REGINA v CALLEJA [2001] NSWCCA 259

New South Wales Court of Criminal Appeal

CITATION : REGINA v CALLEJA [2001] NSWCCA 259 FILE NUMBER(S) : CCA 60627/00 HEARING DATE(S) : 2 July 2001 JUDGMENT DATE : 2 July 2001

Regina

PARTIES : v

Christopher Lee CALLEJA JUDGMENT OF : Adams J at 1; Smart AJ at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/5086 LOWER COURT JUDICIAL Tupman DCJ OFFICER :

COUNSEL : Mr L M B Lamprati (Crown) Applicant in person SOLICITORS : S E O'Connor (Crown) Applicant in person CATCHWORDS : Sentence - robbery - drug addiction exacerbated by illness - significance - prison classification delayed - sentence reduced CASES CITED: Thompson (2000) 49 NSWLR 383 Henry (1999) 106 A Crim R 149 DECISION : Leave to appeal be granted; Appeal against sentence of fixed term of 2 years for robbery dismissed; Appeal against sentence of 5 years for each of two counts of armed robbery dismissed; Appeal against non-parole period of 2 years 6 months in respect of each offence of armed robbery allowed. Non-parole period quashed. In lieu thereof, the court fixes a non-parole period of 2 years commencing on 10 March 2000 and expiring on 9 March 2002, on which date the applicant will be eligible for release on parole.

Ex tempore - revised

IN THE COURT OF CRIMINAL APPEAL 60627/00 ADAMS J SMART AJ

MONDAY 2 JULY 2001 REGINA v CHRISTOPHER LEE CALLEJA JUDGMENT

1 ADAMS J: The applicant is a young man of 23 years who, regrettably, has lapsed into a life of serious crime as a result of his addiction to heroin. The offences in question here may be briefly described. There is nothing unique about them. In relation to the first charge, he was driven to a shopping center by an acquaintance. Before doing so, he had partially filled a syringe with his own blood and kept it in his pocket until he entered the newsagency. He threatened the store owners whilst holding the syringe in front of him. It was plainly a terrifying occasion. There was a struggle. In the course of the struggle the applicant kneed one of the victims a number of times in the stomach. A number of shop keepers and others in the near vicinity came to the victims' assistance. The applicant continued to struggle and lash out but was eventually detained. The police attended a short time later and the applicant was taken into custody. When interviewed by the police the applicant made admissions. He denied using the syringe to threaten the owners of the shop but, in the course of the proceedings before the learned District Court sentencing judge, he admitted the facts which I have just set out. 2 The second charge occurred about a week earlier. There, a young man named Ekmal Iqbal was working in a service station and saw the applicant in the premises holding a syringe containing blood. The applicant demanded money from him. The two went to the cash register and, under threat, Mr Iqbal pulled out the cash tray and tipped moneys into a bag held by the applicant. He saw a lady's wallet behind the counter at this time and took it. The incident was recorded on a video surveillance camera. The applicant was questioned about the matter following his arrest on 10 March 2000 and admitted the offence stating that he needed money for heroin. 3 It was accepted that the applicant cooperated with police and showed genuine remorse for the victims. The applicant was also dealt with for an offence which occurred on 14 October 1999 in which he went to a store in Wetherill Park outside of which were some tables on which some sale items were available and where there was a cash register. The applicant approached a member of staff, then only 16 years old, said that he had a knife and demanded that she should open the cash register. The prosecution does not suggest that the applicant actually did have a knife but, not surprisingly, the young lady believed the applicant's threat. She opened the register. The applicant grabbed a bundle of $50 notes from the till and then fled. 4 Although the applicant had a criminal history of some seriousness, the offences for which he was sentenced in the District Court were, by a considerable degree, the most serious offences that he committed. There were no previous offences involving violence. As her Honour observed, he appears to have commenced his criminal offending in 1996 when he was about 18. And, until the instant offences were committed, the matters on his record had been either for dishonesty or involved using and driving a motor vehicle and the like. It is a serious aggravation of the applicant's culpability that the two latter offences were committed whilst he was on bail for the robbery offence in October 1999 and whilst he was subject to conditional liberty pursuant to a bond of 5 years that he entered into on 4 December 1998 for the offence of receiving. He had been subject to supervision under the terms of that bond but it was clearly inadequate, in the circumstances, to ensure that he did not commit further serious offences. 5 The applicant had a good employment history but his increasing drug habit took a heavy toll on his work life and his ability to support that habit through work. A most significant matter affecting the latter two offences was that a few weeks before he had been seriously assaulted as a result of which his fingers were severed. It is not surprising that the pain he suffered as a result of this and other injuries was very significant. As well, he was experiencing an increasing stress disorder arising out of the assault. These matters were accepted by the learned sentencing judge to have significantly contributed to a substantial increase in the applicant's level of heroin abuse. 6 I do not intend, for present purposes, to relate further his personal history. It is sufficient to say that he qualified as a butcher, he is clearly intelligent and articulate and he has demonstrated, since the offences, significant and, in my experience of cases of this kind, unusual maturity and insight. The learned sentencing judge took a favourable view of the applicant's prospects for rehabilitation and rightly considered that for someone of the applicant's age and background this was a very significant factor in the sentencing process. Her Honour considered that it was appropriate to give the applicant the maximum indicative discount for his pleas of guilty as provided in Thompson (2000) 49 NSWLR 383, adjusted appropriately, as she took the guidelines in Henry (1999) 106 A Crim R 149 as applying to the sentencing exercise. 7 The starting point of the sentence was 6 years as an appropriate overall term of imprisonment. This was reduced that to an overall term of imprisonment of 5 years, taking into account the additional value of the plea of guilty represented by utilitarian considerations, accepting at the same time that they also represented genuine remorse and contrition. One of the criticisms of her Honour's judgment in this respect raised by the applicant is that it resulted in a discount in the order of only 16 per cent, as distinct from the 25 per cent discount accepted by her Honour in terms as appropriate in the circumstances of the case. As the Chief Justice said in Thompson (2000) 49 NSWLR 383 at 419, specifically referring to Henry - "The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty for purposes of the application for the guideline promulgated in these reasons". (emphasis added)