New South Wales Court of Criminal Appeal CITATION : REGINA v. JAMES [2003] NSWCCA 22 HEARING DATE(S) : Monday 17 February 2003 JUDGMENT DATE : 17 February 2003 JUDGMENT OF : James J at 23; Greg James J at 1 DECISION : Leave to appeal against sentence granted; appeal dismissed. CATCHWORDS : Criminal law - sentence - armed robbery - appeal - drug addict - no matter of principle. LEGISLATION CITED : Justices Act 1902 CASES CITED : N/A PARTIES : REGINA v. JAMES, Scott FILE NUMBER(S) : CCA No. 60045 of 2002 COUNSEL : Crown: D.M. Howard App: In person SOLICITORS : Crown: S.E. O'Connor App: In person LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/1216 FILE NUMBER(S) : LOWER COURT Freeman, DCJ. JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL No. 60045 of 2002 JAMES, J. GREG JAMES, J. MONDAY 17 FEBRUARY 2003 REGINA v. SCOTT JAMES Judgment 1 GREG JAMES J: This is an application for leave to appeal against sentences imposed in the District Court of New South Wales at Penrith on 31 January 2002, the applicant having pleaded guilty originally before a magistrate under s.51A of the Justices Act 1902. There were a number of offences: the first, an armed robbery; the second, an aggravated assault with intent to rob; the third, a stealing from the person. There were three matters taken into account on a Form One, two matters of take and drive vehicle without the consent of the owner and one of detaining for advantage. 2 The offence of armed robbery and that of aggravated assault with intent to rob are punishable by a maximum of 20 years imprisonment. The offence of steal from the person is punishable by a maximum of 14 years imprisonment. 3 The trial judge took into account the Form One matters when sentencing on the first count in the indictment. On that matter the trial judge imposed a sentence of 10 years imprisonment to commence on 15 April 2001 and of that period some six years was to comprise the non-parole period. On count two his Honour imposed a sentence of eight years to be served concurrently with the sentence imposed on count one, a parole period in that case of two years was prescribed to commence on 15 April 2007, that being the same date as the non-parole period on count one expired. On count three the trial judge imposed a sentence of six years comprising a non-parole period of four years and a parole period of two years. Again that sentence was to commence on 15 April 2001 with the other two sentences to which I have referred. 4 The applicant came forward for sentence with a prior criminal record. That record included an offence of assault, offences of goods in custody, stealing, break and enter, breach of periodic detention and offences relating to taking and driving conveyances and stealing, together with driving whilst disqualified. 5 Before us he has referred to some seven grounds on which he challenges the sentences imposed, the first that the trial judge did not give sufficient weight to subjective features, the second that the judge made no mention of special circumstances, the third that the sentences exceeded the normal range, the fourth, "25% for a plea of guilty", the fifth, "first time serious offence", sixth, "under the influence of Rohypnal", seventh, "never done anything like this before and this was totally out of character". 6 The trial judge described the short facts of the offences. As to the first count, the robbery of Mrs. Dogan, she had driven into the Mount Druitt shopping centre accompanied by her 18 month old son in a car seat in the rear of the car. As she was about to leave her vehicle, having parked it, the prisoner opened the passenger door, entered the car, threatened her with a syringe, took hold of the seat belt and pulled it tight effectively pinning her in the driver's seat. 7 He then directed her to drive. He directed her through a number of areas into an industrial area, which was virtually deserted, demanded her handbag and, taking it, fled. 8 Of that the trial judge said, I quote from page two of his remarks on sentence:- "It can scarcely be an over-statement to say that this was an horrific experience for Mrs. Dogan. Not only was she in fear for her personal safety, being directed as she was into an area in which the summoning of help was becoming a more and more remote prospect, but burdened with concerns for her infant son who was in the car. The use of a syringe is, in any event, a despicable act carrying with it to most people's minds the threat of a lethal injury." 9 His Honour referred to the fact that one of the offences on the Form One included the taking for advantage of the infant, who was imprisoned in the back seat, and it was on that basis that that offence was taken into account on the first count. 10 The second count involved on the following day at half past 10 approaching a young woman seated in a car in a shopping centre in Tregear awaiting the return of her mother, opening the passenger door, instructing her to drive and attempting to grab her handbag. 11 She was able to open the driver's door of the vehicle but the offender attempted to restrain her by pulling her hair and grappling with her for the handbag. She was able to get out of the car but he then drove off, driving the car eventually to the car park of the Macquarie Arms Hotel at Windsor, he then walked to the car park of a Franklins shopping centre on the other side of the road, entered a vehicle driven by the third victim, again by an unlocked passenger door. 12 She screamed, he ignored her and continued to move toward her, she fled the vehicle, he entered the driver's seat and drove off with that vehicle also, taking with him her handbag and other property. The vehicle was subsequently observed and he was arrested in the vicinity, still in possession of certain of the property. 13 In respect of those matters, as I said, he entered a plea in the Local Court. The trial judge gave him the credit for that plea, but did refer to the fact when considering the question of contrition, that there was a strong Crown case against him. The trial judge rightly referred to the aggravating circumstance of the terror inflicted upon the women in the context that the offender was at that time but two and a half weeks out of prison and on parole at the time of committing these offences. 14 In evidence before the trial judge the prisoner had referred to the fact that he was addicted to heroin and had been on a methadone programme but when out of gaol was unable to afford the continuation of that programme and was therefore abusing the drug Rohypnal. He asserted that he was heavily affected but the trial judge noted that he accepted what the victims have described were his actions and professed to be ashamed and to have taken positive steps to temporarily master his addiction, he being back on the methadone programme whilst in custody. 15 The trial judge noted that the offender had had extended to him over the years the full range of sentencing options, none of which seemed to have operated to dissuade him from his engaging in quite extensive criminal behaviour and that the nature of his offences had escalated on this occasion. 16 The Probation and Parole Service reports indicated little co-operation but there was a suggestion he was prepared to cooperate in the future and his Honour noted the sympathetic attitude of those reporting. 17 His Honour noted that it was important not to impose sentences which would crush the prisoner but that deterrent and denunciatory sentences were required by the law. The sentences were backdated to the prisoner entering into custody. 18 Although his Honour made no mention of special circumstances it can be seen because of the variation of the ratio of the parole period to the non-parole period from the usual ratio that his Honour did in fact give the applicant the benefit of such a finding and that it seems clear that that is because the applicant would require a long period of supervision upon his release because of the various disadvantages that the applicant has suffered from and which are referred to by his Honour in his remarks on sentence. 19 It is apparent that his Honour did have regard to the applicant's subjective features. It is apparent that his Honour did have regard to the plea of guilty. It is not a legal requirement that the applicant should receive any quantified deduction for that plea, much less the 25% he has claimed, but it is also apparent when one has regard to the range of sentences that his Honour did give the applicant a substantial reduction for that plea. 20 His Honour took into account that these offences represented a departure, a serious departure from the minor offending that the applicant had committed in prior circumstances. 21 I do not see that the fact that the applicant committed the offences under the influence of Rohypnal assists his submissions here. I do not see therefore that any of the matters that the applicant has referred to are such as would permit this court in exercising its powers under s 6 of the Criminal Appeal Act to intervene in respect of this sentence and overall when I look at the criminality of the offender's conduct I see no reason to consider that the trial judge passed other than an appropriate sentence. 22 In my view the application for leave to appeal should be granted since the matter has been argued on the submissions, but the appeal dismissed. 23 JAMES, J: I agree with the judgment and with the orders proposed by Greg James, J. The orders proposed by his Honour will be the orders of the court. ********** Last Modified: 02/19/2003 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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