim was struck on the back and pushed to the ground. The applicant took hold of the bag containing the money and both offenders then fled. Unfortunately for them, the victim's screams had been heard by some police officers nearby and the two offenders were apprehended when they endeavoured to make their escape in a car parked near to the point where the robbery had occurred. 5 When the applicant's co-offender was searched police found a loaded pistol in a side holster and when the applicant was searched he was found to be carrying, again in a holster, an expandable metal baton. Both men had pepper in their pockets, but the sentencing judge made a finding that pepper was not deliberately used against the victim during the course of the robbery. 6 His Honour, having reviewed the facts concerning the commission of the offence, said this: "This was a premeditated and well-planned robbery which was carried out in a public place against a vulnerable employee and during the course of which violence was used and the victim was put in fear." 7 There can be no complaint, nor has there been any complaint made, about that general description. Indeed, the objective gravity of what occurred is indisputable. There was material placed before the sentencing judge concerning the impact that this experience had upon Ms Atkins, who suffered a post traumatic stress disorder. 8 The applicant was born on 25 September 1950 so that he was fifty years of age when sentenced. His only previous convictions were for driving with a high range prescribed concentration of alcohol in 1993 and an assault in 1994. For both of those earlier offences the applicant had been fined. His Honour observed that the antecedent record was not a bad one, and not one so as to disentitle him to any leniency. 9 Following his arrest in the carpark the applicant was interviewed by police the same day and in the course of interview he admitted his involvement in the robbery. He expressed his contrition for what he had done and he entered a plea of guilty within two weeks of his arrest. Moreover, within four weeks of his arrest the applicant wrote to his victim apologising for what he had done. He expressed his remorse and contrition to a psychologist in August 1998 and also to the Probation and Parole Officer who recorded this in his report of 14 October 1998. 10 Further matters of a subjective nature were recorded by the sentencing judge upon the basis of evidence that had been placed before him. The applicant came from a broken home in England where he had been physically abused by his father. He migrated to Australia in 1980 but his life has not proved happy in this country. In 1991 his work partner committed suicide and the applicant's de facto marriage failed with subsequent disputes occurring about his access to children of that union. Indeed, at the time of sentence he had not seen the children for a number of years and this occasioned him distress. He was unemployed for two years before the robbery and in the twelve months preceding it had resorted to alcohol abuse to cope with his depression. 11 The author of the pre-sentence report dated 14 October 1998 concluded as to the applicant: "Mr Dormer presents as a quietly spoken and depressed man who has failed to come to terms with the break down of his first relationship and the subsequent loss of access to his children. He has resorted to alcohol abuse in an effort to relieve his depression with little success. He is in need of professional intervention if he is to come to terms with the above issues. His actions in relation to the offences appear to be out of character and motivated by his great need to see his children. When Mr Dormer is eventually released he will benefit from the supervision and guidance of this Service. Supervision would focus on continued psychiatric/psychological intervention to assist the offender to come to terms with his past relationship and loss of his children." 12 His Honour accepted that at the time the offence was committed the applicant was in arrears of maintenance, had been prevented access to his children and was affected, as described by the author of the report. 13 The applicant was also seen by Mr Peters, psychologist, and he described the applicant as being "a marginalised, isolated and forlorn individual who considers he had very little to live for" . Mr Peters opined that the applicant was suffering from significant depression and thought this had existed for at least several years. Mr Peters also opined in his report: "I would consider when he is released, that probably the only harm he may be is to himself, making his compliance with some regular form of psychotherapy essential." 14 Of course by the time the applicant came to be sentenced he had been in custody for nearly two years six months and there was material before the sentencing judge as to his progress in custody. As to this, his Honour said: "The prisoner has demonstrated, by his conduct so far in the gaol, that he is prepared to work at his rehabilitation and I consider the encouragement of that aim and the need for an extended period of supervision to be special circumstances as well." 15 The sentencing judge assessed the subjective features of this case as being "powerful" but went on to observe that those circumstances "cannot outweigh the objective seriousness of this offence and general deterrence must be an important consideration." 16 I turn now to consider the grounds upon which the applicant seeks to challenge the sentence imposed. 17 As I said earlier, it is submitted that the sentence was manifestly excessive. The judge, in his sentencing remarks, indicated that he proposed to reduce the sentence he would otherwise have imposed, namely a total term of eight years, by twenty-five percent because of the circumstances in which the plea of guilty was made. It was submitted that a head sentence of eight years was too high a starting point and this was so, particularly since no weapon was produced in the robbery and the applicant had spent so long in custody before sentence. Moreover, the applicant's subjective circumstances were found to have been "powerful" . 18 Mr Strickland has addressed the Court concerning what emerged in the evidence as to why the offence was committed as a consideration being upon what was an appropriate starting point for the sentence imposed. Mr Strickland referred to what appears at p 72 of the appeal book, in which there is recorded part of the Ellis interview conducted on the same day as the applicant was arrested. He told the police that he had been through a bad divorce and that he had health problems involving his back and his elbow and that he was desperate to survive. Mr Strickland then referred to the letter of apology which the applicant wrote to the victim in which he set out, not by way of excuse but explanation, what had prompted him in his criminal behaviour. Further, Mr Strickland reminded the Court of what the applicant had said to the Probation and Parole Officer in the passage in the report which I have cited above. This was, Mr Strickland submitted, an offence committed which was out of character. 19 These various considerations the judge called upon to sentence the applicant acknowledged. It is Mr Strickland's submission that they were not given due weight. 20 In Henry (1999) 46 NSWLR 346 this court, in its guideline judgment, indicated a head sentence should generally be between four and five years for an offence under s 97 with certain defined characteristics set out in the judgment of the Chief Justice at para 162. In the present case, it seems to me that the sentencing judge was entitled to regard the offence as being more grave than that contemplated by the guidelines and the Crown has, to my mind properly, identified features which make this case more serious: