New South Wales Court of Criminal Appeal CITATION : REGINA v FRY [2004] NSWCCA 238 HEARING DATE(S) : 19 May 2004 JUDGMENT DATE : 16 July 2004 JUDGMENT OF : Spigelman CJ at 1; Hulme J at 2; Adams J at 3 DECISION : Appeal dismissed CATCHWORDS : Crown appeal on sentence - failure by Parole Board to implement recommendation of sentencing judge - whether can be taken into account on sentence for subsequent offence - no error of discretion - appeal dismissed LEGISLATION CITED : Crimes Act 1900 s97(1) Osenkowski (1982) 5 A Crim R 394 CASES CITED : R v Cartright (1989) NSWLR 243 R v Hallocoglu (1992) 29 NSWLR 67 R v Henry (1999) 46 NSWLR 346 Regina (Appellant) PARTIES : v Shane Graham Fry (Respondent) FILE NUMBER(S) : CCA 60064/04 COUNSEL : Mr D Frearson (Crown) Mr R Hulme (Respondent) SOLICITORS : S Kavanagh (Crown) S O'Connor (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 03/41/0011 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60064/04 SPIGELMAN CJ HULME J ADAMS J FRIDAY 16 JULY 2004 REGINA v FRY Judgment 1 SPIGELMAN CJ: I agree with Adams J. 2 HULME J: I agree with Adams J and wish his Honour's Reasons. 3 ADAMS J: This is an appeal by the Crown from a sentence of twelve months' imprisonment to commence on 6 October 2002 imposed in the District Court on Shayne Graham Fry for the offence of robbery whilst armed with an offensive weapon under s97(1) of the Crimes Act 1900. Although the "weapon" was almost certainly a toy gun, it is an offensive weapon for the purpose of this sub-section. 4 The crime occurred on 25 September 2002, the respondent was arrested on 6 October 2002 and, although he then denied his guilt to police, entered a plea of guilty on his second appearance for mention in the District Court on 16 March 2003. After a number of adjournments, the sentence proceedings commenced on 12 September 2003. The proceedings were adjourned to 14 November 2003 to enable the respondent's suitability for admission to a residential drug rehabilitation programme to be assessed, in particular to enable him, if he could, to reduce his then methadone intake from a very high 45ml a day to 20ml a day which was the maximum permitted by the proposed programme. Sentence proceedings continued on 14, 17 and 25 November 2003, when it was disclosed that the respondent had managed to cease his methadone intake altogether. Having satisfied the extremely difficult but no doubt necessary induction requirement of Odyssey House at the behest of the sentencing judge, it would have smacked of injustice had his Honour then passed a sentence which did not permit the Parole Board, if it thought it right, to release him into the programme. Although there was no definite commitment by Phelan DCJ to pass such a sentence, his Honour would have been placed in a difficult position had he not done so when the respondent had, as it were, complied with his part of the foreshadowed arrangement. The respondent's fulfilment of the pre-condition is an independent consideration for this Court when considering the Crown's appeal against leniency and needs to be given appropriate (and significant) weight even if this Court thought that the sentence below was inappropriately lenient. 5 The respondent was on parole for a number of offences, including three robberies, when he committed the present offence, having been released by the Parole Board on 5 September 2002 with a balance of four years to serve. It will be seen that he was at large for just under three weeks when he offended once more and then days later he was back in gaol. On 31 October 2002, his parole was revoked from 6 October 2002, the date of his return to prison. It is clear from the effect of his sentence on the present offence that the learned sentencing judge took the view that the entire period of custody from the date of his arrest should be regarded as applicable to this offence. 6 The Crown filed the Notice of Appeal from the sentence on 18 February 2004. It was served on 20 February 2004. There has been no explanation for the delay of almost three months since the sentence was imposed. Contrary to the usual practice where there is expected to be some delay in determining whether the appeal, the Crown did not inform the respondent by letter that an appeal was under consideration. Although by virtue of the sentence the respondent was eligible to be considered for parole from 25 November 2003 onward, it appears that the Parole Board has deferred consideration of his case until this appeal is decided. 7 This Court has strongly deprecated substantial delays by the Crown in giving Notice of Appeal: see R v Hallocoglu (1992) 29 NSWLR 67 at 79-80. I do not propose to add a further protest. It is sufficient to say that the submission by Mr Hulme SC for the respondent that the delay in this case is both inexplicable and inexcusable is entirely justified. 8 Let me move to the facts of the offence, which are both uncontroversial and regrettably familiar. At about 7.15pm on 25 September 2002, the respondent entered a pharmacy in Warilla through the rear entrance. He rushed to the rear counter holding what appeared to be a small black pistol. The two shop assistants then present in the shop thought in fact that the gun was plastic (as it was) because of the clicking noises it was making. They described the respondent as nervous and one said, "It appeared that he didn't know what he was doing." They were both very frightened. In the shop at the time were the pharmacist and a female customer and her two young daughters. The respondent wore a balaclava over his head, a blue coloured, long sleeved top and dark coloured tracksuit pants. He pointed the gun at the younger of the shop assistants and demanded money. The pharmacist went to the till and emptied it, handing over $660. It is significant that the respondent did not demand drugs. The respondent made good his escape. The pharmacy's security surveillance system photographed the robbery. Unfortunately for the respondent, the photographs showed distinctive tattoos on the back of the respondent's hand, including the name of the respondent's son. These tattoos led to the respondent's identification as the perpetrator. 9 Contrary to what might have been expected, given the respondent's drug history, it seems that he spent the proceeds of the robbery by gambling on poker machines. The respondent's account of the period following his release was not clear but the likelihood is, as he said, that he had been taking methadone and abusing prescription drugs. He said that he had approached a large number of local businesses seeking work without success. Whatever was the precise extent of the respondent's drug use following his release, the extent of his problem is made evident by the fact that, when he first came to be sentenced, he was on a methadone dose of 45mL a day. 10 The respondent's record of convictions shows that he has spent most of his adult life in prison, commencing with concurrent terms of twelve and six months for stealing and assault commencing October 1987. This period was augmented by a further four concurrent sentences of five years with non-parole periods of three years for four offences of breaking, entering and stealing (some additional matters also taken into account) which commenced in December 1987. In May 1991 the respondent was sentenced to concurrent sentences of six months' imprisonment for dangerous driving, nine months for two charges of unlawful use of a vehicle and nine months with an additional term of three months for possessing car theft implements. In April 1992 the respondent was convicted of offences in the Australian Capital Territory involving reckless threats to kill, common assault, theft and destruction of property. The sentences of six months' imprisonment for each charge were suspended on condition that he accept the supervision of Adult Corrections, undergo drug treatment for twelve months as directed and attend thirty hours at an Attendance Centre. The respondent successfully fulfilled these requirements and remained of good behaviour for this period. In March 1995 the respondent was convicted of two armed robberies (with a number of matters taken into account). He was sentenced to a fixed term of eighteen months on one and in respect of the other a cumulative minimum term of eighteen months with an additional term of six months. Judge Madgwick had in mind (and so directed) the subjection of the respondent to a period of supervised residential drug rehabilitation. In February 1997 the respondent was dealt with by the ACT Supreme Court for an offence of armed robbery committed in August 1993 and sentenced to eighteen months' imprisonment commencing 10 March 1994 and expiring on 20 March 1997. 11 The respondent was released to parole of 23 April 1997 but it appears that nothing was done to implement Judge Madgwick's direction in the four months of liberty enjoyed by the respondent until his return to custody on 29 August 1997. The offences that returned the respondent to gaol were somewhat less serious, involving as they did, driving whilst unlicensed, the illegal use of a vehicle and possession of implements capable of being used for car theft together with two charges of breaking, entering and stealing, one with intent. The effective term of imprisonment imposed was a minimum term of one year concluding on 28 August 1998 with an additional term of one year concluding, of course, on 28 August 1999. The respondent was convicted in March 1998, in substance, to an offence of stealing a motor vehicle and sentenced to a term of five months' imprisonment to be served concurrently with the sentences then being served. 12 On 28 March 1998 the respondent escaped from the minimum security complex at Kirkconnell. He was recaptured eight days after his escape, in the meantime having stolen a motor vehicle, robbed a post office and pharmacy on successive days and, three days later, stolen another vehicle and robbed the same pharmacy again. On 26 May 1999, also taking an assault into account on a Form 1, his Honour Judge J B Phelan sentenced the respondent for these offences "in a global fashion" to concurrent minimum terms of four years commencing 6 September 1998, with an additional term of four years expiring in 5 September 2006. His Honour recommended that, when the respondent was released on parole, he should be sent to "full time rehabilitation care", adding "it was with that in mind that I found special circumstances". The considerable leniency extended to the respondent was, in large part, due to the considerations articulated in R v Cartright (1989) NSWLR 243; the respondent had witnessed a murder in gaol and had given evidence before the Coroner (as I understand it). This meant that he was kept in non-association strict protection for his own safety, which amounts to solitary confinement. 13 On 4 July 2002, the Parole Board ordered that the respondent be released on parole on 5 September 2002 subject to a number of conditions, in particular, requiring him to undertake a residential drug rehabilitation programme as directed by the Probation and Parole Service and undergo regular urine analysis. As Phelan DCJ noted, the respondent's file remained with the Parole Board until 8 October, by which time he was back in gaol. In compliance with the parole conditions, the respondent saw his probation officer the day after his release but that interview focused on his obtaining social service benefits that would enable him to survive in the community. He resided with his father and stepmother for a few days but then obtained Housing Commission accommodation in Warrawong. This was a high risk area with a significant population of criminals and drug users. It also brought him into contact with persons he had known in prison and it appears that it became common knowledge that he was a former prisoner who had been a prosecution witness in connexion with a prison murder. He was intimidated and threatened. He claimed (and I think Phelan J accepted) that he purchased the replica pistol for protection. In light of his record, this explanation strikes me as unlikely to be the whole truth. It does seem reasonable to accept that the respondent realized that both his safety and his rehabilitation were at risk and he approached local health authorities to obtain a recommendation to the Housing Commission for a transfer. A home visit was arranged for 25 September. He was not at home and, in the evening, committed the offence that, shortly after, returned him to gaol. In fact, a place in an appropriate residential drug rehabilitation programme had been available. In the absence of his file, however, no action had been taken to admit the respondent. 14 The learned sentencing judge accepted, both for the purpose of sentencing the respondent in 1999 and the present sentence that he had grown up in a grossly dysfunctional family environment that involved violence, drug abuse and serious crime and, as a consequence, he began experimenting with illegal drugs by the age of twelve years and from thirteen onwards had developed a heroin habit. In such a situation, it is appropriate that the Court take into account the impact of drug addiction on an offender's criminal conduct. The respondent left school in Year 8 at the age of fifteen years but only learnt to read and write in prison, where he has spent most of his adult life. Testing disclosed that his reading skills are at Grade 3 level, with an extremely low range of verbal functioning. 15 It is much to the respondent's credit that he had managed to wean himself off methadone by the time he was sentenced and had been attending drug and alcohol counselling, such as it is, in prison. The prison reports have indicated real attempts at rehabilitation. He has been given the responsibility of a sweeper in the Segregation Unit, performing his duties when the other prisoners are locked away. He is locked in his cell from 2pm each day. He has expressed remorse for his offences and it appears that he has been accepted as suitable for the residential programme at Odyssey House though whether he can take this further depends, of course, on the outcome of this appeal and the attitude of the Parole Board. 16 The effect of Phelan DCJ's sentence, of course, was that no additional term of imprisonment was actually to be served by the respondent. Although his Honour did not, in terms, say so, it is clear that he regarded this as a cross-roads case: Osenkowski (1982) 5 A Crim R 394, where the very early age at which the respondent became addicted to drugs, his appalling upbringing, his history of offending, his institutionalisation and his encouraging, though qualified, efforts at rehabilitation, reinforced by his assistance to the authorities (requiring very substantial acknowledgment because the crime was murder committed in prison) justified the view that "leniency…might lead to reform" and it was in the public interest to make the attempt; see also R v Henry (1999) 46 NSWLR 346 at 398, per Wood CJ at CL. The harsh nature of the respondent's imprisonment, necessary for his own protection by virtue of his assistance, was also a substantial consideration meriting significant downward adjustment of the sentence. Moreover, it was proposed that the respondent should not be released into the community but into a full time residential programme, subject to the sanction of returning to prison if he did not comply with the programme's requirements. No doubt an additional factor that his Honour brought to bear was the unfortunate failure of the Probation and Parole Service to ensure that the recommendations made by both him and Madgwick DCJ and the direction of the Parole Board – for one reason or another – were not followed. Had they been, it is most unlikely that the present offence would have been committed. To these matters I would add, in the present context, the Crown's unjustified delay in giving notice of the appeal. 17 Despite the undoubted seriousness of the respondent's offence, especially in light of his criminal antecedents and the fact that it was committed on parole, I am not persuaded that the discretion of the learned sentencing judge was in error, given the exceptional circumstances. Accordingly, I would dismiss the appeal. ********** Last Modified: 08/06/2004 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.