REGINA v WALTERS [2001] NSWCCA 265

New South Wales Court of Criminal Appeal

CITATION : REGINA v WALTERS [2001] NSWCCA 265 FILE NUMBER(S) : CCA 60065/01 HEARING DATE(S) : 4 July 2001 JUDGMENT DATE : 4 July 2001

PARTIES : The Crown Tyler Jay Walters ( Appl) JUDGMENT OF : Studdert J at 22; McClellan J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0241 LOWER COURT JUDICIAL Coleman DCJ OFFICER :

COUNSEL : D Woodburne (Crown) P M Winch (Appl) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appl) CATCHWORDS : SENTENCING - Appeal against sentence - whether the sentencing judge failed to give sufficient weight to the applicant's inability to obtain methadone - s 100 Crimes Act 1900 - letters demanding money with menaces - significant level of criminality LEGISLATION CITED : Crimes Act 1900 ss 99, 100, 117 CASES CITED: R v Henry (1999) 46 NSWLR 346 DECISION : Leave to appeal granted but appeal refused

IN THE COURT OF

CRIMINAL APPEAL

No 60065/01

STUDDERT J McCLELLAN J

WEDNESDAY, 4 JULY 2001

REGINA v Tyler Joy WALTERS

JUDGMENT

1 McCLELLAN J: On 22 June 2000 the applicant pleaded guilty to a charge of by letter demanding money with menaces contrary s 100 of the Crimes Act 1900. The maximum penalty is imprisonment for a term of ten years. 2 The offence occurred on 23 February 200. Having pleaded guilty the applicant came before his Honour Judge Coleman for sentence on 28 July 2000. On that occasion the applicant asked his Honour to take into account four other offences. The offences comprised two shop lifting matters, interference with a pay telephone and the larceny of a mobile phone. The latter offence allegedly occurred when the applicant was in custody and took a mobile phone from a police pigeon hole in the Transit Police office at Gosford railway station. The maximum penalty for each of the three offences of larceny contrary to s 117 of the Crimes Act 1900 is imprisonment for five years. 3 The offence of by letter demanding money with menaces occurred after the applicant was released from the Cessnock Correctional Centre on 24 January 2000. Whilst in the Correctional Centre the applicant had commenced a methadone reduction program and was still on this program when he was released. However, the program was not successful and he again lapsed into a heroin addiction and, needing money to fuel his habit, committed the offence. 4 His Honour found that the offence occurred with minimal planning and was committed on an impulse. He was with a friend and, after driving around the Gosford area without finding anything to steal, it was determined that they would go into a bank, hand over a note and demand money. The applicant did not reveal the name of his accomplice to the police although it is apparent that the police were aware of his identity. 5 The applicant entered the National Australia Bank in Erina, walked to the counter and passed over a note to a trainee teller. The note was written on a TAB ticket which read: "Give me all the money in the drawers because you won't like what I have in my bag." The teller said: "Sorry?" The applicant then said: "All the money", adding after a pause "In the bag". The applicant then took his back pack from his left shoulder, put it on the counter, unzipped it and started to put his hand into the bag. 6 The teller, believing the applicant was armed, realised the matter was serious and activated the safety screen. Security cameras were also activated and the applicant's image was captured on film. 7 Coleman DCJ concluded that the matter was a serious offence committed for the purpose of the applicant obtaining money to feed his heroin addiction. He described the impact of the offence upon the bank teller. The teller involved in the incident became confused and suffered shock. She believed the applicant had a gun and feared for her life. She was left shaking and vomited after the incident, being initially unable to give a statement to the police. 8 When considering matters relevant to the sentence his Honour identified the fact that the applicant cooperated with the police and admitted his guilt. Furthermore, he pleaded guilty at the first available opportunity. His Honour also identified the fact that the applicant's contrition entitled him to credit. 9 His Honour also had regard to the fact that the applicant, being born on 21 August 1973 is now almost twenty-eight years old. He has a lengthy criminal history with a long period of poly drug abuse and relapse. There is also some evidence that the applicant has mental health problems, was uncontrollable in childhood and did not cope very well with every day life. The evidence indicates that minor issues can upset him and lead to a violent reaction. He also has some difficulties with his memory. 10 The judge also had regard to the record of the applicant. It is a poor one. He was first before the Children's Court in 1989 when he was sixteen where he was dealt with on several occasions and placed on probation orders. His first court appearance as an adult occurred in September 1992. He has received a full time custodial sentence of three months followed by a further custodial sentence in 1998 for a term of six months. He was again sentenced to a full custodial term of five months on 25 August 1999. It was that sentence from which he had been released shortly before the current offences took place. 11 His Honour had regard to the applicant's drug addiction as relevant to the applicant's background. However, he made plain that the addiction does not entitle the applicant to any leniency. He also had regard to the fact that the applicant, when in prison, was on a methadone reduction program which he had been successfully following. However, upon his release he was referred to a local drug service which was not able to assist him when it became clear that his methadone reduction program was too sudden. The clinic, for proper reason, was unable to refer him to another methadone prescriber and accordingly the methadone program broke down and the applicant returned to a dependence upon heroin. 12 His Honour sentenced the applicant to a term of three years with a non parole period of two years to date from the date of sentence being 28 July 2000. 13 The applicant, being out of time, seeks leave to appeal against the sentence. Apparently the delay in the appeal is explained by the fact that he originally intended to appeal but was persuaded by his then solicitor that such a course may not be prudent. 14 He submits that the sentence imposed was manifestly excessive. It is submitted that the sentencing judge failed to give sufficient weight to the applicant's inability to obtain methadone between 13 February 2000 and 23 March 2000 which was the period during which all but one of the offences for which he was dealt with occurred. The last offence, occurring on 5 April 2000, was within two weeks of the recommencement of the methadone program. 15 It is submitted that although his Honour had regard to the fact that it was reported by the Central Coast Health Service that the applicant had, since recommencing methadone maintenance, "Stabilised to a great extent" and had made steady progress, his Honour should have given greater weight to these matters. 16 Sentencing in the present circumstances was comprehensively considered by this Court in R v Henry (1999) 46 NSWLR 346. It was stated in that case that although drug addiction is a circumstance relevant to the sentencing exercise it is not of itself a mitigating factor. The relevant principles are contained within the judgment of Wood CJ at CL at p 397 para 273. 17 The submission in the present case is that the full time custodial period is in the middle of the appropriate range and the non parole period at the top. Complaint is particularly made about the non parole period which was imposed. It is submitted that the relevant statistics for armed robbery or robbery in company since the decision in Henry show that for all offences a two year non parole period or less was imposed in 57% of cases. Accordingly, it is submitted that the non parole period imposed upon the applicant would have been in the middle of the range for the more serious charge and accordingly was excessive in the present case. 18 In my opinion the approach which Coleman DCJ took the applicant's sentence was appropriate and no error is revealed. His Honour had regard to the applicant's early plea and cooperation with the authorities and his contrition. Although the applicant's addiction to heroin was obviously a relevant matter his Honour acknowledged that fact when indicating that the offence was committed while the applicant was in an unstable state due to the failure of the methadone program. His Honour carefully considered the circumstances of the applicant's release without access to appropriate methadone treatment and his resort thereafter to heroin. His Honour also took into account that the applicant had shown a willingness to participate in the methadone program and to seek rehabilitation for his drug habits. Indeed, it was for these reasons that his Honour concluded that the applicant will benefit from an extended period of supervision. 19 In my opinion the level of criminality in the present case was significant. It required a sentence which recognised the serious nature of the offence which was committed involving a bank officer who was terrified and placed in fear for her life. Although the attempt to obtain money did not succeed it was only because of the security features in place. To these matters must be added the applicant's long history of offences and failure to abstain from offending during periods of conditional release. 20 Reference was made by counsel for the applicant to the statistics in relation to armed robbery which, it was submitted, showed that the non parole period imposed would have been appropriate for an armed robbery but not the present offence. However, the circumstances of the present offence had an impact upon the teller consistent with an armed robbery and involve a greater degree of criminality than may be present in many offences committed contrary to ss 99 or 100 of the Act. 21 In my opinion the sentence imposed, including the non parole period, was well within the discretion of the sentencing judge and there is no reason for this Court to intervene. I propose that leave to appeal should be granted but the appeal should be refused. 22 STUDDERT J: I agree. The orders of the court therefore will be those proposed by Justice McClellan. ******