New South Wales Court of Criminal Appeal CITATION : REGINA v. SULLIVAN [2002] NSWCCA 312 FILE NUMBER(S) : CCA No. 60803 of 2001 HEARING DATE(S) : Thursday 1 August 2002 JUDGMENT DATE : 1 August 2002 PARTIES : REGINA v. SULLIVAN, Gerard Allan JUDGMENT OF : Sperling J at 27; Greg James J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0126 LOWER COURT JUDICIAL Job, DCJ. OFFICER : COUNSEL : Crown: D. Woodburne App: P. Strickland SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys CATCHWORDS : Criminal law - sentence - armed robbery with offensive weapon - appropriate discount for plea - appropriate allowance for voluntary custodial rehabilitation programme - error in failing to follow principles in Thomson & Houlton - applicant re-sentenced. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Thomson & Houlton (2000) 49 NSWLR 383 CASES CITED: Sharma [2002] NSWCCA 142 Marschall [2002] NSWCCA 197 Aiken [2001] NSWCCA 40 DECISION : Leave to appeal granted; appeal upheld; the sentence and non-parole period imposed in the District Court be set aside; the applicant be re-sentenced to imprisonment for four years and one month to date from 7.11.01 with a non-parole period of two years and three months to expire on 6.2.04. IN THE COURT OF CRIMINAL APPEAL No. 60803 of 2001 SPERLING, J. GREG JAMES, J. THURSDAY 1 AUGUST 2002 REGINA v. GERARD ALLAN SULLIVAN Judgment 1 GREG JAMES, J: Gerard Allan Sullivan seeks leave to appeal from a sentence imposed upon him in the District Court of New South Wales following his plea of guilty to the crime of armed robbery with an offensive weapon. That crime is punishable under s.97(1) of the Crimes Act 1900 by a maximum penalty of 20 years imprisonment. 2 The learned trial judge in his remarks on sentence referred to the particulars pleaded of the offence, that is, that on 2 March 2001 at Gosford the applicant, being then armed with an offensive weapon, namely a knife, did rob Melissa Eve Neilson of certain property, namely a backpack, key purse, silver necklace and a quantity of cash. 3 The trial judge found, having regard to the statement of facts tendered in evidence that what had occurred was, at about 8.10 pm on Friday 2 March 2001 Ms. Neilson was walking south on the eastern side of Mann Street, Gosford. When she reached a point in that street near the intersection of Racecourse Road and Mann Street she crossed over to the western side of the road. 4 A red Mitsubishi sedan was parked facing north in Mann Street. The offender got out of the car, approached her saying, "You wouldn't know anywhere I could fucking get on?". She attempted to walk around him but he seized her around the throat causing her silver necklace to break and fall to the ground. He produced a knife and held it to her throat saying "give me your fucking money". He took hold of her handbag and pulled it from her shoulder and pushed her to the ground. She landed heavily on the ground causing immediate intense pain to her left elbow and right thigh. He then got into the car with the bag and drove off. She was assisted by two witnesses. 5 She identified him the following day and he was apprehended later that day. He gave a record of interview but did not make in that record of interview any admissions of being involved in the robbery. 6 Although the victim referred to the weapon as a knife, the applicant told a psychologist, and his Honour in evidence on the plea that what he used was, in fact, a screwdriver. 7 His Honour found that the experience was absolutely terrifying for the victim and referred to the applicant's criminal record, which included a prison sentence of nine months for malicious wounding commencing on 26 August 1989. 8 The applicant gave evidence before the trial judge. He referred to having been drinking heavily on the occasion of the offence. His remark to the victim, "you wouldn't know anywhere I could fucking get on", seemed to indicate a concern with being able to find drugs. That accords with the applicant's condition of drug induced psychosis as it was diagnosed to be by a psychologist whose opinion was in evidence. 9 The psychologist's report refers to the applicant as being a follower who was under some considerable pressure from his girlfriend to get drugs or money to get drugs on that occasion. The learned trial judge apparently accepted the account given as indicating the background to the commission of the offence. 10 The trial judge sentenced the appellant to imprisonment for four years and six months commencing on 7 November 2001 and imposed in respect of that sentence a non-parole period of two years and nine months expiring on 6 August 2004. 11 On the application for leave to appeal there have been two principal matters advanced. These concern the trial judge's treatment of two important matters, the first being the value attributed to the applicant's plea of guilty; the second being the way in which his Honour had regard to the fact, not subject to any challenge, that whilst on bail and prior to sentence the applicant had spent just short of five months in full-time custodial rehabilitation with the WHOS ("We Help Ourselves") programme. 12 The trial judge dealt with the question of the plea in a passage in his remarks on sentence in which he said:- "The offender did plead guilty, although not at the first opportunity, and he denied when spoken to by police that he was responsible for the offence. He did plead guilty, as I said earlier, on 31 August 2001. That may have been one of the first times he had received some legal assistance, so consequently he is entitled to a discount for that plea of guilty. It is said that the discount can vary greatly but, as suggested by the courts that a range would be from 10% to 25%, in this case I think a range, proper discount, would be one of 10%." 13 It was submitted on behalf of the applicant that the learned trial judge while finding that there had been a plea sufficiently early for it to be of some substantial utilitarian value, had afforded only such discount as is reserved for a case where a plea of guilty is made either on or very close to the date fixed for trial. 14 It was submitted that in effect the discount allowed by his Honour failed to have regard to the effective difference in the utilitarian benefits involved in a late plea and that made shortly after the receipt of legal advice and sufficiently in advance of a trial to enable the use of public resources to be considerably circumscribed. 15 It is apparent that his Honour did conclude in that sentence "that may have been one of the first times he had received some legal assistance, so consequently he is entitled to a discount for that plea of guilty", that his Honour was minded to afford a discount for the plea, recognising that the accused pleaded at what was a reasonably early practical opportunity following the provision of legal advice. 16 I am unable to see how in those circumstances a discount so low as 10% might properly be given in accordance with that range of authorities, which have included Regina v. Thomson & Houlton (2000) 49 NSWLR 383 and Regina v. Sharma [2002] NSWCCA 142. In my view his Honour has fallen into error having regard to the way in which he has treated the plea of guilty in this case. 17 As to the second ground of appeal, substantial oral argument was put in addition to the written argument that the court should recognise the utilitarian value of those particularly afflicted by drug addiction who are minded themselves to enter full-time custodial programmes of rehabilitation, which custodial programme contains an onerous element of confinement. 18 Our attention was drawn to Regina v. Marschall [2002] NSWCCA 197 and Regina v. Aiken [2001] NSWCCA 40 and the cases cited in those authorities as supporting the proposition that regard must be had in the eventual sentence passed for the time spent in such confinement, directed as it is to achieving the public estimable goal of rehabilitation as well as regard being had to it as evidencing a movement towards an attempt at rehabilitation as subjective to the individual offender. 19 Section 21A of the Crimes (Sentencing Procedure) Act 1999 sets out a number of specific matters to which a court should have regard when sentencing. Both of those objectives to which I have referred are contemplated by various of the particular matters to which a court is required to have regard under s.21A. 20 In the present case the learned trial judge referred to that period of time that the applicant had spent in WHOS, and referred to the effect he considered that attendance at the programme might have, in a passage in his remarks on sentence. "It is also a fact that the offender when obtaining bail after only two or three days in custody, did avail himself of an opportunity to go into WHOS and I have two reports, one dated 30 August and one dated 6 November which state that although there was one infraction it was not serious and that he has been doing very well whilst in WHOS' care. Indeed before this hearing commenced his counsel sought an adjournment until approximately March of next year so that the offender could complete the WHOS programme and indeed that application was renewed after I heard evidence from the offender. The offender told me that he believes that he would be much better off serving a gaol sentence after he has completed the course being better able to face the rigours of the gaols system. I feel that I cannot accede to the application to stand the matter over for that long. It would place intense pressure on the offender himself and was also, maybe that as the time got closer and realised that he was going to gaol that it might even put so much pressure he might take another course. Consequently I believe that it is best I deal the matter today." 21 It is clear that what his Honour was concerned with at that point was the question of deferring the passing of sentence until a successful completion of the WHOS residential programme. His Honour at no point indicates that he is prepared to take into account the accused's generally successful attempt to complete the program as affecting the quantum of sentence by reason of the accused having entered into the custodial rehabilitation option offered by that programme. 22 His Honour does have regard to the offender's attempts at rehabilitation in considering subjective matters. Also his Honour recommends the supervision and guidance of the Probation and Parole Service with drug rehabilitation upon the appellant being released to parole. He refers to the appellant's need for assistance when he comes out of gaol and in that regard concludes that that matter amounts to special circumstances entitling the offender to a longer than normal period on parole. But it does not seem to me that his Honour, even though the possibility was envisaged, it seems to me, at least implicitly, in his closing remarks, of the offender needing perhaps to go into further custodial rehabilitation, gave to the appellant on sentence that discount whether expressed mathematically or as a substantial component of the eventual synthesis to which the authorities would indicate he was entitled for that matter. 23 I conclude that in both respects his Honour fell into error to the extent that the sentencing exercise miscarried and that another sentence warranted in law should be passed. 24 It is desirable, it has been said in certain of the authorities, to refer to the extent to which the discount for a plea should be allowed. For my part, having regard to the Henry guideline, I would commence the sentencing exercise at the point the trial judge did, that is to say at the five year figure. I would be of the view that an appropriate allowance for the plea in the circumstances having regard to the Thomson & Houlton guideline would be of the order of 17½% and that for the period in rehabilitation there should be allowed a sufficient deduction so as to provide for a substantial sentence of four years and one month with a non-parole period of two years and three months. 25 The sentence should date from the date nominated by the trial judge, that being 7 November 2001. It will, therefore, expire some months earlier, that is on 6 December 2005. The non-parole period of two years and three months will expire on 6 February 2004. I reiterate the finding of special circumstances made by the trial judge. 26 The orders, therefore, I would propose are: that leave to appeal be granted; the appeal be upheld; the sentence and non-parole period imposed in the District Court be set aside; and that the applicant be re-sentenced to imprisonment as I have indicated. 27 SPERLING, J: I agree. The orders of the court will be as proposed by Greg James, J. ********** 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.