Regina v Ward [2001] NSWCCA 141

New South Wales Court of Criminal Appeal

CITATION : Regina v Ward [2001] NSWCCA 141 FILE NUMBER(S) : CCA 60417/00 HEARING DATE(S) : 6/4/01 JUDGMENT DATE : 6 April 2001

PARTIES : REGINA v KEITH JOHN WARD JUDGMENT OF : O'Keefe J at 1, 22; Smart AJ at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/61/0205 LOWER COURT JUDICIAL Woods DCJ OFFICER :

COUNSEL : Mr G E Smith - for Crown Mr M Thangaraj - for applicant SOLICITORS : S E O'Connor - for Crown D J Humphreys - for Applicant CATCHWORDS : Robbery - Appeal against sentence - Elderly female pensioner - Targetting victim - Planning of robbery - Effect of drug addiction on sentence - Rehabilitation CASES CITED: R v Henry (1999) 46 NSWLR 346 DECISION : Leave to appeal refused.

IN THE COURT OF CRIMINAL APPEAL

No: 60417/00

O'KEEFE J SMART AJ

Friday, 6 April 2001

REGINA v KEITH JOHN WARD

JUDGMENT

1 O'KEEFE J: Keith John Ward, the applicant, seeks leave to appeal against the severity of a sentence of imprisonment for three and a half years with a non-parole period of two years in respect of a charge of robbery. In fixing a non-parole period of two years, the District Court Judge, ("the judge") found special circumstances in that the applicant was a heroin addict and a longer period of supervision on parole than that provided by the statutory ratio was appropriate. 2 The circumstances which gave rise to the charge against the applicant were that on 13 September 1999 he robbed a 74-year-old female pensioner who was walking along a public street in Wellington having just completed her shopping. She was carrying a straw basket in her left hand and as she passed the gates of a local school the applicant ran up from behind her and attempted to snatch her bag. Despite her age, she did not give it up. Notwithstanding that, the applicant persisted in his endeavours to drag the bag out of her grasp. She continued to hold on to it. In the struggle of pulling by him and her attempts to hold on to it, the laws of physics resulted in her falling to the ground. Prior to this, she had been threatened by the applicant because of her tenacity in trying to retain her basket and its contents "Let it go or I'll kick you in the head", said the applicant. She held on and it was after this that she went down to the ground, in the course of the struggle between her and the applicant. 3 While she was on the ground, the applicant lent over her, grabbed her wallet from the basket and said, "Got it." As might be expected for a pensioner, the contents of the wallet were fairly meagre. They were, nonetheless, taken by the applicant in order, as he said in his evidence, to satisfy his heroin addiction on which he was spending up to $150 per day. 4 The actions of the applicant were callous and cowardly. He conceded that the victim was old enough to be his grandmother. Although he claims not to have noted her age until he came up beside her, he could not have but noted it in the struggle that ensued after his first unsuccessful attempt to snatch the elderly lady's bag. Notwithstanding this, he persisted in his actions and finally, whilst she lay on the ground, he took her wallet. That he recognised that his victim was elderly was conceded in his cross-examination: "Q. This lady was of some age. Did you realise that at the time? A. No, not until I got right up beside her." 5 This clearly admits that at least from that time he was aware of her age and the judge was entitled to reject his evidence that he was unaware of her age prior to that time. Furthermore, in later cross-examination, he conceded that he was aware of her age prior to drawing level with her. His claim then was not that he was unaware that the lady was old, but rather that he was not aware exactly how old she was: "Q. Sir, it must have been obvious to you as she walked down the street with her shopping bag that she was an elderly lady? A. Well, I suppose she looked a bit elderly, but I didn't know she was that old. Q. She looked a bit elderly? A. Yes, but not that old as she was." 6 When regard is had to other sections of his evidence, it is, in my opinion, a proper matter for conclusion, as the District Court Judge concluded, that the applicant was hanging out, was looking for somebody from whom to steal because, as he said, "I needed to have money to have a fix". Who better than an elderly lady to provide such money? 7 In my opinion, there was ample evidence on which the judge could properly conclude that the applicant targeted his victim because she was female, because she was elderly, and because she was alone, in short, that he thought she was an easy mark. 8 On behalf of the applicant, it has been submitted that the judge erred in saying that the victim fell to the ground as a result of the pushing of the offender. It seems to me likely that the word "pushed" should really be understood in the sense of pulled. It is either a mistype or alternatively a wrong word used by the judge. In any event, read in context, I do not think that it reveals any error. The judge correctly set out what occurred as the incident between the applicant and his victim. Furthermore, the pulling one way and the other is clearly associated by the judge with the fall to the ground by the victim, such pulling and re-pulling being the cause. 9 The nature of the event was callous and cowardly and before any reference was made to "pushing" the Judge had already concluded that the offence was "very grave," as indeed it was. I do not think this ground has substance. 10 The second argument was that the judge erred in finding that the victim was targeted and that there was some degree of planning involved. Whilst the applicant denied this, there was ample evidence on which the judge could reject his evidence. I have already referred to the change of story in relation to his knowledge of the age of the victim. Another example of the unacceptability of his evidence is to be found in his attempted explanation as to why he discarded his clothing after he had decamped from the scene. His story was that he took his tracksuit and jumper off because he was hot from running, not because he wanted to disguise himself. Yet another example is in his evidence of denial of taking the lady's wallet, whereas later he told the police exactly where to find the wallet. These are but examples of the untruthfulness and unacceptability of the applicant's evidence, which was clearly rejected by the judge. 11 Furthermore, it was open to the judge to conclude that the applicant was waiting around because he needed money for a fix and in the hope that he would find someone who would provide or would be a source of that money. He saw the applicant. He saw the possibility of getting money from her. So he adopted a means of getting it by grabbing the victim's bag from a place and in a manner which was less likely to result in his being identified than would have been the case had there been open confrontation. This, as the District Court Judge correctly indicated, was indicative of some, albeit not a high degree, of planning. 12 Furthermore, his modus operandi namely that of coming swiftly from behind is consistent with his thinking out how best to achieve his objective without being identified, reinforces the conclusion to which I have already referred. All of this is sufficient for the judge to conclude as he did, that there was short, quick, limited planning of how he could rob somebody in order to get money to feed his drug habit. 13 The next ground argued was that the judge failed to consider the unpaid community work that the applicant had engaged in. On any view of this evidence, it was of minor importance, readily able to be comprehended within the statement that the judge made, namely that he took into account "the other matters urged on the applicant's behalf by his counsel". In my opinion, this ground fails also. 14 The next ground relied upon was that an inappropriate use had been made of R v Henry (1999) 46 NSWLR 346. The reference to Henry was in the context of the ways in which sentencing courts may approach the fact of drug addiction. One way is that it may indicate that the crime was not as carefully planned as might otherwise be the case because the mind of the addict was affected by drugs. 15 Having considered this aspect of Henry, the judge formed the view that it did not apply. He instanced that the applicant was sufficiently thoughtful to have changed his clothes "in a lame attempt to avoid detection". Since this occurred virtually contemporaneously with the robbery, it indicates that the state of mind of the applicant was sufficiently astute to know that he needed to avoid detection as it had been sufficiently astute for him to recognise that he should approach from the rear, act quickly and get away quickly so that he would not be recognised. These matters clearly indicate a rejection by the judge of the applicant's evidence about the reason for changing his clothing and as to the way in which he identified, or failed to identify, his victim. 16 It is confirmatory of the positing that arose out of the rejection by the judge of the applicant's negation of planning or targeting. The judge thought and there was evidence to found a conclusion that the offence "was not extensively planned, but it was certainly planned". This is consistent with the statement by Woods CJ in Henry. No error is demonstrated in the use made of R v Henry by the judge, or in the reference made by him to it. Such reference was appropriate. This ground fails. 17 The final ground argued was that the judge erred in failing to give sufficient weight to the rehabilitation of the applicant. This is inconsistent with the attention which he gave to that aspect of the evidence in his Reasons for Sentence. He accepted the evidence of Mr Creen that there had been some rehabilitation and that from being a man who could not be trusted the applicant had become a man who could be trusted. However, the judge did not accept, and he was entitled not to accept, that there had been full rehabilitation of the applicant. Having regard to the length of time the applicant had been addicted to heroin, his criminal history in the course of that addiction and the rate of recidivism among heroin users, the judge extended the period of parole so that the applicant would be given an opportunity for his rehabilitation to become more complete. He clearly considered rehabilitation as a factor in relation to the determination of the sentence imposed. In my opinion, no error is demonstrated in this regard and, as a consequence, this ground fails. 18 If one approaches the matter on a more general basis and regard is had to the objective facts involved in the crime, including the age, sex and situation of the victim, the sentence imposed clearly gives adequate allowance in favour of the applicant for the factors on which he was entitled to rely, for example, and not limited to, his plea of guilty and his attempts at rehabilitation. 19 Furthermore, the sentence clearly marks out the community's disapproval for behaviour of the kind engaged in by the applicant. In my opinion, no error is disclosed in the reasons for sentence. The sentence imposed was within the parameters appropriate to a case of such a kind, a kind for which the Court should, by its sentence, show its and the community's strongest disapprobation. 20 I would propose that leave to appeal be refused. 21 SMART AJ: I agree. 22 O'KEEFE J: The order of the Court will be that leave to appeal is refused. **********