R v Wilson [2002] NSWCCA 65

New South Wales Court of Criminal Appeal

CITATION : R v Wilson [2002] NSWCCA 65 FILE NUMBER(S) : CCA 60908/01 HEARING DATE(S) : 12 March 2002 JUDGMENT DATE : 12 March 2002

PARTIES : Regina (NSW) (Appellant) Geoffrey Colin Wilson (Respondent) JUDGMENT OF : Heydon JA at 30; Dunford J at 1; Buddin J at 31

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0777 LOWER COURT JUDICIAL Hosking DCJ OFFICER :

COUNSEL : GIO Rowling (Crown - Appellant) H Dhanji (Respondent) SOLICITORS : SE O'Connor (Crown - Appellant) DJ Humphreys (Respondent) CATCHWORDS : CRIMINAL LAW - sentencing - Crown appeal - armed robbery and demand money with menaces Criminal Appeal Act 1912, s 5D Crimes Act 1900, ss 93C, 97(1), 99 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, ss 32, 37A & 41 Drugs Misuse and Trafficking Act 1985, s 12(1) Crimes Act 1914 (Cth), s 16A Criminal Legislation Amendment Act 2001 No. 117 R v Henry [1999] NSWCCA 111, 46 NSWLR 346 CASES CITED: Wong and Leung v The Queen [2000] HCA 64 R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 R v Cameron [2002] HCA 6 DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60908/01

HEYDON JA DUNFORD J BUDDIN J

Tuesday, 12 MARCH 2002 R v Geoffrey Colin WILSON Judgment 1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on the respondent by his Honour Judge Hosking SC in the District Court of New South Wales at Sydney on 7 November 2001 following the respondent pleading guilty before a magistrate to two counts, firstly, a count of robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900, which carries a maximum penalty of imprisonment for 20 years, and one count of demand money with menaces contrary to s 99 of the said Act, which carries a maximum penalty of imprisonment for 10 years. 2 He also asked that two other offences be taken into account in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999, namely, one count of affray contrary to the provisions of s 93C of the Crimes Act and one count of self-administration of a prohibited drug, namely amphetamine, contrary to the provisions of s 12(1) of the Drugs Misuse and Trafficking Act 1985. 3 In respect of the offence of robbery whilst armed with an offensive weapon, and taking into account the matters on the Form 1, his Honour sentenced the respondent to imprisonment for a term of 3 years and 4 months commencing on 25 February 2001 and expiring on 24 June 2004. His Honour found special circumstances and set a non-parole period of 1 year and 8 months commencing on 25 February 2001 and expiring on 24 October 2002. 4 In respect of the offence of demanding money with menaces, his Honour sentenced the respondent to imprisonment for a fixed term of 1 year commencing on 25 February 2001 to be served concurrently with the other sentence. His Honour directed that the respondent be released on parole on 24 October 2002. A Notice of Appeal by the Director was signed on 17 December 2001 and served on the respondent 2 days later. 5 During the evening of 25 February 2001 the respondent and a friend, identified only as Nathan, boarded a train at Cabramatta and at or about 9.30 pm either the respondent or Nathan shook a passenger, Arjun Dhir, awake, sat next to him and demanded his money. He then showed Mr Dhir a clear syringe with a needle attached and said to him, "otherwise you will get AIDS". Mr Dhir said he had no money and showed the respondent his empty wallet. Nathan thereupon took Mr Dhir's mobile phone returning his SIM card to him. Either the respondent or Nathan told Mr Dhir, "Don't do anything till we get off" and they left the train at Strathfield station. Mr Dhir reported the matter to police describing the respondent, including a description of injuries to his assailant's forehead and blood marks on his head consistent with having been recently injured. These facts gave rise to the charge of robbery whilst armed. 6 The respondent and Nathan apparently caught another train from Strathfield to the city and after leaving it walked to George Street, Sydney, where at about 10.20 pm that evening they approached Rupert Jones and asked him for a dollar. When Mr Jones took his wallet from his pocket the respondent said to him, "No, not change, give me notes", and Mr Jones, fearing violence, handed a $10 note to Nathan. Both the respondent and Nathan then left. 7 Mr Jones reported the matter to police describing both the respondent and Nathan, and these are the facts which gave rise to the count of demand money with menaces. 8 The respondent and Nathan had been recorded walking in George Street on closed circuit video cameras. Their descriptions accorded with those given by Mr Jones. They then turned into Park Street, Sydney, where at about 10.45 pm in the southern portion of Hyde Park they approached an intended victim and, with the assistance of Nathan, the respondent put him in a headlock and attempted to pull him to the ground. The intended victim broke free and approached a passing police car. As a result the respondent was arrested but Nathan escaped and has not been arrested in relation to these matters. These facts gave rise to the charge of affray referred to in the Form 1. 9 Upon being interviewed by police the respondent gave an account of an attack made on him the previous night when he was the victim of an assault by a group of Aboriginals. This explained his injuries which were consistent with the description thereof been given to police by one of his victims, Mr Dhir. He also told police he was seeking to bash the group of Aboriginals and he had confronted the intended victim because he looked homosexual and he hated homosexuals, and that he had had the syringe in his possession since he administered amphetamine to himself at 6 pm that evening. These facts gave rise to the second matter on the Form 1. 10 The respondent has been in custody since his arrest on 25 February 2001. 11 The respondent was born on 8 February 1980 and so was aged 21 at the time of the offences and at the time of his sentencing. His natural father died before he was born and he was brought up by his mother and stepfather whom he described as a "tough man" and a workaholic who disapproved of the respondent's homosexuality and lifestyle. The respondent appeared to his Honour to have relatively little schooling, having left school when aged 14 years to enter the family business. His Honour found that the respondent's stepfather disapproved of the respondent's homosexuality and lifestyle and the respondent told his Honour he had fallen out with his family and did not know where they lived. 12 His Honour also found the respondent would upon release from prison have nowhere to live unless the Salvation Army or some other charitable body was prepared to give him assistance. The respondent began to use marijuana at about the age of 14 years and by the age of 17 years was dependent on marijuana, alcohol, heroin and painkillers after claiming to have been bashed by members of a football team who believed that he was homosexual. 13 Since entering custody at the time of his arrest, the respondent has been in strict protection because other prisoners regarded him as homosexual, as apparently he is, so that he was in danger of homosexual attack and because other prisoners believed, apparently incorrectly, he had given up to police either Nathan or Nathan's identity; and he was expected to remain in protected custody during the balance of his sentence. His Honour expressly found that the respondent was distressed, partly by the seriousness of his offences, and that he was genuinely contrite. 14 The respondent's prior record was not impressive. On 22 January 1999 he was charged with possession of a prohibited drug and on 5 February that year at the Campbelltown Local Court he was placed on a recognisance to be of good behaviour for 18 months and to accept the supervision of the Probation and Parole Service. Six months later, on 29 July 1999, whilst still subject to the recognisance, he was charged with robbery in company and on 8 February 2000 at the Liverpool District Court he was sentenced to imprisonment for a minimum term of 18 months to date from 29 July 1999, with an additional term of 18 months with an order for his release on parole subject to supervision and to the requirement that he undertake counselling, treatment or programs as directed. On the same day he was also sentenced to a fixed term of 12 months' imprisonment for stealing a motor vehicle. He was released on parole on 28 January 2000 and these offences were committed within 4 weeks of such release. Apparently he had not become involved with any treatment or counselling for his drug problems in the meantime. 15 His Honour took as his starting point the guideline judgment in R v Henry [1999] NSWCCA 111, 46 NSWLR 346 relating to pleas of guilty to charges of armed robbery. His Honour regarded the present case as a worse case than Henry because at the time of the commission of the armed robbery the respondent was on parole for a similar offence; secondly, because he used a syringe which the courts regard as abhorrent because of the fear it is calculated to, and does in fact, instil in victims, and also the two matters on the Form 1. 16 Having regard to these matters he took as his starting point a term of 5 years or 60 months which is at the top of the guideline range indicated in Henry (see [165]). He then looked at a number of subjective features and, having regard to the circumstances that the sentence has been and will be served in strict protection, his Honour reduced the term of 60 months to one of 50 months, a reduction of almost 18 percent. 17 His Honour then noted the plea of guilty at a relatively early time and said that the plea showed more than its bare utilitarian value because the respondent had shown genuine remorse, and there was some prospect, "albeit not a great one" that he may have been acquitted. He therefore gave a 20 percent discount on the 50 months thereby reducing it to 40 months. 18 He found special circumstances because he felt there was a need for an extended period of supervision on release and imposed a sentence of 40 months, or 3 years and 4 months, with a non-parole period of half, namely, 20 months or 1 year and 8 months, and quite properly backdated the sentence to the date the respondent was taken into custody on these matters. 19 In relation to the demand money with menaces, his Honour then sentenced the respondent to a fixed term of imprisonment for 12 months. 20 A number of submissions have been made on behalf of the appellant, but it is first convenient to deal with the submissions made on behalf of the respondent relating to the continued relevance of the guidelines laid down in Henry. Much attention was in particular directed to the recent decision of the High Court in Wong and Leung v The Queen [2000] HCA 64 and we were informed that a Bench of five judges has been arranged to consider the continued relevance of another guideline judgment, namely R v Jurisic (1998) 101 A Crim R 259; 45 NSWLR 209, on 15 April 2002 that is R v Lee. It was submitted that it would be unfair to the respondent to determine this matter prior to the proper resolution of this question, but on the other hand, it would also be unfair for this matter to be adjourned for that question to be determined given the respondent's interest in the final resolution of his sentencing. 21 Wong and Leung v The Queen was concerned with a matter of Federal jurisdiction. It involved in part a consideration of the provisions of s 16A of the Commonwealth Crimes Act 1914 which has no direct equivalent in the Crimes (Sentencing Procedure) Act 1999 and in addition, although this seems to have had only limited relevance to the judgment of those who constituted the majority in Wong, the guidelines had been promulgated in relation to circumstances which were not directly relevant to the case before the Court. Accordingly, the applicability of Wong to sentencing guideline judgments relating to offences under State law is not clear and, in any event, regard should, in my view, be had to the provisions of the Criminal Legislation Amendment Act 2001 No. 117. That Act inserted a new s 37A in the Crimes (Sentencing Procedure) Act 1999 authorising this Court to give a guideline judgment on its own motion in any proceedings considered appropriate by the Court and s 41 provides: "Any guideline judgment given by the Court of Criminal Appeal before the commencement of s 37A that would have been validly given had s 37A commenced before it was given has, and is taken always to have had, the same force and effect as it would have had if s 37A had commenced before it was given." 22 Accordingly, in my view, this Court and sentencing judges should apply guideline judgments such as Henry unless this Court or the High Court determines otherwise. 23 The Crown submits in fixing a starting point of 5 years or 60 months the learned sentencing judge failed to take into account a number of aggravating features which were not involved in the guideline judgment set by Henry; namely, that at the time of the commission of the offences the respondent was on parole for a similar offence, that the offences were committed at night, that the offence of armed robbery was committed by the use of a syringe, that his Honour was also imposing a concurrent sentence for the separate offence of demand money with menaces committed later that evening and that he was taking into account the two matters set out on the Form 1. Although his Honour did refer specifically as aggravating features to the fact that the respondent was on parole, that the instrument used was a syringe and that he was taking into account the matters on the Form 1, in my opinion he failed to take sufficient account of them as aggravating features; and he seems to have completely overlooked in this regard the fact that he was also sentencing the respondent for a totally separate offence the same night and making that sentence concurrent. 24 When these factors were taken into account the starting point should, in my opinion, have been beyond the range set out at [165] in Henry and should have been in the range of about 6 years (see [169] and [170]), and in failing to have regard to those matters I am satisfied that his Honour fell into error. I have no problem with the reduction of approximately 18 percent on account of the need to serve the sentence on strict protection, which from a starting point of say 72 months would translate to approximately 60 months. However, his Honour then, purportedly relying on R v Thomson [2000] NSWCCA 309; 49 NSWLR 383, allowed a further discount of 20 percent on account of the respondent's plea of guilty. In doing so, I am satisfied his Honour overlooked the fact that the guidelines in Henry already had built into them a plea of guilty, particularly where the significance of that plea is limited by a strong Crown case (Henry at [162(vii)]). 25 In Thomson at [160] the Chief Justice said: "The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea." 26 His Honour went on at [161]: "The Court was asked to clarify its earlier guideline judgments in light of any guideline it might propose in this respect. The standard case identified in each of R v Jurisic and R v Henry included a plea of guilty. … In each of (those cases) the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons." 27 The High Court has now held that a plea of guilty should not be regarded as having a utilitarian value in saving the time and expense of a trial but as demonstrating the willingness of the offender to facilitate the course of justice: R v Cameron [2002] HCA 6 at [13]. However, in the present case where the plea was entered at an early stage such refinement of the ratio for the discount for the plea, in my view, makes no difference. 28 This plea was entered when it was first reasonable to do so and it was, on his Honour's findings, accompanied by remorse. The respondent was therefore entitled to some additional discount on account of his plea, but in my opinion the allowance of a further discount in the order of 20 percent indicates that his Honour failed to have regard to the fact that a discount for the plea of guilty was already built into the guidelines in Henry and in this regard his Honour fell into error. In my view, the appropriate further discount in the circumstances of this case was no more than 15 percent. When applied to a sentence of 60 months it would result in a head sentence of 51 months, which I would round out to 50 months or 4 years and 2 months. 29 His Honour found special circumstances and there is no argument about this. In light of that finding he fixed a non-parole period of half the head sentence and I would not depart from this, but in my view the head sentence of 3 years and 4 months was inadequate. However, having regard to the principles that govern Crown appeals and in view of the principles of double jeopardy, it is in my view not a case where I would be inclined to interfere with the sentence imposed. I would therefore propose that the appeal be dismissed. 30 HEYDON JA: I agree with the order proposed for the reasons proposed by Dunford J. 31 BUDDIN J: I also agree with the orders proposed. 32 HEYDON JA: The order will be as proposed by Dunford J.