R v Daniel Stephen Lewis [2004] NSWCCA 383

New South Wales Court of Criminal Appeal

CITATION : R v Daniel Stephen Lewis [2004] NSWCCA 383 HEARING DATE(S) : 05/11/2004 JUDGMENT DATE : 5 November 2004

JUDGMENT OF : Giles JA at 38; Buddin J at 1; Smart AJ at 39 DECISION : Leave to appeal granted. Appeal dismissed.

CATCHWORDS : Sentencing - robbery in company - applicability of guideline judgment - whether manifestly excessive LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Henry (1999) 46 NSWLR 346 R v Howard [2004] NSWCCA 348 CASES CITED : R v Matthews [2004] NSW CCA 112 R v Morgan (1993) 70 A Crim R 358 R v Murchie (1999) 108 A Crim R 482 PARTIES : Regina Daniel Stephen Lewis (Applicant) FILE NUMBER(S) : CCA 2004/1838 COUNSEL : P Miller (Crown) DC Andersen QC/G Heathcote SOLICITORS : S Kavanagh (Crown) PC Proctor (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0520 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1838

GILES JA BUDDIN J SMART AJ

FRIDAY 5 NOVEMBER 2004 REGINA v DANIEL STEPHEN LEWIS Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him for an offence of robbery in company. The applicant was sentenced to a non-parole period of 2 years and 2 months and a total sentence of 3 years and 2 months imprisonment. Both terms were ordered to commence from the date of sentence which was 29 January 2004. The applicant is thus eligible for release to parole on 28 March 2006. The sentencing judge should have structured the sentence by first imposing the head sentence and then the non-parole period because the offence took place before the current form of s 44 of the Crimes (Sentencing Procedure) Act 1999 came into effect. However no point was taken in relation to this aspect of the matter and ultimately nothing turns upon it. The maximum penalty prescribed by the legislature for the offence is 20 years imprisonment. 2 The facts giving rise to the offence occurred at about 1.40 pm on Tuesday 8 October 2002 (which was the day following a long weekend). Having completed counting the weekend's takings from the nightclub at which he worked which is located in Oxford Street, Darlinghurst, the victim placed the money into three deposit bags which in turn were placed into a small backpack. The victim then placed the backpack over his shoulder and arranged for a colleague to accompany him to the Commonwealth Bank at the intersection of Castlereagh and Liverpool Streets in the city where he intended to deposit the takings. Shortly after they had crossed the intersection of Liverpool and Elizabeth streets, the victim felt someone grab his right shoulder from behind and also felt what he thought was a fingertip placed into his right hand rib area. At that stage the applicant said to him "don't turn around – just give me the bag. I know it's insured. I know where you work. I know where you live. I know who your boyfriend is. I have a blood filled syringe. I'm HIV positive." 3 The victim did however turn around because he thought that some someone may have been playing a joke on him. He saw the applicant, whom he did not recognise, standing there. It was at that point that he began to fear for his safety because of the threat which had been made to him. He then saw a second man standing between him and his companion. That person was motioning his companion to move away from him (the victim). That person also had his arms out so as to prevent his companion from approaching the victim. The applicant again said "Just give me the bag, I know it's insured". He repeated this on a number of occasions before the victim finally handed over the backpack containing the money. It was only at that stage that the applicant released his grip upon the victim. 4 The victim then observed the applicant and his co-offender running west along Liverpool Street before turning into Castlereagh Street. The victim and his companion gave chase as the applicant and his co-offender ran into Goulburn Street and then into Pitt Street at which point they lost sight of the two men. A little later the victim and his companion saw the applicant and his co-offender emerging from a hotel. The applicant still had the backpack in his possession but in the mean time had changed his shirt. The applicant said, whilst giving evidence, that he had initially hidden in the toilet of the hotel. He conceded that he had then swapped shirts in order to change his appearance. The police were contacted and were provided with descriptions of the offenders by the victim and his companion. 5 A little later the applicant was observed walking in the Haymarket area by police. He attempted to run away when they pursued him. When apprehended he was still in possession of the backpack. In all $61,764.60 (being the nightclub's weekend takings) had been in the backpack. 6 All but $150 of the money was recovered. The applicant gave evidence that it had been taken by the co-offender. That person has not been brought to justice and the applicant declined to provide any information about him because he said that he feared for his safety were he to do so. The applicant also declined, as was his entitlement, to be interviewed or to participate in a line-up. 7 The applicant was 26 at the time of sentence. It was to his credit that he had no prior convictions of any kind. There was evidence that he came from a supportive background and that he was otherwise of good character. There was also evidence that he had been, for some time preceding the commission of the offence, in a stable relationship with a woman who had two young sons. The applicant acted as "a caring substitute father" to the boys. Although the relationship had temporarily ceased at the time of the offence, it had resumed by the time the applicant stood for sentence. The sentencing judge accepted that the applicant had acquitted himself well in his horticultural studies and that he had achieved some distinction in playing rugby league. 8 The applicant committed these offences against the background of the significant abuse of illicit drugs and alcohol. His dependency upon drugs had led to problems in both his relationship and in a business venture. At the time of sentence he had been employed as a horticulturalist with a local council. The sentencing judge found that the applicant had abstained from taking drugs for an extended period of time and that he had also taken positive steps towards overcoming his dependency upon drugs. His Honour was thus prepared to find that the applicant's prospects for rehabilitation were good and that he was therefore unlikely to re-offend. 9 The sentencing judge had specific regard to this Court's guideline judgment in R v Henry (1999) 46 NSWLR 346. It was there indicated that for the offence of armed robbery a sentence of between 4 and 5 years should be imposed in a typical case which included the following features;