REGINA v. RUDENKO [2001] NSWCCA 519

New South Wales Court of Criminal Appeal

CITATION : REGINA v. RUDENKO [2001] NSWCCA 519 FILE NUMBER(S) : CCA No. 60807 of 2000 HEARING DATE(S) : Wednesday 12 December 2001 JUDGMENT DATE : 12 December 2001

PARTIES : REGINA v. RUDENKO, Michael Shane JUDGMENT OF : Greg James J at 1; Bell J at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0748 LOWER COURT JUDICIAL P.R. Bell, DCJ. OFFICER :

COUNSEL : Crown: M.C. Grogan App: H.L.A. Cox SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys CATCHWORDS : Criminal law - appeal - sentence - robbery - drug addiction - application of R. v. Henry - application of Judicial Commission statistics - no error in exercise of discretion. LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 CASES CITED: Henry & Ors (1999) 46 NSWLR 346 DECISION : Leae to appeal granted; appeal dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

No. 60807 of 2000 GREG JAMES, J. BELL, J.

WEDNESDAY 12 DECEMBER 2001 REGINA v. MICHAEL SHANE RUDENKO

JUDGMENT

1 GREG JAMES, J: This is an application for leave to appeal in respect of sentence imposed in the District Court of New South Wales for the crime of robbery. That is a crime to which s.94 of the Crimes Act 1900 refers and is punishable by a maximum penalty of 14 years' imprisonment. In addition, the learned sentencing judge took into account on the applicant's plea of guilty, at his request, two matters on a Form 1, they being offences of knowingly take part in the cultivation of a prohibited plant and possess a prohibited drug, to wit cannabis seed. 2 His Honour imposed sentence, taking into account the matters on the Form 1, of imprisonment for three years and five months, commencing on 3 July 2000 and expiring on 2 December 2003. In respect of that sentence his Honour imposed a non-parole period of two years and six months, commencing on 3 July 2000 and expiring on 2 January 2003. 3 The applicant gave evidence on the plea. In respect to the robbery offence, the trial judge found that there was a degree of planning, that he did not accept the applicant as a witness of truth in relation to the relevant events and did not accept the applicant's explanation that what he showed to his victim was his wallet with a proof of age card in it. 4 His Honour, in an apparently carefully considered judgment, set out the details of the offence. That is, that on 3 July 2000 outside the TAB agency in Surry Hills the applicant had robbed a staff member of the agency of a briefcase containing some $7,926 cash, being the property of the New South Wales TAB. His Honour recounted the applicant's evidence. The explanation the applicant gave in essence was that he became seriously concerned that other persons present in the vicinity might rob the TAB staff member and in order to obviate that robbery and to ensure her safety, he robbed her himself and that he, with a pair of pliers, cut the briefcase chained to her wrist, ran to his car and left. It is not surprising that the trial judge rejected the applicant's account, particularly because in the record of interview conducted within hours of the robbery there was not one word of any of that put by way of explanation. 5 The victim's account was set out by the trial judge in the remarks on sentence. It is not necessary for me to deal with that for the purposes of this judgment in great detail. However, her account in short summary was that the applicant referred to the presence of other persons waiting, flashed a badge and said "go back to the TAB" and talked of a possible robbery. She was shown a Federal Police badge and during the showing of that he pushed her, she pushed him back, he demanded that she remove the strap from her arm, there was some degree of discussion, another man attended and with pliers the chain was broken from her wrist. The alarm in the brief case went off and the smoke dye bomb also therein exploded. 6 The applicant had informed the trial judge of his drug habit and that he had been using heroin. He expressed a desire to achieve rehabilitation. A pre-sentence report was before his Honour and noted by the trial judge. In that report his Honour noted that although the offender had cited reasons for avoiding heroin and commencing a methadone program, his stated intention to remain drug-free lacked conviction. His commitment to change had yet to be determined. 7 His Honour was left, by the applicant's account in the witness box, with grave misgivings as to the applicant's insight into his position. 8 The applicant was noted by his Honour as being 24 years of age and his Honour was informed that he had attended the Salvation Army for assessment and that he had some support from his family. His Honour particularly had regard to the Bridge Programme for the Salvation Army in relation to the rehabilitation period after parole. His Honour concluded, weighing all the matters up - the age of the applicant, the principle that a sentence must not crush and also the fact that this will be the first time the applicant has been in gaol - that a starting point for the head sentence should be selected as at four years. To that his Honour applied a 15% discount in respect of the utilitarian value of the plea of guilty. 9 In addition, however, his Honour referred to statistics taken from the Judicial Information system in relation to offences of robbery derived in relation to particular parameters. I shall return to that matter shortly. 10 His Honour also remarked that the Court of Criminal Appeal had recently delivered a guideline judgment in the matter of Regina v. Henry & Ors (1999) 46 NSWLR 346. His Honour, in reference to that guideline judgment, pointed out that the Chief Justice had indicated a commencing point of four to five years as a head sentence in respect of the offence of robbery where it involved a young offender with no prior convictions. Also, that the Chief Justice referred to elements of planning, the impact upon the victim or victims, the presence of a record and his Honour said:- " ... and it seems to me that in several respects the Henry judgment therefore applies to the circumstances here under consideration." 11 Earlier, after referring to the recent delivery of the guideline judgment in Henry (supra), his Honour correctly referred to the maximum statutory penalty for the offence to which this offender had pleaded as that of 14 years. 12 In Henry (supra), the court was concerned to consider those crimes provided for by s.97 of the Crimes Act 1900; that is, the crime of armed robbery which is punishable by a maximum sentence of 20 years imprisonment. The point has been made amongst the criticisms of his Honour's sentence on this application that applying the guideline judgment and, in particular, the starting point of four years referred to by the Chief Justice in this context, proceeded on a misapprehension of the application of Henry (supra) in the given circumstances. 13 On my reading of what the trial judge said, however, although his Honour had omitted the word "armed" before the word "robbery" in his reference to the commencing point, it appears that what his Honour has sought to do is to examine the relevant considerations applicable to offences of armed robbery and also to robbery as might be applicable in a given case. It does not seem that his Honour extracted from what had been said by the Chief Justice in Henry (supra) a proposition that he should commence his reasoning in this case with a starting point sentence of four to five years. It does seem that he had regard to those matters referred to in Henry (supra) which a court might appropriately take into consideration, both in respect of the offence of armed robbery and the offence of robbery. His Honour noted also the matter of aggravation that the applicant was on a bond from the Local Court for theft and fraud at the time he had committed these offences. 14 It was contended that his Honour, when he adverted to the statistics from the Judicial Commission, to which I have already referred, selected the wrong parameters for obtaining the relevant statistics and selected statistics as appropriate to offences of robbery committed whilst on probation or parole at the time of the offence rather than the statistics for robbery committed whilst on bail or bond at the time of the offence. 15 We have been provided with print-outs of the statistics in each case. The numbers in each case are small. The range in the case of the probation and parole parameter is wider. That is to say, there are sentences at the upper end of the range, in particular in two matters. The sentences for offences committed whilst on bail and bond also include some proportion of the sentences at a lower range, although the bulk of the sentences in each case falls within approximately the same range. 16 The submission that has now been mounted is, because of this statistical phenomenon, his Honour selected a range of sentence which affected his deliberations such as to increase the penalty above what would have been appropriate had it been appropriate to reason from these statistics to the ultimate result. Such an approach of reasoning from the statistics to an ultimate result would, if it amounted to a consideration of the statistics unaccompanied by considerations of the particular considerations in the case, have been infected with grave error. I do not apprehend that that is what his Honour did. 17 He specifically had regard to all the matters that he had referred to, in particular age, the principle that a sentence must not crush, the fact it would be the first time in gaol, and expressed those considerations as having a particular bearing upon the sentence starting point of four years that he expressly concluded was appropriate. 18 I do not see that the criticisms are borne out. It may be that his Honour's reasons might be infelicitous in dealing with the expression of the two topics to which I have referred. However, the task with which the court is now concerned is to look at the sentence which his Honour passed and consider whether some other sentence is warranted in law and should have been passed in consequence of his Honour erring by misapplication of principle or in the result to such an extent that the sentence passed is manifestly excessive. 19 Defects in language or in reasoning that do not lead to the consequence that the sentence must be set aside having regard to those considerations do not found a basis on which the court can interfere at all under the Criminal Appeal Act 1912. 20 In my view, having regard to the various matters by way of criticism and the sentence that his Honour passed, particularly having regard to the objective criminality of the offender's conduct on the day, I am unable to conclude that the sentence is outside the permissible legal range of sentences that a trial judge might pass in the circumstances. It follows that I would conclude that his Honour did not fall into error in the sentence he passed. 21 An additional criticism was advanced that his Honour had erred in failing to find special circumstances and had erred in failing thereby to vary the statutory proportion. I have said sufficient to show that his Honour had regard to the existence in the evidence of matters which might have been regarded by him as special circumstances and that he found specific matters that could be treated as special circumstances to have existed. His Honour said:- "Having considered all of the matters, I am unable to conclude that there are special circumstances that should vary the statutory ratio." 22 His Honour referred to the relationship the non-parole period and parole period might bear in the context of the time for rehabilitation for the applicant to complete the Bridge Programme if he was serious in his intention to undertake it. His Honour concluded that the time the statutory proportion would provide for a parole period was sufficient to achieve that effect in the context of the particular circumstances of the applicant. 23 I do not see that his Honour has erred in any way in that regard. This Court sits to correct legal error, not to present its own individual views as to what might have been done at first instance. It was open to his Honour to find special circumstances. It was open to his Honour to decline to find special circumstances. I do not see that his declining to find special circumstances founds any basis on which the applicant might succeed in this application. 24 I would propose that leave to appeal be granted but that the appeal be dismissed. 25 BELL, J: I agree with the orders proposed by Greg James, J. for the reasons his Honour gave. 26 GREG JAMES, J: The orders will be as I have proposed. *********