R v Martin [2003] NSWCCA 25

New South Wales Court of Criminal Appeal

CITATION : R v Martin [2003] NSWCCA 25 HEARING DATE(S) : 17/02/2003 JUDGMENT DATE : 17 February 2003

JUDGMENT OF : James J at 1; Greg James J at 29 DECISION : Leave to appeal against sentence granted - appeal against sentence allowed

PARTIES : Regina v Frank MARTIN FILE NUMBER(S) : CCA 60214/02 COUNSEL : CB Graigie SC - Applicant DM Howard - Respondent SOLICITORS : SE O'Connor - Applicant DJ Humphreys - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/3221 FILE NUMBER(S) : LOWER COURT Coleman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 060214/02 JAMES J GREG JAMES J

MONDAY 17 FEBRUARY 2003 REGINA v FRANK SMITH AKA MARTIN Judgment

1 JAMES J: Frank Smith also known as Frank Martin has applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Coleman on 11 April 2002 on a charge of robbery in company, to which the applicant had pleaded guilty. Judge Coleman sentenced him to a term of imprisonment of 3 years 4 months to date from 26 November 2001 and set a non parole period of 1 year 10 months expiring on 25 September 2003. Robbery in company is an offence under s 97 (1) of the Crimes Act and carries a maximum penalty of imprisonment for 20 years. 2 The co-offender, a man named Ryan, did not plead guilty and stood trial. After Ryan was found guilty at his trial another District Court Judge, his Honour Judge Shadbolt, sentenced Ryan to a term of imprisonment of 4 years, to date from 8 February 2002, the date of sentencing, with a non-parole period of 2 years 8 months. 3 In his remarks on sentence Judge Coleman summarised the facts of the offence committed by the applicant in a way which has not been challenged on the hearing of the application. His Honour's summary was as follows:- "At about 5.35pm on Monday 12 February 2001 the victim, who was a forty-five year old shop assistant was walking along the footpath in Church Street as the prisoner and his co-offender, Ryan approached from the opposite direction. Ryan walked in front of the victim and grabbed her left arm and squeezed it very hard and with his other hand grabbed her bag, which was over her right shoulder. At the same time the prisoner pushed her from behind and she fell forward to the footpath. The victim screamed as the pair ran off and as they did so police officers in the area on unrelated business, who had witnessed the entire incident, gave chase and the prisoner was apprehended shortly afterwards in the driveway of a block of flats, but Ryan was able to escape. When Ryan took the bag the force broke the strap and the victim had a right sore knee which was grazed and a very sore left arm near the elbow where Ryan grabbed her and a sore right arm where her handbag was resting. The police later recovered all the property taken in the handbag". 4 His Honour made further findings about the facts of the offence as follows. His Honour found that the crime was an impulsive and opportunistic crime committed against a victim who happened to be carrying a handbag. 5 His Honour said: "For the purposes of sentencing the Crown conceded that Ryan was the driving force in the enterprise. I am satisfied for sentencing purposes that Ryan identified the target, however once that was done the prisoner was an active and willing participant in the criminal enterprise." 6 After he was arrested, the applicant supplied the co-offender's name to police. In an electronically recorded interview he made admissions and offered to give evidence against Ryan at Ryan's trial, although in fact this offer was not taken up by the prosecution. 7 The history of the criminal proceedings against the applicant is relevant to the determination of this application. The offence was committed on 12 February 2001. The applicant, as already indicated, was arrested almost immediately after committing the offence. The applicant was granted bail on 25 July 2001. However, he was not actually released on bail until 4 October 2001, when he was released so that he could undertake a residential rehabilitation program in Cadish House, an institution conducted by the Salvation Army. On 23 October 2001, in breach of a condition on which he had been granted bail, he discharged himself from Cadish House. The applicant's trial was listed for 5 November 2001 but on 5 November 2001 he failed to appear and a warrant was issued. On 24 November 2001 the applicant was arrested. On 4 February 2002, when arraigned, the applicant pleaded guilty to the charge of robbery in company but the co-offender Ryan pleaded not guilty. As I have already indicated, the applicant was ultimately sentenced on 11 April 2002. 8 In his remarks on sentence Judge Coleman, after referring to the objective facts of the offence, passed to the subjective circumstances of the applicant. The applicant was born on 6 May 1977 and was 24 years old at the time of sentencing. His Honour had been furnished with a report by a forensic psychologist Dr Lennings, who had made an assessment of the applicant on 29 March 2002. This report disclosed that the applicant's parents were both dead, that his mother had abused drugs and that his stepfather had been an alcoholic and had physically abused the applicant. The applicant had run away from home at the age of 12, had been educated in special schools and had been under the care and protection of the Department of Community Services from the age of 12. 9 The applicant's criminal history was described by his Honour as "poor". The criminal history included offences for which the applicant had served sentences of imprisonment. The present offence had been committed four days after the applicant had been released from prison. However, at the time of the commission of the offence the applicant was not subject to any form of conditional liberty. 10 Dr Lennings said in his report that the applicant had begun drinking alcohol at the age of 14 or 15 but had stopped the previous year because he was suffering from hepatitis C. He began using marijuana at the age of 15 and heroin at the age of 20. Judge Coleman accepted Dr Lenning's summation that the applicant was a young man with a serious polysubstance abuse problem. 11 Dr Lennings assessed the applicant as being mildly mentally retarded. He noted that the applicant is unable to cope with intimidation while in prison and is on protection. His Honour said in his remarks on sentence, "I accept that he is a mildly mentally retarded young man who has lived an extremely difficult life and has failed to develop the necessary coping skills required of someone with his extremely limited abilities." 12 His Honour referred to decisions of the Court of Criminal Appeal relating to the sentencing of persons with a mental handicap or an intellectual disability and concluded that the present case was not a case where the intellectual disability of the applicant was such that less weight should be given in sentencing to the factor of general deterrence. 13 His Honour was mindful of the requirements of the principles of parity and appropriate disparity, when there is a co-offender. As previously indicated, the co-offender Ryan had been sentenced to a term of imprisonment of 4 years, with a non parole period of 2 years 8 months. When he was being sentenced Ryan had given a different account of the commission of the offence, according to which it was Smith, and not Ryan, who was the principal offender. In his remarks on sentence Judge Coleman found that the sentence which had been imposed on Ryan was an appropriate sentence for both offenders, subject to the applicant's plea of guilty. His Honour said that, as between the applicant and Ryan, there was nothing to distinguish the criminality of one against the other, even conceding that Ryan was the driving force in the commission of the offence. 14 His Honour in his remarks on sentence gave consideration to the applicant's plea of guilty. He noted that the applicant had not pleaded guilty at the first opportunity. Indeed, he had absconded before the first trial date. He had entered the plea of guilty only on 4 February 2002, when he was about to stand trial. Nevertheless, his Honour found that the applicant was entitled to credit for the plea of guilty, as showing a willingness to facilitate the administration of justice and as indicating contrition on the part of the applicant. As regards the weight of the plea of guilty as showing contrition, his Honour noted that there was a strong Crown case against the applicant. His Honour arrived at a total discount for the plea of guilty of about 15 per cent and arrived at the final sentence of 3 years 4 months, by applying a discount of about 15 per cent to the head sentence which had been imposed on the co-offender. 15 His Honour found that there were special circumstances, which included that the applicant would have to serve the sentence on protection and that the applicant would be at risk in prison, because of his inability to cope and the state of his health. It was true that the applicant had not taken advantage of previous opportunities to rehabilitate himself but the intellectual disability of the applicant and the applicant's deprived background should be taken into account. 16 His Honour said in his remarks on sentence that the applicant had been in custody since 26 November 2001 and for that reason his Honour would backdate the commencement of the sentence he was imposing to 26 November 2001. 17 The first submission made by the counsel for the applicant was that his Honour had erred in not allowing for the discrete period of pre-sentence custody prior to 26 November 2001. I have already outlined the history of the criminal proceedings against the applicant. Between 12 February 2001, the date of his arrest and 4 October 2001, the date on which he was actually released on bail, the applicant was in custody for a period of 7 months 21 days. His Honour did not take this period of pre-sentence custody into account in sentencing the applicant. His Honour's omission to take this period into account would seem to have been partly due to some of the information supplied to his Honour by the representative of the Crown in the proceedings on sentence about the length of the applicant's pre-sentence custody, being incorrect. 18 On this application the Crown conceded that the sentencing judge had not taken into account the period of pre-sentence custody between 12 February 2001 and 4 October 2001, a period of 7 months 21 days. The error concerning the amount of time the applicant had spent in pre-sentence custody exclusively referable to this offence is of itself a sufficient reason for granting leave to appeal and allowing the appeal and for this Court to re-sentence the applicant. 19 It was also submitted by counsel for the applicant that there was an absence of appropriate disparity between the sentence imposed on the applicant and the sentence imposed on the co-offender Ryan. The approach the sentencing judge had adopted to the sentencing of the applicant was to regard the sentence imposed on the co-offender as also being an appropriate sentence for the applicant, subject to a discount being allowed in favour of the applicant for his plea of guilty. The sentencing judge arrived at a total discount for the plea of guilty of approximately 15 per cent and by applying this percentage discount to a prima facie sentence of 4 years, arrived at the sentence of 3 years 4 months. 20 It was submitted by counsel for the applicant that the degree of disparity between the sentence imposed on the co-offender and the sentence imposed on the applicant was not sufficiently large, having regard to, inter alia, his Honour's finding that the co-offender was the driving force in the criminal enterprise, the slightly older age of the co-offender, the fact that the applicant had shown contrition whereas the co-offender had not pleaded guilty and had at his trial advanced a version of the facts which the jury must have disbelieved, the applicant's intellectual disability whereas the co offender had been described by the judge sentencing him as "obviously not an unintelligent person", the need for the applicant to serve any sentence imposed on him on protection and the fact that the applicant is suffering from hepatitis C. It would seem to me that there is some force in the submissions made by counsel for the applicant to the effect that there was a lack of an appropriate disparity between the sentence imposed on this applicant and the sentence imposed on the co- offender. However, as the Court is allowing the appeal on another ground, it is unnecessary for me to express a final view. 21 As the Court is re-sentencing, it can have regard to additional evidence, which was provisionally admitted in the proceedings on sentence. This additional evidence includes further evidence from Dr Lennings, who as a result of a further assessment of the applicant on 12 November 2002, is of the opinion that the applicant is suffering from paranoid schizophrenia. 22 I would propose that leave to appeal against the sentence imposed by Judge Coleman be granted and that the appeal against sentence be allowed and that the sentence imposed by Judge Coleman on 11 April 2002 be quashed. Having regard to the objective facts of the offence, the subjective circumstances of the applicant, the matters which a court is required to take into account under the Crimes (Sentencing Procedure) Act, the sentence imposed on the co-offender and the additional evidence which the Court can take into account, I would sentence the applicant as follows. Allowing for the period of pre-sentence custody which was not taken into account by the sentencing judge, I would backdate the commencement of the sentence to 5 April 2001. I would then impose a total sentence of 3 years 1 month commencing on 5 April 2001 and I would set a non-parole period of 1 year 9 months, that is 21 months, commencing on 5 April 2001 and expiring on 4 January 2003. The first date on which the applicant would be eligible for release on parole would be 5 January 2003. 23 Just pausing at that point, do either of you want to say anything about any further orders or recommendations the Court should make? 24 CRAIGIE: Your Honour only so far as any steps that may be taken to expedite the passage of the papers to the parole board. 25 JAMES J: We could make a recommendation I suppose. 26 CRAIGIE: I'd be grateful if your Honour could do that. 27 HOWARD: That would seem appropriate. 28 JAMES J: Having regard to what I have said in this judgment and having regard to the fact that the Court in re-sentencing the applicant has imposed a sentence under which the non-parole period expired on 4 January 2003, the Court would recommend and request that the Parole Board give expedited consideration to the question of the applicant being released on parole. 29 GREG JAMES J: I agree with the orders proposed and with the reasons given by the presiding Judge for them. 30 JAMES J: The orders of the Court will be as proposed by me.