REGINA v PEARSON [2002] NSWCCA 256

New South Wales Court of Criminal Appeal

CITATION : REGINA v PEARSON [2002] NSWCCA 256 FILE NUMBER(S) : CCA 60130/2002 HEARING DATE(S) : 12 June, 2002 JUDGMENT DATE : 12 June 2002

PARTIES : Regina Mark Pearson JUDGMENT OF : Adams J at 1, 20; Blanch AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0026 LOWER COURT JUDICIAL Woods QC DCJ OFFICER :

COUNSEL : D M Woodburne (Crown) S Kluss (Appellant) SOLICITORS : S E O'Connor (Crown) Leonie Miller (Appellant)

LEGISLATION CITED : Crimes Act, 1900 s97 CASES CITED: Griffiths v R (1977) 137 CLR 293 DECISION : Extension of time to appeal granted. Application for leave to appeal refused. Appeal dismissed.

- 5 -IN THE COURT OF CRIMINAL APPEAL 60130/2002

ADAMS J BLANCH AJ

12 June, 2002 REGINA v Mark PEARSON Judgment 1 ADAMS J: Blanch J will deliver the judgment. 2 BLANCH AJ: This is an application for an extension of time in which to appeal against the sentence imposed by the District Court on 18 May, 2001. On that day the applicant adhered to a plea of guilty that had earlier been entered to a charge of robbery whilst armed contrary to s97 of the Crimes Act which carries a maximum penalty of twenty years. 3 On 18 May, in respect of that charge and taking into account one matter on a Form 1, he was sentenced to four years imprisonment to commence on 16 December, 2000 and expire on 15 December, 2004. A non-parole period was specified of two years and three months to expire on 15 March, 2003. 4 The background history to the matter was that the offence itself occurred on 20 September, 1999. The applicant was arrested on 28 September, 1999. He then first appeared before the District Court judge on 26 April, 2000 and then again on 29 May, 2000. On 29 May, his Honour remanded the matter on a Griffiths remand with a view to allowing the applicant to seek some rehabilitation in respect of his drug abuse. 5 On 8 December, 2000 the applicant did not attend at court and a bench warrant was issued which resulted in his arrest on 16 December, 2000. He subsequently came before the sentencing judge, as I have indicated, on 18 May, 2001 for sentence. 6 The facts of the case are that on 20 September, 1999 at 12.20 p.m. the applicant went to the Fairlight Newsagency at Fairlight disguised with a piece of material over his head, similar to a balaclava but there were no eye or mouth holes, simply a hole at the top to let his hair loose. He ran into the shop and on to the staff side of the counter. The victim, a 59 year old female, stepped back and the applicant screamed at her "Open the fucking till". He screamed this a number of times until she reached over him and opened the cash register drawer. The applicant at the time was armed with a small vegetable knife. The victim recognised the voice of the applicant with whom she had had some previous contact. He ran from the shop but a taxi driver, becoming aware of the commission of the offence, chased the applicant to a point some three hundred metres away and the taxi driver then took the money from the applicant. The applicant escaped and was subsequently arrested, as I have indicated, eight days later. 7 Obviously the offence itself is a serious one, and as his Honour pointed out in his remarks on sentence, newsagents are in a vulnerable position and this Court has often said that people who are in vulnerable positions in the community should be protected by the Courts when imposing sentence. 8 Originally the submissions in this matter on behalf of the applicant focused on the fact that a period of pre-sentence custody had not been taken into account. Obviously, if that were demonstrated to be so, then the sentence would have needed to be interfered with. However, a careful investigation of the matter indicates that that is not so and, accordingly, the sentence which was imposed has given the applicant full credit for the total period that he has been in custody. 9 The focus of the appeal today has moved to the length of the sentence imposed on the applicant and the submission made by Ms. Kluss is that the sentence itself is too severe. She argues on the basis that in order to impose a sentence of four years and to give the applicant the full benefit for the plea of guilty of the 25% reduction, the judge must have started at a sentence of five years and four months. The argument which is put forward is that in all the circumstances that sentence is too high. 10 In support of that argument, it is pointed out that the applicant has very little in the way of a prior criminal history. There was a conviction for dishonesty offences in the Local Court in 1982 and for drug offences in 1984. It is true that the lack of prior criminal history of any significance is a matter which has to be taken into account in assessing the overall length of the sentence. 11 The other matter that is put with some degree of force is the fact that the applicant's background is one which has led him to be vulnerable in the community and explains how he came to commit such an offence when he has no prior criminal history for violence. 12 The background of the applicant is set out in the report of Duffy, Barrier and Robilliard, psychologists, of 14 April, 2000 and which was tendered to the sentencing judge. Clearly, these matters relating to the background of the applicant, explain why the sentencing judge stopped the proceedings in May, 2000 and remanded the applicant on bail with conditions that he undergo some form of supervision and rehabilitation. Obviously, the judge at that time had in mind that such a remand might lead to something other than a full-time gaol sentence at the end of the day if it all proved to be successful. 13 His Honour no doubt relied on the material to which I now refer. The psychologist's report shows that the applicant was born in England in 1964, he also says he has a sister and step siblings and that he came to Australia when he was nine years old. About twelve months after that his mother was killed in a motor accident. His father then remarried and it appears that thereafter there were problems between him and his stepmother and within the rest of the family. At the age of fourteen, he left home and reported sleeping in charity bins for about a month and then he gravitated towards a nomadic life and he was involved with the drug subculture. At the age of eighteen, he began to make friends and for a period he abstained from taking drugs and was off drugs for some twelve years. At the age of 28, unfortunately, he went back to using drugs and the report indicates that for the last few years his life has been dominated by his drug dependence. The report concluded that the applicant has a fragile sense of self-worth and suffered from depression and said that all of these problems would be exacerbated if he were to go to prison. 14 At the time of that report, there was hope that he might go into the William Booth programme with the Salvation Army and that that Programme would assist him in overcoming his drug problems. 15 The pre-sentence report which was prepared at that time also was focused on the hope that the applicant might be refocused on the idea of drug rehabilitation. All of those matters amounted to a powerful submission that something should be done to attempt to rehabilitate the applicant. He did not have at that stage a significant criminal history. He had had a difficult period as a teenager. He had overcome that. He had been able to overcome his addiction to drugs and he had subsequently gone back to the use of drugs. It was no doubt hoped that with the assistance of the Griffiths-type remand a rehabilitation programme could be put in place. As I have indicated, that did not occur. 16 The task facing the sentencing judge on 18 May was to make an assessment of all of those circumstances and fix a head sentence and a non-parole period. Clearly, his Honour was still impressed by the prospects of rehabilitation because in the sentence that he did fix, he varied the statutory regime and fixed a non-parole period that was only just over half of the head sentence. 17 At the end of the day, the matter that needs to be analysed by this Court is whether or not his Honour erred in fixing the head sentence of four years, bearing in mind it was a plea of guilty at the earliest possible opportunity and that on that basis it might reasonably be expected that his Honour started with a sentence of five years and four months and reduced that. 18 As I have said, it is an offence of armed robbery. It was a serious offence. In my view, the head sentence which was imposed in this case, bearing in mind the plea of guilty and, of course, bearing in mind that his Honour was taking into account some minor drug matter on a Form 1, was not an excessive sentence and there was no error in an assessment of what the appropriate non-parole period was. 19 Accordingly, I would propose that there be an extension of time within which to appeal but I would refuse the application for leave to appeal. 20 ADAMS J: I agree with his Honour. Accordingly, the appeal is dismissed.