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. 19 I record that it seems to me that the applicant will become eligible for parole on the 14 May 2005. 20 ADAMS J: I am grateful to Justice Hulme for his account of the facts but I must confess that I am troubled by the ultimate sentence which his Honour proposes. This arises from the judgment of R v Henry (1999) 46 NSWLR 346 in which the Chief Justice specifies the following guidelines (at 380) – "[161] In the cases now before this Court, the Crown has propounded a starting point for New South Wales of six years full term, in circumstances where there is a plea of guilty. [162] It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case. [163] Whilst it is possible to determine a starting point in a case of this kind, that is, a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall." 21 It should be noted that, with the exception of the element referred to in subparagraph (ii), the facts in this case reflect the circumstances referred to in paragraph [162]. However, it is most significant, as it seems to me, that a weapon was in fact not used by this appellant who was unaware of its presence until it was produced as he and his co-offender escaped. To my mind the omission of the use of a weapon implies a significant reduction in culpability for the purpose of applying the Henry guideline. Of course, I accept that it is but a guideline and it is not by any means a statutory limit. When the subjective circumstances to which Justice Hulme has referred are brought into account it seems to me that the starting point, before applying R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 should be something less than the four years specified as the lower expectation of sentences falling within the guideline. 22 I agree, however, with what Justice Hulme has said about the learned sentencing judge's omission to mention Henry or Thomson and Houlton. I accept that his Honour did have them in mind. I feel bound, however, to comment that the fundamental purpose of Thomson and Houlton is significantly undermined, as was made clear by the Chief Justice in that decision, if sentencing judges do not explicitly refer to it and apply a discount in accordance with it, where it is appropriate to do so. In this case his Honour did not do so. The crime was a regrettably common offence with no unusual features. It seems to me, with respect that there was no good reason for not adverting to the judgment and a specific discount, even appreciating, as I do, the pressures under which judges in the District Court administer justice. 23 In relation to Henry, it seems to me that, where a judge proposes to depart from the guideline or adjust or qualify the guideline it is appropriate that the judge should explain why that qualification or departure applies in the case he or she is considering. I say this in the interests of maintaining a most important aspect of sentencing policy by the courts, namely, that insofar as it is capable of being done there should be complete transparency of the process of reasoning. This is not only in the public interest but the person who is punished as well as the victim is entitled to no less. 24 I would propose that the sentence below be quashed, that there be substituted a sentence of four years and eight months. I would deduct from that a discount of 25 percent pursuant to Thomson and Houlton which yields 42 months and I would impose, having regard to special circumstances, a non-parole period of two years. 25 TOBIAS JA: I agree with Justice Hulme that the sentences imposed by his Honour, Judge Maguire must be quashed for the reasons that he has given but with one reservation. Unlike my brother judges, I am not convinced that his Honour did not err in failing to refer to the fact that he had taken the applicant's plea of guilty into account. However, as his Honour has clearly erred with respect to the issue of parity, and the sentence imposed by him upon the applicant is to be quashed in any event, it is unnecessary for me to express a concluded view on this issue. 26 On the question of re-sentencing I agree with the orders proposed by Justice Adams. 27 Accordingly, by majority, the orders of the Court are: 1. Leave to appeal granted. 2. The sentence imposed by his Honour, Judge Maguire on 10 October 2003 is quashed. 3. In lieu thereof the applicant is sentenced to a term of imprisonment of three and a half years and a non-parole period of two years, each to commence on 15 November 2002, the term of the sentence to expire on 14 May 2006 and the term of the non-parole period to expire on the 14 November 2004. ********** Last Modified: 06/07/2004 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.