New South Wales Court of Criminal Appeal CITATION : R v Aiken [2001] NSWCCA 40 revised - 30/03/2001 FILE NUMBER(S) : CCA 60036/00 HEARING DATE(S) : 14/02/01 JUDGMENT DATE : 14 February 2001 PARTIES : Regina v Matthew Aiken JUDGMENT OF : James J at 1; Whealy J at 31 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2072 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER : COUNSEL : In person - Appellant MC Marien - Crown SOLICITORS : - Appellant SE O'Connor - Crown DECISION : Leave to appeal granted - appeal allowed IN THE COURT OF CRIMINAL APPEAL No 60036/00 JAMES J WHEALY J Wednesday 14 February 2001 REGINA v MATTHEW CLIFFORD AIKEN JUDGMENT 1 JAMES J: Matthew Aiken has applied for leave to appeal against sentences imposed on him in the District Court on 3 December 1999 by Judge O'Reilly, after he had pleaded guilty to three charges, namely: (1) Robbery in company, an offence under s97(1) of the Crimes Act, which carried a maximum penalty of a term of penal servitude for twenty years (2) Being carried in a conveyance without the consent of the owner, an offence under s154A(1)(b) of the Crimes Act, for which the maximum penalty was imprisonment for five years (3) assault with intent to rob whilst armed, an offence under s97(1) of the Crimes Act, for which there was the same maximum penalty as that for the first charge. 2 Judge O'Reilly sentenced the applicant on the first charge to a sentence of penal servitude for four years with a minimum term of two years commencing on 3 December 1999, on the second charge to a sentence of a fixed term of imprisonment for six months commencing on 3 December 1999 and on the third charge to a sentence of a fixed term of penal servitude for two years commencing on 3 December 1999. 3 The offences the subject of the first and second charges were committed on 7 February 1999. The prisoner and two co-offenders named Saville and Nguyen entered a service station which they had decided to rob. Saville was carrying a wheel brace and Nguyen a carving knife. Obviously as part of the plan to carry out the robbery, the applicant bought a bottle of drink from the service station attendant. When the service station attendant opened the cash register, Nguyen jumped the counter, produced the knife and yelled to the attendant to get down on the floor. Saville raised the wheel brace threateningly. The applicant and Saville took cash from the cash register and Nguyen took cigarettes. All three ran off and escaped in the vehicle which had previously been stolen. The proceeds of the robbery were used to buy heroin. 4 The offence the subject of the third charge was committed on 9 February 1999. A group of three young men, including the applicant, Saville and a man named Campos, entered a service station which they had decided to rob. Campos was armed with a kitchen knife and Saville with a club lock. Once again, the applicant bought a drink from the service station attendant. When the attendant opened the cash register, Saville and Campos produced their weapons and demanded money. The attendant started screaming, whereupon all the offenders ran away. A police vehicle happened to be passing by and all the offenders were quickly apprehended. 5 The applicant was born on 19 July 1979. He was, accordingly, nineteen years old at the time the offences were committed. From about the age of sixteen the applicant had abused drugs. In 1999, after the applicant had been arrested for these offences but pending his being sentenced, the applicant spent a period of over seven months, from 30 March to 11 November, in a residential drug rehabilitation program known as the Teen Challenge Program, a program conducted by The Assemblies of God Church. According to a pre sentence report, although the applicant had continued in the Teen Challenge Program until November 1999, he had been suspended earlier and had been asked to leave the Program on 11 November for repetition of rule infringements after counselling. 6 In his remarks on sentence Judge O'Reilly referred to this part of the pre-sentence report but said that he accepted evidence which had been given in the proceedings on sentence by a Mr Feebrey, an officer of the Program, that the infringements by the applicant had not consisted of bringing in drugs or anything serious of that nature but had been "just a disciplinary matter". 7 The applicant appeared for himself on the hearing of this application, legal aid having been refused. In his written submissions the applicant relied on five grounds of appeal, which I will deal with in turn. 8 (1) It was submitted that the sentencing Judge made an error in describing the applicant as an "armed robber", when he himself was unarmed during the commission of both robberies. 9 It is true that, at least in one part of the remarks on sentence, the sentencing Judge described the applicant as "an armed robber". However, I am satisfied that all that his Honour intended to convey was that the applicant was being sentenced, as was the case, for offences including an offence of assault with intent to rob whilst armed with an offensive weapon. The applicant had pleaded guilty to this offence and was guilty of the offence because he was acting in concert with co-offenders who were armed and it was part of his agreement with the co-offenders that they should be armed. 10 As his apparent from his Honour's statement of the facts of the offences in his remarks on sentence, his Honour was well aware which of the offenders had been personally armed and did not labour under any misapprehension that the applicant had himself personally been armed with a weapon. I would reject this ground of appeal. 11 (2) It was submitted that the sentencing Judge erred in giving insufficient consideration to the applicant's age and level of contrition. I do not consider that this ground of appeal had been established. In his remarks on sentence his Honour referred to the applicant's youth, his pleas of guilty, the applicant's having been fully co-operative when spoken to by the police and to the progress towards his rehabilitation which the applicant had made while participating in the Teen Challenge Program. 12 (3) It was submitted that the sentencing Judge gave insufficient weight to the applicant's potential for rehabilitation. It is apparent from his Honour's remarks on sentence that his Honour did consider that the applicant had a potential for rehabilitation. However, his Honour found that the applicant would need intensive and prolonged assistance on release in order to overcome his drug addiction. I do not consider that his Honour ignored or gave insufficient weight to the applicant's potential for rehabilitation. 13 (4) It was submitted that the pre-sentence report contained a serious error of fact, in misrepresenting why the applicant had left the Teen Challenge Program. I have already referred to the relevant part of the pre-sentence report. There is no substance in this ground of appeal, because, even if the pre-sentence report contained a misrepresentation of fact, his Honour was apprised of the true position by the evidence given in the proceedings on sentence by Mr Feebry and his Honour sentenced the applicant on a correct factual basis. 14 (5) It was submitted that the disparity between the sentence passed on the applicant and the sentence passed on the co-offender Campos was such as to give rise to a justifiable sense of grievance on the part of the applicant. 15 The applicant was being sentenced for two sets of offences, that is the offences charged in the first two counts which were committed on 7 February 1999 and the offence charged in the third count which was committed two days later. The only other offender who had participated in both sets of offences was Saville, who was a juvenile and who had to be sentenced under the special sentencing regime applying to juveniles and hence no parity argument in favour of the applicant could be based on the sentences passed on Saville. 16 Campos, the co-offender referred to in the ground of appeal, was sentenced to a term of imprisonment of three years, with a minimum term of nine months. Campos had taken part in the commission of the offence on 9 February but had not taken part in the two offences committed on 7 February. This being so, I consider that the attempt to construct a parity argument based on the sentence passed on Campos must fail. 17 I have concluded that all of the grounds of appeal raised by the applicant in his written submissions should be rejected. However, in the course of oral argument on the hearing of the appeal it became apparent that there might be available to the applicant a ground of appeal which he had not relied on in his written submissions. 18 I have already referred to the fact that Mr Feebry, an official of the Teen Challenge Program, gave evidence in the proceedings on sentence. Mr Feebry gave evidence about the nature of the Teen Challenge residential drug rehabilitation program. He gave evidence that the Program was a full time live-in program. He said: "These guys are obliged to comply with a pretty regimented program of getting up very early in the morning. They have a structured class room, being their contract work." 19 He gave further evidence that there was supervision of inmates at all times. During the first three months of the program a participant was not allowed any home leave. During the whole of the time the applicant was a participant in the program he had home leave on only one occasion. Mr Feebry gave further evidence that there had not been any back-sliding on the part of the applicant, the applicant was "just very restless and just not focused at that stage". 20 I am satisfied that the evidence given by Mr Feebry in the proceedings on sentence establishes that while the applicant was a participant in the program he was subjected to a kind of quasi-custody such that the sentencing Judge ought to have given him some credit on that account. In R v Cartwright (1989) 17 NSWLR 243 Hunt and Badgery-Parker JJ said in their joint judgment (at pp258-259) that a period of quasi-custody to which the prisoner in that case had been subjected, should have been taken into account and that the prisoner should have received credit for a substantial proportion but not the whole of the period for which he had been in quasi-custody. 21 This principle has been applied in a number of subsequent cases including R v Eastway (unreported NSW CCA 19 May 1992) R v Campbell (1999) NSW CCA 76) and R v Thompson (2000 NSW CCA 362). 22 It is true that in his remarks on sentence the sentencing Judge did refer to the applicant having undergone many months of full time residential treatment in the program conducted by the Teen Challenge organisation. However, as I understand his Honour's remarks on sentence, his Honour referred to this matter in the context of making a finding that the applicant had made some progress in rehabilitating himself. His Honour would not appear to have taken into account the months spent in the program as a factor entitling the applicant to a discount in sentencing, in accordance with the principles stated by Hunt and Badgery-Parker JJ in Cartwright. 23 I have reached the conclusion that the exercise by the sentencing Judge of his sentencing discretion miscarried, for the reason that his Honour did not take into account a relevant matter which he ought to have taken into account. It is, accordingly, necessary for this court to re-sentence. It was submitted by the Crown that, notwithstanding that the sentencing Judge had not taken into account a relevant factor, nevertheless the appeal against sentence should be dismissed for the reason that, if this court were to re-sentence, this Court could not properly imposer a lesser sentence than the sentence imposed by Judge O'Reilly. 24 I have, however, reached the conclusion, after taking into account all of the objective facts of the offences and the subjective features of the applicant, that this Court should intervene and should allow the appeal and should re-sentence the applicant to a sentence somewhat less severe than the sentences passed on the applicant by Judge O'Reilly. 25 In re-sentencing the applicant I will generally adopt the approach taken by his Honour but I would allow the applicant a credit of four months for the period of some seven months spent by the applicant in quasi-custody in the program conducted by the Teen Challenge organisation. 26 I would, accordingly, propose that leave to appeal be granted and that the appeal against sentence be allowed, that the sentences imposed by Judge O'Reilly on 3 December 1999 be quashed and in lieu thereof the applicant be sentenced to the following sentences. 27 On the first count the applicant be sentenced to imprisonment for three years eight months, with a non parole period of one year eight months commencing on 3 December 1999 and expiring on 2 August 2001. There will be an additional term of two years. 28 On the second count the applicant be sentenced to a fixed term of imprisonment of six months commencing 3 December 1999 and expiring 2 June 2000. 29 On the third count the applicant be sentenced to a fixed term of imprisonment for one year eight months commencing 3 December 1999 and expiring 2 August 2001. 30 The earliest date on which the applicant will be eligible for release on parole will be 3 August 2001. 31 WHEALY J: I agree. 32 JAMES J: The orders of the court will be as proposed by me. ********** 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.