New South Wales Court of Criminal Appeal CITATION : R v Ryan [2000] NSWCCA 98 FILE NUMBER(S) : CCA 60277/99 HEARING DATE(S) : 22/03/00 JUDGMENT DATE : 22 March 2000 PARTIES : Regina v Keith Wayne Ryan JUDGMENT OF : Abadee J; James J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0511 LOWER COURT JUDICIAL Williams DCJ OFFICER : COUNSEL : CB Craigie - Applicant M Grogan - Crown SOLICITORS : TA Murphy - Applicant SE O'Connor - Crown DECISION : Leave to appeal granted - appeal dismissed IN THE COURT OF CRIMINAL APPEAL No 60277/99 ABADEE J JAMES J Wednesday 22 March 2000 REGINA -V- KEITH WAYNE RYAN JUDGMENT 1 JAMES J: Keith Wayne Ryan has applied for leave to appeal against sentences imposed on him in the District Court on 13 May 1999 by his Honour Judge Williams, after he had pleaded guilty to two charges of robbery whilst armed with an offensive weapon, being offences under s 97(1) of the Crimes Act, for which the maximum sentence is penal servitude for twenty years. In sentencing the applicant Judge Williams took into account, pursuant to s 21 of the Criminal Procedure Act, four further charges, consisting of two offences of robbery whilst being armed with an offensive weapon, two offences of goods in custody and one offence of possessing a prohibited drug. On each of the two charges of robbery whilst armed with an offensive weapon Judge Williams imposed a sentence of penal servitude for ten years consisting of a minimum term of six years to commence from 6 March 1998 and an additional term of four years, the two sentences to be served concurrently. 2 It is desirable to set out in chronological order a number of events relating to the sentencing of the applicant. 3 On 5 March 1993 a District Court Judge sentenced the applicant for an offence of armed robbery whilst in company and an offence of assault with intent to rob whilst armed and in company, to concurrent sentences of penal servitude for eight years, including minimum terms of six years, which were to commence on 14 March 1991 and to expire on 14 March 1997. On 29 April 1994 another District Court Judge sentenced the applicant for an offence of maliciously inflicting grievous bodily harm to a fixed term of penal servitude of six months to be served cumulatively on the minimum terms of the sentences imposed on 5 March 1993. On 23 September 1997 the applicant was released on parole. 4 On 1 November 1997 the applicant was injured in a motor vehicle accident. Some submissions on behalf of the applicant in the proceedings on sentence were based on disabilities allegedly suffered by the applicant as a result of this motor vehicle accident. 5 On 24 November 1997 the applicant committed the first offence to be taken into account pursuant to s 21 of the Criminal Procedure Act. The applicant entered the bottle shop of an hotel. He produced a syringe and held it to the neck of the female owner of the hotel, who was in the bottle shop. He threatened to stick the syringe in her neck, if money was not placed in a bag. An employee of the hotel filled the bag with money and the applicant left the bottle shop, with the bag containing the money. The incident was recorded by a security video camera. 6 On 26 November 1997 the applicant was arrested for committing the armed robbery on 24 November 1997. A search warrant was executed at the premises where the applicant was living. Two travellers cheques, a mobile phone and a bank deposit book were found. The applicant's possession of these items gave rise to the charges of goods in custody which were included in the form under the Criminal Procedure Act. A small quantity of cocaine was also found and the applicant's possession of this cocaine gave rise to the charge of possessing a prohibited drug which was also included in the form. The applicant was granted bail and on 23 December 1997 he was released on bail. 7 On 2 February 1998 the applicant committed the first offence of armed robbery included in the indictment. He entered a post office and approached a customer service officer. He placed on the counter a note reading "This is a stick up, no funny business." The applicant then produced an object which was described by the sentencing Judge in his remarks on sentence as a "hand gun" and demanded money from the till. 8 Notwithstanding a submission that was put to us on the hearing of this appeal, I consider that his Honour was entitled to proceed on the basis that the object produced by the applicant was in fact a hand gun. It was described as being a hand gun in the count in the indictment to which the applicant had pleaded guilty. It was described as a hand gun in a facts sheet which had been admitted without objection in the proceedings on sentence. 9 After the applicant had demanded money, the customer service officer handed over money from the till and when the applicant demanded further money the officer handed over further money from under the till. The robbery of the money belonging to the post office constituted the first charge in the indictment. The applicant then demanded money from the customer service officer personally. The officer took out his wallet and handed the applicant a sum of money. The applicant started to leave the post office but then returned to the counter. He asked the officer to turn around and the applicant removed the officer's wallet from the officer's rear trouser pocket. The offence of armed robbery of the customer service officer in his personal capacity was the fifth offence included in the form under the Criminal Procedure Act. The whole incident occurring on 2 February 1998 was recorded by a security video camera. 10 On 13 February 1998 the applicant was arrested for the offences committed on 2 February 1998. On 19 February 1998 he was released on bail. 11 On 28 February 1998 the applicant committed the second offence of armed robbery included in the indictment. The applicant entered a TAB branch and approached the counter. He produced a note to the assistant behind the counter and demanded money. He partly lifted his shirt, thereby revealing that he was holding a hand gun in his right hand. For reasons similar to those which I gave earlier in relation to the robberies committed on 2 February 1998, I am satisfied that his Honour was entitled to proceed on the basis that the object produced was indeed a hand gun. After being threatened the assistant filled a bag with cash and the applicant left the TAB branch, with the bag containing the cash. 12 The applicant was arrested on 6 March 1998. An order was made by the Parole Board revoking his parole and he resumed serving in custody the balance of the additional terms of the sentences imposed on 5 March 1993. 13 It will be noted that all the offences in both the indictment and the form were committed while the applicant was on parole. The armed robberies on 2 February 1998 were committed while the applicant was on bail for the armed robbery committed on 24 November 1997 and the armed robbery on 28 February was committed while the applicant was on bail for the armed robbery on 24 November 1997 and the armed robberies of 2 February 1998. 14 In his remarks on sentence the sentencing Judge referred to the applicant's subjective circumstances in considerable detail. The transcript of this part of his Honour's remarks occupies approximately ten pages. The applicant was forty-one years old at the time of sentencing. He is of aboriginal descent. As a child he had numerous convictions in Children's Courts and he has had numerous convictions since he became an adult. Apart from the sentences imposed on 5 March 1993 and 29 April 1994 he had been sentenced in 1984 to long terms of imprisonment for offences including armed robbery. Judge Williams commented in his remarks on sentence: "In his adult years he has spent about four years altogether out of gaol." 15 In the proceedings on sentence evidence was given by the applicant, his mother, his sister and his brother and in his remarks on sentence his Honour referred at length to this evidence. His Honour also referred at length to a psychiatric report, a report from a psychologist, and a pre-sentence report. Towards the end of his remarks on sentence his Honour said: "His personal features are tragic in the extreme. A severely deprived background in the aboriginal community involving violence, alcohol and drug abuse and without strong family ties at times. An early dependence on alcohol and later turning to other damaging drugs." His Honour also found: "Mr Ryan is a person who is unfortunately now significantly institutionalised and lacking life skills of either his own people or society generally." His Honour also said: "I have little doubt that he suffers from various cognitive defects which may be the result of poly- drug abuse, ill-health as a child, or his motor vehicle accident, or a combination of all these." 16 His Honour found that the principles stated by Wood J, as his Honour then was, in R v. Fernando (1992) 76 A Crim R 58, especially at pp 62-63, were applicable and that many, although not all, of the subjective circumstances which applied in Fernando also applied in the case of the present applicant. 17 His Honour also took into account in favour of the applicant his pleas of guilty which, despite the strength of the Crown case against him, had the utilitarian function of saving the costs of a trial and had also relieved the victims of the stress of having to give evidence at a trial. His Honour found that the applicant had evinced contrition. 18 The guideline judgment of the Court of Criminal Appeal in R v. Henry (1999) 46 NSWLR 346 on sentencing for the offence of armed robbery had been handed down on 12 May 1999, only the day before his Honour passed sentence on the applicant. Although the decision in R v. Henry had been handed down only the day before, Judge Williams expressly referred to R v. Henry in his remarks on sentence and it is apparent from his Honour's remarks that his Honour had considered the judgment in R v. Henry. 19 In his remarks on sentence Judge Williams noted that in the Chief Justice's judgment in R v. Henry the Chief Justice had indicated that in the class of case having the features described in par 162 of the judgment, which Judge Williams accurately described as being relatively "favourable", a total sentence of 4-5 years would generally be appropriate for a single offence of armed robbery. 20 Judge Williams clearly found, correctly, that the present case was much worse than the kind of case described by the Chief Justice in par 162 of his judgment in Henry. Among the matters Judge Williams referred to in his remarks on sentence were the number of offences the applicant had committed, the applicant's previous criminal history including convictions for offences of the same sort, that all of the offences had been committed while the applicant was on parole, that some of the offences had been committed while the applicant was on bail and that the facts of some of the offences disclosed at least some planning on the applicant's part. 21 Judge Williams also said, in a passage in his remarks on sentence which has been made the subject of submissions by counsel for the applicant on this appeal: "Further the weapons used, a syringe held to the neck of a victim and a hand gun in the other two cases, also gives serious cause for concern. They are such that again the question of general deterrence and the protection of the public suggest a heavy penalty for the offender." 22 Judge Williams, on the basis of the subjective circumstances of the applicant to which I have already referred including his state of institutionalisation, found special circumstances within s 5(2) of the Sentencing Act and set additional terms which exceeded one third of the minimum terms. 23 His Honour made the sentences imposed commence from 6 March 1998, the date on which the applicant had been arrested after the armed robbery on 28 February 1998, even though the sentences imposed on 5 March 1993 did not, following the revocation of the applicant's parole, expire until 5 May 1999. 24 The first ground of appeal against sentence which was argued was that the sentencing Judge had infringed the principle of sentencing enunciated by the High Court in De Simoni v The Queen (1980-1) 147 CLR 383. It was pointed out by counsel for the applicant that the two charges of armed robbery in the indictment were charges of an offence under s 97(1) of the Crimes Act, an element of which is that the offender was armed with an offensive weapon, and not charges of an offence under s 97(2) of the Crimes Act, which creates an aggravated offence when the offender is armed with a dangerous weapon. 25 In s 4 of the Crimes Act, as it was in force at the time of these offences, the term "dangerous weapon" was defined as meaning: "(a) a firearm (within the meaning of the Firearms Act 1989); or (b) a prohibited weapon or prohibited article (within the meaning of the Prohibited Weapons Act 1989); or (c) a spear gun". 26 At the time these offences were committed the term "offensive weapon" was defined in s 4 of the Crimes Act as including "a dangerous weapon" and as including an imitation or replica of an offensive weapon. This definition of an "offensive weapon" has now been replaced by an amended definition, which was inserted in the Crimes Act by the Crimes Amendment (Offensive Weapons) Act 1999 No. 21. 27 It was submitted that Judge Williams had contravened the principle of sentencing in De Simoni by referring in his statement of the facts of the robberies committed on 2 February 1998 and 28 February 1998 to the fact that the applicant was armed with a hand gun, that is to say a dangerous weapon, and, by saying, at p 12 in a passage in his remarks on sentence which I have already quoted, that the weapons used by the applicant gave serious cause for concern and raised questions of general deterrence and protection of the public. It was submitted that in this part of his Honour's remarks on sentence his Honour had contravened the principle of sentencing which was stated by Gibbs CJ in De Simoni at p 389 as being: "A Judge in imposing sentence is entitled to consider all the conduct of the accused including that which would aggravate the offence but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence." 28 I do not consider that these submissions should be accepted. 29 It is true that the applicant was charged with offences under s 97(1) of the Crimes Act, that is, with robbery whilst being armed with an offensive weapon, and was not charged with offences under s 97(2) of the Crimes Act. However, it is clear from his Honour's remarks on sentence that his Honour was mindful that the charges had been brought under s 97(1) and his Honour correctly stated the maximum penalty available as being penal servitude for twenty years, that is, the maximum penalty under s 97(1). 30 In my opinion, notwithstanding a submission put on behalf of the applicant, it is clear that the applicant was properly charged with offences under s 97(1). The term "offensive weapon" was, as I have said, defined in s 4 of the Crimes Act as including a "dangerous weapon" and, hence, a firearm. 31 It was submitted on behalf of the applicant that the definition of an "offensive weapon" in s 4 of the Crimes Act should not be applied to the term where it appears in s 97 of the Crimes Act. An argument was sought to be based on the circumstance that the definition had been introduced into the Crimes Act by the Crimes (Home Invasion) Amendment Act 1994. 32 I do not consider that this submission should be accepted. Section 4 of the Crimes Act provides that the definitions in that section are to be applied, unless the context or subject matter otherwise indicates or requires. I do not consider that the context or subject matter of s97 otherwise indicates or requires and, hence, I am of the opinion that the definition in s 4 should be applied. In my opinion, this conclusion is confirmed by the very terms of s 97(2). Section 97(2) provides that a person is guilty of an offence under that sub-section "if the person commits an offence under sub-section (1) when armed with a dangerous weapon." 33 The words I have quoted indicate that s 97(2) proceeds on the basis that a person can commit an offence under s 97(1) when armed with a dangerous weapon. 34 In sentencing for an offence of robbery whilst armed with an offensive weapon, it is clearly relevant for a sentencing judge to take into account the nature of the offensive weapon. In R v. Henry the Chief Justice, at par 170 of his judgment, indicated "the nature of the weapon" as being among the factors to be taken into account in sentencing for armed robbery. This is particularly so, given the wide range of objects which, even before the coming into force of the definition of an offensive weapon inserted in the Crimes Act by the Crimes Amendment (Offensive Weapons) Act, were capable of amounting to offensive weapons. Even at common law, offensive weapons included not merely objects which were ordinarily used for offensive purposes but also objects, which, although not ordinarily used for offensive purposes, were intended, on the particular occasion, to be used for offensive purposes. 35 In my opinion, a Judge, in sentencing for an offence under s 97(1) in a case where the offensive weapon with which the offender was armed was a dangerous weapon, can take into account the nature of the weapon - for example, that it was a firearm and not, say, a piece of wood - without transgressing the principle of sentencing in De Simoni. In so proceeding, the Judge is determining what was the objective gravity of the offence under s 97(1) which the offender committed. If the submissions of counsel for the applicant were correct, then, in the case of an offence charged under s 97(1) where the offensive weapon was a dangerous weapon, the sentencing Judge in sentencing the offender would have to ignore the nature of the weapon which the offender had used, that is, ignore one of the most important features of an offence of robbery while being armed with an offensive weapon. 36 What I have said is, of course, subject to the proviso that the sentencing Judge, in a case where the weapon with which the offender was armed was a dangerous weapon, must keep in mind, as Judge Williams clearly did, that he or she, in sentencing for an offence under s 97(1), is bound by the maximum penalty available for an offence under that section. 37 The second ground of appeal was that the sentence was manifestly excessive. It was submitted inter alia on behalf of the applicant that the sentencing Judge had given insufficient weight to the pleas of guilty and the applicant's contrition; that the sentencing Judge, while referring to R v. Fernando, had given insufficient weight to the principles stated by Wood J; that the Crown had chosen to charge the applicant with offences under s 97(1) and not s 97(2); and that the Crown had agreed to have two of the offences included in a form under the Criminal Procedure Act rather than in an indictment. 38 It was also submitted that reference to statistics kept by the Judicial Commission of sentences for armed robbery indicated that the sentences imposed on the applicant were manifestly excessive. 39 I do not accept any of these submissions made by counsel for the applicant. 40 It is clear from his Honour's lengthy remarks on sentence that his Honour took into account the pleas of guilty, the contrition which he found the applicant experienced, the principles enunciated by Wood J in Fernando, that the charges had been laid under s 97(1) and not s 97(2), and that two of the offences of armed robbery had been committed on the same day. 41 As regards the inclusion of two of the offences of armed robbery in a form under s 21 of the Criminal Procedure Act rather than in the indictment, I note that Hunt CJ at CL said in R v. Morgan (1993) 70 A Crim R 368: "It is wrong in principle in relation to serious offences that only little should ever be added to the penalty imposed for the offence charged when another offence is taken into account pursuant to s 21 of the Criminal Procedure Act." 42 In the present case it would have been preferable for the first and fifth offences, because of their seriousness, to have been included in the indictment, rather than the form. However, in my opinion, the sentencing Judge would have been entitled to give substantial weight to the commission of these serious offences, notwithstanding they had not been included in the indictment, provided, of course, he did not infringe the requirement that the sentences he imposed should not exceed the maximum penalties permissible for the offences charged in the indictment. 43 In my opinion, the sentencing statistics placed before us, which relate to sentences for single offences of armed robbery are of little assistance. 44 In my opinion given the judgment of the Court of Criminal Appeal in R v. Henry and the objective seriousness of the offences, and even after taking into account the subjective circumstances of the applicant and the principles stated by Wood J in Fernando, the sentences imposed by his Honour cannot be regarded as manifestly excessive and were indeed fairly lenient. 45 If the court were to uphold the appeal against sentence and to proceed to re-sentence the applicant, then, in my opinion, the court would come to the conclusion that no sentences less than those imposed by the sentencing Judge would be warranted. 46 In my opinion leave to appeal should be granted. The appeal against sentence should be dismissed. 47 ABADEE J: I agree with the orders proposed and the reasons for them. The orders, therefore, will be the orders proposed by Mr Justice James. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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