New South Wales Court of Criminal Appeal CITATION : R v Dorsett [2002] NSWCCA 326 FILE NUMBER(S) : CCA 60813/00 HEARING DATE(S) : 20 March 2002 JUDGMENT DATE : 14 August 2002 PARTIES : Regina (NSW) Adam Dorsett (Applicant) JUDGMENT OF : Dunford J at 1; Carruthers AJ at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0745 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER : COUNSEL : GIO Rowling (Crown) SOLICITORS : SE O'Connor (Crown) Hal Ginges and Co (Applicant) CATCHWORDS : CRIMINAL LAW & PROCEDURE - sentencing - armed robbery - multiple offences - neccessity discrete sentences. LEGISLATION CITED : Crimes Act 1900, s 97 Crimes (Sentencing Procedure) Act 1999, s 44(2) R v Harris [2001] NSWCCA 332 R v Morgan (1993) 70 A Crim R 368 R v Barton [2001] NSWCCA 63, 121 A Crim R 185 R v Bavadra [2000] NSWCCA 292, 115 A Crim R 152 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 Power v The Queen (1974) 131 CLR 623 R v Simpson [2001] NSWCCA 534 R v Henry [1999] NSWCCA 111, 46 NSWLR 346 R v Lemene [2001] NSWCCA 5 DECISION : Leave to appeal granted, sentences quashed, applicant re-sentenced. See para 17. IN THE COURT OF CRIMINAL APPEAL 60813/00 DUNFORD J CARRUTHERS AJ Wednesday, 14 AUGUST 2002 R v Adam DORSETT JUDGMENT 1 Dunford J: This is an application by Adam Christopher Dorsett for leave to appeal against the sentences imposed on him by Blanch CJ/DC on 7 December 2000, following pleas of guilty to six charges of armed robbery contrary to s 97(1) of the Crimes Act 1900 which provides for a maximum penalty of 20 years. His Honour was also asked when dealing with the first count to take into account five further charges, four more of armed robbery and one of demand money with menaces. 2 In respect of each of the offences, including the first count on which the other matters were taken into account, the Applicant was sentenced to imprisonment for 12 years with non-parole periods of 8 years, the sentences to be concurrent and to date from 4 April 2000, the date on which the Applicant was arrested. In sentencing the Applicant the learned sentencing Judge noted that all the offences were committed between 6 and 30 March 2000 and were related and explained by the fact that the Applicant was a heroin addict who was desperate for money to feed his addiction; and in brief what the Applicant did was to arm himself with a knife, go into various business premises and threaten employees with the knife in order to obtain cash. In most, if not all of the cases, the knife was pointed at, or at least shown to, the victim. What made the case more serious was that at the time he committed the offences the Applicant was on parole for similar offences. 3 He was born on 24 June 1968 and accordingly is now 34 years old. His criminal record dates back to July 1982 and includes convictions for stealing, possess housebreaking implements, possess and administer prohibited drug, and on 6 April 1990 in the District Court at Sydney he was convicted of break, enter and steal, escape lawful custody, armed robbery, and armed robbery with wounding, and sentenced to effective terms totalling a minimum term of 9 years to date from 6 October 1989 with an additional term of 2 years; thus he was on parole at the time of these offences. 4 A number of submissions were made on behalf of the Applicant. Firstly, it was submitted that, having regard to the fact that the maximum sentence for armed robbery is 20 years, the notional sentence of 15 years imprisonment for offences of this nature (which was his Honour's starting point before allowing a discount for the pleas of guilty) was excessive. That submission would undoubtedly be justified if there had been only one offence, but here there are six separate counts plus four matters on the Form 1. Furthermore, as pointed out in R v Harris [2001] NSWCCA 332 at [23] - [29] where reference is made to R v Morgan (1993) 70 A Crim R 368, R v Barton [2001] NSWCCA 63, 121 A Crim R 185 and R v Bavadra [2000] NSWCCA 292, 115 A Crim R 152, a judge taking matters into account pursuant to a Form 1 must impose a sentence which gives due recognition to the gravity of the additional offences by increasing the penalty which would otherwise be appropriate for the particular offence charged. 5 His Honour failed to impose separate discrete sentences for each offence as required by Pearce v The Queen (1998) 194 CLR 610, but if he had done so, and bearing in mind the Applicant's prior record and the fact that the sentences were committed whilst on parole, a starting point of not less than 8 years for the first count (including the Form 1 matters) and 5 years on each of the other counts could not have been considered excessive. It would then have been necessary to have regard to the principle of totality by making some of the sentences wholly or partly concurrent with each other. The same result has been achieved and the principle of totality given effect to by fixing the starting point of 15 years for all the offences combined, rather than one in excess of 30 years. The Applicant has not been disadvantaged by his Honour's approach in this regard. 6 Reference was also made to the fact that these were said to be offences without any actual violence but this overlooks the fact that the production of the knife involved the threat of violence, and it was the threat of violence by the use of the knife which induced the victims to part with the money. On a number of occasions the Applicant threatened the victim that he would use the knife unless he was given the money; the threat of violence was the whole purpose of producing the knife. It is not necessary to elaborate on the need when sentencing for offences such as these to have regard to the need to protect members of the public, general and personal deterrence, retribution and denunciation of the offences along with the community's abhorrence of the use of guns and knives to commit criminal offences. 7 Next it was submitted that in allowing a deduction for the pleas of guilty at the first opportunity, his Honour allowed what was described as a "common deduction" of 25% from the notional sentence (in fact it was 20%), but in view of the early pleas and other personal circumstances of the Applicant, his Honour could have appropriately reduced the sentence by a greater amount. R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 requires a discount for early pleas of guilty and suggests a range. This discount (20%) was towards the higher end of the range, and in at least two instances the Applicant was captured on video enabling him to be identified and resulting in a strong Crown case. In another matter, the Bradbury robbery, he was chased and in effect caught red handed. 8 Moreover, the test is not whether the sentencing Judge "could have" allowed a larger discount for the pleas of guilty, but whether the discount, either alone or in conjunction with other factors has led to a sentence which was "manifestly excessive". In my view the discount allowed for the early pleas of guilty was well within the range of a proper sentencing discretion. 9 It was next submitted that having reduced the sentences to 12 years on account of the pleas of guilty, and having found "special circumstances" thus enabling him to reduce the non-parole period below the 75% specified in s 44(2) of the Crimes (Sentencing Procedure) Act 1999, his Honour only reduced the period by 1 year whereas he could "appropriately have reduced the non-parole period by 2 or 3 years, rather than by 1 year only". Once again, the issue for this Court is not whether the sentencing Judge "could have" fixed a lesser non-parole period, but whether in all the circumstances the non-parole period fixed has led to a sentence which is "manifestly excessive". 10 Our attention was directed to the fact that having regard to his age and the previous and current sentences imposed on the Applicant, by the time of his release he will be approximately aged 40 and have served virtually the whole of his adult life in gaol, leading to a very real prospect of him becoming institutionalised and finding it more difficult to cope with civilian life. Emphasis was placed on the fact that although he received a lengthy sentence on the last occasion, and rightly so, he made a genuine effort on his release to overcome his drug addiction by getting a job, undertaking a methadone program and forming a relationship. However, when he lost his job through no fault of his own and his partner left him, he returned to his drug-addicted life which led to the commission of the current offences whilst he was on parole. It was noted that he is doing his best whilst in gaol and there is some real prospect he may do better on his ultimate release. 11 However, his Honour's reasons for reducing the non-parole period centred around these very matters, particularly the need for a lengthy period under supervision on parole to assist the Applicant to resettle into civilian life after such a lengthy period in prison with the attendant risk of him becoming institutionalised and for the prospect of him being rehabilitated in respect of his drug abuse at a later stage. In view of what happened after his most recent release from prison the latter consideration suggests the triumph of hope over experience; but in any event if he cannot adjust to civilian life and overcome his drug addiction with 4 years parole under supervision, it is highly speculative to suggest that he could be any more successful over a longer period. 12 In addition, the non-parole period needs to reflect the minimum term which, having regard to the objective criminality and the relevant subjective features, is the minimum period which the Applicant should serve in full time custody for the offences involved: Power v The Queen (1974) 131 CLR 623 referred to in R v Simpson [2001] NSWCCA 534. Having regard to the number and gravity of the offences and the other circumstances referred to I would not regard the non-parole period as excessive. 13 Reference was made to the guideline judgment in R v Henry [1999] NSWCCA 111, 46 NSWLR 346 and the various criteria that generally relate to offences of armed robbery, but Henry is hardly relevant to the present case because it deals with a single offence whereas here there are six offences plus the matters on the Form 1, and moreover this is not a young offender with little or no criminal history; he is not young, he has an extensive criminal history and was on parole at the time of the commission of these offences. 14 Reference was also made to the Applicant's heroin addiction but the authorities on the effect of such an addiction were summarised by Wood CJ at CL in Henry at [273]-[274] where his Honour pointed out that the need to acquire funds to support a drug habit is not an excuse to commit armed robberies or any similar offence and, of itself, is not a matter of mitigation, although it may be relevant in considering the objective criminality of the offences as it may demonstrate impulsivity or lack of planning, and in a subjective sense it may be relevant as to the prospects of rehabilitation. It may also be relevant in other respects, not relevant to this case. In my view, consistently with such principles, the learned sentencing judge gave the drug addiction of the Applicant the appropriate weight. As Wood CJ at CL pointed out in Henry at [274], to accept drug addiction as a mitigating factor generally would not be justified in principle, and it would involve an exercise in irresponsibility on the part of the Court if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case. 15 Finally, it was submitted that in respect of any of the individual offences, including the matters on the Form 1, a notional sentence of 15 years, an actual head sentence of 12 years with a non-parole period of 8 years was excessive and reference was made to R v Lemene [2001] NSWCCA 5; but as Simpson J pointed out in that case at [3], that does not necessarily mean that the total effective sentence imposed for all of these offences with its non-parole period is beyond the range of a proper sentencing discretion. 16 Having regard to all the circumstances, I am not persuaded that for this combination of offences committed by the Applicant whilst on parole, and allowing for his early pleas of guilty, a total effective sentence of 12 years with a non-parole period of 8 years was excessive, neither as to the head sentence nor as to the non-parole period but, having regard to the principles laid down in Pearce, it is conceded by the Crown that it is necessary for this Court to re-sentence, fixing discrete sentences for each offence. 17 I would therefore grant leave to appeal, I would quash the sentences and in lieu thereof sentence the Applicant as follows:- On each of counts 2 to 6 inclusive, a sentence of imprisonment for a fixed term of 4 years, the sentences to be partly concurrent and partly cumulative and to commence and expire as follows: Count 2: 4 April 2000 to 3 April 2004 Count 3: 4 April 2001 to 3 April 2005 Count 4: 4 April 2002 to 3 April 2006 Count 5: 4 April 2003 to 3 April 2007 Count 6: 4 April 2004 to 3 April 2008. On count 1, and taking into account the matters on Form 1, a sentence of imprisonment for 7 years, such sentence also to be partly concurrent and partly cumulative with the other sentences and to commence on 4 April 2005 and expire on 3 April 2012. In respect of this last mentioned sentence I would fix a non-parole period of 3 years also commencing 4 April 2005, the special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act 1999 being the need for a prolonged period of supervision on parole and the accumulation of sentences. The earliest date on which the Applicant would therefore be eligible for release on parole would be 3 April 2008. 18 Carruthers AJ: I agree with Dunford J. ********** 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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