Regina v Colin Howarth [2002] NSWCCA 387

New South Wales Court of Criminal Appeal

CITATION : Regina v Colin Howarth [2002] NSWCCA 387 FILE NUMBER(S) : CCA 60144/02 HEARING DATE(S) : 23/09/2002 JUDGMENT DATE : 23 September 2002

PARTIES : Regina Colin Howarth (Applicant) JUDGMENT OF : Buddin J at 1; Smart AJ at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/41/0240 LOWER COURT JUDICIAL Goldring DCJ OFFICER :

COUNSEL : P Barrett (Crown) AP Cook (Applicant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Applicant) CATCHWORDS : Sentence - appeal against severity - offence of "assault with intent to rob whilst armed with an offensive weapon" - plea of guilty - eight years' imprisonment with non-parole period of six years - prior conviction for and on parole for armed robbery - sentence held to be manifestly excessive. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CASES CITED: R v Henry and Barber (1999) 46 NSWLR 346 DECISION : Leave to appeal granted. Appeal allowed. The sentence passed in the District Court is quashed. In lieu thereof the applicant is sentenced to imprisonment for a period of six and a half years to commence on 4 October 2001 and to expire on 3 April 2008 with a non-parole period of 4 years and 10 months to commence on 4 October 2001 and to expire on 3 August 2006.

IN THE COURT OF CRIMINAL APPEAL 60144/02

BUDDIN J SMART AJ

Monday 23 September 2002 REGINA v COLIN HOWARTH Judgment 1 BUDDIN J: The applicant appeared for sentence in the District Court following his plea of guilty before a magistrate to an offence of "assault with intent to rob whilst armed with an offensive weapon". That is an offence contrary to s 97(1) of the Crimes Act 1900 and as such attracts a maximum penalty of 20 years' imprisonment. 2 The applicant was sentenced on 8 March 2002 to imprisonment for eight years with a non-parole period of six years. The sentence was ordered to commence on 4 October 2001, which was the date upon which the applicant was arrested and went into custody. 3 The facts can be simply stated. The applicant made a '000' call to police from a telephone booth in Lake Heights which is near Port Kembla. He falsely reported that a domestic dispute was in progress at the Primbee Post Office and that one of the participants had just fired a shot from a gun. As a result police made their way to the post office. 4 The applicant then walked across the road to the Lake Heights Post Office. He entered that post office wearing a balaclava and carrying a knife which was approximately 30 centimetres in length. He confronted the male victim with the knife and demanded money from him. The victim activated the hold-up alarm. The applicant went behind the counter and pointed the knife at the victim. The victim retreated but the applicant grabbed him by the shirt and dragged him back to the front counter and proceeded to search through the drawers. He did not however obtain any money. 5 Another male person entered the post office and ordered the applicant to let the victim go. Whilst leaving the premises the applicant passed that person and said to him "Don't fucking come near me or I will stab you." The applicant then ran across the street but was caught by that person and detained until police arrived. 6 The applicant participated in an ERISP with police in which he made full admissions to having attempted to rob the post office. He also admitted having made the bogus '000' call. He maintained that he had never intended to hurt anyone and that he had deliberately set out to get caught by the police. He said that he had not eaten for several days and that he had nowhere to live. He also said that he was short of money as he had a drug problem as well as an addiction to poker machines. 7 A report from a psychologist, Ms Katherine Barrier, was tendered on the applicant's behalf and it provided some background information about his life. The applicant was aged 44 at the time of the offence. He had suffered considerable violence at the hands of his father and had left the family home at the age of 15. He had left school in third form by which time he had acquired only the most basic literary skills. He had been employed, but only on an intermittent basis, as a builder's labourer. He had some significant health problems, including having contracted hepatitis B and C. His Honour reduced by 20% the sentence which he would otherwise have imposed, to give effect to the applicant's early plea of guilty accompanied as it was by the fulsome admissions which he had made to the police. It is not suggested that the sentencing judge did not take these matters into account. 8 The applicant has a criminal history. There are several convictions recorded against him for stealing and some for possession of prohibited drugs. He has also been convicted on a number of occasions for driving with more than the prescribed concentration of alcohol in his blood. 9 Of particular significance and concern is the fact that the applicant was convicted in 1996 for armed robbery. Moreover it is a matter of aggravation that he committed the present offence, which was clearly similar in nature to the earlier matter, whilst still on parole for that earlier offence. In those circumstances the sentencing judge was properly concerned to impose a sentence that had, in addition to all the other relevant sentencing considerations, a significant element of personal deterrence. 10 It may be noted that as a result of the commission of this offence, the applicant's parole was revoked. As a consequence he was ordered to serve the balance of his parole period which, we were informed, was a period of some 10 months from 4 October 2001. Accordingly the sentence which is the subject of this application, is being served concurrently with that order. 11 The sentencing judge rejected a submission that there was a proper basis for a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. There is no challenge in this Court to that finding. 12 The applicant's primary submission is that the sentence imposed was manifestly excessive. There can be no doubt that the sentencing judge was dealing with a matter of considerable objective seriousness. The courts must be vigilant to ensure that appropriate penalties are imposed upon those persons who commit offences of violence in circumstances such as the present. The victim, who was in a vulnerable situation, was undoubtedly placed in considerable fear by the actions of the applicant. The use of a knife in such situations is to be regarded with abhorrence. Nor had the applicant apparently learnt anything from the previous sentence which was imposed upon him. 13 Notwithstanding the fact that this offence was committed whilst the applicant was on parole for a similar offence, I am of the view that the applicant has made good his primary submission. It is to be remembered that this was a case in which a plea of guilty following an immediate confession was entered in respect of a single offence. The circumstances of the offence itself displayed no particular sophistication. The applicant had encountered real difficulties in adjusting to life in the community upon his release from custody and had found it difficult to maintain full-time employment especially once his prior history became known to employers. Nevertheless, for a period of two years whilst on parole, he had managed to remain free of trouble with the authorities before committing this offence. 14 The sentencing judge, not surprisingly, thought that it was sad that the applicant may have been motivated to commit this offence in the knowledge that he would be apprehended and returned to custody. The applicant was apparently of the view that being in custody was a preferable alternative to life in the community. 15 Even allowing for the presence of the aggravating features to which reference has been made, the imposition of a head sentence of eight years, when compared with what this Court said in R v Henry and Barber (1999) 46 NSWLR 346 was the appropriate range for offences against s 97 of the Crimes Act, also suggests a sentence which is manifestly excessive. The JIRS statistics, with which we have been supplied, bear out that impression. 16 Having had regard to s 6(3) of the Criminal Appeal Act 1912, it is my view that this court should intervene and re-sentence the applicant. In doing so it is necessary to weigh in the balance the various factors which are relevant to that task. See s 21A of the Crimes (Sentencing Procedure) Act 1999. 17 Accordingly the orders which I propose are as follows: