R v JOLLEY [2000] NSWCCA 69

New South Wales Court of Criminal Appeal

CITATION : R v JOLLEY [2000] NSWCCA 69 FILE NUMBER(S) : CCA 60041/99 HEARING DATE(S) : 15/03/00 JUDGMENT DATE : 15 March 2000

PARTIES : REGINA v Scott Martin JOLLEY JUDGMENT OF : Simpson J at 1; Barr J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/3334 LOWER COURT JUDICIAL Ford DCJ OFFICER :

COUNSEL : Crown: DC Frearson Applicant: SJ Odgers SOLICITORS : Crown: SE O'Connor Applicant: TA Murphy

LEGISLATION CITED : Sentencing Act, s 5(2) DECISION : See paragraph 18.

IN THE COURT OF CRIMINAL APPEAL 60396/99

SIMPSON J BARR J

Wednesday, 15 March 2000 REGINA v Scott Martin JOLLEY JUDGMENT

1 SIMPSON J: Barr J will deliver judgment in this matter. 2 BARR J: Scott Martin Jolley seeks leave to appeal against sentences imposed upon him by Ford ADCJ of Queen's Counsel in the District Court. On 3 February 1999 the applicant appeared before his Honour and pleaded guilty to fifteen counts of armed robbery and two counts of robbery. The offences were committed over a period of seven and a half months between August 1997 and April 1998. At the time of sentence the applicant was already serving a sentence for a robbery committed not long after the last of the matters for which Ford ADCJ dealt with him. That sentence was imposed by Moore DCJ and carried a minimum term of two years six months. The new sentences were accumulated upon that term. 3 For the last offence in time his Honour sentenced the applicant to a fixed term of five years. For the second last his Honour imposed a minimum term of four years, accumulated on the fixed term, and an additional term of three years. For the remaining offences his Honour imposed fixed terms of four years running concurrently with the minimum term of four years. The overall result for the sentences imposed by his Honour was imprisonment for twelve years with a minimum term of nine years and an additional term of three years. 4 Taken together with the sentence already being served by the applicant, however, the result was imprisonment for fourteen years six months with a minimum term of eleven years six months and an additional term of three years. 5 The applicant developed a routine for his robberies. He would enter a post office, bank or branch of the Totalisator Agency Board, or other premises where cash was kept, armed with a kitchen knife and disguised with a stocking or other material over the face. He brandished the knife, asked for money, took it and ran away. The amounts stolen in any one place varied between $300 and over $3,000. The total amount taken exceeded $18,000. 6 The applicant did not give evidence before his Honour. His mother said something of the way he had been affected by the break up of his parents' marriage in 1991 when he was twenty-four years old. The applicant had a bad gambling problem which had developed during his teenage years and had become uncontrollable at the time of these offences. Before his arrest the applicant was living with his mother and his daughter by a relationship which had come to an end some time before. He had trouble managing household finances and it appeared that the robberies were carried out to maintain the household and to fund the applicant's gambling debts. 7 During the remarks on sentence his Honour said this: These are offences for which the penalty is in double figures. But it is perfectly obvious that I must observe the principle of totality and not impose a total sentence which could amount to the term of your natural life, so it seems to me that I must find some reasonable compromise between punishing the offences, the multiple offences which you committed and the principle of deterrence, general deterrence which, as I say, could have a very drastic effect. In the circumstances it seems to me that I should impose a sentence by way of a fixed term and then to make an additional sentence or consecutive sentence or cumulative sentence to be specified as a minimum term with an additional term, and I have no difficulty at all in acceding to Mr Andrews' submission that this is a case where there are special circumstances. That appears plainly enough from the report which has been submitted here by Anita Duffy, that is her report of 1 February 1999. 8 His Honour's reference to special circumstances was to s 5(2) of the Sentencing Act, which requires that the additional term of any sentence not exceed one-third of the minimum term unless there are special circumstances which justify a greater proportion. 9 Miss Duffy, psychologist, observed in a report that the applicant tended to play down his gambling problem and was incapable of managing money sensibly. She recommended that the applicant consult a psychologist and observed that he had failed to do so during his time in the prison system. However, she made no reference to the length of time that the applicant was likely to need on parole after his release from full time custody, although she did observe that the applicant would have considerable difficulty in managing his affairs on his release. 10 The first submission on the appeal was that having referred to the existence of special circumstances and to the report of Miss Duffy, his Honour erred in failing to structure a sentence the effective additional term of which exceeded one-third of the effective minimum term. Of course, his Honour did adjust the minimum and additional terms of the last accumulated sentence, so that its additional term exceeded one-third of the minimum term, but that was described in submissions as a "technical" adjustment consequent only upon the accumulation of that sentence on the other sentences then being imposed. 11 It seems to me that there is force in the submission which is made on behalf of the applicant and that the powerful evidence in the report of Miss Duffy, while it does not point to any precise period of necessary or desirable supervision on parole, leads to the conclusion that there is a need for an extended period of parole because of the peculiar problem faced by the applicant. It is in the interests of the community that he be given every assistance to solve that problem in order to avoid a reversion to the kind of activity which has led to the sentences now under examination. 12 It was next submitted that even allowing for the fact that the offence for which Moore DCJ had sentenced the applicant was one of robbery simpliciter, the sentence imposed by Ford ADCJ, which was almost three times as long, was not justified. The total sentence ought to have been significantly less than the effective twelve years imposed, bearing in mind that the applicant was not violent other than in his presentation of the knife on each occasion, that he pleaded guilty and that he volunteered his commission of most of the offences, which the police could not otherwise have proven that he committed. 13 That last point, it seems to me, is a very strong one in the present case because it appears that without the admissions freely made and volunteered by the applicant, the Crown might have succeeded in only two of the seventeen matters in respect of which the applicant was eventually convicted. That circumstance by itself was, in my opinion, such as to entitle the applicant to substantial leniency. 14 It was submitted that there were other subjective circumstances of the applicant which attracted leniency as well, including his psychological problems. I think there is force in those submissions. It is unfortunate that the applicant came to be dealt with on two separate occasions for a single group of offences. I think that the sentences fall outside the range of his Honour's sentencing discretion when accumulated upon the minimum term of the existing sentence, producing an effective sentence of fourteen and a half years. 15 Material was put before the Court on re-sentence. A letter from the Department of Corrective Services dated 24 February 2000 shows that after the applicant arrived at the Goulburn Correctional Centre he lodged several requests to see a psychologist. Unfortunately, because of staffing difficulties and limited access hours, he was denied the opportunity of more than four counselling sessions between November 1999 and November 2000. 16 A further letter from the Assistant Superintendent of the Goulburn Correctional Centre dated 8 February 2000 observes that the applicant has proven to be an excellent worker within the prison system. His behaviour has been good and he carries out his duties completely and competently. These are encouraging reports and demonstrate the commitment of the applicant to his own rehabilitation. It may be hoped and expected that he will continue his positive attitude, particularly towards a solution of his deep-seated psychological problems. 17 In my opinion, a total effective sentence of eight years would be appropriate accumulated upon the minimum term imposed by Moore DCJ. In my opinion, it would be appropriate to divide that cumulative sentence as to five years for a minimum term and three years additional term. That would produce a total effective sentence for the offences dealt with by both Judges of ten and a half years comprising an effective minimum term of seven and a half years and an additional term of three years. The reason for the selection of an additional term exceeding one-third of the minimum term is the need for an extended period on probation to promote the solution of the applicant's psychological problems. 18 I therefore propose the following orders: 1. Grant leave to appeal against the sentences. 2. Quash the sentences and impose in lieu for each of the seventeen counts imprisonment for a period of eight years commencing on 8 October 2000 and expiring on 7 October 2008 comprising a minimum term of five years and an additional term of three years. The applicant will be eligible for release on parole on 8 October 2005. 19 SIMPSON J: I agree with the orders proposed and the orders will be as proposed by Barr J. **********