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: (i) the offence was one under s 97(2) and two weapons were carried, one of which was a loaded pistol. I do not ignore, in considering this feature of the case, the point made by Mr Strickland that the weapons were not used and that the victim was not put in fear by either weapon being brandished and, in particular, by the pistol not being brandished; (ii) there was planning and premeditation; (iii) the offence was one which was carried out in company; (iv) whilst no weapon was used, violence was used. The victim was struck to the back of the neck and thrown to the ground where the bag was ripped from her; (v) the victim was a woman whose responsibilities in doing the banking rendered her vulnerable; (vi) the victim was traumatised by the attack; (vii) a considerable amount of money was taken. 21 The period that the applicant was in custody before sentence was indeed lengthy and, Mr Strickland has adverted to this as being a matter appropriate for consideration by the judge in determining the starting point. This was a matter of significance because it impacted on the applicant's progress in the prison system. That has been referred to in an affidavit affirmed by the applicant on 20 June 2001 and considered by this Court. No doubt an explanation for the delay in sentencing was that it was thought that the outcome of the other charges pending against the applicant ought to be determined before the applicant was sentenced for this armed robbery. Nonetheless, the circumstances of his detention up to the time of sentencing was a consideration for his Honour to weigh. 22 The sentencing judge was well aware of those circumstances because of the evidence that was placed before him by the applicant. This included the applicant's oral evidence and evidence as to his participation in a number of courses. Evidence before the judge was that the applicant was a low risk inmate in the prison system and was favourably regarded. I do not see any reason to believe that the judge did not weigh the relevance of the lengthy period in remand and, of course, his Honour properly backdated the sentence in recognition of the remand period. 23 The discount which the judge expressed as being given was a discount, in his Honour's language, "because of the circumstances in which the plea of guilty was made." Before expressing that discount his Honour had reviewed all the subjective features of the case, including the evidence as to the applicant's contrition. Viewed in context, the discount expressed is correctly to be viewed as including recognition of the applicant's contrition. 24 The sentence imposed was a stern one but this was a very serious crime. The proceedings in this Court are not by way of re-hearing but to correct error. It seems to me that it cannot be said that the total sentence determined by his Honour was outside the properly available range. The submission that eight years as a starting point for a head sentence was excessive cannot, in my view, be sustained. 25 The applicant makes the further submission though that the judge should have structured the sentence so as to have afforded a more lengthy parole period. 26 The judge found special circumstances in recognition of the applicant's age and that this was to be the applicant's first custodial sentence. The judge regarded the applicant's rehabilitation prospects as favourable; hence the sentence was structured to afford a possible period of two years on parole. Nevertheless, it is submitted that the longstanding problems of depression and alcohol abuse should have resulted in the provision of a more lengthy parole period. Mr Strickland drew upon the evidence of the psychologist and the evidence to be found, indeed, in the report of the Probation and Parole Officer. 27 What non-parole period was fixed by the judge and how the sentence was structured involved the exercise of a discretion. It does not seem to me that any error has been demonstrated in the exercise of that discretion. 28 It was open to his Honour to find that a period of two years afforded adequate provision for such supervision as would be necessary in the applicant's case. There was no evidence before the judge opining that a longer period was required. That it was open to his Honour to settle on two years, it seems to me, is particularly so when the evidence did not indicate the probability of the applicant re-offending, and also bearing in mind how the applicant had progressed in his time in custody and the evidence that the judge had before him. 29 For those reasons, I detect no error warranting the intervention of this Court. I would grant leave to appeal but I propose that the appeal be dismissed. 30 McCLELLAN J: I agree. 31 STUDDERT J: The orders of the Court will be, therefore, 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. 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