New South Wales Court of Criminal Appeal CITATION : R v Stadhams [2001] NSWCCA 16 FILE NUMBER(S) : CCA 60097/00 HEARING DATE(S) : 12/02/01 JUDGMENT DATE : 12 February 2001 PARTIES : Regina v Roderick Stadhams JUDGMENT OF : James J at 1; Whealy J at 37 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0231 LOWER COURT JUDICIAL Christie DCJ OFFICER : COUNSEL : PR Boulten - Applicant M Grogan - Crown SOLICITORS : Mark Klees & Associates - Appellant SE O'Connor - Crown DECISION : Leave to appeal granted - appeal against sentence allowed. IN THE COURT OF CRIMINAL APPEAL 060097/00 JAMES J WHEALY J Monday 12 February 2001 REGINA v RODERICK LIONEL STADHAMS JUDGMENT 1 JAMES J: Roderick Lionel Stadhams has applied for leave to appeal against a sentence imposed on him in the District Court on 4 February 2000 by his Honour Judge Christie, after he had pleaded guilty to one count of aggravated armed robbery. The applicant was sentenced by Judge Christie to a term of imprisonment for five years, with a minimum term of three years commencing on 26 October 1999. The applicant had been continuously in custody since 26 October 1999. Under s 97(2) of the Crimes Act the maximum penalty for aggravated armed robbery is imprisonment for 25 years. 2 The offence for which the applicant was sentenced was committed on 4 February 1999. There were three co-offenders. One co-offender was named Jarrett and the other two co-offenders somewhat confusingly, were both named Ian Austin (Ian Maxwell Austin and Ian Charles Austin). 3 On the morning of 4 February 1999 Jarrett drove the four of them from Bowraville to Bellingen. At Bellingen Jarrett parked the vehicle and Jarrett and the applicant remained in the vehicle. The two Austins entered the premises of a credit union. One of the Austins was armed with a shortened rifle and the other with a file. One of them was carrying a pillow case. Inside the premises of the credit union one of the Austins fired a shot from the shortened rifle into the floor and threatened to shoot the customers and staff of the credit union, if they did not get down on the floor. The other Austin jumped over the counter and threatened the staff of the credit union with the file that he was carrying. He demanded that a member of the staff put money into the pillow case and she put the sum of $19,220 in cash into the pillow case. The two Austins then ran out of the credit union to where the vehicle was parked and got into the vehicle. Jarrett started driving the vehicle in the direction of Bowraville. 4 After the vehicle had gone a short distance, it was intercepted by a police vehicle. There ensued a chase, in which Jarrett drove his vehicle at high speeds for a distance of about 40 kilometres, being pursued by the police vehicle. Eventually Jarrett stopped his vehicle in a bush track. The three co-offenders escaped into the bushland but the applicant was arrested. 5 After he had been arrested the applicant, with what the sentencing judge described as "alarming frankness," admitted to police that he had been with Jarrett and the other two and that "we went to the Bellingen bank and we robbed it." Later that day the applicant was formally interviewed by the police. In his answers in the interview the applicant made extensive admissions and he named all of the co-offenders. 6 After the applicant was arrested he was held in custody until 26 March 1999, when he was released on bail. He thus spent a period of approximately seven weeks in custody. Part of this period was spent in a maximum security adult gaol at Grafton. While he was in Grafton gaol the applicant held what his Honour found to be justified fears for his own safety, because he had provided information about the co-offenders. 7 The applicant pleaded guilty, when arraigned on 26 May 1999. However, he failed to appear in court on a subsequent occasion and a bench warrant was issued for his arrest. He was arrested on 26 October 1999 and, as I have previously noted, he has remained continuously in custody since that date. 8 The co-offenders were all subsequently arrested and they have all been dealt with. In the case of Jarrett, the Crown accepted a plea of guilty, not to an offence of armed robbery, but to an offence of being an accessory after the fact to an armed robbery. Jarrett had claimed that he did not know when he was driving to Bellingen that the Austins intended to commit an armed robbery, that after he had parked the vehicle at Bellingen he had visited a public toilet and that after returning to his vehicle he had been surprised to see the Austins running towards it, carrying the firearm and the pillow case with money in it. In the remarks he made in sentencing the applicant, and apparently in remarks made on other occasions, Judge Christie expressed his astonishment that the Crown had accepted a plea of guilty by Jarrett to an offence of being an accessory after the fact, in full discharge of his criminal liability. 9 The sentencing judge delivered lengthy remarks on sentence. His Honour said that he regarded the offence of aggravated armed robbery committed by the group as a serious example of this type of offence. A loaded firearm had been carried into a credit union and had actually been discharged. A large amount of money had been stolen. 10 His Honour considered that in a number of respects the offence was worse than the category of offences described by the Chief Justice at par (162) of his judgment in the guideline case of sentencing for the offence of armed robbery R v Henry (1999) 46 NSWLR 346. In his judgment in Henry the Chief Justice said that sentences for offences falling within the category he described in par (162) should generally be between four and five years for the full term. 11 As I have already indicated, Judge Christie found that the offence of aggravated armed robbery committed by the group of offenders was a serious example of offences of that sort. On the other hand, the role played by the applicant himself in the commission of the offence was very minor. His Honour found that the instigators of the offence had been the two Austins. His Honour found that the applicant was "not a moving force" and that the applicant had been "a passive presence". The applicant had not supplied or handled any of the weapons; he had not gone into the credit union; and he had not received any part of the proceeds of the robbery. The applicant was nevertheless guilty of the offence because he was a party to the criminal enterprise to carry out an armed robbery. Before going from Bowraville to Bellingen he had been asked whether he wanted to go to Bellingen with the others "to do an armed rob" and he had said "yeah.". On the journey to Bellingen he had heard the Austins discussing, the proposed armed robbery and he had seen the Austins loading the firearms which were in the vehicle. 12 In his remarks on sentence his Honour took into account the applicant's immediate admissions of guilt and his plea of guilty and the assistance the applicant had provided to the authorities in naming his co-offenders. His Honour also noted the applicant's youth. He was only 17 years old at the time the offence was committed. All the other offenders were somewhat older than he was. His Honour also noted the applicant's aboriginality and his deprived background. When the applicant was a young child his father had been sentenced to a long sentence of imprisonment for murder and the applicant encountered his father for the first time in many years in Grafton gaol when he met him as a fellow prisoner. The applicant's mother had been an alcoholic. 13 A circumstance aggravating the applicant's offence was that the offence had been committed while the applicant was on probation during the additional terms of control orders which had been imposed in the Children's Court on 23 February 1998 for offences of breaking and entering. 14 On the hearing of the application it was submitted on behalf of the applicant that: 15 (1) The sentencing judge had paid insufficient regard to the applicant's plea of guilty. It was submitted that Judge Christie had erroneously regarded the credit to which the applicant was entitled by reason of his plea of guilty as diminished by the applicant's earlier admission of guilt, which had left him with no practical option but to plead guilty. Counsel referred to a passage in the sentencing judge's remarks on sentence in which his Honour said (p 6):- "Now I take into account his plea of guilty but I must give some lesser effect to the plea of guilty in the light of his frank admissions. But of course he gets some sort of discount, not insignificant, because of the frank nature of his admissions at the very first opportunity, so it's really the admissions he made for which he gets credit rather than his plea of guilty because his plea of guilty had to follow the frank admissions that he made. But I think that is a discount that ought be regarded as not insignificant. I shall not put a particular figure on it except to say that I think it is significant that a person acknowledges the extent of his criminality in an enterprise of this nature at the earliest opportunity"; 16 (2) His Honour had over-estimated what would have been the strength of the Crown case against the applicant, in the absence of his admissions and the plea of guilty. It was conceded that the applicant had been arrested, after being a passenger in the vehicle which had been used in transporting the robbers who had entered the Credit Union. However, it was submitted that the applicant had not been seen to do anything other than sit as a passenger in the vehicle. Counsel for the applicant naturally pointed to Mr Jarrett, who had been the driver of the vehicle, but who, having refrained from making any admissions or entering any plea of guilty to a charge of armed robbery, had avoided a conviction for armed robbery and had been dealt with on a plea of guilty to an offence of being an accessory after the fact to an armed robbery; 17 (3) His Honour had underestimated the value of the assistance the applicant had provided in naming the co-offenders. In his remarks on sentence his Honour said (p 7):- "I need to say that I do not think that there was ever likely to be very much trouble with the authorities identifying who was involved in this event, not for very long anyway, but that does not necessarily deal with the discount to which the prisoner would be entitled for having officially identified them, if I may put it that way. But the four of them drove down the main street, perhaps not the main street, but upon their return to Bowraville, they were seen to be driving through Bowraville and obviously attracting some attention. That is as I recall the matter and I do not think too many people in Bowraville who saw that vehicle were in much doubt about who was in it. Indeed, I think that the police knew, to some extent, who was in it at some stages of the chase." 18 It was submitted by counsel for the applicant that in fact no-one inside the credit union had identified the Austins and that no statement had been obtained from any person in Bowraville in which the maker of the statement asserted that he had seen the vehicle and had identified the occupants of the vehicle; 19 (4) His Honour made no finding about whether the applicant was contrite. It was submitted that his Honour should have made a finding on this matter and should have found that the applicant was contrite; 20 (5) His Honour gave insufficient weight to the very minor role played by the applicant in the commission of the offence; 21 (6) His Honour had paid insufficient regard to the applicant's age, aboriginality, and deprived background. 22 I do not consider that it has been established that his Honour made any specific error in sentencing the applicant, in the sense of failing to take into account a relevant factor. 23 With regard to the submissions made by counsel for the applicant, I comment as follows:- 24 (1) Although the passage in his Honour's remarks on sentence could have been more happily expressed, his Honour found that the applicant was entitled to a "not insignificant" discount because he had admitted his guilt at the earliest opportunity and it is not material whether this discount is attributed to his admissions of guilt or to his plea of guilty. 25 (2) The applicant's presence in the car during the long police chase in the company of the two Austins would have made it difficult for him to deny that he was a party to an agreement to rob the credit union. However, it is to be acknowledged that Jarrett, the driver of the car, escaped liability for armed robbery. I share his Honour's astonishment that the Crown was prepared to accept a plea by Jarrett to the lesser offence of being an accessory, in full discharge of his criminal liability. Nevertheless, the fact that Jarrett escaped liability for armed robbery emphasises the value of the applicant's admissions and plea of guilty. 26 (3) It seems to me that his Honour's remark to the effect that he did not think that the authorities would have had much difficulty in ultimately identifying who the offenders were, even in the absence of the assistance provided by the applicant, was well founded. However, I note that his Honour went on to say "that does not necessarily deal with the discount to which the prisoner would be entitled for having officially identified them" (that is the co-offenders). His Honour held that the applicant was entitled to "some consideration because of his assistance to the authorities". 27 (4) Although his Honour did not expressly refer to contrition, I consider that it was implicit in some of his Honour's remarks, including that the applicant had been very frank in making admissions and in providing information and that the applicant had excellent prospects of rehabilitation, that his Honour considered that the applicant was contrite. 28 (5) and (6) His Honour made findings about, and took into account, the minor role played by the applicant in the commission of the offence and the subjective features of the applicant, including his age, aboriginality and deprived background. 29 The principal submission made by counsel for the applicant was that, having regard particularly to the applicant's very limited passive role in the commission of the offence, his early admissions of guilt, his plea of guilty, the assistance he provided, his discrete period of pre-sentence custody including imprisonment in an adult gaol and his youth, aboriginality and deprived background, the sentence imposed by his Honour was manifestly excessive. 30 There is no doubt that the offence of armed robbery committed by the group of offenders was a serious one and that the applicant had agreed to take part in the commission of an armed robbery. 31 Nevertheless, having regard particularly to the factors stressed by counsel for the applicant, I have come to the conclusion that the sentence imposed on the applicant, even allowing for the seriousness of the conduct of his co-offenders, was manifestly excessive. 32 I am conscious that even the sentence imposed by his Honour was more lenient than a sentence in accordance with the guidelines in Henry would be. However, as the judgment of the Chief Justice in Henry makes clear, for example at par (169), there will be cases in which a sentence which is not in accordance with the guidelines will nevertheless be a proper sentence. I consider that the present case is such a case. 33 It is accordingly necessary for this Court to re-sentence the applicant. I have already referred to the objective facts of the offence, including that the applicant did not play any part in the instigation or planning of the offence and the very limited extent of the applicant's involvement in the commission of the offence; the applicant's early admission of guilt and the plea of guilty; the assistance provided by the applicant to the authorities; and to the subjective features of the applicant. In my opinion, an appropriate head sentence would be a sentence of imprisonment for four years and an appropriate non parole period would be a period of two years three months. 34 I propose the following orders: (1) Leave to appeal against sentence granted. (2) Appeal allowed. (3) Sentence imposed by his Honour Judge Christie quashed and in lieu thereof the applicant be sentenced to a term of imprisonment of four years to commence on 26 October 1999 with a non parole period of two years three months commencing on 26 October 1999 and expiring on 25 January 2002. The earliest date on which the applicant would be eligible for release on parole would be 26 January 2002. 35 In arriving at that sentence I have taken into account the discrete period of seven weeks pre-sentence custody. 36 I make an order that the whole of the sentence be served in a detention centre. 37 WHEALY J: I agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.