Regina v West [2001] NSWCCA 26

New South Wales Court of Criminal Appeal

CITATION : Regina v West [2001] NSWCCA 26 FILE NUMBER(S) : CCA 60581/99 HEARING DATE(S) : 14/02/01 JUDGMENT DATE : 14 February 2001

PARTIES : Regina v Ian John West JUDGMENT OF : James J at 32; Whealy J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0700 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : M. C. Marien - Crown M. G. Pincott - Applicant S. E. O'Connor - DPP SOLICITORS : Sydney Regional Aboriginal Corporation Legal Service - Applicant

LEGISLATION CITED : Crimes Act 1900 Lowe v R (1984) 154 CLR 618 CASES CITED: Lovelock v R (1978) 33 FLR 132 Cross v McHugh (1974) 1 NSWLR 501 at 503 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT

OF CRIMINAL APPEAL

60581/99

JAMES J WHEALY J

WEDNESDAY 14 February 2001

REGINA v Ian John WEST

JUDGMENT

1 JAMES J: The Court is able to give a decision. I call on Whealy J to give the first judgment. 2 WHEALY J: This is an application for leave to appeal against sentences imposed by Kinchington DCJ on 9 September 1999. The applicant, Ian John West, had, on 24 June pleaded guilty to one count of robbery (Crimes Act s 94) and one count of maliciously inflicting grievous bodily harm (Crimes Act s 35). The first charge carries a maximum penalty of fourteen years imprisonment, the second carries a maximum penalty of seven years imprisonment. 3 His Honour passed the following sentences on the applicant and his co-offender. In respect of the robbery, imprisonment for seven and a half years with a minimum term of four and a half years commencing on 7 July 1998 and an additional term of three years; In respect of maliciously inflicting grievous bodily harm, a fixed term of imprisonment of four years was imposed. 4 The facts of the matter were these. A Mr Moskwa was walking in a westerly direction in Brougham Lane, Kings Cross, on 26 April 1998, after having purchased four cans of Victoria Bitter beer from a liquor store in Darlinghurst Road. 5 As he reached the intersection of Brougham Lane and Brougham Street, he was approached by the two co-offenders. Both men punched the victim a number of times to the head, causing him to fall to the ground. While he was lying on the ground, the two men kicked the victim a number of times to the head and body. 6 They took the four cans of Victoria Bitter beer from him and a set of keys, before they ran away. The victim was conveyed to St Vincent's Hospital and was initially treated for a closed head injury. His condition deteriorated, however, and he was subsequently treated for a fracture to his skull. He was found to have signs of impending brain death at the time his operation commenced. Eventually the operation stabilised his condition and he was subsequently discharged from St Vincent's Hospital. 7 The applicant's co-offender, Raymond Green, was arrested on 4 May 1998. The applicant himself was arrested on 7 July 1998. Both men were refused bail and remained in custody until they were sentenced. 8 His Honour gave close consideration to the subjective circumstances of each of the co-offenders. The applicant, at the time of sentence, was thirty-two. He had a long criminal history, going back to 1981. He had many convictions for crimes of dishonesty, including prior convictions for robbery and steal from the person, and convictions as well for assault and malicious damage. He had been sentenced to imprisonment on many occasions. 9 The applicant is an Aborigine and came from a dysfunctional family. He was born in Coonamble. His father, who was an alcoholic, died when he was sixteen. It fell to the applicant's mother to raise eight children and to do the best she could in relation to them. The applicant himself grew up in Redfern. He went to school in the area, but was expelled from school and became involved with gangs in the area. He quickly became involved in crime and was committed to a juvenile institution at an early age. His behaviour improved, however, after he was released from gaol in about 1996, although he was convicted of an assault in 1998 and sustained PCA and driving offences against himself in May and June 1998. 10 The applicant had five children to his first partner, although he had not seen them for many years. He had no relationship with their mother for a long time. At the time of the offences in question his then de facto partner had given birth to a son. She was an alcoholic, however, and this relationship came to an end when the applicant went into custody. 11 The applicant does not have an ongoing drink or drug problem, although he was, like his co-offender, well affected by alcohol at the time of the subject offences. It seems that the applicant's behaviour in custody since the time of his arrest has shown some prospects towards his rehabilitation. The applicant became actively involved in Aboriginal issues within the prison environment. He co-operated with the gaol authorities in providing support for his fellow Aborigines. He had generally been of great assistance in this regard to those running the gaol, and for his efforts in this regard he received a number of commendations from the authorities, which were before his Honour. He had successfully completed courses in literacy and in connection with the Aboriginal mentor training program. He attended a number of drug and alcohol counselling sessions. 12 Again, details of these matters were before his Honour. As to this his Honour said: "From all the material placed before me during the sentencing process it seems to me that the offender has for the first time in his life some vision for the future as he has recently expressed to the officer from the Probation Service his desire to 'eventually become a field officer for juvenile Aboriginal offenders' and it would seem from his recent efforts while in custody he may have the necessary attributes to fulfil this ambition, provided of course this is a genuine expression of what he hopes to achieve in the future."