New South Wales Court of Criminal Appeal CITATION : REGINA v RANDALL [2002] NSWCCA 239 FILE NUMBER(S) : CCA 60788/01 HEARING DATE(S) : 12 June 2002 JUDGMENT DATE : 12 June 2002 Regina PARTIES : v Bruce Randall JUDGMENT OF : Adams J at 1; Blanch AJ at 23 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/51/0137 LOWER COURT JUDICIAL Ducker DCJ OFFICER : COUNSEL : D J Woodburne (Crown) P D Rosser (Applicant) SOLICITORS : S E O'Connor (Crown) Sydney Regional Aboriginal Corporation Legal Service (Applicant) LEGISLATION CITED : Crimes Act 1900 Section 1(1) Criminal Code of WA CASES CITED: Queen v De Simoni (1980-1981) 147 CLR 303 Queen v Overall (unreported) NSWCCA 16 December 1993 DECISION : See paragraphs 22 and 24 IN THE COURT OF CRIMINAL APPEAL 60788/01 ADAMS J BLANCH J WEDNESDAY 12 JUNE 2002 REGINA v BRUCE RANDALL JUDGMENT 1 ADAMS J: This is an application for leave to appeal by an offender who was convicted on 22 October 2001 in Lismore District Court of an offence under s 94 of the Crimes Act 1900 in the following form: that Bruce Desmond Randall on 15 February 2001 at Lismore in the State of New South Wales did steal certain property, namely, one handbag, one wallet, one Commonwealth Bank card, $200 in cash being the property of June Stewardson from the person of June Stewardson. 2 Ms Stewardson was at the time of the offence seventy-seven years old and had gone to the local supermarket, the Lismore Central Shopping Centre. At around 3.30pm she went to the car park and commenced loading her shopping into the boot of her vehicle. As she did this she was pushed to the back of her right shoulder and hand with force knocking her off balance. She suffered a laceration to her right hand and bruising to her left arm, although it is unclear whether she fell over or this was caused by her hitting some part of the motorcar. 3 After being pushed, the applicant and a young female accomplice took Ms Stewardson's handbag from her left shoulder and ran off. They were chased by a number of people over some distance. Ultimately the applicant was caught and held until the police arrived. 4 The applicant admitted his offence to police. It is scarcely surprising, although for reasons which will become clear later, I do not think he ever would have been able to deny it. He then pleaded guilty to the offence in the Local Court and adhered to that plea when he came before the District Court. 5 The learned sentencing Judge imposed a sentence of three years and six months imprisonment commencing on 15 February 2001 and expiring on 15 May 2004 setting a non-parole period of twenty one months expiring on 14 November 2002. 6 On 13 November 2001 the applicant signed an application for leave to appeal on the ground that the sentence imposed was too severe. The Court is not aware of the reasons for the apparent delay in hearing this application. 7 The error of law upon which the applicant principally relies is that identified authoritatively in Queen v De Simoni (1980–1981) 147 CLR 303. Section 1(1) of the Criminal Code of Western Australia provides - "The term 'circumstance of aggravation' means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance". Accordingly, it would be proper for a sentencing Judge to have regard to facts which might ordinarily be described as circumstances of aggravation not falling within the definition where they do not render the offender liable to a greater punishment (see 147 CLR at 392 per Gibbs CJ). 8 The common law principles, however, require that a sentencing Judge not take into account for the purpose of sentencing aggravating factors which if true would render the offender liable to a more serious penalty by way of characterising the crime as a different offence (see: Queen v Overall (unreported) NSWCCA 16 December 1993). 9 The applicant was charged with an offence under s 94 of the Crimes Act 1900 which provides - " ROBBERY OR STEALING FROM THE PERSON Whosoever: robs or assaults with intent to rob any person, or steals any chattel, money, or valuable security from the person of another shall, except where a greater punishment is provided by this Act, be liable to imprisonment for fourteen years." 10 Accepting that the dividing line between stealing from the person and robbery can be fine since even a slight degree of violence will suffice for robbery, where there is an intention of stealing, there can be no doubt that the push which was alleged against Ms Stewardson's right shoulder could amount to force sufficient to comprise a robbery. Of course, the maximum penalty both for robbery and stealing from the person remains fourteen years. 11 In dealing with the facts his Honour described the victim being pushed and went on to say - "An impact such as that which was suffered by this elderly lady could well have caused major and possibly permanently crippling injuries to her. The bones of seventy-seven year old ladies are often quite brittle. A fracture of the pelvis or of the hip could thus have caused injury from which it was possible she would never be able to walk again. Fortunately, the victim suffered a laceration to her right hand and bruising to her left arm and escaped suffering serious physical injuries. Nonetheless, the potential was there". 12 Dealing generally with offences of this kind his Honour said - "...[the] major sentence consideration has to be the safety of the public and the undeniable fact is that robberies, stealings from the person and other crimes of violence, occur very frequently in this area and it is not uncommon for the offender to be a person somewhat similar to the present offender". Unless his Honour was using the word "violence" to comprehend any assault however minor and, with the greatest respect, I do not think his Honour meant to use the word in this way, the characterisation of stealing from the person as a crime of violence was a significant error. 13 Section 94 itself makes the distinction between stealing from the person and robbery which, as I have mentioned, must be accompanied by an assault. I have no doubt that his Honour dealt with this applicant upon the basis that he committed a significant assault with a potential of causing serious injury. 14 Looking at the facts, I think this characterisation was a correct one. This was a serious assault on a person of the victim's age. However, if the prosecution considered that it was appropriate that that assault should play a role in the sentencing of the applicant he should have been charged with an offence that specified the assault as an element, namely, robbery. I am, therefore, of the view that his Honour did err in the way prescribed in De Simoni and accordingly, it is appropriate that this court should re-sentence the applicant. 15 The subjective circumstances of the applicant were very troubling. The offender, who is an Aboriginal and who was brought up in what was described as "the socially and economically deprived Aboriginal community of Box Ridge" is reported by a reliable source as having been hospitalised for two months at age five as a consequence of petrol sniffing. He attended special primary school and then high school to year nine. He was assessed by Mr Andreasen, a consulting clinical psychologist, as being moderately to severely intellectually handicapped. The extent of his handicap may be shown by noting that ninety-nine percent of the community do better than this applicant on the psychological testing which was applied and which is appropriate for assessing capacity of this kind. 16 It is clear that this intellectual difficulty has a significant, although incommensurable effect, on the applicant's ability to remain law abiding. From very early teenage years the applicant had generally used alcohol and Indian hemp, although from time to time he claims to have been able to abstain from alcohol. His Honour seems to have accepted that the applicant was affected by alcohol at the time of the commission of the offence. 17 This Court has often said that although principles of general deterrence are to be kept at the forefront when sentencing offenders that principle has limited application when dealing with persons with significant intellectual or psychological deficits. It is clear to me that the principle of general deterrence can have little significance given the applicant's situation in this case. 18 In the course of his Honour's careful reasons the learned sentencing Judge discussed extensively the applicant's psychological and intellectual problems but then went on to say - "Unfortunately, this type of offence is all too common in this area. At the risk of attracting criticism, I have to say, in all truth, that quite a number of the offenders are young Aboriginal men with a similar background to the present offender. Whilst Aboriginality itself does not justify the reduction of sentence, it is certainly an indicator to look for certain other things that do, and that includes the deprived background from which this young man has come, the self inflicted injury caused by petrol sniffing and over indulgence in alcohol liquor and the fact that he was probably born with limitations that would have made it very difficult for him in any event. … The degree of general deterrence which usually applies in sentencing should be greatly moderated so far as this offender is concerned and also, the same applies to personal deterrence". 19 I have already referred to his Honour's reference to the frequency with which offences of this kind occur in the Lismore area. Although his Honour accepted that both general and personal deterrence were of limited value in assessing an appropriate sentence for an offender of this particular kind, it seems to me that the sentence reflected a significant degree of general deterrence. In light of the observations by his Honour about the frequency of the offence and the usual character of the offender, I am persuaded that, despite reference to the necessary qualification in the application of that principle, in the end, with the greatest respect, his Honour gave it substantial and inappropriate significance. 20 His Honour's commencing point, as he stated it, was four years and six months reduced to three years and three months, "to mark his co operation, plea of guilty and other mitigating factor to which I have referred". That starting point demonstrates, in my respectful opinion, that his Honour took into account general deterrence, when one considers that a discount of twenty five percent was at all events appropriate having regard to the utilitarian value of the plea. I point out that, in the absence of a plea, it would have been necessary for Ms Stewardson to have given evidence and that would obviously have been a distressing experience for her. 21 Accordingly, I am of the view that his Honour's starting point was inappropriately high. This reinforces the conclusion which I have earlier referred to that this court should re-sentence. 22 Taking into account the matters I have mentioned, applying a discount of twenty five percent to the head sentence and accepting that there are special circumstances, I consider that in lieu of the sentence imposed there should be substituted a sentence of two years and six months imprisonment commencing 15 February 2001 and expiring on 14 August 2003 with a non parole period of seventeen months commencing on 15 February 2001 and expiring on 14 July 2002. 23 BLANCH J: Yes, I agree. 24 ADAMS J: The orders of the court will, therefore, be that leave to appeal is granted. The appeal is upheld. The sentence below is quashed and in lieu thereof a sentence substituted as I have already indicated. The applicant is to be released to parole on the date specified under the supervision of the Probation and Parole Service. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.