Knight v Regina [2002] NSWCCA 12

New South Wales Court of Criminal Appeal

CITATION : Knight v Regina [2002] NSWCCA 12 FILE NUMBER(S) : CCA 60584/2001 HEARING DATE(S) : 11/02/02 JUDGMENT DATE : 28 June 2002

PARTIES : Travis Lawrence Knight - App Crown JUDGMENT OF : Hidden J at 1; Kirby J at 15

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/51/0053 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : DA Buchanan SC - Applicant L Lamprati - Crown SOLICITORS : John Bettens & Co - Applicant SE O'Connor - Crown CATCHWORDS : Criminal law: sentence - armed robbery - home invasion - sentence above Henry guideline. R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Campbell [2000] NSWCCA 157 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Qi (1998) 102 A Crim R 172 DECISION : Appeal dismissed.

IN THE COURTOF CRIMINAL APPEAL 60584/2001 HIDDEN J KIRBY J 28 June, 2002 Travis Lawrence KNIGHT v REGINA

JUDGMENT 1 HIDDEN J: The applicant, Travis Lawrence Knight, pleaded guilty in the District Court to a charge of armed robbery and asked that a charge of possessing heroin be taken into account on a Form 1. The learned sentencing judge sentenced him to imprisonment for 5 years and 3 months with a non-parole period of 3 years. He seeks leave to appeal against that sentence. 2 The facts are quite unusual. In the small hours of the morning of 8 November 2000, the applicant went to the home of his girlfriend's parents at Possum Creek on the far north coast of New South Wales. He was armed with a knife, he carried a torch and he was wearing a balaclava over his head. He turned off the electricity before entering the house through an unlocked door. 3 The victims were in bed. The applicant went to the bedroom and demanded money, attempting to disguise his voice. He told the female victim that he wanted her bag and he menaced both of them with the knife. The female victim realised who it was and remonstrated with him, but he said that he was serious and insisted on being given the bag. Eventually, he found it and he ran from the house. 4 He drove to Sydney with his girlfriend and two other people. There he obtained some heroin, which he used. He was arrested soon afterwards in a motel room, where police found a small amount of heroin the subject of the offence on the Form 1. As it happened, the female victim's bag contained cash in excess of $5,000, a great deal more than the applicant had expected. He showed police where that money was and it was recovered. He made full admissions of the offence and pleaded guilty in the Local Court. 5 The applicant was nineteen years old at the time of the offence, and is now twenty one. He suffered injuries in a bicycle accident in 1997 and a car accident in 1999, which prevented his following in his father's footsteps as a shearer. The psychological consequences of the accidents were serious. He became addicted to drugs which, his Honour found, was the result of the pain his injuries caused him. His only previous conviction is for possessing a prohibited drug, for which he was placed on a bond, although it should be noted that that bond was current at the time of the armed robbery. 6 The sentencing judge accepted that the applicant was remorseful, and had a genuine desire to rehabilitate himself and defeat his drug dependence. His Honour also noted that he retained the support of his girlfriend. His Honour considered that the offence merited a sentence of 7 years imprisonment, which he reduced by twenty five percent in recognition of the early plea of guilty. In the light of the applicant's subjective case, he found special circumstances. 7 In assessing the objective gravity of the offence, his Honour described it as "not well thought out" and not displaying "a great deal of planning or common sense …". On the other hand, he noted that the female victim needed a dialysis machine, a fact of which the applicant was aware when he turned off the electricity at the house. Further, his Honour observed that there was no suggestion that the applicant knew of any particular times at which she underwent dialysis (although he may have thought it unlikely that she was doing so at the time of morning when the offence occurred.) Finally, his Honour accepted that both victims were terrified even though they were aware that the offender was the applicant. Particularly was this so of the female victim because of her medical condition, for reasons which she explained in evidence before his Honour. The male victim gave evidence that his initial bewilderment at the applicant's behaviour turned to the apprehension that he might kill them to prevent his being identified. 8 His Honour had regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346. He considered that the case shared a number of the features expressed for the purpose of the guideline (para 162), but that it was distinguished by the fact that it was committed at the time it was in a private home. His Honour described this as "a significant and a very different aggravating circumstance …". It was for this reason that he departed from the guideline of four to five years (para 165) and determined the starting point of seven years for the applicant's sentence. 9 Before us this finding was challenged. Senior counsel for the applicant pointed out that one of the features of an armed robbery to which the court had regard in arriving at the range in Henry was a victim in a vulnerable position, such as a shopkeeper or a taxi driver: per Spigelman CJ at para 162(v). Counsel argued that offences committed in private homes should not be viewed more seriously than those committed against people, such as shopkeepers and taxi drivers, who are exposed to the public and against whom armed robberies are more prevalent. 10 The research of counsel on both sides produced only one decision of this Court since Henry dealing with an armed robbery in a private home: R v Campbell [2000] NSWCCA 157. That was a Crown appeal in which the court considered that a total sentence of at least eight or nine years imprisonment was called for but, in recognition of the element of double jeopardy in Crown appeals, imposed a total sentence of seven and a half years. However, the case is of little assistance for present purposes. The objective facts were very much more serious than the present case, and the offender was an older man than the present applicant with a bad criminal record. There were a number of features which led the court to conclude that a sentence well outside the Henry range was appropriate, although the fact that the offence was committed in a private home at night appears to have been one of the them: see the leading judgment of Dunford J at paras 22-25. 11 His Honour's starting point in the present case is significantly higher than the Henry range. This is so even allowing for the fact that that range incorporates a measure of leniency for a late plea of guilty: R v Thomson and Houlton (2000) 49 NSWLR 383 at para 161. That said, I am not persuaded that his Honour fell into error in determining that a sentence above the guideline was called for. That is because of the aggravating features to which I have referred and, of course, I do not suggest that the same approach must be taken to every armed robbery by way of home invasion. 12 The question remains whether, in all the circumstances, the sentence which his Honour imposed is manifestly excessive. I have given this matter anxious consideration but, again, I am not persuaded that it was. True it is that the robbery was somewhat amateurish and the applicant made out a favourable subjective case. The fact remains that the offence was a serious one, committed while the applicant was on a bond. His Honour's staring point of 7 years was high but, after a generous reduction for the plea of guilty and the finding of special circumstances, the resultant sentence of 5 years and 3 months with a non-parole period of 3 years is not such as to attract this Court's intervention. 13 Senior counsel for the applicant referred us to R v Qi (1998) 102 A Crim R 172, a successful Crown appeal in which this Court sentenced the respondent to 4 years penal servitude, comprising a minimum term of 2 years and an additional term of 2 years. The respondent had pleaded guilty to armed robbery and asked that a related charge of kidnapping be taken into account. Like Campbell (supra), the facts of that case were considerably more serious than this and the respondent, who was about the same age as the present applicant, was also on conditional liberty at the time. On the other hand, he was one of a number of co-offenders and his role was found to be less than that of his companions. More importantly, the case was decided before Henry and, in any event, the Court was exercising the restraint customarily associated with re-sentence on a Crown appeal. 14 I would grant leave to appeal but dismiss the appeal. 15 KIRBY J: I agree with Hidden J. ******