Regina v Nolan [2001] NSWCCA 144

New South Wales Court of Criminal Appeal

CITATION : Regina v Nolan [2001] NSWCCA 144 FILE NUMBER(S) : CCA 60330/00 HEARING DATE(S) : 2/4/01 JUDGMENT DATE : 2 April 2001

PARTIES : REGINA v CHRISTOPHER MICHAEL NOLAN JUDGMENT OF : O'Keefe J at 1 and 25; Smart AJ at 24

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/61/0185 LOWER COURT JUDICIAL Coleman DCJ OFFICER :

COUNSEL : E Wilkins - for Crown D Alexander - for Applicant SOLICITORS : S E O'Connor - for Crown Robinson Beale Horton McMinn - for Applicant CATCHWORDS : Robbery in company - Appeal against sentence - Assaults on male and female victims - Community expectations - Effect of youth on sentence - Rehabilitation prospects LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Henry (1999) 46 NSWLR 346 DECISION : Leave to appeal refused.

IN THE COURT OF CRIMINAL APPEAL

No: 60330/00

O'KEEFE J SMART AJ

Monday, 2 April 2001

REGINA v CHRISTOPHER MICHAEL NOLAN

JUDGMENT 1 O'KEEFE J: Christopher Michael Nolan (the applicant) seeks leave to appeal against the severity of two concurrent sentences of five years imprisonment with a non-parole period of three years imposed in respect of two counts of robbery in company which, by virtue of s 97(1) of the Crimes Act 1900, carries a maximum penalty of imprisonment for 20 years. 2 The applicant was tried at Dubbo before Coleman J and a Jury. He pleaded not guilty and was convicted. 3 The events, the subject of the charges, occurred late on the night of 26 September 1999 in a public street of Dubbo where the applicant and an unknown accomplice robbed a young lady and her male friend with whom she was walking home after they had been baby sitting. The young lady and her friend were walking in the middle of the road and as they approached an intersection, the applicant and his accomplice turned out of an intersecting street into the street along which the two young people were walking. The accomplice and the applicant were at that time on the footpath but they moved from the footpath into the centre of the road where the two young people were walking and the applicant, after pulling the hood of his jacket over his head, it would seem to conceal his identity, moved behind the young man. 4 The accomplice approached the young man and the young lady and asked them for 50 cents to phone for a cab and then asked for a cigarette. The young lady gave him a cigarette, as did the young man. The accomplice then asked again for money for a taxi and when the young man refused to give him any money, the accomplice patted down the body of the young man, obviously looking for his wallet. The young man retreated. He offered no resistance, but he still refused to give his assailant money. The young man was then warned that if he continued to refuse to hand over his money, the accomplice would hit him. Another demand was then made and when the young man did not comply, the accomplice attempted to punch him but missed. Thereupon the applicant moved up from behind the young man and struck him on the back of the head, knocking him to the ground. As he lay on the roadway, both men kicked him in the ribs, arms and legs. 5 Understandably, the young lady who was accompanying the young man who was being kicked by the two men as he lay on the roadway and was no doubt terrified by the events she was witnessing and in which she was unfortunately involved, began screaming. Thereupon the applicant hit her and knocked her to the road as well. Whilst on the road she too was kicked, as her friend had been. Whilst she was on the ground, the applicant and his accomplice struggled to get her bag from her, intent no doubt, on stealing it and its contents. She was lying face down and both were pulling at her bag, trying to rip it off her. In an endeavour to quieten her one of the men told her to shut up or he would kill her. 6 Seeing what was happening to his friend, the young man got up and went to her assistance. Once again, he was attacked by the applicant and his accomplice. The applicant struck him on the back of the head yet again and knocked him to the ground. The young lady then got to her feet. She too was knocked to the ground again. As she lay in the middle of the road, the accomplice pulled on the straps of her bag until one gave way and he was able to remove it from her. The applicant and his accomplice, then decamped. 7 The young couple went to a nearby house and telephoned the police, but when they had not arrived after some twenty minutes, the couple gave up and walked away. However, as they were returning to their homes, they saw a police car which they flagged down. This ultimately led to the arrest of the applicant who declined to give any information in relation to his accomplice, declined to say what had happened to the stolen property and refused to be interviewed. Now, that was his right but from that one could say that he gave no assistance whatsoever to the authorities and gave no indication at all of remorse. This was further compounded by his plea of not guilty, indicating that he was prepared, as he rightly was entitled to do, to exercise his rights. However it also meant that one could not read into his actions any remorse at all, nor was there any evidence given by him of any remorse for what had happened. 8 The District Court Judge imposed sentences of five years commencing on 18 May 2000 and expiring on 17 May 2005 with a non-parole period expiring 17 May 2003. Both sentences imposed were to be served concurrently and the statutory relationship between the total term of the sentences and the non-parole period was varied because of the special circumstances which the Judge found to exist. 9 In fixing the sentence, the District Court Judge, in my opinion very favourably to the applicant, described the crimes as opportunistic. The facts suggest that the applicant and his accomplice set out to get money from the young man and woman and adopted a strategy for so doing. Whether opportunistic or not, the crimes committed were serious and quite vicious and the applicant is fortunate that no permanent serious injury of a physical nature resulted to the victims. To knock a male person to the ground is serious enough; to knock a female to the ground is even more serious. For two men to kick a man when he is on the ground is reprehensible in the extreme; to do this to a young woman is extremely serious, not something that the community or this court will tolerate. 10 The District Court Judge correctly said that the community is entitled to expect that people walking at night in suburban areas should be able to do so without danger of serious and unprovoked attack of the kind which occurred in the present case. In mitigation of the sentence that otherwise might have been imposed, the Judge took into account the troubled and unfortunate childhood and background of the applicant, which included physical violence by his father who was dominating, a poor role model and violent, whether affected by liquor or sober. However, the applicant left home aged 14 and had no contact thereafter with his father. 11 The applicant's educational background was not favourable to him, he having left school at the age of 15. He had never held a job and although in his favour the trial Judge took into account some projects in which he had been involved, as well as his youth at the time the offences were committed, he nonetheless considered them serious. 12 It has been submitted before the court that the trial Judge said that the applicant was a young man who was not entitled to any reduction in sentence because of considerations of youth and did not get any benefit from the fact that the crimes committed were crimes which involved the recklessness of youth. That does not accord with what, in fact, was said by the trial Judge. He said (page 9), "I have taken the age of the prisoner, of 18 years, into account". Furthermore, he said that he was a young man and his apparent immaturity and unfortunate background should be given some weight. They quite obviously were. However, the Judge also said that what had happened was not consistent with what he described as enthusiastic stupidity and recklessness and that the seriousness of the matters the subject of conviction, could not be overlooked and the subjective features of apparent immaturity and unfortunate background could not be allowed to outweigh the need for general deterrence in the imposition of a sentence appropriate to the gravity of the crimes. I agree. 13 Having recounted the applicant's criminal history which included a number of offences of theft, damage to property and possessing house-breaking implements, the District Court Judge gave the applicant the benefit of the probability that he may be able to be motivated to enlist in a TAFE course available to him through the Aboriginal Development Unit. Furthermore, the Judge took into account that the applicant's mother was very supportive and upon release that would be to his benefit. However, in the light of the absence of any expression of remorse and the gravity of the offence, it was clear that a custodial sentence had to be imposed. That was not gainsaid by counsel appearing at the sentence hearing on behalf of the then prisoner. 14 In the appeal before this court, counsel for the applicant has submitted that this court ought to disregard the concession made by the applicant's counsel at the sentence hearing. However, even if one did not take it as a concession, nonetheless what was said accurately accorded with the situation confronting the learned Judge, namely, that whatever the subjective features applicable to the applicant, the seriousness of these offences called for a custodial sentence. Furthermore, the trial Judge was satisfied that the case was not one in which it had been demonstrated that real or immediate prospects of rehabilitation would be frustrated by the imposition of a custodial sentence. 15 In argument it was contended before this court that it was the accomplice, rather than the applicant, who initiated contact with the victims. It is true that the accomplice was the front man, the applicant the rear man. He used that position to strike the male person, who was robbed from behind, on the head, knocking him to the ground. To suggest, as emerges from the written submissions, that the crimes occurred because the young man and the young lady took exception to being accosted late at night and to being made the subject of demands for money and patted down, ignores what occurred. Neither victim took any retaliatory steps. The young man retreated, his retreat cut off by being struck down from behind by the applicant. The fact that neither assailant was armed with any weapons does not mean the sentence imposed is excessive. Had they been armed, an even heavier sentence would have been justified. 16 It was submitted on behalf of the applicant that the District Court Judge gave insufficient weight to the distinction between robbery in company and armed robbery and that, had he not done so, he would have determined a full term of less than four years. I do not agree. The guidelines referred to in R v Henry (1999) 46 NSWLR 346 apply to a different offence from that the subject of the present application. As was pointed out by the Chief Justice in Henry, such guidelines are intended, in any event, to be indicative only. Even in cases of armed robbery they are not intended to be applied to every case as if they were rules binding the sentencing judges. 17 This was stressed by the Chief Justice who said that the guidelines were not binding in a formal sense and they are not precedents that must be followed. They represent relevant factors or indicators for the sentencing Judge in relation to crimes of the nature dealt with in Henry. 18 In the present case, the learned District Court Judge, in my view rightly, took the view that the guidelines in Henry were not applicable to the instant case for reasons, two of which he set out at page 7 of his Reasons for Sentence. He said: "This is not a matter to which the guideline directly applies and although there may be some superficial resemblance between some of the seven factors referred to by the Chief Justice, the lack of a plea of guilty and the prisoner's antecedent criminal history is sufficient to remove any direct comparison with or application of the guideline judgment set by his Honour". 19 Furthermore, to suggest that because there were two victims and two assailants there was some equality in the contest is to ignore totally the nature of what occurred and the fact that one of the victims was, in fact, a young lady. Furthermore, it is quite inaccurate to characterise what occurred as "petty" as the written submissions filed on behalf of the applicant did. I regard the attacks on both the young man and young lady as cowardly and vicious and such as could reasonably be expected to cause serious injury. That they did not is a matter of good fortune for the applicant. It is appropriate to consider such matters when determining the proportionality of the sentences to the offences. 20 It has been said on behalf of the applicant that the victims did not suffer any long term effects. It is true that they did not suffer any long term physical effects. Again, that was a matter of good fortune for the applicant. It could have been quite different. Further, it was said that since the assailants of these two young people were not armed, therefore in some way the offence was not really serious. In my opinion that submission ignores the essence of what occurred on the night in question. 21 In my opinion the sentence imposed by the trial Judge took into account the matters raised in favour of the applicant and balanced those against the seriousness of the offence charged. He did not fail to take into account any relevant matter and properly distinguished the guidelines in Henry that were pressed upon him. In my opinion no error occurred in the trial Judge's approach or in the result. None has been demonstrated on the hearing of this matter. 22 I would propose that leave to appeal be refused. 23 SMART AJ: I agree 24 O'KEEFE J: The order of the court will be, leave to appeal is refused. **********