R v Smith [2004] NSWCCA 95

Reported Decision : 144 A Crim R 577

New South Wales Court of Criminal Appeal

CITATION : R v Smith [2004] NSWCCA 95 HEARING DATE(S) : 31/03/2004 JUDGMENT DATE : 31 March 2004

JUDGMENT OF : Sperling J at 27; Hidden J at 26; Howie J at 1 DECISION : Leave to appeal is granted, appeal is dismissed.

CATCHWORDS : Criminal Law and Procedure - Appeal against severity of sentence - reference to an irrelevant guideline judgment - whether breach of De Simoni principle - whether any lesser sentence should have been imposed. LEGISLATION CITED : Crimes Act 1900 - ss 94, 97(1), 99(1), 99(2) Criminal Appeal Act 1912 - s 6 R v Henry (1999) 46 NSWLR 346 De Simoni v The Queen (1981) 1247 CLR 383 CASES CITED : R v Whyte (2002) 55 NSWLR 252 R v Simpson (2001) 53 NSWLR 704 R v SY [2003] NSWCCA 291 PARTIES : Regina v Brian Michael Smith FILE NUMBER(S) : CCA 60480/03 COUNSEL : B. Knox SC - Crown S. Kluss - Applicant SOLICITORS : S. Kavanagh - Crown R. Hill - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1256 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60480/03

SPERLING J HIDDEN J HOWIE J WEDNESDAY 31 MARCH 2004 R v BRIAN MICHAEL SMITH JUDGMENT 1 HOWIE J: The applicant seeks leave to appeal against a sentence of imprisonment for three years with a non-parole period of two years which was imposed upon him by his Honour Judge Christie QC in the District Court on 6 March 2003. 2 The applicant was originally indicted on two counts, the first charging an offence of robbery in company and the second being a back-up charge of demanding with menaces in company with intent to steal. After some negotiations between the defence and the Crown the applicant pleaded guilty before his Honour Judge Williams to a less serious offence of demanding money and a keycard with menaces and with intent to steal in contrary to s99(1) of the Crimes Act. The maximum penalty for that offence is one of imprisonment for ten years which may be compared with the maximum sentences available for the offences originally charged, being imprisonment for 25 years in respect of the s97(1) offence, and 14 years in respect of the s99(2) offence. 3 The offence was committed at about 11pm on Tuesday 27 August 2002. The victim was first approached by the applicant near the intersection of Oxford Street in Darlinghurst Road. After walking a short distance together the applicant seized the victim by the shirt and demanded that he hand over money. The victim was then escorted into Green Park where the applicant went through his bag searching for valuables. The victim was asked to provide the PIN number for a keycard which the applicant had found in his bag. His pockets were searched, his shoes were removed, and he was instructed to accompany the applicant to an ATM. Before that could occur however, the victim managed to make an escape. The applicant was arrested and taken into custody on the following day, that is, 28 August 2002. 4 Precisely why the Crown accepted the plea to the lesser offence remains unclear. However, it was for such an offence and for no other offence that he stood to be sentenced and it is in relation to that offence that the present application falls to be decided. 5 At the time of its commission the applicant was on conditional liberty having been sentenced in the Local Court on 19 June 2002, that is just two months earlier, to a sentence of imprisonment for terms of six months. Those sentences being suspended, conditional upon him entering into bonds to be of good behaviour for six months in relation to five counts of goods in custody, one of false representations to police, and one of receiving. He had been arrested in connection with those offences on 18 June 2002 one month following his release from prison, after having served sentences of imprisonment each of six months which had been imposed on 14 December 2001 for offences of larceny and corruptly taking reward. The offences that attracted the suspended sentences had been committed at a date or dates which had preceded the sentencing proceedings in December 2001, a circumstance which, presumably, explains why those sentences were suspended. 6 At the time that his Honour came to sentence the applicant, he had breached the bonds and had been sentenced again in the Local Court on 14 February 2003 to imprisonment for a fixed term of six months to date from 28 August 2002, that being the date of his arrest for the current offence. 7 When sentencing the applicant for the offence of demand money with menaces with intent to steal, his Honour considered it appropriate to pass a sentence which was to be wholly concurrent with the sentences which had been imposed in the Local Court rather than accumulate a fresh sentence upon the earlier sentences. It was accordingly backdated to 28 August 2002. The somewhat curious and unjudicial reason which his Honour gave for that approach was that it was the "luck of the draw" that he happened to have been dealt with in the Local Court while on remand for the fresh offence. 8 The applicant has a poor prior criminal record which involved multiple convictions commencing in the Children's Court at the age of 16 years and which continued in various Local Courts for offences of dishonesty and street offences. He had left his home in Cootamundra at a relatively young age following difficulties within his family and had taken to living on the streets and in refuges since the age of 15 years. He had developed a drug problem and his Honour found that the present offence had been committed to feed the habit. 9 Notwithstanding his past and a record which showed a persistent failure on his part to respond to probation, bonds, and community service, and on two occasions to suspended sentences, his Honour considered that he appeared to have made some steps towards his rehabilitation sufficient to find a finding of special circumstances. He was given, on one view, a generous discount of 25 per cent reduction for the plea by reasons of its utilitarian value. 10 The applicant now contends that the sentence was manifestly excessive and that his Honour erred in two respects in coming to his decision. Firstly, it was submitted that his Honour erred insofar as he appeared to have considered the decision in R v Henry (1999) 46 NSWLR 346 to have had some relevance to the sentencing exercise. Secondly, it was submitted that he had inappropriately given consideration to the fact that the applicant had obtained $200 from the victim thereby infringing the principle in De Simoni v The Queen (1981) 1247 CLR 383. 11 His Honour expressly recognised in his reasons for sentence that the decision in R v Henry was concerned with offences of armed robbery carrying maximum penalties of imprisonment for 20 or 25 years and the maximum penalty for the present offence was one of imprisonment for ten years. Notwithstanding, he went on to observe: "I think [the case] has some application here, not on all fours of course, but I think it is a litmus paper in the same way that the statistics annexed to the back of the Crown brief are but a litmus paper." 12 His Honour had earlier made remarks in the course of the sentencing proceedings to the decision in terms suggesting at one stage that the applicant "fits the guidelines in Henry almost like a glove"; at another stage that "he's got a few things that take him a bit outside Henry on one side of the ledger, and a bit outside Henry on the other side of the ledger"; and yet at another stage his Honour remarked "I would think that there might be substantial justice done if he was dealt with roughly within the guidelines of Henry." 13 The guidelines laid down in the Court of Criminal Appeal in R v Henry are not to be extended outside the range of cases in circumstances to which it was directed. Moreover as a guideline judgment it has the status which was recognised in the more recent decision of the Court of Criminal Appeal in R v Whyte (2002) 55 NSWLR 252. 14 Had his Honour failed to acknowledge explicitly that the offence for which the applicant was to be sentence was an offence of less seriousness than one of armed robbery, then there could have been a legitimate concern that the several references to the decision in R v Henry risked deflecting the sentencing exercise in a way that was inappropriate. 15 It should, however, be said that it was unnecessary and unhelpful for his Honour to refer to a guideline judgment in respect of one specific offence in relation to dealing with an offender for a completely different offence. 16 The introduction into the sentencing proceedings of the fact which emerged from cross-examination of the applicant by his Honour and which was expressly noted in the sentencing judge's recital of the relevant facts, that the applicant had taken $200 in cash from the victim was, to say the least, unfortunate. This was an irrelevant consideration for the offence before the Court, being a circumstance capable of elevating it to one of robbery, an offence which carries a maximum sentence of imprisonment of 14 years under s94 of the Act. If taken into account as a circumstance aggravating the applicant's criminality then that would have offended against the principle in De Simoni. Whether it was, or was not, taken into account in that way is not, however, apparent on the face of the reasons for sentence. 17 The critical question which arises is whether having regard to the objective circumstances concerning the offence charged, and the applicant's subjective circumstances and having regard to the maximum penalty prescribed for the particular offence for which the applicant was sentenced that some other sentence, other than that imposed, was warranted in law and should have been imposed pursuant to s6 of the Criminal Appeal Act 1912. The particular offence committed by the applicant, although not falling into the worse category for an offence of its type, was one that called for a sentence which reflected the elements of general and specific deterrence. 18 The applicant had, unfortunately, very little operating in his favour by way of subjective circumstances, save for a somewhat belated demonstration of a desire while in custody to end his use of drugs which should naturally be encouraged. 19 The fact that the motivation for the offence was to feed his habit was not of itself a mitigating factor contrary to the view expressed by the sentencing judge; see Henry at 273-274 and R v SY [2003] NSWCCA 291. 20 The applicant was given a substantial benefit of the plea which I would not, myself, have regarded as an early plea and he was given the benefit of full concurrency of sentence with the sentences which had been imposed in the Local Court even though they had been passed following the breach of earlier bonds and following it would seem the commission of two further drug offences. 21 He was entitled to have the fact that he would need to serve the sentence on protection taken into account, along with his age which was almost 21 years at the time of the offences. Furthermore, he was entitled by reason of these circumstances and by reason of the need for him to continue post-release drug rehabilitation to an adjustment of the statutory ratio between the head sentence and the non-parole period which he received. 22 These considerations were all carefully taken into account by his Honour in his reasons for sentence and provision was made for them. Despite the concerns in relation to the two aspects of the sentencing exercise that have been identified by counsel appearing for the applicant and which, as it has been indicated, were unfortunate intrusions into the sentencing exercise I am not persuaded in light of the applicant's prior record and particularly in light of the seriously aggravating circumstance that he reoffended while on conditional liberty that the sentence imposed was outside a legitimate range of the sentencing discretion, as was made clear in R v Simpson per the Chief Justice at paragraph 79. 23 The statutory trigger for intervention by this Court is not the identification of some possible error in the sentencing process, rather the trigger is the formation of a positive opinion by the Court that some other sentence was warranted in law and should have been passed. I am not persuaded that the Court should form that opinion in this case. As in my view, there has been no occasion for this Court to enter into the re-sentencing of the applicant, the fact that the applicant has been deprived of material which he would have otherwise placed before the Court in order for the Court to re-exercise the discretion had it been necessary to do so, that has not been a matter which has in the end prejudiced the applicant. 24 However, the Court notes that the rehabilitation prospects which were accepted by his Honour and resulted in the favourable non-parole period that he was granted have proved to be continuing while the applicant is in custody. 25 I would grant leave to appeal, but I would disallow the appeal. 26 HIDDEN J: I agree with Justice Howie. 27 SPERLING J: I agree. The orders of the Court will accordingly be that leave to appeal is granted. The appeal is dismissed. **********