Reported Decision : (2002) 132 A Crim R 137 New South Wales Court of Criminal Appeal CITATION : R v Dickson [2002] NSWCCA 327 revised - 25/09/2002 FILE NUMBER(S) : CCA 60259 of 2002 HEARING DATE(S) : 05/08/02 JUDGMENT DATE : 5 August 2002 Regina PARTIES : v Brett Neville Dickson JUDGMENT OF : Meagher JA at 1, 27, 29; Simpson J at 25; Howie J at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/3408 LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : Appellant: W Dawe QC Respondent: C Craigie SC & Ms C Loukas SOLICITORS : Appellant: S E O'Connor Respondent: N/A CATCHWORDS : Aggravated robbery occasioning grievous bodily harm - escape lawful custody - whether trial judge failed to comply with the provisions of s 57 Crimes (Sentencing Procedure) Act 1999 - Pearce v The King - appeal allowed. Criminal Appeal Act 1912 LEGISLATION CITED : Justices Act Crimes (Sentencing Procedure) Act 1999 Crimes Act CASES CITED: Pearce v The King (1998) 194 CLR at 610 DECISION : 1. Appeal Allowed; 2. Sentence quashed; 3. That Mr Dickson be sentenced to twelve months from 18 October 2001 and a fixed term to expire on 17 October 2002 upon the offence of escape; 4. That Mr Dickson be sentenced to five years imprisonment from 10 October 2002 with a non-parole period of four years and nine months to commence on 18 October 2002 and to expire on 17 July 2007, the date upon which the respondent is eligible to be released to parole. That sentence of five years is in respect of the more serious of the two assault charges; 5. On the remaining assault charge, Mr Dickson is sentenced to four years imprisonment from 18 October 2005, with a non-parole period to expire on 17 July 2007, the date upon which he is to be released to parole; 6. In respect of the four year sentence the Court has taken into account the matter upon the Form 1; 7. The aggregate of those various sentences is that Mr Dickson is charged with eight years imprisonment and a non parole period of five years and nine months. IN THE COURT OF CRIMINAL APPEAL CCA 60259 of 2002 MEAGHER JA SIMPSON J HOWIE J Monday, 5 August 2002 REGINA v BRETT NEVILLE DICKSON Judgment 1 MEAGHER JA: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed by Judge Goldring in Campbelltown District Court on 29 April 2002. 2 On 23 November 2001 at the Liverpool Local Court the respondent, Mr Brett Neville Dickson, pleaded guilty to various offences under s 51A of the Justices Act, and as a result of which an indictment was presented on 29 April 2002 and he was charged as follows: count 1, aggravated robbery occasioning grievous bodily harm; count 2, aggravated robbery; count 3, escape lawful custody. His Honour was also asked to take into account a Form 1 offence of taking and driving a conveyance. 3 His Honour on 29 April 2002 sentenced him as follows: on counts 1 and 2: aggravated robbery occasioning grievous bodily harm and aggravated robbery, imprisonment for three years commencing on 18 October 2001 and expiring on 17 October 2004, with a non-parole period of eighteen months expiring on 17 April 2003; on count 3: escaping, imprisonment for eighteen months commencing on 18 October 2001 and expiring on 17 April 2003. I notice that his Honour made the imprisonment on count 3 concurrent with the other two counts. There were three other co-offenders in relation to Mr Dickson. They have not yet been dealt with. 4 At the time that Mr Dickson escaped from prison, he had been serving sentences in Grafton Correctional Centre as follows: 1. Breach of parole in relation to count 1 of contravening an AVO order and two counts of assault occasioning actual bodily harm. Parole had been revoked on 4 July 2000 and he had been ordered to serve the balance of his parole, being one year, one month and 24 days, commencing on 25 August 2000 and expiring on 18 October 2001. He breached his parole by failing to report as required, and by failing to abide by the residential conditions of his parole. The breach was effective on 13 June 2000. 2. Larceny, two counts, and malicious damage. Mr Dickson was sentenced to four months imprisonment commencing on 25 August 2000 and expiring on 24 December 2000. 5 That is the background against which the following facts have to be considered. He was at the relevant date; that is, 14 October 2000, an inmate of a low security unit in the Grafton Correctional Centre. He was serving a sentence of four months for two counts of larceny and one count of malicious damage, counts to which I have just alluded. 6 On that day he and three co-offenders were drinking some home brew alcohol, after consuming a quantity of which Mr Dickson fell asleep. When he woke up one of his colleagues had broken a window in a low security unit and he was informed that they were going (which I assume meant out of the gaol) and he was asked whether he wanted to go as well. He replied that he did as he wanted to see his children and, as a result, he left through the smashed window with the three other co-offenders. This happened at about 8 pm. 7 The four gentlemen then smashed their way through the exterior doors of the correctional centre. Outside the gaol near the Grafton Base Hospital, there was a car which contained a Mr Cameron McMillan and his mother, Elizabeth McMillan. Mr McMillan had attended the hospital for a leg injury and had telephoned his mother, Elizabeth, requesting her to take him home because he was unable to drive. She had arrived in a separate motor car, and he was sitting in her motor car with her. 8 Mr Dickson got into the driver's seat and hit Mr Cameron McMillan, who was then dragged out of the car while Mr Dickson tried to start the vehicle. He was unable to do so because of a security switch. He, Cameron McMillan, was repeatedly beaten. He was also king hit by one of the four men whilst being held by the other two. During the attack his mother, Mrs Elizabeth McMillan, was beaten and pushed to the ground at the rear of the vehicle. She was then struck about the head with an object on two occasions. While she lay motionless in the gutter, she was kicked about the head and the body and then stomped on the head by one of the co-accused in a separate attack. 9 During the course of these proceedings one of Mr Dickson's colleagues obtained the key to the motor car and the four men left the area in that vehicle. Mr Dickson drove the vehicle for a short period of time. The vehicle was driven to Glen Innes. It was located near Glen Innes Prison Farm on the Gwydir Highway, after having been involved in a single vehicle accident. 10 On the afternoon of Sunday 15 October, Mr Dickson was surrendered to a farm house in the Glen Innes area. Police were called and Mr Dickson was placed under arrest and taken to the Glen Innes Police Station. Mr Dickson admitted driving the stolen motor car, although he said he was not the driver at the time of the collision. He admitted stealing a mobile phone and a compact disk player from the vehicle. He denied assaulting either Mr McMillan or Mrs McMillan. Money was found on his clothing which he later agreed was stolen from Mr Cameron McMillan. 11 As a result of the various assaults, Mr McMillan suffered a fractured right cheek bone, requiring a reconstruction operation, internal and external lacerations to the right ear, a swollen and bleeding nose and bruising to the head and body. He also suffered sensory neural deafness. He was admitted to the intensive care unit of Grafton Base Hospital, and reconstruction surgery on his fractured cheekbone later in Queensland. 12 Mrs McMillan suffered a deep laceration over the left side of her forehead, with consequent soft tissue swelling and abrasions. There was swelling on the left hand side of her jaw and bruising to her face and body. She also suffered persisting dizziness. She was admitted to the Grafton Base Hospital for treatment. She was later discharged on 20 October 2000. It is a matter of luck that neither of those victims was more extensively injured. 13 As far as the subjective features of Mr Dickson are concerned, there was a problem. He grew up in Minto and, on one hand, is said to have had caring and supportive parents and family. On the other hand, he is said to have run away from Minto because he could not stomach the violence and excessive drinking that went on in his household. What the truth is, one simply does not know, particularly as his Honour seemed to accept both versions. 14 The submissions made in this Crown appeal were that his Honour fell into error in a number of respects and this indeed is conceded by learned counsel for Mr Dickson. It is not easy to see what aspects of his Honour's judgment can really be relied on. 15 The following errors at least are manifestly evident. Mainly, that the sentences imposed were manifestly inadequate. His Honour simply did not seem to take into account the essential fact that the crimes involved were extremely serious and very revolting crimes, injurious to the health of the victims to the extent that, very easily with a slight change in circumstances, a fatality could have been involved. 16 Secondly, his Honour varied the statutory ratio between the head sentence and a non-parole period without having made a finding of any special circumstances existing. 17 Thirdly, his Honour failed to have regard to what the High Court had said in Pearce v The King (1998) 194 CLR at 610. 18 Fourthly, his Honour failed to comply with the provisions of s 57 of the Crimes (Sentencing Procedure) Act 1999 in that he made concurrent the sentence with regard to the escape and the sentence with regard to the assaults. Whatever s 57 of the Crimes (Sentencing Procedure) Act means, it does not mean that there can be such concurrence. Indeed, such concurrence is forbidden. 19 A discussion ensued in the course of very able submissions by learned counsel for Mr Dickson as to the proper way of proceeding under s 57. It has customarily been regarded by this Court that the effects of s 57 are to impose the penalty for the offence of escape after the penalties on the main offences, and cumulative upon their determination. Learned senior counsel for Mr Dickson has suggested that it is equally possible to read into the Act a determination that the first sentence ought be a sentence in relation to the escape and the other sentences should be added as cumulative to that. 20 In my view, the submissions put by learned counsel are correct. 21 Fifthly, his Honour was asked to take into account an offence of take and drive a motor vehicle pursuant to s 154A of the Crimes Act and his Honour does not seem to have done so. 22 Sixthly, his Honour seemed to believe that Mr Dickson, by the commission of the offences in question, had had his parole revoked and, therefore, had to serve a full sentence for the offences upon which he had been released to parole. This is not so, because his parole on those offences had not been revoked. 23 Learned counsel for Mr Dickson did not dispute that these errors existed, and did not dispute the necessity for a re-sentencing. 24 In my view, the orders of the Court ought be as follows: 1. Appeal allowed. 2. Sentence quashed. 3. That Mr Dickson be sentenced to twelve months from 18 October 2001 and a fixed term to expire on 17 October 2002 upon the offence of escape. 4. That Mr Dickson be sentenced to five years imprisonment from 10 October 2002 with a non-parole period of four years and nine months to commence on 18 October 2002 and to expire on 17 July 2007, the date upon which the respondent is eligible to be released to parole. That sentence of five years is in respect of the more serious of the two assault charges. 5. On the remaining assault charge, Mr Dickson is sentenced to four years imprisonment from 18 October 2005, with a non-parole period to expire on 17 July 2007, the date upon which he is to be released to parole. 6. In respect of the four year sentence the Court has taken into account the matter upon the Form 1. 7. The aggregate of those various sentences is that Mr Dickson is charged with eight years imprisonment and a non-parole period of five years and nine months. 25 SIMPSON J: I agree with the orders proposed and I generally agree with the reasons given. I would simply make this note as to the extent of my concurrence. In dealing with the submission made by senior counsel for the respondent in relation to the construction of s 57(2) of the Crimes (Sentencing Procedure) Act 1999 reference was made to a submission that the section left open the interpretation that the escape sentence be imposed before the sentences in relation to other offences. 26 I agree that the section is open for construction that such a sentence may be imposed earlier with the commencement date earlier than the sentences in relation to the other offences, but I would not go so far as to accept a submission, which in fact I do not think was made, that such a sentence be imposed with an earlier commencement date. 27 MEAGHER JA: I accept those elements. 28 HOWIE J: I agree. In my view, the sentence that has been proposed is the least sentence that can be imposed, taking into account this is a Crown appeal, and taking into account the material that has been supplied by way of affidavit. The sentence proposed is not the sentence that ought to have been imposed at first instance. 29 MEAGHER JA: The sentence of the Court, therefore, is the sentence which I have suggested. ****** 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.