New South Wales Court of Criminal Appeal CITATION : R v Warman [2001] NSWCCA 147 FILE NUMBER(S) : CCA 60481/00 HEARING DATE(S) : 18 April 2001 JUDGMENT DATE : 18 April 2001 PARTIES : Regina Mark Wayne Warman JUDGMENT OF : Wood CJ at CL at 1; Sully J at 15 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/211/1028 LOWER COURT JUDICIAL Robison DCJ OFFICER : COUNSEL : Crown: M. Marien Applicant: D. Jordan SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - robbery - worst category of offence - subjective circumstances - timely plea - whether sentence manifestly excessive CASES CITED: Crimes Act 1900 s 94 Crimes (Sentencing Procedure) Act 1999 s 32 DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL No. 60345 of 2000 WOOD CJ at CL SULLY J 18 April 2001 Regina v Mark Wayne WARMAN The applicant pleaded guilty to one count of robbery pursuant to s 94 Crimes Act 1900. A further 12 offences were also taken into account on a Form 1. He was sentenced to imprisonment for seven years with a non-parole period of four years. The applicant appeals against the sentence imposed on the grounds that it was manifestly excessive in that (1) the case did not fall into the worst category for the offence; (2) insufficient weight was given to the timely plea of guilty or to the applicant's remorse and rehabilitation. HELD: (Appeal dismissed): Ground 1: case did not fall into the worst category The present offence was properly categorised as serious in light of the applicant's prior record and obvious pre-meditation. Robbery is regarded as a serious offence and considerations of deterrence are of special importance. In this case the victim was in a vulnerable position and as such he was entitled to be protected by a consistently firm stand on sentencing. Roberts (1994) 73 A Crim R 306; France NSWCCA 9 July 1992; Thwaites NSWCCA 6 October 1993; Crotty NSWCCA 29 February 1994 applied. Ground 2: Insufficient weight given to applicant's plea and remorse Given that the starting point which the sentencing Judge adopted was correct and making full allowance for the early plea, the contrition displayed by the applicant and professed change in attitude, there was no error of law in the sentence imposed. Proposed Orders (1) Leave to appeal granted. (2) Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60345/00 WOOD CJ AT CL SULLY J WEDNESDAY 18 APRIL 2001 REGINA v MARK WAYNE WARMAN JUDGMENT 1 WOOD CJ AT CL: On 3 April 2000 the applicant pleaded guilty at Penrith District Court to one court of robbery pursuant to s 94 of the Crimes Act 1900. For that offence, taking into account twelve further offences pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, he was sentenced by Robison DCJ to imprisonment for seven years with a non-parole period of four years. He was now seeks leave to appeal against that sentence. 2 While accepting that the ratio between the non-parole period and the total sentence appropriately reflected the special circumstances that were found to exist, it was submitted that the sentence as a whole was manifestly excessive upon the bases that: (a) the case did not fall into the worst category attracting a sentence in the upper range, and that (b) insufficient weight was given to the timely plea of guilty, or to the applicant's remorse and genuine desire for rehabilitation. These grounds need to be considered in the light of the facts of the offence and in light of the subjective circumstances presented to, and found, by his Honour. Facts At about 7.40pm on 24 September 1999, the victim of the robbery left the service station, of which he was the owner/operator, to drive home. He had with him a brief case containing the days takings as well as a change bag. The total amount which he was carrying was between $2,000 and $3,600. The applicant followed him home from the service station. When he alighted from his vehicle the applicant grabbed him by the shirt and instructed him to "open up." The applicant seized the briefcase and ran away with it. He was arrested in the early hours of the following morning at his home, where a considerable quantity of cash was found. These facts give rise to the charged offence of robbery. The further offences taken into account included two offences of shop lifting, four offences involving the forgery, uttering or possession of forged prescriptions, one offence of possession of house breaking implements, one offence of goods in possession, one offence of break, enter and steal, one offence of larceny, one offence of driving a motor vehicle whilst under the influence of a cocktail of drugs and one offence of driving a motor vehicle while unlicensed. Subjective circumstances . The following subjective circumstances were shown to exist. (a) when he appeared for sentence the applicant was aged 33 years; (b) he had an extensive criminal history both as an adult and a juvenile, including multiple convictions for serious driving offences, goods in custody, break, enter and steal, possession of house breaking implements, false pretences, forgery and uttering, larceny, receiving, assault, escape lawful custody, malicious damage and shoplifting; (c) as a result, he had spent in excess of 13 years of his life in custody, some portions of that period of custody relating to offences similar to those included in the Form 1. (d) the offences encompassed in the Form 1 and the offence charged occurred, with the exception of one matter that had been outstanding on a warrant, between 14 July 1999 and 24 September 1999, the first within four weeks of his last release from gaol. (e) he had a long-standing drug habit. (f) he had not previously been motivated to undertake rehabilitation, regarding gaol as an easier option, and having relapsed following his earlier releases from prison, when he had run into his old friends. (g) he had very limited education and work experience. (h) Mr Warwick John Taylor assessed his potential to reoffend to be quite high and thought him to have a personality disorder with anti social and passive-aggressive characteristics, and also assessed him to have a high predisposition towards substance abuse. (i) when giving evidence on sentence he asserted that he was tired of going to gaol, that he felt he had matured, and wanted now to go into rehabilitation; (j) he had been assessed as suitable for entry into the Bridge rehabilitation programme conducted by the Salvation Army, when he was eventually released to parole; (k) while in custody he had been making some progress with education classes. 3 His Honour accepted the applicant's evidence concerning the genuineness of his desire to take a turn for the better and found special circumstances justifying the considerable reduction of the non-parole period, to one representing a ratio of fifty-seven per cent of the head sentence, so as to allow for an extended period of post release supervised rehabilitation. His Honour also expressly took into account the applicant's contrition and the early plea of guilty. 4 In submitting that his Honour had set the bar too high for an offence of robbery, counsel placed some reliance upon the Judicial Commission statistics, which would tend to show that, from a sample of 323 offenders, only ten had received sentences in excess of seven years, and only three had received sentences of eight years for the offence of robbery. Additionally, counsel invited a comparison with the guideline range, for the sentencing of those convicted of the more serious offence of armed robbery, that was suggested by the Court in Henry (1999) 46 NSWLR 346. He did, however, accept that several of the applicant's characteristics, notably those concerning his age, his lengthy criminal history and the degree of pre-meditation involved in the robbery, were more serious than the characteristics posited for the guideline. 5 The comparison invited with Henry was, in my view, of limited assistance, particularly having regard to the fact that, for the offence under consideration in Henry, the narrow range in the guideline was said to be a starting point and that aggravating or mitigating circumstances would justify a sentence above or below that range. 6 Reliance upon the sentencing statistics was also, in my view, of limited value. Those figures have a use as background information. However their over use, particularly without regard to the infinite variations in the objective and the subjective circumstances of the cases upon which they are based, can be dangerous, particularly if the outcome derogates from an otherwise correct exercise of the sentencing discretion: see Yin (Muoi) NSWCCA 30 November 1998 and see also Bayeh (Louis) [1999] NSWCCA 82. 7 The present offence was, in my view, properly categorised as serious, in light of the applicant's prior record, which disclosed a long standing attitude of disobedience of the law and in light of the obvious pre-meditation that was present. The Crown case was also a strong one, in view of the identification of the offender, as the applicant, by the victim and by another witness. 8 It is the fact that robbery is regarded as a very serious offence: Roberts (1994) 73 A Crim R 306 at 309, and that considerations, of deterrence are of special importance: France NSWCCA 9 July 1992. The present victim was in a vulnerable position having regard to the likelihood that, as the operator of the service station, it could be expected that he would need to carry the day's takings with him. As such he was entitled to be protected by a consistently firm stand on sentencing: Thwaites NSWCCA 6 October 1993 and Crotty NSWCCA 29 February 1994. 9 Had the criminality in the present case been confined to a single offence of robbery, and had the applicant's record not been so extensive, then there would have been good reason for questioning the length of the total term, particularly, since it was a case attracting a discount in the upper range of that considered appropriate for a timely plea in Thomson v. Houlton (2000) NSWCCA 309 at par 160, a decision which was not available to his Honour. 10 However, the applicant here was to be sentenced for the total criminality involved in the offence charged and in the Form 1 matters: see Morgan (1993) 70 A Crim R 368 at 372; and also upon the basis that he had demonstrated himself to be a recidivist who had displayed no previous interest whatsoever in rehabilitation. 11 So far as totality was concerned, this Court in Dawson (2000) NSWCCA 399 and again in Lemene (2001) NSWCCA 5, made it clear that an additional penalty must be expected when an accused asks that further offences be taken into account on a Form 1, albeit that such additional penalty will be less than would have been imposed had separate charges been prosecuted. 12 For these reasons, the submission concerning the starting point which his Honour might be assumed to have adopted before the reduction for the timely plea, and for the contrition and rehabilitation prospects, loses force. As against the maximum available sentence of fourteen years, and making full allowance for the early plea, for the contrition displayed by the applicant, and for his professed change in attitude, I am unable, in the circumstances outlined, to detect any error of law in the total sentence imposed. 13 Whether the applicant has truly reached the cross roads has yet to be seen. Hopefully, as his Honour found, that will be the case. However, so far as his Honour gave him the benefit of the doubt in this regard, that seems to me to have been amply demonstrated in the reduced non-parole period. 14 I would, accordingly, grant leave to appeal but I would dismiss the appeal. 15 SULLY J: I agree. 16 WOOD CJ at CL: The order of the Court will be as I have proposed. ********** 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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