Regina v Drollett [2002] NSWCCA 13

New South Wales Court of Criminal Appeal

CITATION : Regina v Drollett [2002] NSWCCA 13 FILE NUMBER(S) : CCA 60570/01 HEARING DATE(S) : 5 December 2001 JUDGMENT DATE : 14 February 2002

PARTIES : Regina Adam Drollett JUDGMENT OF : Mason P at 1; Sully J at 2; Levine J at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/3124 LOWER COURT JUDICIAL Gibb DCJ OFFICER :

COUNSEL : E. Wilkins - Crown R. Burgess - Respondent SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Respondent

LEGISLATION CITED : Crimes Act (1900) NSW Crimes (Sentencing Procedure) Act 1999 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: Everett v The Queen (1994) 181 CLR 295 at 300 Veen v The Queen [No. 2] [1988] 164 CLR 465 at 477 DECISION : Crown appeal upheld; each of the sentences passed upon the respondent in the District Court quashed; and in lieu thereof the respondent sentenced to imprisonment - see pages 25 - 27 of judgment.

IN THE SUPREME COURTOF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60570/01 MASON P SULLY J LEVINE J

Thursday 14 February 2002 REGINA v ADAM DROLLETT

JUDGMENT 1 MASON P: I agree with Sully J. 2 SULLY J: This is a Crown appeal against sentence. The notice of appeal is dated 23 August 2001. The notice lists ten sentences passed upon the respondent, Mr. Drollett, on 26 July 2001. The sentences were passed by her Honour Judge Gibb sitting in the District Court at Campbelltown. The only ground stated in the notice is: "that the said sentence is manifestly inadequate". That is not quite the Crown case. The Crown appeal, as argued before this Court, does not challenge, individual sentence by individual sentence, the adequacy of the sentences passed by her Honour upon the respondent. The Crown appeal, as ultimately framed at the hearing, is directed, rather, to the fact that her Honour provided, by her dating of each individual sentence, that all ten of the sentences passed upon the respondent should be served concurrently. The end result of that approach was to expose the respondent to what her Honour described as a "maximum total period of imprisonment" of five years six months; with an effective non-parole period of four years one month fifteen days. The sole basis of the Crown appeal is that such an end result cannot be justified by a correct application to the respondent's case of the sentencing principle that is conventionally described as the principle of totality. 3 On 26 July 2001 Mr. Drollett was presented before her Honour, and was arraigned formally upon an indictment containing ten counts. Mr. Drollett had previously pleaded guilty, as it would seem, in the Local Court; and at the earliest practical opportunity. 4 The indictment upon which Mr. Drollett was thus presented contained eleven counts. The Crown did not proceed, in the ultimate event, on Count 3. Of the remaining ten counts, Count 1 charged the respondent with robbery while armed with a dangerous weapon, namely a Chinese made SKK semi-automatic military-style assault rifle. Any such offence contravenes section 97(2) of the Crimes Act 1900 (NSW) and attracts upon conviction a maximum statutory penalty of imprisonment for 25 years. A further 8 counts, that is to say, Counts 2, 3, 4, 5, 6, 8, 9 and 10, each charged the respondent with an offence of robbery while armed with an offensive weapon. Any such offence contravenes section 97(1) of the Crimes Act; and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. The remaining count, Count 7, charged the respondent with robbery in company. Such an offence contravenes section 97(1) of the Crimes Act; and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. 5 Her Honour was asked to take into account in connection with the sentencing of the respondent, and in addition to the ten charges preferred formally in the indictment, a further fourteen offences. These fourteen additional matters were brought before her Honour pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999. The fourteen additional matters were taken into account by her Honour in a number of separate groupings, each grouping being related to one in particular of the counts charged in the indictment. Of the fourteen additional matters thus taken into account by her Honour, nine charged further robberies while armed with an offensive weapon; a further three charged either robbery, or attempted robbery, in company; one charged an offence of having been carried in a conveyance knowing it to have been taken without consent, a matter which, had it been charged as a principal offence, would have attracted upon conviction a statutory maximum penalty of imprisonment for five years; and the last of the additional fourteen charges alleged a common assault contrary to section 61 of the Crimes Act, a matter which, had it been charged as a principal offence, would have attracted upon conviction a statutory maximum penalty of imprisonment for two years. 6 So far as concerns objective criminality, it is convenient to note the following summary which her Honour makes at the inception of her remarks on sentence, which were delivered ex tempore: "The various offences occurred, separated in time, over approximately a month. The first offence occurred on 9 November, and the last robbery offences occurred on 12 December 2000. The last offence to be taken into account is the assault occurring at the Downing Centre whilst the offender was attending Court as a witness. With the exception of that offence, all the other offences occurred between the dates of 9 November 2000 and 12 December 2000. The circumstances of the offences are summarised in the Fact Sheet effectively. I will deal with each offence separately. But globally the position is thus. Mr. Drollett was released from Baxter Juvenile Detention Centre on day release on 31 October. He was then on day release. He failed to return on the day on which he was due to attend, being 5 pm that day. On 31 October 2000 a first instance warrant was taken out. Shortly thereafter Mr. Drollett associated with a number of other known offenders and became involved in the series of robberies for which he is before me today. He also resumed his consumption of heroin, taking heroin up to three times a day. In company with his associates, Mr. Drollett then committed a series of robberies on service stations in the late hours of the night or early hours of the morning. With a few exceptions, the console operator was alone. In each case, the offender either acted in concert with others, using numbers to provide the threat, or used weapons. The pattern of the offences was that, in the main, a car was stolen to be used as the vehicle of attendance and getaway, and then dumped after the robbery. The first offender would enter the service station to ensure that the avenue was clear for the commission of the offence. The remaining offenders, two or three in number, would then enter the service station, select snack foods and drinks and approach the console operator. One of the offenders would engage the console operator in conversation. When the till was operated, one or other of the offenders in the group would produce a weapon, jump the counter, threaten the console operator and remove money. All of the offenders, this offender included, participated in the taking of cash and cigarettes. In the course of the robberies the console operators would also be the subject of personal robbery and property would be removed from them. The offenders would then flee." 7 I have previously noted that eight of the ten counts charged in the indictment alleged robberies while armed with an offensive weapon. In five of those eight matters, the offensive weapon was a knife. In a further two of those eight offences, the offensive weapon was a pistol. In the remaining offence of the eight thus charged, the offensive weapon was a screw driver. 8 It will be necessary to recapitulate the individual sentences passed by her Honour in connection with each of the ten counts in the indictment. Before doing that, it is convenient to note that her Honour dealt with each such sentence in a standardised form concluding, in the case of each individual count, with a clear and helpful summary of the sentence passed in respect of that particular count. More particularly, her Honour: [1] nominated an undiscounted head sentence;