Reported Decision : 121 A Crim R 426 New South Wales Court of Criminal Appeal CITATION : R v Speeding, Bradley Adam [2001] NSWCCA 105 FILE NUMBER(S) : CCA 60851/00 HEARING DATE(S) : 21 March 2001 JUDGMENT DATE : 21 March 2001 PARTIES : R v Bradley Adam SPEEDING JUDGMENT OF : Giles JA at 1; Wood CJ at CL at 35; Simpson J at 36 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0205 & 00/21/0264 LOWER COURT JUDICIAL Phegan DCJ OFFICER : COUNSEL : R Cogswell SC& B Baker - Crown C Craigie - Respondent SOLICITORS : S E O'Connor - Crown Sydney Regional Aboriginal Corporation Legal Service - Respondent CATCHWORDS : SENTENCING - Crown appeal - six robberies armed with a knife in the space of six months - failure to give sufficient weight to multiplicity of offences and fact two were committed while on bail - failure to give sufficient weight to serious impact on victims - lack of reasonable proportionality between objective gravity of offences and subjective matters - sentences increased. R v Allpass (1994) 73 A Crim R 561 R v Bavadra (2000) NSWCCA 292 CASES CITED: R v Dodd (1991) 57 A Crim R 349 R v Henry (1999) 46 NSWLR 346 R v Richards (1982) 2 NSWLR 464 R v Wheeler (2000) NSWCCA 34 DECISION : Appeal upheld. Five of six sentences quashed and in lieu respondent sentenced in manner described in para [31] as altered in the addendum in para [35]. Orders made in accordance with short minutes. IN THE COURT OF CRIMINAL APPEAL CCA 60851/00 DC 00/21/0205 & 00/21/0264 GILES JA WOOD CJ at CL SIMPSON J Wednesday 21 March 2001 R v Bradley Adam SPEEDING JUDGMENT 1 GILES JA: The respondent entered pleas of guilty to five charges of robbery whilst armed with an offensive weapon and one charge of robbery simpliciter. The offences, for the former of which a maximum penalty of imprisonment for twenty years is provided, were committed over a period of six months from the end of April 2000 to the beginning of October 2000. Five of the charges, those of robbery whilst armed with an offensive weapon, came before the District Court as committals for sentence pursuant to s 51A of the Justices Act 1902. The respondent was committed for trial on the sixth charge, that of robbery simpliciter, and entered his plea of guilty on arraignment. 2 In order of commission of the offences, with the qualification next mentioned, the sentences imposed were as follows: (a) offence committed on 29 April 2000: imprisonment for three years and six months with a non-parole period of one year; (b) offence committed on 2 May 2000: imprisonment for three years and six months with a non-parole period of one year; (c) offence committed on 4 May 2000: imprisonment for three years and six months with a non-parole period of one year; (d) offence committed on 15 May 2000, this being the charge of robbery simpliciter on which the respondent was arraigned: imprisonment for four years with a non-parole period of eighteen months; (e) offence committed on 15 September 2000: imprisonment for five years and three months with a non-parole period of two years and nine months; and (f) offence committed on 1 October 2000: imprisonment for five years and three months with a non-parole period of two years and nine months. 3 While I have stated figures for the full terms and non-parole periods, the sentencing judge said that all sentences were to be reduced by sixty-five days, being the period which the respondent was in full-time custody prior to sentencing. The figures I have given should be understood as modified accordingly. All sentences were to commence on 14 December 2000 and were to be served concurrently. On that basis the respondent will be eligible for parole on 10 July 2003. 4 This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 on the ground that the sentences are manifestly inadequate. 5 The offences were very similar. Each involved robbery of a fast food outlet, a KFC, a McDonalds and a Red Rooster, armed with a large knife. Although the charge for the offence committed on 15 May 2000 was of robbery simpliciter, on the facts the respondent was armed with a knife on that occasion in the same manner as on the occasion of the other offences. Why the charge was of robbery simpliciter is unclear. 6 Twice the respondent had his face covered with a home-made balaclava, once his face was obscured by a bandanna and a baseball cap. At other times he was not disguised, but his appearance when disguised must have added to the impact of his being armed with a knife. When inside the outlet the respondent jumped the counter, threatened staff, and demanded money. Sometimes he only took money from the cash registers, sometimes he also demanded that the safe be opened and took money from the safe. The money was put in a pillowcase or a plastic bag and the respondent then decamped. 7 One of the outlets was robbed twice. The staff of the outlets feared for their safety and were greatly distressed, something which I do not belittle by stating it only in those brief terms. 8 After the third robbery on 4 May 2000 the respondent was spoken to by the police. He had been seen to leave in a car the registration number of which was taken and which was traced to him. He denied any knowledge of the robbery. He was asked to participate in an identification parade, but at the time he made himself available the police could not arrange sufficient people for a parade and it did not take place. The respondent agreed to a photograph being taken. It was put into a display which was shown to two of the employees of the outlet last robbed, but they could not identify the respondent. 9 After the robbery on 15 May 2000 the respondent was again spoken to by the police. He was again asked to participate in an identification parade, but once more the parade could not be arranged. Notwithstanding this, on 23 June 2000 the respondent was arrested and charged with the robbery of 15 May 2000. He denied any knowledge of the robbery and declined to be interviewed. He was granted bail on 27 June 2000. On 31 August 2000 he was committed for trial in respect of that robbery. 10 While he was on bail and awaiting trial, the respondent then committed the two robberies on 15 September 2000 and 1 October 2000. He was arrested on 10 October 2000, and made admissions as to each of the robberies other than that of 15 May 2000. By this time, at least as to some of the offences the police had fingerprint evidence thoroughly implicating the respondent in the robberies. 11 On 12 October 2000 the respondent pleaded guilty on arraignment to the robbery on 15 May 2000. On 16 November 2000 he entered his pleas of guilty to the remaining robberies. 12 The respondent was aged nineteen at the time of the offences. His father had died when he was four. The sentencing judge said that he had remained in a stable and supportive family environment of his mother and sister but his sister was killed by a motor vehicle when he was sixteen or seventeen. The sentencing judge considered that this had had a quite devastating effect on the respondent and that what had been a reasonably well-adjusted life until that time then disintegrated over a period of no more than two years. The respondent became addicted first to alcohol and then to drugs, culminating in a significant heroin addiction. The respondent also became heavily involved in, indeed addicted to, gambling, in particular at the Star City Casino. According to the respondent, he committed the robberies to obtain money for drugs and gambling, and most of the money taken in the robberies was spent in gambling. 13 The sentencing judge was satisfied that the respondent had made "a quite significant break" from his addiction to heroin, and was determined not to relapse into his drug habit. His Honour was less sanguine about the respondent's addiction to gambling. A psychologist's report before his Honour stated that the respondent himself was unsure about coping with that addiction, and counselling or other professional help was recommended. His Honour accepted that the respondent had been apparently co-operative and committed to furthering his education whilst in custody, and he said that the respondent retained the support from his mother, his grandparents and a girlfriend. 14 The sentencing judge said that each offence fitted the typical case of the guideline judgment in R v Henry (1999) 46 NSWLR 346, and that if each offence were taken separately the appropriate sentence was a period of full-time imprisonment of between four and five years. His Honour considered that he then had to take into account the accumulation of offences, what he called "the particular history of investigation and arrest", and the subjective matters to which I have referred. He posed the question of the extent to which the subjective matters pointing in the respondent's favour could be taken into account by way of adjustment in the imposition of a sentence of imprisonment. 15 After discussion in which he referred again to the cumulative effect of the repeat offences; to what he described as downright foolhardy conduct disregarding the police investigation after three of the offences and the arrest and charge on the fourth of the offences and the granting of bail; to the fact that the last two offences were committed whilst on bail; to the principle of totality; and to the need to ensure that the subjective circumstances were weighed against the seriousness of the offences and what his Honour called the other compounding circumstances, his Honour addressed each offence and came to the sentences to which I have referred. 16 His Honour then specifically found special circumstances relevant to the respective non-parole periods. These were what his Honour referred to as the uncharacteristic period of anti-social and ultimately criminal behaviour on the part of the respondent during the course of time over which the offences were committed, the level of continuing family and other emotional support extended to the respondent for the purposes of his rehabilitation, a very genuine commitment on the respondent's part to overcome his addiction to drugs and gambling; and a genuine recognition on the respondent's part of the seriousness of the offences which he had committed and - " … of his compassion, at least in retrospect, to a certain degree at the time of the commission of the offences themselves for the plight of the very large number of young, entirely innocent people who were put in fear of their own personal safety by his actions." 17 The Crown submitted that the sentences resulted in an overall penalty which was manifestly inadequate. It was acknowledged that his Honour had made the appropriate findings, but it was said that the sentencing did not properly reflect the findings, so that the inadequacy was evident in the sentences themselves. It was said that the errors underlying the inadequacy could be perceived in four areas of his Honour's discharge of the sentencing task. 18 The first two errors were said to be that his Honour failed to give sufficient weight to the fact that he was sentencing the respondent for a multiplicity of offences and failed to give sufficient weight to the aggravating feature that two of the offences were committed whilst the respondent was on bail. It was pointed out that, although it was recognised that each offence fell within the criteria in R v Henry for a period of full-time imprisonment of between four and five years, for the cumulative effect of six offences committed over a relatively short period the result was a period of full-time imprisonment only three months in excess of the five years. Although his Honour acknowledged that there was exacerbation by the cumulation of offences, it was said that he did not adequately give effect to that acknowledgment; and that although he referred to commission of the last two offences whilst on bail, he did so more as to demonstrate the foolhardiness on the part of the respondent than as a factor aggravating the seriousness of the offences and did not adequately take account of that matter to the extent to which he regarded it as a factor aggravating the seriousness of the offences. 19 In my opinion there is force in the Crown's identification of the errors. 20 In R v Bavadra (2000) NSWCCA 292 this Court referred to the need to strike a proper balance between the principle of totality and the sentences to be imposed for individual counts, if necessary by directing cumulation of sentences. With reference to observations of Sully J in R v Wheeler (2000) NSWCCA 34, it was said that, as well as paying regard to totality, it was necessary to guard against a perception that a person who committed a number of offences in a deliberate course of criminal behaviour would not be effectively punished more severely than a person who committed one or two offences. That necessity, in my view, should be emphasised, and is important in the present case. 21 In the present case there was a deliberate course of criminal behaviour, over a period of six months and involving repeated offences. I consider that called for recognition by an effective penalty significantly greater than a sentence which might have been appropriate for one or two of the offences if they had stood alone. Further, the respondent's continuance of his deliberate course of criminal behaviour after he came under police notice, and after he had been charged with the robbery of 15 May 2000 and given the benefit of bail, was more than foolhardy. It showed a contempt for the law and the processes of the law, and a particular contempt when, having the benefit of bail conditioned upon being of good behaviour, the respondent soon engaged in two further offences. It is well-established, see for example R v Richards (1982) 2 NSWLR 464 at 465, that severely deterrent sentences will be imposed on those who abuse their freedom on bail by taking the opportunity to commit further crimes. This the respondent did. 22 The third error suggested by the Crown was failure to give sufficient weight to the serious impact which the Court regards such crimes as those presently in question as having on their victims. 23 His Honour recorded that statements in the Crown brief included some expressions of concern by the respondent at the time as to any injury those at the outlet might have feared. He instanced the respondent saying that he was sorry when the knife accidentally cut the hand of an employee at one outlet and three occasions on which the respondent said to those at the outlet that he was not going to hurt them. His Honour said that it appeared that the respondent had been concerned to reassure his prospective victims that he had no serious intention of hurting them, and this appears to have been what was behind his Honour's reference to a certain degree of compassion at the time of the commission of the offences for the plight of the persons in fear of their safety. His Honour did say that this concern to reassure had to be measured against the fact that the respondent did use a knife, and that quite clearly the purpose of the knife was to engender sufficient fear in the victims to persuade them to hand over the money which he stole and it was difficult to attach significant weight to the reassurances in the light of the production and use of the knife. 24 I would put it more strongly. I do not think any weight at all could be attached to the so-called reassurances. They were no more than an indication to the victims that they would not be hurt provided they did exactly what the respondent wanted, which cannot have been any real comfort to them. What his Honour said, to my mind, really did not properly address the effect on the victims which the statements of the victims placed before him revealed, being one of great distress notwithstanding reassuring words the respondent might have intended to have used. The so-called reassurance was unlikely to, and did not, detract from the threat of violence or alleviate the distress caused. When robbery is committed under the threat of a knife, I see no room for alleviating the seriousness of the offence and, as part of that seriousness, the possible traumatic effect on those threatened, by the use of so-called reassuring words. 25 The Courts must mark the entitlement of citizens to go about their business without the fear and distress occasioned by violence or use of an offensive weapon, and must appropriately deter such offences by paying full regard to the impact on the victims. I consider that in this respect also what the Crown suggested has force. 26 The Crown further submitted that there was no reasonable proportionality between the objective gravity of the crimes and the subjective matters material to the respondent, and that the objective gravity overwhelmed the subjective matters. 27 As the sentencing judge acknowledged, the subjective features must not overwhelm the primary duty of giving appropriate weight to the objective features of the crime: see for example R v Dodd (1991) 57 A Crim R 349 at 354. Foremost amongst the subjective matters in the present case was what his Honour regarded as an atypical descent by the respondent via alcohol, drugs and gambling to a period of criminality which the respondent genuinely regretted at the time he was sentenced. Nonetheless the sentence must appropriately reflect the seriousness of the crime, and the offences here were serious and were repeated. This was a case, in my view, in which the circumstances in which the respondent came to engage in his course of criminal conduct could properly be reflected in the finding of special circumstances, as they were, but that the seriousness of the offences called for greater recognition than is reflected in the sentences imposed. 28 Taking all these matters together, I conclude that the sentencing judge's discretion miscarried and that, in the result, there was manifest inadequacy. I pay full regard to the principles according to which a successful Crown appeal should be of some rarity, necessary to correct error of principle whether itself visible in the reasons of the sentencing judge or evidenced by the sentence being so inadequate as to manifest such error. Sentencing involves a substantial element of discretion and this Court does not intervene simply on the basis that its discretion would to have been exercised differently from that of the sentencing judge: see R v Allpass (1994) 73 A Crim R 561 at 562-3. I further pay full regard to considerations of double jeopardy, and to the submission put to us on behalf of the respondent that in the light of the respondent's embarkation on rehabilitation his sentence should not be increased so as to have the deleterious effect of disturbing the good prospects of rehabilitation. Nonetheless, to my mind this is a case in which the Crown appeal was warranted and should be upheld. 29 The question then is how to re-exercise the discretion. 30 In my view it would be appropriate to take a course by which the sentences for the offences committed on 15 September 2000 are 1 October 2000 were partially accumulated on the sentences for the earlier offences and there is adjustment of the sentences for the earlier offences. 31 I propose that, always subject to the same sixty-five days to which the sentencing judge referred, the sentences which his Honour imposed for the offences committed on 15 September 2000 and 1 October 2000 should remain as they are but to commence not on 14 December 2000 but on 14 December 2002. I would not adjust the sentence for the offence committed on 15 May 2000 because it may be that his Honour sentenced for that offence under a misapprehension that the charge was one of robbery whilst armed with an offensive weapon rather than robbery simpliciter; I would adjust the sentences for the three earlier offences, those committed on 29 April 2000 and 2 May 2000 and 4 May 2000, by increasing them to imprisonment for four years and six months with a non-parole period of eighteen months in each case. I repeat that the sixty-five days adjustment must also be made. 32 I therefore propose that five of the sentences be quashed and that in lieu thereof the respondent be sentenced in the manner I have described. 33 WOOD CJ at CL: I agree. 34 SIMPSON J: I also agree. (Mr Craigie asked whether the elements of the sentence could be expressed in total terms so far as what it will mean to the respondent in terms of his overall sentence.) (It was agreed that counsel would prepare and hand up short minutes after the luncheon adjournment.) 35 WOOD CJ at CL: The effect is to extend the total sentence by two years and the non-parole period by two years. That is the net result of the accumulation. LUNCHEON ADJOURNMENT (Counsel pointed out that the non-parole period of eighteen months for the first four offences left a gap before commencement of the sentences for the fifth and sixth offences. The Court said that the gap was not intended and the non-parole periods should be increased to two years. Short minutes of order signed by both counsel were handed up.) 36 GILES JA: We make the orders and pronounce the sentences in terms of the short minutes of order which, for identification I will initial and date today's date. _______________ 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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