New South Wales Court of Criminal Appeal CITATION : R v Roberts [2003] NSWCCA 67 HEARING DATE(S) : 21 March 2003 JUDGMENT DATE : 21 March 2003 JUDGMENT OF : Studdert J at 1; Shaw J at 33 DECISION : Leave to appeal granted; appeal dismissed. LEGISLATION CITED : Crimes Act s 97(1) Pearce v The Queen (1998) 194 CLR 610 R v Challis [2003] NSWCCA 48 CASES CITED : R v Gorman [2002] NSWCCA 516 R v Hayes [2001] NSWCCA 410 R v Henry (1999) 46 NSWLR 346 PARTIES : Regina v Grant John Roberts FILE NUMBER(S) : CCA 60216/02 COUNSEL : R.A. Hulme SC (Crown) L. Flannery (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0244 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60216/02 STUDDERT J SHAW J Friday 21 March 2003 REGINA v GRANT JOHN ROBERTS Judgment 1 STUDDERT J: The applicant, Grant John Roberts, seeks leave to appeal against sentences imposed upon him by Nield DCJ in the District Court on 11 April 2002. The sentences that were imposed followed the applicant's trial on three counts of armed robbery. The jury acquitted the applicant on one of the counts, but found him guilty on the remaining two counts. 2 In respect of the offences to which those two counts related, the applicant was sentenced following conviction as follows: (i) in relation to the first of the established offences, the applicant was sentenced to imprisonment for a fixed term of four years and six months; (ii) in relation to the second of the established offences, the applicant was sentenced to a term of imprisonment of six years with a non-parole period of four years. 3 The fixed term sentence was expressed to commence on 9 August 2001 and to expire on 8 February 2006. The sentence in relation to the second offence was expressed to commence on 9 August 2003, and his Honour fixed a non-parole period to expire on 8 August 2007. The parole period therefore was from 9 August 2007 to 8 August 2009. I observe that the sentences were backdated to allow for periods earlier spent in custody. 4 Effectively then, what his Honour did was to impose in relation to the second of the offences attracting sentence, a sentence which was in part concurrent and part cumulative. The overall effect of the sentences involved a non-parole period of six years and a period within which the applicant was to be eligible for release of a further two years. 5 Each of these offences was in a category in respect of which s 97(1) of the Crimes Act imposed a maximum penalty of twenty years imprisonment. 6 The learned sentencing judge conveniently summarised the relevant objective facts concerning the two offences that were established. Each took place on 7 March 2001, and each involved crimes committed at pharmacies. 7 The applicant drove his motor bike to a pharmacy at Carlingford, arriving there at 3.15 pm. He entered the pharmacy wearing a black coloured full face motorbike helmet with a black balaclava or scarf wrapped around his face under the helmet. He carried a knife and a bag. He brandished the knife at two women serving in the shop and demanded money and drugs. He directed such items be placed in his bag, which he took away with him. 8 He then rode his motor bike to a pharmacy at Dundas Valley where he committed the second crime. Only a period of approximately fifteen minutes elapsed between the first armed robbery and the second armed robbery. The applicant entered the Dundas Valley Pharmacy attired as before, and again carrying a knife and a bag. Here he threatened the pharmacist and an employee in the pharmacy with his knife, this time taking away money but no drugs. 9 His Honour found that the applicant had attempted to hide or obscure the number plate of his motor bike by wrapping cloth around it. 10 His Honour correctly categorised the offences as serious, and said in relation to them: "Although the offences may have been planned without much thought, they were planned nonetheless. The offender obtained a knife and partly covered his face and the number plate of his motor bike. The offences were committed upon vulnerable people. His victims were threatened. His reason or motive for committing the offences, that is to obtain sufficient money to provide bail for his girlfriend, is hardly a mitigating feature, although it explains his commission of the offences. The offences are, as I have said, serious ones which demand appropriate salutary punishment." 11 To my mind there could be no quarrel with the above remarks. I would add, pharmacies are obvious targets for the type of crime the applicant committed, and those working in such places are indeed vulnerable. 12 His Honour reviewed the subjective features of the case. The applicant was born in New Zealand on 16 January 1965, so that he was thirty-six years of age at the time the crimes were committed, and thirty-seven years of age at the time of sentence. The applicant settled in Australia in late 1991 or early 1992. He subsequently married here, but, by the time of these offences, he was either separated or divorced and had formed a new attachment. 13 His Honour observed that the applicant had had a disturbed upbringing and left home at the age of fifteen years. His education was disrupted and he left school at the age of fifteen, taking up an apprenticeship as a fitter and turner. This he completed and in New South Wales he obtained qualifications as a welder and as a rigger. He found work in his trade in New Zealand and work as a welder and rigger in New South Wales, but his last employment was in 1998 because thereafter he had a continuing disability in his back. 14 His Honour found from evidence before him that the offender's physical health was not good and he had undergone a laminectomy procedure for his back problem, and at the time of sentence was in need of further surgical treatment. 15 The applicant has a criminal record. Referring to the record his Honour concluded: "It is obvious, it seems to me, that the offender has learned nothing whatsoever from the offences previously committed by him and the punishments imposed upon him for those offences." 16 It is to be observed in relation to the criminal record, that many of the offences committed in New Zealand were when he was a very young person, and it is further to be observed in relation to the record that there has been nothing significant prior to the commission of these offences for something of the order of ten years. Nevertheless, those observations are apparent on the face of the records themselves. 17 His Honour properly directed himself that the applicant was not to be punished for having pleaded not guilty, but of course the applicant did not come for sentence entitled to a discount for pleas of guilty. 18 The issues on this appeal fall within a narrow compass. It has been submitted on the applicant's behalf that the total sentence imposed on the applicant is manifestly excessive. Alternatively, insufficient regard was had to the circumstances that the offences were committed within fifteen minutes of each other, and were part of one continuous episode of criminality. 19 In developing the submissions, reference was made to statistics and the Court has been provided with statistics involving sentences for multiple counts concerning offences under s 97(1). However, it has to be borne in mind that the Judicial Commission does not take into account the accumulation or partial accumulation of sentences, and that it is only the sentence for what is identified as the principal offence which is entered on the database. This was revealed by R v Challis [2003] NSWCCA 48 (see the judgment of O'Keefe J at paragraph 17). 20 Moreover, the statistics referred to by the applicant do not bring into account the plea. It need hardly be stated that where an offender has pleaded guilty, a lesser sentence would be attracted than where the same offender has pleaded not guilty. 21 In the Crown's written submissions analysis of the statistics on a different basis suggested that a sentence of six years full term in respect of the latter of the offences is in the top forty-one percent, but that analysis involved factoring in that there was a plea of not guilty, and that there were multiple counts and the database for the conclusion was limited to twelve cases. 22 Care generally has to be taken in the use of statistics: see R v Hayes [2001] NSWCCA 410, and the remarks of Grove J at paragraphs 14 to 15: "14. The reason I specifically advert to that matter is that there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the Judicial Commission. Such statistics were apparently available to the applicant and indeed have been attached to Crown submissions. 15. The upper limit of sentence is in fact the maximum set by parliament. If the upper limit of the statistical range is treated as reserved for the worst case or the worst offenders then persistent selection of sentences for others within that range will inevitably reduce the upper figure. This is not a matter of jurisprudence but a matter of arithmetic. I don't regard it as appropriate to elaborate when this Court is constituted by only two judges, but the misconception is so frequently bruited about that I do not refrain from comment and I mention it in response to the express submission which the applicant has made." 23 Whilst not dismissing the use of statistics as an available and useful tool in many cases, this Court should approach the statistics that have been presented here with very considerable caution, and indeed Ms Flannery has very properly acknowledged this in the course of her oral submissions. 24 In her oral submissions Ms Flannery referred to the features of the applicant's criminal history. He had no prior convictions for armed robbery; secondly, he had no prior convictions for ten years before 10 June 2000. 25 Also to be regarded in the applicant's favour is that his Honour found that the applicant had family support, qualifications for employment, and he is not a person who has problems with alcohol, drugs or gambling. 26 Moreover, it has been submitted that the sentence of a term of imprisonment has been made the harder upon the applicant by reason of his back problem, and the reason for treatment for it. The back problem and its significance were matters addressed in the pre-sentence report, and were addressed in an affidavit by the applicant's mother. 27 To both of these documents, the Court's attention has been directed and the sentencing judge was clearly mindful of that material, because he specifically adverted to the back problem. 28 Statistically, the sentence has not been demonstrated to have been manifestly excessive for the reasons indicated. The applicant's age, the circumstance that the applicant pleaded not guilty, and that he had a significant criminal record, were features which took this case outside the category of case to which the guideline expressed in R v Henry (1999) 46 NSWLR 346 at 380 is directly related. 29 Whilst the offences were committed so close to each other, it does not seem to me that the judge fell into error in the way in which the sentences were structured. These were discrete offences affecting different victims at different pharmacies. In my opinion it would have been no more appropriate for the judge to have set entirely concurrent sentences here than it was for the judge at first instance to have set entirely concurrent sentences in R v Gorman [2002] NSWCCA 516 where there were a number of sexual offences committed "against the same victim" over a period of an hour or so. 30 In the present case the sentencing judge addressed the requirements of Pearce v The Queen (1998) 194 CLR 610, determined the appropriate sentence for each offence and then, having regard to the totality principle, determined what period should be served overall. Hence he arrived at the sentence for the later offence, which was partly concurrent and partly cumulative. I find no error in this approach, nor do I detect any error of approach elsewhere in his Honour's remarks on sentence. 31 Were these sentences manifestly excessive? I am not persuaded that they were, paying due weight to the objective gravity of the crimes for which they were imposed. 32 Accordingly, I would grant leave to appeal but I propose that the appeal be dismissed. 33 SHAW J: Ms Flannery has put, I think, everything she can in both her written and oral submissions on behalf of her client. I regard the sentence as being towards the upper limit of the appropriate range for the offences committed, but I just cannot see that there is real error in the exercise of discretion by the trial judge in this case. Accordingly, I concur with the conclusions of Studdert J in relation to this matter. 34 STUDDERT J: The orders of the Court will be as I have proposed. ********** Last Modified: 03/28/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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