REGINA v. SMITH [2001] NSWCCA 152

New South Wales Court of Criminal Appeal

CITATION : REGINA v. SMITH [2001] NSWCCA 152 FILE NUMBER(S) : CCA No. 60759 of 2000 HEARING DATE(S) : Friday 20 April 2001 JUDGMENT DATE : 20 April 2001

PARTIES : REGINA v. SMITH, Adam Benjamin JUDGMENT OF : Handley JA at 1/43; Ipp AJA at 51; Greg James J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/41/0114 LOWER COURT JUDICIAL Moore, DCJ. OFFICER :

COUNSEL : Crown: W.L. Robinson, QC. Resp: A.C. Haesler SOLICITORS : Crown: S.E. O'Connor Resp: D.J. Humphreys CATCHWORDS : Criminal law - appeal against inadequate sentence - inadequacy having regard to short non-parole period and error in failing to specify special circumstances established - adjustment would amount to tinkering - appeal dismissed. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Ellis (1986) 6 NSWLR 603 CASES CITED: Henry & Anor (1999) 46 NSWLR 346 Thomson & Houlton [2000] NSWCCA 309 Pont [2000] NSWCCA 419 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

No. 60759 of 2000 CORAM: HANDLEY, JA. IPP, AJA. GREG JAMES, J.

FRIDAY 20 APRIL 2001

REGINA v. ADAM BENJAMIN SMITH

JUDGMENT

1 HANDLEY, JA: The court will give its judgment in the matter of Smith and I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: This is an appeal by the New South Wales Director of Public Prosecutions against the sentence pronounced by his Honour Judge Moore, a judge of the District Court, on the respondent on a charge of armed robbery with wounding. The ground of appeal assigned to the notice of appeal was that the sentence was manifestly inadequate. 3 The respondent was convicted on his own plea of an offence under s.98 of the Crimes Act 1900, that is robbery with wounding, which offence is punishable by a maximum penalty of 25 years. He was sentenced by the trial judge to imprisonment for three years to commence on 13 October 2000 and a non-parole period of 18 months to expire on 12 April 2002. 4 By reason of the sentence being a sentence of three years or less, the trial judge was constrained by s.50(1) of the Crimes (Sentencing Procedure) Act 1999 to make an order directing the release of the offender on parole at the end of the non-parole period. His Honour did so. 5 The facts found by his Honour as to the commission of the crime were substantially based on a document provided to him for sentence headed, "Full Facts". Those facts disclosed to his Honour a crime of considerable gravity. The offender had in company with another person, while armed with a knife robbed a prostitute, taking from her the monies provided to her for her services and in the process of that robbery she had come to be severely wounded in circumstances to which I will refer in a moment. 6 His Honour acknowledged the maximum sentence of 25 years imprisonment provided by the legislature for the crime, that it was a grave crime and that the effect on the victim was a grave one. 7 The crime had come to be committed when the offender and the other man, whilst drunk, had picked up the prostitute in the other man's car. They had smoked cannabis together with the prostitute and then journeyed to a remote area in the vicinity of Wollongong. The co-offender had sex with her first. He expressed dissatisfaction with the services provided and apparently, by way of reprisal for the asserted inadequacy of the services, sought that the offender, using a knife secreted alongside the seat of the car, should seek to retrieve the money. The offender used the knife for that purpose. He stated it was his intention to scare the victim into giving the money back. 8 The trial judge found that the victim on seeing the knife panicked, kicked at the offender, screamed and struggled with him, and received numerous lacerations from the knife to her hands and arms. She kicked one of the windows out in the struggle. Eventually the offender pulled her from the car and put her on the ground. She was left in that remote location, bleeding profusely. The co-offender disguised the number plate of the car. They left and the co-offender took with him her handbag and its contents. 9 There was evidence before his Honour from the victim of her belief that her life was in danger, that she had been threatened by the knife, even to the point where she thought the offender was trying to slash her with the knife and that she became slashed by the knife. The statement that she provided which was tendered before his Honour included a statement that she became extremely frightened and thought she was going to die. 10 The evidence provided of the extent of her injuries showed that she had suffered superficial cuts on the left foot and left forearm and a serious injury to the right hand, which was so deep as to expose the bone and required repair to cut tendons. 11 Following these events, the identity of the offender could not be established, but in consequence of widespread publicity, an anonymous tip was received. Police discovered the motor vehicle and went to the offender's home. The offender was spoken to at his place of employment and then at that place of employment invited to accompany the police to the police station for interview. 12 Initially, he said, according to the statement provided by Detective Northfield, part of the material provided to his Honour, that he was willing to see the police in the afternoon, but when later that day they approached him, he said that he had been expecting this to happen one day, "It has made me sick every day just thinking about it". He was then arrested. 13 At his interview he recounted the circumstances to which his Honour had referred. He gave an account of what had occurred in terms of his having presented the knife to the victim and then "she would have been pretty scared, she was going, like, pretty berserk as you could imagine". He denied sticking her with the knife in her lower back, but did describe the events in terms which plainly recognised his having put the victim in fear of serious injury, if not her life. 14 His Honour noted that as the tip-off was an anonymous one, there was no evidence against the offender at the time the police first went to speak to him and that as soon as the police arrived he immediately volunteered his guilt and informed the police that he was deeply guilty and remorseful for his actions. 15 His Honour described the record of interview, to which I have referred, as completely inculpating by an absolutely full and frank disclosure of activities which were unlikely otherwise to have been discovered. In this regard, it is noted that the co-offender had been charged and has pleaded not guilty and that the woman was apparently unable to identify the offenders, although she had given descriptions. 16 His Honour found in consequence that the plea of guilty was one for which a substantial discount should be given and that the admissions were of such value that he was required to give attention not only to s.22 of the Crimes (Sentencing Procedure) Act 1999, but to the reduction provided for in s.23, and referred to the decision in Regina v. Ellis (1986) 6 NSWLR 603 with reference to the necessity to extend a substantial degree of leniency. 17 He found the offender to be a young man of excellent character notwithstanding some imperfections certainly of substantial value to the offender when it came to sentence. He had employment and had enjoyed employment prospects on eventual release. He had a young wife and daughter, and they had, after some rejection of him, become supportive. He had on the night in question apparently been, as a consequence of some domestic argument, got himself extremely drunk and vulnerable, so it was said by his Honour, to suggestions by the co-accused. 18 His Honour felt that the use of the knife was itself absolutely impulsive, with no forethought whatsoever. The account given by the offender suggests that what his Honour there was referring to is any forethought independent of the invitation being extended to him by the co-accused to obtain the use of the knife. 19 His Honour referred to the lack of prior planning. I take that to mean the lack of prior planning in contrast with that degree of planning necessary for the performance of the sort of armed robbery that is described in Regina v. Henry & Anor (1999) 46 NSWLR 346 is used to describe. 20 His Honour, when considering the question of general deterrence, was of the view that it was an impulsive crime and it might well be treated as requiring less by way of general deterrence than might otherwise be the case. 21 His Honour was greatly impressed by the subjective case made on behalf of the offender, and by the gallery of supporters. He held:- "He is clearly a young man who would never have contemplated a crime of this nature and although he accepts full responsibility for it, it is something which evolved on impulse after impulse". 22 His Honour accepted that the offender accepted full responsibility and was very genuinely and deeply remorseful. 23 His Honour noted the youth of the offender and the unlikelihood of the offender re-offending, but nonetheless had regard to the necessity that the strong subjective case not cause sight to be lost of the gravity of the crime. He referred to the breach of trust and the vulnerability involved in the victim putting herself in their hands as she had. He referred to the gravely aggravating feature of the use of the knife, and noted the absence of an intent to wound, but qualified that since the offence does not have any element of intentional infliction of wounds. However, rightly in my view, he observed that the use of the knife renders the case more grave because of the risk of injury, the very risk which was accomplished in this case when the victim resisted, and the wounds were inflicted. 24 His Honour referred to the plea of guilty and in that context, apparently by reason of the combination of the matters referred to in s.22 and s.23 decided on a reduction of something like 40%. Although his Honour expressed it as additional to the element I have just mentioned, his Honour appears to be referring to the utilitarian element of the plea as a matter that should be expressed in terms of its significance in that discount, and also referred to the remorse and the saving of the victim from having to give evidence. 25 He noted that the respondent might be at risk within the prison system in consequence of his youth, that he was going to gaol for the first occasion, and the prospect that if it were thought he had provided material against the co-offender, he might well be treated adversely by other prisoners. 26 His Honour accompanied the sentence by recommendations that the offender be classified urgently and that he be classified to minimum security. 27 It is apparent that the sentences passed by his Honour involve a variation of the statutory proportions referred to in s.44(2) of the Crimes (Sentencing Procedure) Act 1999. That subsection provides:- "The non-parole period must not be less than three quarters of the term of the sentence unless the court decides there are special circumstances ... in which case the court must make a record of its reasons for that decision." 28 At the close of his Honour's remarks counsel for the respondent drew to his Honour's attention the necessity to refer to special circumstances, and his Honour said:- "The special circumstances have been expressed at length in my reasons."