New South Wales Court of Criminal Appeal CITATION : R v RAI [2002] NSWCCA 506 FILE NUMBER(S) : CCA 60460/02 HEARING DATE(S) : 4 December 2002 JUDGMENT DATE : 4 December 2002 PARTIES : Regina Jack Alan Charlie Kenneth Rai JUDGMENT OF : Ipp JA at 21; Hulme J at 1; Bell J at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/21/3263 LOWER COURT JUDICIAL Sides DCJ OFFICER : COUNSEL : Crown: DC Frearson Appellant: AP Cook SOLICITORS : Crown: SE O'Connor Appellant: DJ Humphreys DECISION : Appeal dismissed - 6 -IN THE COURT OF CRIMINAL APPEAL No: 60460/02 IPP JA HULME J BELL J Wednesday, 4 December 2002 R v Jack Alan Charlie Kenneth RAI Judgment 1 HULME J: On 20 August 2002 the Respondent to this Crown appeal was sentenced by Judge Sides to concurrent terms of imprisonment of 15 months commencing on 28 March 2002 which terms included a non-parole period of 5 months. The offences in respect of which those sentences were imposed were of armed robberies committed on 1 March 1998 and in the course of which two persons were robbed of an amount of cash. The "arm" was a hammer. 2 At first blush the sentences are obviously lenient. However, the circumstances were unusual. 3 The victims the subject of the charges were in their late teens and were checkout operators at the Franklins supermarket in Guildford. The Respondent approached one, grabbed her by the neck and wielding a hammer demanded that her till be opened and when this occurred he removed money from it. He repeated this performance with the second operator. During the course of his activity he was joined by an accomplice similarly armed. Descriptions of the offences indicate that both offenders displayed aggression both in word and deed and one can have no doubt that the experience must have been very frightening for the victims. The amount stolen was something of the order of $500.00. The Respondent left his fingerprint at the scene but the authorities seem to have done nothing significant in relation to that until September 2001. The Respondent was arrested on 12 February 2002 and he pleaded guilty in the Local Court. There was no explanation for the delay in the investigation or in the institution of proceedings. 4 On 3 July 1998 the Respondent had committed an armed robbery on a cigarette shop, the "arm" on that occasion being an axe or similar weapon. On 13 August 1998 he had committed another robbery on a liquor outlet in company. He was arrested on 16 August 1998 and remained in custody until, on 4 February 1999, he was sentenced by Judge Moore in respect of these offences to 4 years imprisonment which terms included an 18 month non-parole period. Judge Sides recorded that the Respondent was released to parole in February 2000. An annexure to an affidavit of the Respondent's solicitor which the Court permitted to be read in the appeal, the Department of Corrective Services Custodial History of the Respondent, shows that this in fact occurred on 18 May 2000. 5 In March 2002 the Respondent's parole was revoked in consequence of a dispute between the Respondent and his partner which occurred in the presence of his probation officer. He was returned to custody on 28 March and the balance of his additional term was due to expire on Monday 26 August 2002. 6 The Respondent also had a significant record quite apart from these matters. He was born on 11 October 1979. In 1997 control orders were imposed following on convictions for assault police, resist arrest, armed robbery and demanding money with menaces. The order in respect of the last two offences expired on 7 March 1998 and thus the Respondent was on conditional liberty at the time of the offences with which this Court is concerned. In June 1997 a further control order was imposed for helping a detainee escape. 7 In April 2001 fines were imposed on the Respondent for resisting police and offensive language. In June 2001 there was a further fine for possessing implements to enter a conveyance. In February 2002 fines were imposed for traffic matters including driving or riding in circumstances where the Respondent had never been licensed, and stating a false name and address. 8 Judge Sides found that the Respondent suffered from an intellectual disability falling, in some respects fell, in the lowest 3% of the population. The disability was otherwise described as an inadequate personality disorder. His father was a strict disciplinarian and discipline was often meted out in a harsh and violent fashion causing the Respondent an intense dislike and fear of his father. Schooling was a problem because of the intellectual disability and because of truanting and running away from home. The Respondent attended a number of special schools being expelled from the last when he was about 13. Thereafter for a period he lived on the streets. He resorted to alcohol before or at about the age of 14 and then began to use Rohypnol in conjunction. He began to use, and became addicted to, heroin in 1998. 9 Following his release on parole in February 2000 he undertook courses to improve his work skills and secured employment. His employment ceased towards the end of 2001 because of an accident at work. Judge Sides remarked that the Respondent's progress on parole was well above what might have been expected, he had developed a worth ethic, his chances of re-employment were good and he had been able to deal with his drug and alcohol addiction. His Honour assessed the Respondent's prospects of rehabilitation as reasonably good. 10 In R v Todd (1982) 2 NSWLR 517 at 519, in a passage quoted with approval in Mill v R (1988) 166 CLR 59 at 64 Street CJ made it clear that where there has been a lengthy delay in sentencing due to the service of some other sentence, fairness requires weight to be given to the progress of rehabilitation prior to sentence, to the fact that an offender has been left in a state of uncertain suspense meanwhile and to the fact that sentencing for a stale crime calls for a considerable measure of understanding and flexibility of approach and that these matters can at times require "what might otherwise be a quite undue degree of leniency being extended". Judge Sides expressed the view that those principles were equally appropriate to the case of the Respondent. 11 I would differ from his Honour in the reference to "equally" because, while undoubtedly the two situations do have some features in common, the situation where a person is charged and sentencing delayed is significantly different from one where, whether or not the authorities should have known of an offender's criminality, in fact they do not know and he does not tell them. 12 However, there can be no doubt that the offences with which Judge Sides had to deal were linked both by type, cause, and the period of the Respondent's life with those for which he was sentenced by Judge Moore. Had they been dealt with at the same time some increase in sentence would have, as Judge Sides recognised, been called for but there can be no doubt that the principle of totality would have limited the extent to which the sentence imposed by Judge Moore was increased. Given the delay which had occurred, it would have been quite wrong for Judge Sides to approach the sentencing of the Respondent as if the offences with which his Honour was concerned were instances of criminality quite discrete from those dealt with by Judge Moore. 13 Furthermore, although prospects of rehabilitation are always matters to be taken into account on sentence, there is no doubt that rehabilitation which is demonstrated to have in fact occurred is given added weight. R v Ramos (2000) 112 A Crim R 339; R v Duncan (1983) 9 A Crim R 354; see also R v Crotty (Unreported, CCA, 28 February 1994). 14 The argument advanced in the appeal on behalf of the Crown relied principally on the failure of the sentences imposed to reflect the objective gravity of the offences – see R v Dodd (1991) 57 A Crim R 349 at 354 and R v Henry & Ors (1999) 46 NSWLR 346. It was also submitted that the sentencing Judge had given too much weight to the Respondent's history of drug abuse and his learning disability or inadequate personality disorder. Indeed it was suggested that the latter factor, characterised as it is by irresponsibility, aggressiveness and violence argued against leniency – see Veen v R (No 2) (1988) 164 CLR 465 at 476-7. 15 In R v Dodd, in a passage quoted with approval in, inter alia, R v Whyte [2002] NSWCCA 343 at [157] the following appears:- "There ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at a proper sentence to be imposed cannot properly be given their place." 16 There can be no doubt that the gravity of the Respondent's offence viewed objectively was high and that the sentence imposed fell a long way short of what that objective gravity would suggest as appropriate. But there is equally no doubt that his situation was most unusual. There was his intellectual disability itself. There was the fact that that disability and early relationship with his father and their consequences created one of those rare situations where his drug addiction could be regarded as a circumstance of mitigation. It arose when in terms of age he was mature, but when one would infer his circumstances ill equipped him to cope with normal stresses. There was the great and unexplained delay in the bringing of the charges. There was the fact and extent of rehabilitation which, although not perfect or complete, Judge Sides believed had occurred. 17 The authorities make it clear that sentencing is not a purely logical exercise - Veen v R (No 2) at 476 – and that there is scope for the exercise of a great deal of discretion, particularly in cases that can be regarded as exceptional - see e.g. R v Lansdell (unreported, CCA, 23 May 1996). This in my view was such a case and I am not persuaded that Judge Sides exceeded the bounds of the discretion he had. I do not regard the sentence imposed as manifestly inadequate. 18 But even if it was, or his Honour's comparison of the facts of the case with those referred to in R v Todd was sufficiently erroneous, I would exercise the discretion which this Court has in Crown appeals not to interfere. I am moved in that direction by the matters to which I have referred but there is also the circumstance of double jeopardy and the fact that there is substantial hardship in imposing or reimposing custody on a respondent to a Crown appeal. Sometimes, of course, the circumstances require that that be done – see e.g. R v Duroux (unreported, CCA, 11 April 1991); R v Morris and Turner (unreported, CCA, 10 March 1989) - but I am not persuaded that this is such a case. 19 And there is also another factor. During the hearing before Judge Sides the Respondent's legal representative was clearly arguing for a sentence which did not include any additional time in custody. Asked if he had any submissions, the Crown Prosecutor said "No". Although there can be no doubt that the Crown is entitled to appeal from a decision it has not opposed before a sentencing judge, its attitude is very relevant to the exercise of this Court's discretion – see R v Allpass (1993) 72 A Crim R 561. 20 I would dismiss the appeal. 21 IPP JA: I agree. 22 BELL J: I also agree. ********** 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.