New South Wales Court of Criminal Appeal CITATION : R v Ebsworth [2002] NSWCCA 465 FILE NUMBER(S) : CCA 60830/01 HEARING DATE(S) : 15/11/02 JUDGMENT DATE : 15 November 2002 PARTIES : Regina Allan Ray Ebsworth JUDGMENT OF : Wood CJ at CL at 1; Dowd J at 21; Bell J at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 2001/0081 LOWER COURT JUDICIAL Milson DCJ OFFICER : COUNSEL : G I O Rowling (Crown) P Winch SOLICITORS : S E O'Connor (Crown) D J Humphreys CATCHWORDS : CRIMINAL LAW - appeal against severity of sentence - armed robbery - Form 1 - being carried in conveyance without consent - eligibility for Drug Court Programme - appeal dismissed - error in lower court judgment rectified. LEGISLATION CITED : Criminal Appeal Act 1912 - s 6(3) Drug Court Act 1998 DPP v Ebsworth [2001] NSWCA 318 R v Armanios [2001] NSW CCA 110 R v Barton (2001) 121 A Crim R 185 R v Bavadra (2000) 115 A Crim R 152 R v Bertoncello NSW CCA 5 November 1997 CASES CITED: R v Cook [2002] NSWCCA 140 R v Henry (1999) 46 NSWLR 346 R v Parkinson [2001] NSW CCA 244 R v Readman (1990) 47 A Crim R 181 R v Simpson [2001] NSW CCA 534 R v Thomson & Houlton (2000) 49 NSWLR 383 DECISION : Leave to appeal granted, appeal dismissed. However, the error made by his Honour in calculating the date of expiry of the non parole period, which should have been 11 November 2004 and not 10 July 2005, as stated by his Honour is hereby corrected. - 6 -IN THE COURT OF CRIMINAL APPEAL 60830/01 WOOD CJ at CL DOWD J BELL J Friday 15 November 2002 Regina v Allan Ray Ebsworth Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal from a sentence imposed by his Honour Judge Milson on 29 October 2001, following a plea of guilty to one offence of armed robbery. An offence of being carried in a conveyance without the consent of the owner was taken into account on a Form 1. The sentence imposed was one of imprisonment for five years, with a non parole period of three years and nine months, each to date from 12 February 2001, his Honour finding, in that latter regard, that special circumstances had not been established. 2 The matter came before his Honour in somewhat unfortunate circumstance. On 13 June 2001 his Honour Judge Barnett found the applicant eligible for entry to the Drug Court program upon the basis that the offence had not involved actual violence, notwithstanding the elements of the charge and the threats which were implicit in the applicant's conduct. Upon appeal, the Court of Appeal held (DPP v Ebsworth [2001] NSWCA 318) that the offence was one that did involve violent conduct, with the consequence that the applicant was not an eligible person within the meaning of the Drug Court Act 1998. As a result, the matter came before his Honour for sentence. 3 The facts of the case briefly were that at about 8.30pm on Sunday 11 February 2001 the applicant entered a liquor store at Paddington with three co-offenders. He held a baseball bat and walked up to, and behind, the counter. The applicant and his co-offenders yelled at the two staff members, demanding that they open the till. The applicant held the baseball bat at chest level, near one victim, and asked him where the cash bag was to be found. Some $500 in cash was stolen, along with three bottles of Bourbon and ten packets of cigarettes. Some other bottles of wine and Bourbon were smashed. The offenders, including the applicant, left the scene in a motor vehicle, which had been stolen earlier that day, giving rise to the Form 1 offence. 4 The applicant was depicted on the in-store security video and, when arrested for an unrelated incident, he was also charged with the armed robbery. He refused to participate in a record of interview but indicated, at the time of his first appearance in the Local Court, that he would be pleading guilty. 5 It was first submitted that the failed attempt to deal with the matter in the Drug Court should have been taken into account as bearing upon the applicant's circumstances. Reliance was placed, in this respect, on the decision of this court in R v Armanios [2001] NSW CCA 110. However, that was a very different case, it being one where the refusal by the court to allow the offender to participate in the scheme, after having been encouraged by his earlier referral to it, was regarded as relevant to the subsequent outbreak of offences on his part. 6 In the present case, the attempted reference, and the applicant's desire to be involved in the program, had a relevance in relation to his remorse, as well as to an assessment of his prospects of rehabilitation, if given the benefit of a suitable program. Upon that basis, it was potentially a matter to be taken into account as a special circumstance, particularly as his Honour found that the applicant had "a genuine desire...to rehabilitate himself". Otherwise, it does not seem to me that any disappointment or inconvenience related to the assessment of his suitability for the program, or even any delay in the finalisation of the case, are matters which could be relied upon in mitigation of sentence. 7 It was next submitted that his Honour erred when observing, in relation to the plea, that "there was a very strong prosecution case". Had his Honour relied upon that assessment, as a matter reducing the utilitarian value of the plea, then that would have involved error on his part, for the reasons identified in R v Parkinson [2001] NSW CCA 244 at par 24 and in R v Thomson & Houlton (2000) 49 NSWLR 383 per Spigelman CJ at pars 137 to 138. 8 His Honour did not quantify the discount given for the plea, nor was he bound necessarily to do so; that is, so long as he made it clear that the plea had been taken into account. When the relevant comment is read in context, I am not persuaded that his Honour was doing anything other than recording that the prosecution had a very strong case, as indeed it did, before going on to note that, nonetheless, from the time that the matter first came before the Local Court there had been an indication of an intention to plead. While it would have been desirable for his Honour to have explicitly stated that the plea was taken into account, and to have quantified the discount given for it, it is plain, from his concluding remark to the effect that he had applied "a degree of appropriate leniency...in reducing the head sentence to one of five years", that this aspect of the case was not overlooked. 9 Nevertheless having regard to the absence of any specific reference in that regard I do think it necessary that the case be looked at very carefully in order to determine whether otherwise the sentence was inappropriate. 10 Having regard to his age of twenty four years, to his prior record for similar offences, to the guideline judgment in R v Henry (1999) 46 NSWLR 346, and to the inclusion of a matter on a Form 1, which had to be reflected by some additional penalty, for the reasons noted in R v Bavadra (2000) 115 A Crim R 152 and R v Barton (2001) 121 A Crim R 185, I am not persuaded that the head sentence of five years was other than that warranted by law, or that any other sentence should have been imposed. 11 I observe in this respect that the prior record of the applicant includes three prior convictions for serious offences of robbery, commencing with a conviction in 1992 in the Children's Court for an offence of robbery in company; followed by a conviction in 1993 for armed robbery with wounding and robbery causing grievous bodily harm which attracted a head sentence of six years with a minimum term of three years six months; and then by a conviction in 1997, for robbery in company, which led to a sentence of three and a half years with a minimum term of fifteen months and in respect of which further offences of assault with intent to rob, and robbery in company, were taken into account. 12 There had been other convictions, both before and after these convictions, for lesser offences, and the case was one where the applicant had given every indication of having been prepared to engage in further offences of a serious kind, and of having been unwilling or unable to respond to the several opportunities which had been offered to him of supervision while on parole and which, on three prior occasions, had been revoked following a breach. 13 Moreover, the present offence was committed while the applicant was on parole, having been released on conditional liberty on 29 December 2000 for a term expiring on 31 March 2001. This had followed upon the most recent revocation of his parole in December 1999. That was a matter of considerable aggravation for the reasons discussed in R v Readman (1990) 47 A Crim R 181, yet it appears to have been overlooked by his Honour since no mention was made of it. If the significance of the plea was overlooked by his Honour, then it was fully compensated for by this consideration. 14 The final matter relied upon related to the finding that there were no special circumstances. The case was one where his Honour accepted that the applicant had suffered a disturbed and dysfunctional family background, that he was, "an addict in need of treatment" who had commenced on a methadone maintenance program while waiting for his entry into the Drug Court program, that he had impressed the prison and alcohol worker, with whom he had come into contact, that he had a strong relationship with his wife and that he was anxious to start a new life now that he had become a father. Balanced against that was the consideration that this offence had been committed within two months of the birth of his child, and his release on parole, factors which throw a doubt on any claim which he might make to having been at the "cross roads". 15 In view of the various matters identified, and his Honour's findings that the applicant had a genuine desire to rehabilitate himself, yet lacked "the personal resources to do so", having "only recently gained security and stability in the form of a family", the case was one where, in accordance with the principles considered in R v Simpson [2001] NSW CCA 534, it admittedly was open for a finding of special circumstances to be made. However, it was a matter within discretion. As was pointed out in R v Bertoncello NSW CCA 5 November 1997: " Establishing facts which, in isolation or in aggregate, have the character of special circumstances, does not render mandatory the variation of the statutory ratio ." 16 That observation was made at a time when there was a line of authority, now qualified by more recent decisions, to the effect that it was the need for, or the desirability of, the offender being the subject of an extended period of conditional release upon supervision which was the trigger for such a finding. While a wider range of considerations may now be taken into account, it still remains the case that the sentence must be one which ensures that the time which the offender actually spends in prison reflects all of the circumstances of the offence, including its objective gravity and any need for deterrence: see R v Simpson at para 65. 17 In order for the court to intervene it must be satisfied that a lesser sentence, in one or other of its components, was warranted in law and should have been imposed: s 6(3) Criminal Appeal Act 1912 and see R v Simpson at paras 79 to 80 and para 100, and R v Cook [2002] NSWCCA 140 at para 20. 18 Mr Wicks has said all that could possibly be said in relation to this final aspect of his submissions, emphasising that it was the attempt to enter the drug rehabilitation program, and the applicant's self initiated approach to the Drug and Alcohol Counsellor, that gave a glimmer of hope for the future such as to justify a finding of special circumstances. 19 I am not, however, persuaded, having regard to the applicant's prior record, the seriousness of this offence, his poor response to previous opportunities for supervision while on parole, and the fact of his re-offending soon after the birth of his child (that being the circumstance which he claimed to be the motivating factor for a change on his part), that his Honour was in error in not finding special circumstances to exist. Any sentence providing for a lesser period in actual custody would, in my view, have been unwarranted in law, and for this Court to now intervene by reducing the non parole period would similarly constitute error. 20 I would grant leave to appeal but I would dismiss the appeal, save to correct the error made by his Honour in calculating the date of expiry of the non parole period, which should have been 11 November 2004 and not 10 July 2005, as stated by his Honour. 21 DOWD J: I agree. 22 BELL J: I also agree. 23 WOOD CJ AT CL: The order of the court will be as I have proposed. ********** 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.