R v NGATIKAURA [2004] NSWCCA 175

New South Wales Court of Criminal Appeal

CITATION : R v NGATIKAURA [2004] NSWCCA 175 HEARING DATE(S) : 21 May 2004 JUDGMENT DATE : 21 May 2004

JUDGMENT OF : Tobias JA at 25; Hulme J at 1; Adams J at 20 DECISION : See paragraph 27

PARTIES : Regina Bullwark NGATIKAURA FILE NUMBER(S) : CCA 60112/04 COUNSEL : Crown: E Wilkins Applicant: H Dhanji SOLICITORS : Crown: S Kavanagh Applicant: S O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3074 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER :

- 8 - IN THE COURT OF CRIMINAL APPEAL 60112/04

TOBIAS JA HULME J ADAMS J

Friday, 21 May 2004 R v Bullwark NGATIKAURA Judgment 1 HULME J: On the 10 October 2003 Judge Maguire sentenced the applicant to imprisonment for a period of five years including a non-parole period of three years in respect of the charge of robbery in company. Both terms were directed to commence on 15 November 2002, the date of the offence and of the applicant's arrest. 2 At the time of the offence the victim was in his shop having just taken some stock into the shop from his vehicle. As the victim turned around he observed the two offenders standing in the doorway. They ran at him. The co-offender grabbed the victim and held him against the wall. The applicant said "Take your money out" and when the victim refused searched the victim's pants pocket from which he removed the victim's car keys, wallet and a black notebook. 3 The co-offender then pushed the victim against the wall and then pointed a short bladed knife at him before both ran from the premises. The wallet contained about $800. However, the offenders were soon arrested and all of the stolen goods recovered. 4 Although his Honour does not refer to the fact, the applicant maintained that until the knife was produced he had no knowledge of its presence. There was no contrary evidence. 5 Among the applicant's subjective circumstances to which his Honour referred was the fact he had a relatively minor criminal history consisting of one count of shop lifting and two minor drug offences, that he was aged only 19, that he was contrite and had completed a number of courses while in custody, a matter which his Honour regarded as to his credit. 6 The applicant gave evidence that the offence was a spur of the moment decision undertaken to serve his drug habit which, according to him, cost something of the order of a hundred dollars per day for marijuana and something of the same order for heroin. 7 Included in the material before his Honour was a psychological report by Dr John Taylor to which I shall refer below. 8 In support of the appeal attention was directed to three aspects of Judge Maguire's remarks on sentence which were said to be indicative of error. One was his Honour's failure to make any reference to the guideline judgment in R v Henry. A second was the absence of any reference in his Honour's remarks to a discount for the applicant's plea of guilty. A third was an observation "Mr Taylor assesses him as having an almost 50 percent chance of violent recidivism", it being submitted that this was an erroneous summary of Mr Taylor's conclusion. In addition it was submitted that when regard was had to a sentence imposed by Judge Sides subsequently on the applicant's co-offender, considerations of parity meant that the sentence imposed on the applicant should be reduced. 9 Apart from his Honour's failure to refer to the decision in R v Henry there is nothing in his remarks to provide any indication whatsoever that he was not conscious of that decision. The authority is so well-known that I would not believe it possible for any experienced sentencing judge dealing with a case of robbery, whether or not armed or in company, to not be conscious of that decision. Judge Maguire is a very experienced and competent judge and I would not draw the inference that he did not take R v Henry into account. 10 I take the same approach in relation to his Honour's failure to mention the topic of a discount for pleading guilty. While the authorities make it clear that it is necessary for a discount to be given on this account, or for reasons to be given if it is not, whether silence on the topic should be regarded as an indication that the matter has been overlooked is a matter of inference in the particular case; see R v Young, R v Lloyd and R v Gallaty. In the case of Judge Maguire I would hesitate long before I inferred that a matter so elementary had been overlooked by his Honour. The transcript of the sentence proceeding reveals that counsel then appearing for the applicant drew his Honour's attention to R v Thomson and Houlton, the guideline judgment which deals with the topic of a discount to be allowed for pleas of guilty and the transcript shows that both counsel drew his Honour's attention to the fact that the applicant had pleaded guilty at the first available opportunity. The fact of the plea was referred to in the first paragraph of his Honour's remarks on sentence. In the result I am unpersuaded that the matter of a discount for the plea was overlooked. In reaching that conclusion I am not unconscious of course of the sentence which was ultimately imposed. 11 The third matter upon which the applicant relied was, as I have said, a statement by his Honour that Mr Taylor had assessed the applicant as having an almost 50 percent chance of violent recidivism. It was submitted that this was not an act of rejection of Mr Taylor's assessment. I agree with that proposition. However, whether this had any significance to his Honour's ultimate sentence is another question. That said, in light of the conclusion to which I have arrived on the parity issue, it is unnecessary for me to explore this aspect further. 12 On the 19 November 2003 the applicant's co-offender, who also pleaded guilty, was sentenced by Judge Sides. His Honour took the view that the sentencing of the applicant may well have miscarried because of the first two of the matters raised on this appeal. Be that as it may his Honour imposed a sentence on the co-offender which was also for a period of five years including a non-parole period of three years and this notwithstanding that there are a number of differences between the two offenders. Summarised the differences which would seem to me to be of significance are: 1. The co-offender had possession of and wielded the knife of which, so far as the evidence goes, the applicant was unaware. 2. The co-offender was on probation at the time of the offence. 3. The co-offender had a very substantially worse record than did the applicant. That record included four offences of robbery and one of robbery in company. 13 The fourth matter of significance or possible significance operates in the other direction. It is that the co-offender had limited intellectual capacity so that he functioned at the upper end of a mild intellectual handicap range. However, it must be recognised that Judge Sides did not regard this as reducing the co-offender's criminality to any extent. 14 I should say a little more in respect of the co-offender's probation. A number of offences in respect of which the co-offender had previously been sentenced, including the offence of robbery in company, had expired in terms of their custodial period but one month before commission of the subject offence. 15 In totality the differences to which I have referred are substantial. One cannot in the face of them justify identical sentences on the applicant and his co-offender consistently with the absence of a justifiable sense of grievance on the part of the applicant. In these circumstances I am of the opinion that this Court should set aside Judge Maguire's sentence. His Honour found special circumstances and I see no reason to disagree with that finding. 16 Turning then to the question of what sentence should be imposed upon the applicant, the case is clearly one where regard must be had to the decision in R v Henry which suggests as a guideline a sentence of the order of four to five years should be imposed. 17 Mr Dhanji on behalf of the applicant has submitted that this case is one where the applicant's case is more favourable than one fulfilling the characteristics of the guideline judgment, particularly in the fact that the applicant's plea was earlier, much earlier, and he has demonstrated remorse and that he seems to have overcome the drug addiction which led to his offence in the first place. These matters are entitled to weight but they do not persuade me that a sentence of less than four years should be imposed, that is, one year less than the sentence imposed on his co-offender. Such a sentence sufficiently recognises the differences between the two. 18 The normal proportion of 75 percent of the head sentence for the non-parole period would lead to a conclusion that his non-parole period would be three years but, consistently with Judge Maguire's finding of special circumstances, that non-parole period should also be less than Judge Maguire fixed. In my view it should be a period of two and a half years. Both periods should commence on the 15 November 2002 which, as I have said, was the date of the applicant's arrest. The orders I propose are these 1. Leave to appeal be granted. 2. Appeal be allowed 3. The sentence imposed by Judge Maguire on the 10 October 2003 be quashed. 4. In lieu thereof the applicant be sentenced to imprisonment for a term of four years including a non-parole period of two and a half years, both such periods to commence on the 15 November 2002.