New South Wales Court of Criminal Appeal CITATION : R v Hayes [2002] NSWCCA 237 FILE NUMBER(S) : CCA 60432/01 HEARING DATE(S) : 18 June 2002 JUDGMENT DATE : 18 June 2002 PARTIES : Regina (NSW) Scott Warren Hayes (Applicant) JUDGMENT OF : Dunford J at 1; Adams J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0088 LOWER COURT JUDICIAL English DCJ OFFICER : COUNSEL : WG Dawe QC (Crown) PJD Hamill (Applicant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Applicant) CATCHWORDS : CRIMINAL LAW - sentencing - armed robbery - blood filled syringe LEGISLATION CITED : Crimes Act 1900, s 97(1) R v Henry [1999] NSWCCA 111, 46 NSWLR 346 CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Fernando [2002] NSWCCA 28 R v Thomson [2000] NSWCCA 305 DECISION : Leave to appeal granted. Sentence quashed; applicant re-sentenced. IN THE COURT OF CRIMINAL APPEAL 60432/01 DUNFORD J ADAMS J Tuesday, 18 JUNE 2002 R v Scott Warren HAYES Judgment 1 Dunford J: This is an application for leave to appeal by Scott Warren Hayes against the sentence imposed on him by English DCJ in the District Court at Gosford on 22 June 2001 following his plea of guilty to one count of armed robbery contrary to s 97(1) of the Crimes Act 1900, an offence which attracts a maximum penalty of 20 years imprisonment. The sentence imposed by her Honour was imprisonment for a term of 4 years, commencing on 7 July 2001 with a non-parole period of 3 years. 2 The facts of the matter were that at about 8.20pm on Monday, 26 February 2001 the applicant and a co-offender, Joel Kenneth Griffin, were driving along The Entrance Road, Erina. They were long standing friends and the applicant was suffering the effects of heroin withdrawal. He asked the co-offender, who was driving the vehicle, to pull over to the side of the road near the Mobil Service Station. The applicant then entered the service station armed with a blood filled syringe and disguised by pulling a hood over his head which had eyeholes cut into it. During a subsequent interview the applicant stated that he had cut the holes in the hood and filled the syringe with blood earlier that evening in case he needed to do a robbery. 3 The applicant entered the service station and demanded cash from the console operator, using the syringe as a threat to the operator. The operator handed the applicant $300 and thereupon he quickly left the shop. He ran to where the co-offender was still waiting, got into the car and told the other man to go. 4 The applicant also said in the interview that he told the co-offender that he had just robbed the service station and to drive to a nearby caravan park in Avoca Drive so that he could hide the clothes he had used in the robbery. The co-offender did so, whereupon the applicant placed his clothes in a clothing bin at Green Point. They then drove to Forrester's Beach where the applicant made a number of telephone calls to obtain heroin. 5 The following evening, again about 8.20pm, the offender and the co-offender were seen in the vehicle, the registration number of which had been taken the previous night by witnesses to the robbery. It was stopped by the police on The Entrance Road. The applicant and his co-offender were cautioned, taken to Gosford Police Station and interviewed where the applicant made full admissions. A search of the vehicle revealed a blood filled syringe which the applicant admitted in the interview would have been the one used. 6 Subsequently, on 29 May, the applicant made a further statement in which he further implicated the co-offender in the robbery. He also indicated that he was prepared to assist the police by giving evidence against the co-offender at the trial. 7 The applicant pleaded guilty when he first appeared in the Local Court and was committed to the District Court for sentence pursuant to s 51A of the Justices Act 1902 and he adhered to his plea when he appeared in the District Court on 7 June 2001; his plea was therefore at the first available opportunity. When arrested on 27 February 2001 bail was refused but he was released on bail on 4 April 2001, 34 days later. He remained on bail until he appeared in the District Court on 7 June 2001 and had been in custody since that date. His sentence was backdated to commence on 7 June 2001 but he was not given any credit for the 34 days which he had earlier spent in custody. 8 He was at the time aged 25 years, being born on 17 May 1977. He had no previous convictions which were relevant to the sentencing in this matter. He left school with the school certificate at the end of year 10. He subsequently worked in a number of jobs, initially full time and subsequently part time, and had been unemployed for about a year at the time of his arrest. 9 The evidence showed that the applicant had been using cannabis since about age 16 or 17 and later also used amphetamines to the extent that he became a regular user. Then since about age 20 to 21 he had been using heroin. Over the couple of years prior to his arrest he had become a regular user and apparently an addict and had sold a number of his possessions to feed his habit. 10 His release on bail on 4 April 2001 was on condition that he undertake a drug rehabilitation course at Odyssey House or the William Booth Centre. No place was available at the William Booth Centre so he went to Odyssey House where he completed the initial detoxification program but about a week after completing that program, he left for reasons which her Honour found, and with which I agree, were most unsatisfactory. He returned home to Gosford but managed to find a friendly stranger at the railway station on the way with whom he shared a joint of cannabis. 11 His bail was varied to permit him to undertake the drug rehabilitation program at the William Booth Centre but after being there for about 2 weeks he was suspended, again for reasons which, although not drug related, did not help his case. He had returned home and had been re-accepted into the program, 1 or 2 days before the sentencing hearing. Her Honour found that the motivation for his drug rehabilitation came from the applicant's parents rather than from the applicant himself, a view which on the evidence was open to her Honour. 12 Let me start by saying that for myself I cannot see any excessive severity in a sentence of 4 years imprisonment with a non-parole period of 3 years for an armed robbery by a 25 year old of a console operator in a service station at night where the instrument used to threaten the victim was a blood filled syringe. Whilst proper regard must be had to guideline judgments it must be borne in mind that they are, as they are called, guidelines and this point was emphasised in R v Henry [1999] NSWCCA 111, 46 NSWLR 346 at [2] where the Chief Justice repeated what he had said in R v Jurisic (1998) 45 NSWLR 209 as follows: "Such guidelines are intended to be indicative only, they are not intended to be applied to every case as if they were rules binding on sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents." 13 It is, therefore, I believe a mistake to simply pick a figure within the range indicated by the appropriate guideline judgment and then, by accumulating a number of deductions and by a mathematical process, reach a figure which fails to reflect the seriousness of the offence or the need for general deterrence or the terror which may have been engendered in the victim. 14 In this case her Honour had regard to the judgment in Henry, noting that the applicant was not a young offender but aged 24, and he was without a prior criminal record, but she also noted the use of a syringe, a factor referred to by the Chief Justice in the subsequent case of R v Fernando [2002] NSWCCA 28 at 72 as "more serious than the category of weapon considered in Henry." 15 For those reasons her Honour apparently took something in excess of the starting point referred to in Henry. Unfortunately, she did not specify precisely what it was. She allowed a 15 percent discount for the utilitarian value of the plea: R v Thomson [2000] NSWCCA 305 and 30 percent for assistance to the authorities in the offer to give evidence against the co-offender. The latter discount I would regard as somewhat generous. But she also paid particular attention to the need for general deterrence of armed robberies by terrorising shop assistants and console operators to purchase drugs on the Central Coast, which she described as "endemic", and the terror engendered in the victim who had no way of knowing whether he or she was going to be injured by a needle stick prick contaminated by HIV or hepatitis. 16 Her Honour had regard to all relevant matters, including the use of the syringe, the age of the applicant, his previous good record, the limited degree of planning, what she found was a genuine contrition, his plea of guilty and assistance to the authorities, but also the need for general deterrence and the protection of the community. 17 However, as I have already noted, her Honour did not specify what her starting point was and, having regard to the discounts allowed and the final result at which she arrived, it must have been something in excess of 7 years. Bearing in mind that R v Henry suggests a range of 4 to 5 years but that in this case there was the older age of the applicant, the use of the syringe and the particular need for general deterrence in the local area, with which her Honour was apparently familiar, I am satisfied that she was justified in going beyond that range. But it does, on consideration, appear to me that something in excess of 7 years was excessive and this, together with the failure to allow for the 34 days custody before being admitted to bail, constitutes error on the part of the sentencing judge. 18 In those circumstances, it becomes necessary for this Court to re-sentence. For myself, having regard to the matters of aggravation referred to, I would take a starting point of 6 years. I would not interfere with the discounts allowed by her Honour although, as I have said, I regard them to be somewhat generous, so allowing total discounts of 45 percent on a sentence of 6 years leaves one with a head sentence of approximately 3 years and 4 months. In my view, this would be an appropriate sentence for this offence in the circumstances. 19 Her Honour did not find that there were special circumstances. That finding was open to her Honour on the evidence before her, but as this Court is re-sentencing it is necessary for us to reconsider this aspect of the matter. 20 There are three matters which, in my view, taken together, do constitute special circumstances in this case; namely, that the applicant was in effect a first offender and this is his first time in gaol. He had already, although it would appear only by 1 day, started to seek drug rehabilitation prior to the commission of the offence, and he did make some effort although more could have been done between the time of his arrest and being sentenced for these matters in that regard. Moreover, we have the affidavit which he has sworn on 12 June setting out his progress in July and this shows what might be called an enthusiastic attempt to get his life in order. 21 I would, therefore find special circumstances and fix a non-parole period of 2 years and 2 months. 22 I therefore, propose that this Court grant leave to appeal and uphold the appeal, quash the sentence imposed by her Honour and in lieu thereof sentence the applicant to imprisonment for a term of 3 years and 4 months, that sentence to be deemed to have commenced 34 days prior to 7 June 2001, which would be 3 May 2001. I would fix a non-parole period of 2 years and 2 months. 23 The earliest date on which the applicant would therefore be eligible for release on parole would be 2 July 2003. 24 ADAMS J: I agree. 25 DUNFORD J: The order of the Court will therefore be as I have indicated. ********** 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.