R v ROBERTSON [2001] NSWCCA 95

New South Wales Court of Criminal Appeal

CITATION : R v ROBERTSON [2001] NSWCCA 95 FILE NUMBER(S) : CCA 60839/99 HEARING DATE(S) : 23/03/2001 JUDGMENT DATE : 28 March 2001

PARTIES : REGINA v Troy Robert ROBERTSON JUDGMENT OF : Studdert J at 1; Barr J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0003 LOWER COURT JUDICIAL Woods QC DCJ OFFICER :

COUNSEL : Crown: WL Robinson QC Applicant: CB Craigie SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60839/99

STUDDERT J BARR J

Wednesday, 28 March 2001 REGINA v Troy Robert ROBERTSON JUDGMENT

1 STUDDERT J: I agree with Barr J. 2 BARR J: Troy Robert Robertson seeks leave to appeal against sentences imposed upon him in the District Court by Woods QC DCJ. He and a co-offender, Warren William Kilroy, each pleaded guilty before his Honour to four counts concerning a series of robberies in which they were engaged. Both offenders were engaged in the robberies, though they were charged somewhat differently in relation to one of them. In addition, each faced one charge which was not laid against the other. 3 All the offences were committed over a period of two days in June 1998. At 11am on 11 June they approached Mr Donald de Maria, a sixty-six year old pensioner, in a car park toilet in Penrith. Kilroy pushed him and the applicant caught him in a headlock. The applicant had a pen in his hand and told Mr de Maria not to scream, that they wanted his wallet. The pen cut Mr de Maria's neck and the applicant punched him on the forehead. They stole his wallet, which contained money, a driver's licence, a pension card and some other cards. 4 At 5.10am on the following day they waited in the car park at Mt Druitt railway station. Mr Oscar Ravasia took his car there, intending to park it and take the train to work. The applicant and Kilroy spoke to him on a pretext. There was a young person with them as well, who took part in the attack. The applicant punched Mr Ravasia in the head and Kilroy struck him on the head with a car locking device. They stole Mr Ravasia's wallet and drove away in a stolen vehicle. 5 Mr Ravasia was very badly hurt. He was taken to Mt Druitt Hospital with severe head injuries. From there he was taken to Westmead Hospital. He spent six months in hospital and two months in rehabilitation after his discharge. He underwent many operations on his head. At the time of sentence he was awaiting an operation which would replace a piece of bone on the left side of the skull. 6 Kilroy was charged with robbery in company causing grievous bodily harm because he was the one who swung the car lock and injured Mr Ravasia. The applicant was charged only with robbery in company, and that was because the Crown accepted that it could not show that he contemplated the use of such an instrument in the attack. 7 About an hour later the car stopped in Blaxland. While Robertson waited in the car Kilroy and the other attacked a sixty year old woman, Mrs Zoglemeyer, who was walking in the street. They took hold of her and threw her to the ground. They took her bags and ran back to the car and drove off. The applicant was not charged with that offence. 8 At about half past seven the car stopped near a thirteen year old boy, Thomas Walton, who was walking to the bus stop on his way to school. The applicant got out, holding a knife, and demanded the boy's jacket. He handed it over, the applicant took it, returned to the car and drove away. Kilroy was not charged with that offence. 9 Both were charged over the final offence, which took place just after 8 o'clock at Glenbrook. The car stopped behind Mr Robert Byrne, who was walking in the street. Robertson got out, armed with a butcher's knife, and Kilroy, armed with the car lock. They approached Mr Byrne and took his wallet. 10 The offences against Mr de Maria, Mr Ravasia and Mr Byrne were all charged as robbery in company. The offence against Mr Walton was charged as robbery whilst armed. 11 Some important offences were taken into account by his Honour under the provisions of the Crimes (Sentencing Procedure) Act. The first concerned the theft of the car which the three used to carry out their offences. The second, accessory after the fact to robbery in company, concerned the applicant's assisting the other two by driving them away after they had robbed Mr John Hodge, a sixty year old man, of his personal things at St Marys at about 5.15am on 12 June. The next concerned the robbery by the applicant in the company of the other two of Mr Hassan at about 5.45am on 12 June at Werrington. His bag containing personal items was stolen. The next concerned the robbery in the company of the other two of Mr Moreno at about 6.10am on 12 June. His money and personal things were stolen. The next was described as being a principal in the second degree to an assault with intent to rob. At about 6.25am on 12 June the applicant drove the car close to Mr Townsend, who was sixty-two years of age, as he was waiting at a bus stop in Blaxland. Kilroy made him hand over his wallet on the threat of striking him with a baseball bat. Mr Townsend walked away but Kilroy followed him and swung the bat, hitting him on the finger. Mr Townsend was lucky enough to get away. 12 The next matter concerned the part played by the applicant after the robbery of Mrs Zoglemeyer, driving Kilroy and the other away from the scene. 13 The last matter, demanding property with menaces, concerned an incident in which the three surrounded a seventy-nine year old man, Mr Ian Johnstone, at Woodford. One of them asked him for his wallet. Luckily a car pulled up alongside and the applicant and his companions drove off. 14 His Honour first imposed sentence on the second count, which contemplated the attack on Mr Ravasia. Taking into account the seven matters I have summarised, his Honour sentenced the applicant to a fixed term of four years' imprisonment commencing on 12 June 1998 and expiring on 11 June 2002. For each of the other three counts his Honour sentenced the applicant to imprisonment for four and a half years, accumulated upon the fixed term, comprising a minimum term of two years and an additional term of two and one-half years. The total effective head sentence was therefore eight and one-half years with a minimum term of six years and an additional term of two and a half years. 15 The matters taken into account for Kilroy were seven in number and similar to those applying to the applicant. As with the applicant, his Honour took them into account on the count concerning the attack on Mr Ravasia. For that offence his Honour imposed on Kilroy a fixed term of four and one-half years. The sentences on the remaining counts were identical to those passed on the applicant. The result was that Kilroy became subject to sentences which totalled a minimum term of six and one-half years and an additional term of two and a half years. The effective head sentence was nine years. 16 It was submitted on appeal that his Honour erred in failing to have sufficient regard to the applicant's plea of guilty in relation to the assault on Mr Ravasia. Mr Ravasia could describe his assailants but, it was submitted, his descriptions would not have identified the applicant. He did not see the car they were using. Although the link between the applicant and the stolen car was provided by identification in the other attacks, it would not have been sufficient to convict the applicant over the attack on Mr Ravasia. During an interview with the police, however, the applicant implicated not only himself but also Kilroy and the juvenile. If he had remained silent at that stage, it was submitted, there would have been no case against him. So it was that his attitude when spoken to by the police and his plea of guilty, which was consistent with it, was particularly valuable. 17 This submission overlooks the facts that in sentencing the applicant on the count concerning Mr Ravasia his Honour was taking into account the applicant's criminality on each of the seven other offences he committed, on each of which the Crown had a substantial case against him. 18 In a detailed and careful judgment his Honour acknowledged the applicant's pleas of guilty. It does not appear to me, from the resulting sentence of four years to reflect the seriousness of the eight offences that his Honour was considering, that his Honour made inadequate provision for the plea of guilty. 19 The next submission was that the applicant had a justifiable sense of grievance because of the small difference between the sentence he received on the count concerning Mr Ravasia and that which was imposed upon Kilroy. Kilroy was charged with an offence which carried a maximum penalty of twenty-five years, whereas that applicable to the offence to which the applicant pleaded guilty was only twenty years. The applicant knew nothing of Kilroy's intention to use the car lock. Kilroy alone was responsible for the shocking injuries received by Mr Ravasia. 20 Again, this submission overlooked the criminality his Honour was required to regard in taking into account the other offences when sentencing on this count. The applicant might have been able to put a strong submission if his Honour had been sentencing for the Ravasia count alone. A difference as little as six months might then have appeared significant. But the additional criminality for his part in that attack became much less significant when the total criminality of both offenders came to be considered. 21 I do not think that the difference between the sentences imposed upon the count in question was so little as to be able to engender in the applicant a justifiable sense of grievance. 22 Then it was submitted that the accumulation of the sentences had produced an overall term that was too long in view of the applicant's youth and prospects of rehabilitation and other subjective matters. The applicant was born on 7 August 1978 and was almost twenty years old at the time of the offences and twenty-one years old when sentenced. His sentences commenced from the date of his arrest but he had only finished serving a term of twelve months' imprisonment about four months earlier, on 20 February 1998. One effect of the sentences was therefore that but for a period of about four months the applicant would have to serve a continuous period of seven years' imprisonment, stretching over the last of his years as a youth and the first few of his adult years. 23 The applicant was contrite and had been so from the time of his arrest. A pre-sentence report showed that he had a strong and supportive family network available. He had struggled with an addiction to drugs for years. He had been ejected from his de facto's house the day before these offences were committed. He gave evidence of steps taken towards rehabilitation whilst in prison by taking anger management courses and drug and alcohol courses. He told his Honour that he had become converted to Christianity and that his ambition upon release was to work at a Christian Life Centre and help young people not to make the mistakes he had made with drugs. 24 The applicant's criminal record showed that he had for a number of years been committing the kinds of property offences generally associated with those who resort to crime in order to fund a drug habit. In 1996 he was before the Children's Court on a charge of robbery and six other charges of breaking, entering and stealing, receiving, having goods in his custody and the like, as well as other offences concerning assault and driving. He had the benefit of a six-month control order. In 1997 he was imprisoned for a minimum term of six months on two counts of breaking, entering and stealing and on a number of other offences. During the same year he was imprisoned for a total of twelve months for several offences, including breaking and entering, and possessing housebreaking implements. 25 The pre-sentence report described something of the applicant's domestic and court history. It summarised his disturbed childhood and the difficulties he encountered from an abusive, violent father. He left home at the age of sixteen years and lived with a grandmother for a few months before beginning to reside with friends and "on the street" until he was eighteen. Then he began to live in a de facto relationship. Although he kept occasional contact with his mother he ceased contact with his father. 26 His mother remarried in 1997 and the applicant, according to the report, had a good relationship with his step-father. He was close to his mother and sisters and maintained regular contact with them. His de facto wife was considered supportive as well. 27 The report concluded that the applicant appeared to be surrounded by "a large support network" and appeared to take responsibility and show remorse for his actions. 28 All these matters were put before his Honour, who expressly noted the applicant's difficult history and the poor start he had had in life as a result of his father's activities. His Honour considered that those matters justified the fixing of an additional term that exceeded one-third of the effective minimum term, and that was the result achieved. 29 It was submitted on appeal that his Honour erred in view of all those matters in sentencing the applicant to such a long head sentence and such a long effective minimum term. 30 It does not seem to me that the effective head sentence was outside the range of his Honour's discretion. It does not seem to me that the two and one-half years that the applicant will have subject to supervision on parole at the expiry of the minimum term will be insufficient to allow the supervision the applicant needs if he is to take responsibility for his own actions. 31 I do not think that error has been demonstrated on his Honour's part. 32 I would grant leave to appeal but would dismiss the appeal. **********