R v Black [2001] NSWCCA 41

New South Wales Court of Criminal Appeal

CITATION : R v Black [2001] NSWCCA 41 FILE NUMBER(S) : CCA 60485/00 HEARING DATE(S) : 16/02/01 JUDGMENT DATE : 16 February 2001

PARTIES : Regina v Scott Leonard Black JUDGMENT OF : James J at 1; Whealy J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/51/0026 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : EB Tuckerman -Appellant LMB Lamprati -Crown SOLICITORS : Direct Access - Appellant SE O'Connor - Crown

DECISION : Leave to appeal granted - appeal allowed

IN THE COURT OF CRIMINAL APPEAL 604085/00 JAMES JA WHEALY JA

Friday 16 February 2001 REGINA v SCOTT LEONARD BLACK JUDGMENT

1 JAMES JA: Scott Leonard Black has applied for leave to appeal against a sentence imposed on him in the District Court on 16 June 2000 by his Honour Judge Ducker, after he had pleaded guilty to one charge of robbery using corporal violence, an offence under s 95(1) of the Crimes Act, for which the maximum penalty is imprisonment for twenty-five years. Judge Ducker imposed a sentence of three years one month, with a non-parole period of one year eight months commencing on 16 June 2000, the date of sentencing, and expiring on 15 February 2002. 2 In his remarks on sentence Judge Ducker stated the facts of the offence in a way which has not been subjected to any criticism by counsel for the applicant: " ... at approximately 9.20pm on Saturday 25 September 1999 Mawa Kido was working on a checkout at the Aussimate Supermarket in Macleay Street, Potts Point. The offender joined a queue of persons waiting to go through the checkout area. The supermarket had video surveillance which actually captured the commission of the crime. The offender wore no disguise, he would have been clearly recognisable from the video, one would expect. The absence of disguise is an indication that there was no great premeditation in relation to this matter. The facts do not reveal whether or not the offender had any prospective purchases in his possession at the time he approached the checkout, the Court has been left a little in the dark about that. I think, in fairness to the offender, the offence should be approached on the basis that the act which he committed was more an impulsive act than anything else, committed with very little premeditation. It was a very unpleasant act, however, because he struck the young woman at the checkout on the left side of her face with his fist, knocking her to the floor. She was later taken away by ambulance but fortunately her injuries appear to have been limited to bruising and swelling on the left side of her face. X-rays revealed that there was no fracture. However, it was obviously a heavy blow. After knocking the checkout operator to the floor, the offender reached into the open cash register drawer and removed what was estimated to be $230 in bank notes. He left the store and ran in a northerly direction in Macleay Street, pursued by a number of persons, and was observed to enter the grounds of 12 Macleay Street. Police arrived on the scene shortly afterwards, apparently accompanied by a police dog, and located the offender in the garage area of 12 Macleay Street." 3 When he was interviewed by police later the same evening in an electronically recorded interview, the applicant admitted that he had committed the offence. However, he falsely claimed that he had committed the offence after he had been "rolled", that is, assaulted and robbed, by persons of Asian origin and, as a result of having been "rolled", had suffered what he described as a "brain snap" against Asians. The victim of the robbery with corporal violence was a young Asian woman. When he was interviewed by a consulting clinical psychologist Mr Andreasen on 17 May 2000, the applicant admitted to Mr Andreasen that what he had told police about himself being assaulted and robbed before he committed the offence was untrue. 4 In his remarks on sentence the sentencing judge made the following remarks about the subjective features of the applicant. The applicant had been born on 23 May 1979, so that he was only twenty years old at the time of committing the offence. He had no previous criminal record, except for one conviction for shoplifting in Queensland. He had been employed in the past and there were good prospects of his obtaining employment in the future, if he avoided further drug use. 5 His Honour found that the applicant should receive some credit for his plea of guilty, even though the prosecution case against the applicant was very strong, because the applicant had not used any disguise, the commission of the robbery had been recorded on the surveillance video and the applicant, at the time he was arrested, was still in possession of the stolen money. 6 In his remarks on sentence the sentencing judge quoted extensively from Mr Andreasen's report of 13 June 2000. His Honour quoted and adopted all of the conclusions in Mr Andreason's report, which were as follows: "This is a quite disturbed young man with a history of drug and alcohol abuse since his early teenage years. His use of intravenous amphetamines led to a week or so of in-patient psychiatric hospital treatment with amphetamine psychosis some eight months before this offence and upon his release he moved to Sydney where he was earning a lot of money and spent it on cocaine and heroin. He said that he was strongly affected by both cocaine and heroin on the night of the offence, he had spent all his money on drugs and he wanted more. He said he briefly considered whether to do the robbery or not then decided to do it and it would appear that deciding to do it is what he called a 'brain snap'. The testing shows this man to have very predominant histrionic and anti-social clinical personality pattern predicting an extremely dramatic impulsive exploitive approach to others and circumstances, marked intolerance of frustration, disregard for the safety of himself and others, and this together with the history of drug abuse and the particular levels of multi drug intoxication on that evening would appear to account fully for the offence. As to the story he gave in his interview with police on the night which he now says is a complete fabrication, that is accounted for by the testing showing that his self presentation is likely to be a succession of facades. This man is grandiose, poorly controlled and hardly appreciates the context upon which he operates at any particular time. This man very badly needs to attend a substantial live-in drug rehabilitation program and one which would address the very severe distortions in his personality which in combination with drug intoxication lead to situations where he is quite out of control as has happened in this offence and which amount to brief psychotic episodes. His psychotic episodes are essentially drug induced upon the basis of a very distorted personality so it is the personality and drug abuse that need to be addressed." 7 On this application it was submitted by counsel for the applicant that the sentencing judge had erred in the way in which he had applied the decision of the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. It was submitted that Henry was a guideline judgment for sentencing for offences of armed robbery and his Honour, in sentencing the applicant for an offence which was not an offence of armed robbery, had wrongly regarded himself as bound to apply Henry. 8 It is clear from his Honour's remarks on sentence that his Honour was well aware that the applicant had not been armed and his Honour did not make the mistake of sentencing the applicant on an erroneous basis that he had been armed. It is also clear from his Honour's remarks on sentence that his Honour was conscious that Henry was concerned with laying down guidelines for sentencing for offences of armed robbery. 9 However, it does seem to me that his Honour proceeded on the basis that he was required to adopt, as a starting point or as a prima facie sentence, a sentence of four to five years, which the Chief Justice in para (165) of his judgment in Henry said would generally be appropriate for an offence of armed robbery having the characteristics set out in para (162) of his judgment, and was then required to determine whether there were any circumstances such that the prima facie sentence should be increased or reduced. That this was the way in which his Honour proceeded is, in my opinion, shown by some of his Honour's remarks and by the structure of the remarks on sentence. At page 3 of his remarks on sentence his Honour said: "The Court of Criminal Appeal, in one of its first guideline judgments ( R v Henry ) laid down that for armed robbery the approach should be taken that prima facie a sentence of something around about four years was appropriate, but that that period was to be increased or decreased according to certain criteria laid down in its judgment. The present case, I think, requires a reduction from that period, not an increase." 10 His Honour then considered various objective facts of the offence and various subjective features of the applicant. At page 7 of his remarks on sentence his Honour concluded: "Because there was no weapon, because it was not a prolonged assault, because there seems to have been very limited premeditation, because there has been a plea of guilty by a young offender, I believe that the head sentence should be reduced." 11 In this part of his Honour's remarks on sentence his Honour was clearly repeating the view he had indicated on page 3 of his remarks that factors in the present case required a reduction from the prima facie sentence of four to five years. 12 When a judge is sentencing an offender, not for armed robbery but for some other kind of aggravated robbery, the guideline judgment of the Court of Criminal Appeal in R v Henry for sentencing for offences of armed robbery may well afford some assistance. However, I do not consider that, where a sentencing judge is sentencing for some kind of aggravated robbery other than armed robbery, and even though all of the characteristics set out in para (162) of the Chief Justice's judgment in Henry are satisfied, apart from the characteristic that the offender was armed, a sentencing judge is required to adopt as a starting point or as a prima facie sentence a sentence of four to five years and then to enquire whether any circumstances are present which would permit or require him to impose a heavier or a lighter sentence. 13 The characteristic that the offender should have been armed was stated by Spigelman CJ in para (162) of his judgment in Henry as "(having a) weapon like a knife capable of killing or inflicting serious injury". I accept the submission made by counsel for the applicant that this characteristic, that the offender should have been armed with a weapon capable of killing or inflicting serious injury, is an important characteristic which distinguishes the kind of offence which the Chief Justice was considering in Henry from the kind of offence for which the applicant was being sentenced. 14 In my opinion, it has been established that the sentencing judge adopted an erroneous approach in sentencing the applicant and it is necessary for this Court to consider what sentence it would impose. I have already referred to the objective facts of the offence as found by his Honour, including that there was little premeditation or planning and that the corporal violence consisted of a single punch, albeit a heavy punch. 15 The applicant was a youth twenty years old at the time of committing the offence. He had virtually no other criminal history. He pleaded guilty. For the purposes of re-sentencing the applicant, the Court has received additional evidence from his mother and step-father and from a young woman with whom he appears to have a continuing relationship, all suggesting that he has strong support and that he has taken some steps to overcome his drug addiction. We have also received evidence that whilst in custody the applicant has completed a course directed to understanding and managing anger. As earlier mentioned, the applicant has good prospects of obtaining employment when he is released. 16 I have reached the conclusion that a custodial sentence should be imposed but that a somewhat lesser custodial sentence should be imposed than the sentence that was imposed by the sentencing judge. In my opinion, an appropriate sentence would be a term of imprisonment for two-and-a-half years with a non-parole period of sixteen months. 17 I would, accordingly, propose that leave to appeal be granted and that the appeal against sentence be allowed. The sentence imposed by Judge Ducker on 20 June 2000 should be quashed and, in lieu thereof, the applicant should be sentenced to a term of imprisonment of two-and-a-half years with a non-parole period of sixteen months, commencing on 16 June 2000 and expiring on 15 October 2001. The earliest date on which the applicant will be entitled to be released from custody will be 16 October 2001. 18 WHEALY JA: I agree with the reasons given by his Honour Justice James and with the orders he proposed. 19 JAMES JA: The orders of the Court will be as proposed by me.