New South Wales Court of Criminal Appeal CITATION : Regina v Lee Joshua Martin [2004] NSWCCA 416 HEARING DATE(S) : 30/09/04 JUDGMENT DATE : 29 November 2004 JUDGMENT OF : Wood CJ at CL at 1; Hislop J at 2; Smart AJ at 31 DECISION : 1. Leave to appeal granted.; 2. Appeal allowed.; 3. Sentence of imprisonment for 5 years and 4 months to commence on 14 June 2003 confirmed.; 4. The non-parole period of 4 years is quashed. In lieu thereof, non-parole period of 3 years 3 months commencing on 14 June 2003 and expiring on 13 September 2006 substituted. CATCHWORDS : Criminal law - Sentencing - Crimes (Sentencing Procedure) Act s 44 - Discount for utilitarian value of plea - Reduction of non-parole period LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 s 44 R v Way [2004] NSWCCA 131 CASES CITED : R v Thomson (2000) 49 NSWLR 383 R v Dib [2003] NSWCCA 117 R v Henry (1999) 46 NSWLR 346 PARTIES : Lee Joshua Martin - Applicant Regina - Respondent FILE NUMBER(S) : CCA 2004/1825 CCAP COUNSEL : Ms L Flannery - Applicant Mr D C Frearson SC - Crown SOLICITORS : S O'Connor, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/1007 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2004/1825 CCAP WOOD CJ at CL HISLOP J SMART AJ 29 November 2004 Regina v Lee Joshua MARTIN Judgment 1 WOOD CJ at CL: I have read in draft form the judgment of Hislop J. I agree with the orders proposed, and with the reasons of his Honour. 2 HISLOP J: On 28 October 2003 the applicant pleaded guilty to the offence of robbery in company while armed with an offensive weapon (a replica hand gun), contrary to the Crimes Act 1900 s 97(1). The maximum penalty for such an offence is 20 years imprisonment. 3 On 13 February 2004, Nield DCJ sentenced the applicant to a total of 5 years and 4 months imprisonment, with a non-parole period of 4 years to commence on 14 June 2003. This sentence also took into account two matters on a Form 1, namely assault with intent to rob, and goods in custody. 4 The offence occurred on 14 June 2003. The facts as shortly stated by his Honour in his Remarks on Sentence were: The complainant was walking along Parramatta Road between Broadway and Camperdown when he was accosted by the offender who asked the complainant for money. When the complainant told the offender that he did not have any money, the offender produced the replica hand gun and pointed it at the complainant and demanded that the complainant hand over his wallet. When the complainant handed over his wallet to the offender, the offender started to look through it. Then the offender and the complainant were joined by another and the offender gave the complainant's wallet to this man, who, after looking through it, said that there was nothing in it. Then the offender demanded that the complainant empty out his pants pockets and the complainant put his backpack on the ground and commenced to empty out his pants pockets. When the complainant removed his mobile telephone from one of his pockets, the offender took it from him. Then the other man picked up the complainant's backpack and started to go through it. Then the offender hit the complainant on his nose with the handle of the hand gun, and then the complainant was hit on the back of his head by another person who had come up behind him. Then the offender walked away with the complainant's telephone and the first man who had joined them walked away with the offender's wallet and backpack. These two men were followed by two other men. 5 The applicant was born on 15 October 1982. He had a prior record comprising some fourteen offences, six of which had been dealt with in the Children's Court and eight in the Local Court. Those offences included the use of physical violence, malicious damage to property and stealing. At the time of the subject offence the applicant was on bail in respect of the Form 1 offence of assault with intent to rob. That offence occurred when the applicant punched a train passenger several times in the face in an attempt to rob him of his mobile phone. The maximum penalty for such offence, if prosecuted on indictment, was 14 years imprisonment. 6 The Probation and Parole Service pre-sentence report dated 23 January 2004 provided the following background: Mr Martin was raised in Australia by his parents and has a younger brother aged 17. His father worked away from the family home for the majority of the offender's childhood and did not play a major role in his upbringing. His mother had a gambling problem which caused conflict between the offender's parents. In 1997, Mr Martin's parents had an acrimonious separation and his mother relocated with the two sons to New Zealand for approximately a year. The offender returned to reside in Australia with his father and eventually his mother and brother also returned to Australia in 1998. Shortly afterward, Mr Martin's father was in a serious accident resulting in him being unable to return to the workforce. It was during this period that the offender's mother commenced a new relationship and lapsed into drug use. May 2001 Mr Martin's mother overdosed on methamphetamine resulting in her death. Due to the offender's father being unable to work, the family was forced to reside in a hostel for numerous months until being issued a Department of Housing unit. When Mr Martin is released into the community he shall reside with his father and brother. Since his incarceration, Mr Martin has developed a supportive and positive relationship with his father. Additionally, he has been in a relationship for the past 18 months which appears to be stable and a positive influence on his life. Mr Martin completed year 10 at high school and then left to assist his father in his recovery from his accident. He has stated that he has worked casually as a labourer and furniture removalist although he was not motivated to work in the past due to his alcohol and drug use… Mr Martin has experienced a difficult upbringing and appears to have not managed with his life situation appropriately, resulting in excessive drinking and overuse of cannabis. Since his period of incarceration he has developed a positive relationship with his father and presents as motivated to address his drug and alcohol problem. His attitude to the offence and his drug and alcohol problem demonstrate maturity and developing insight into the importance of communication. Given his limited communication skills and coping skills when managing emotional problems and stress, a structured residential program would appear to be the most beneficial form of rehabilitation. 7 A report of the psychologist, Dr Christopher Lennings, dated 7 January 2004 concluded: Mr Martin is a young man of robust cognitive ability who life reveals numerous vulnerabilities for dysfunction. He reports a sad and dysfunctional family background. Despite this, he remained reasonably well behaved until the age of 15 when increasing substance abuse resulted in the beginning of what appears to have a been a concentrated history of criminality, mainly associated with anger resulting from alcohol abuse. Mr Martin's primary need is for drug rehabilitation. He presents as a young man with a mixed response to rehabilitation. On one hand he has some rehabilitation strengths. These include social support (from his girlfriend and "reformed" father), the capacity to work and some pro-social interests (such as his interest in jazz). He does not have a significant mental illness nor in my view, personality disorder despite his behaviour over the last 5 years. On the other hand, he has demonstrated an inability to capitalise on his insight and has only had superficial motivation for treatment in the past. He has major risk factors associated with an entrenched substance abuse problem and a peer network that is both delinquent and substance abusing. His propensity to violence when drinking represents a concern but can be expected to respond well to appropriate treatment given the apparent lack of aggression in his manner when he is not intoxicated. A long term gaol sentence will remove Mr Martin from circulation for the duration of the sentence, but unlikely to make much change in his behaviour once he returns to the community. This is because the problems he has cannot be adequately addressed in gaol. Community treatment options for Mr Martin are unlikely to be effective in the short term. It seems Mr Martin's immediate need is to attend a short term residential program (generally about 6 weeks to 3 months duration) to learn skills in managing substance abuse, substance refusal skills, and the beginnings of some vocational training. Following this, a referral to a community based treatment program to monitor his substance use (ideally he will opt for abstinence) and to provide assistance in "talking through" the troubles of his childhood should be of assistance to him. A sentence that provided for a lengthy period of supervision might facilitate such a treatment option. 8 Supportive references were tendered on behalf of the applicant and his father gave evidence on sentence. A letter from the applicant's aunt, June Buchanan, in particular, confirms the family problems faced by the applicant during his teenage years. 9 The applicant seeks leave to appeal against the sentence on the following grounds: 1. His Honour erred in his application of the Crimes (Sentencing Procedure) Act 1999 s 44. 2. His Honour erred in his assessment of the utilitarian value of the plea of guilty. 3. The sentence imposed, in circumstances where the applicant was 19, had a relatively minor record, pleaded guilty at an early time, and had the disadvantaged childhood that he did, is manifestly excessive. Ground One – His Honour erred in his application of s 44 10 The Crimes (Sentencing Procedure) Act 1999 s 44 provides: (1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (3) The failure of a court to comply with subsection (2) does not invalidate the sentence. (4) Schedule 1 has effect in relation to existing life sentences referred to in that Schedule. 11 His Honour determined that a non-parole period of imprisonment for 4 years was appropriate. His Honour set out the various matters to which he had regard in his Remarks on Sentence and concluded: I cannot see any circumstance which is special such as would require that the parole period be longer than one third of 4 years, which is 1 year 4 months. Accordingly the sentence will be imprisonment for 5 years 4 months with a non-parole period of 4 years and a parole period of 1 year 4 months. 12 The applicant referred in its written submissions to the following exchange which took place between his Honour and counsel for the applicant during the sentence proceedings: Steele: This is a matter where I'd be asking the Court to find special circumstances His Honour: And do what Steele: Well to structure – to give him a longer period on parole so that he can enter… His Honour: You're the only one that's ever asked for that. Bearing in mind this offence was committed after 1 February Steele: Yes His Honour: So the real sentencing regime takes effect Steele: Yes certainly His Honour: The first thing to do is to determine the non-parole period and then to determine the parole period and the parole period should not exceed one third unless there is a special circumstance which requires it to be more. So if I say four or five years for the sentence. Let's say three years as the non-parole period. One-third of that is one year, the sentence is four years. Nowadays, no one asks for special circumstances to be found for an offence committed after 1 February. It means the total sentence is longer. Steele: Yes, I thought your Honour that an approach that could be taken by a court in relation to setting a non-parole period is also to consider the head sentence that's going to be imposed but I'll phrase that differently His Honour: s 44 is quite straightforward Steele: Might I phrase my… His Honour: Section 44 says this, "When sentencing an…to the offence". So that's the first thing I do, and that's the period, as the act says, is mandatory. "The balance of….it being more". That's why nobody makes the submission any more that special circumstances exist, because no one wants their client to be potentially in custody longer than otherwise. Steele: Certainly that's not something I would ask as well your Honour. Perhaps I can structure what I'm seeking another way. I would ask that the Court consider a non-parole period that is reduced because of factors such as the defendant's youth and need for rehabilitation in the community, the fact he's likely to… His Honour: Well all of those factors will be taken into account in the determination of the first step, the non-parole period, and I will Steele: Thank you your Honour. 13 It was submitted that that approach was contrary to principle as subsequently expounded in R v Way [2004] NSWCCA 131 where, after equating s 44 (as amended) to the former Sentencing Act 1989 s 5, this Court stated: [111] The view that was taken in R v Moffitt (1990) 20 NSWLR 114 in relation to the former s 5 of the Sentencing Act did not require the sentencing judge to first determine a minimum term, which was thereafter immutable, notwithstanding a subsequent finding of special circumstances. In substance, the section specifies the sequence in which the sentence was to be set, focussing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole. [112] While there are separate considerations involved for s 44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729, the relevant steps can be taken simultaneously. 14 There is a divergence between the approach that was initially indicated by his Honour and that taken in Way's case. However such divergence did not result in material error as the latter part of the exchange between his Honour and counsel makes it clear his Honour proposed to take all relevant matters into account when determining the non-parole period. Ground Two - His Honour erred in his assessment of the utilitarian value of the plea of guilty. 15 The applicant initially was charged on 14 June 2003 with the offence of robbery in company whilst armed with a dangerous weapon contrary to the Crimes Act 1900 s 97(2). This was amended on 28 October 2003 to the charge to which the applicant pleaded guilty on that day. 16 His Honour, in his Remarks on Sentence, stated the applicant: …appeared before a Magistrate on seven occasions between 15 June and 28 October 2003, and it was not until after the police obtained a match between [his] DNA and the DNA recovered from the replica hand gun… that the [applicant] pleaded guilty to the offence. His guilty plea was not given at the earliest appropriate opportunity. He is entitled to a discount in penalty of 15% on account of his guilty plea. 17 At the conclusion of sentencing the applicant, the following exchange occurred between his Honour and the applicant's counsel: Steele: Just in terms of the discount allowed for the plea, he was originally charged with an offence under s 97(2). It was only after an offer was made by the DPP to lay a charge under 97(1) he pleaded either on the first or second occasion after that had been offered to him. His Honour: Well Mr Steele, it is unfortunate that I was not appraised as to that on the occasion on which you made submissions to me, although I realised from the form of the formal notice under s 51A [of the Act] that it had been amended from s 97 subs 2, dangerous weapon, to s 97 subs 1, offensive weapon. But having said that, I don't intend to vary the sentence which I consider to be appropriate to the s 97 subs 1 offence. 18 The applicant submits that the plea of guilty was entered at the earliest opportunity and that a greater discount should have been allowed for the plea. 19 In the guideline judgment of this Court in R v Thomson (2000) 49 NSWLR 383, Spigelman CJ (with whom the other members of the Court agreed) held that, generally, in relation to the discount for the utilitarian value of a plea of guilty: [152] … the appropriate range for a discount is from 10 – 25 per cent. [153] The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing Judge. [154] There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has a greater benefit than a plea entered at the beginning of a trial. (ii) the complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of the plea. [155] The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 20 In R v Dib [2003] NSWCCA 117 Hodgson JA said: [5] If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. [6] This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability. 21 His Honour's conclusion that the appropriate discount was 15% was within the range suggested in R v Thomson and within the principles referred to in R v Dib. The matter is discretionary and his Honour confirmed, when the facts surrounding the background to the plea were further outlined to him, that he considered the sentence imposed appropriate. In my opinion, this ground of appeal fails. Ground Three - The sentence imposed, in circumstances where the applicant was 19, had a relatively minor record, pleaded guilty at an early time, and had the disadvantaged childhood that he did, is manifestly excessive. 22 In R v Henry (1999) 46 NSWLR 346, this Court promulgated a guideline sentence of a full term of between four and five years for armed robbery in respect of a certain profile, being: (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; (vi) Small amount taken; (vii) Plea of guilty. 23 Each of these factors was present in this case, save that the weapon was not capable of killing nor inflicting serious injury. However, the offence was committed in company and the applicant had a criminal history which was not insignificant. Counsel for the applicant and the Crown accepted the Henry guideline was relevant in the circumstances. 24 There were two additional matters adverse to the applicant in that he was on bail when he committed the subject offence and the serious Form 1 offence. It was acknowledged in Henry that aggravating and mitigating factors will justify a sentence above or below the range. 25 The applicant submits the sentence is manifestly excessive having regard to the applicant's age, "relatively minor" record, early plea and disadvantaged childhood. Those matters were taken into account by his Honour but whether those matters were sufficiently taken into account does require further consideration. 26 The applicant's age, record and plea are part of the Henry profile and do not merit further consideration so far as the overall sentence is concerned. 27 The seriousness of the Form 1 offence and the fact that the subject offence was not only serious but occurred whilst the applicant was on bail was sufficient to justify a sentence which exceeded the upper level of the Henry guideline. The overall sentence imposed by his Honour was not manifestly excessive and, in my opinion, should be confirmed. 28 In the proceedings on sentence, the applicant's counsel referred to the applicant's youth and rehabilitation needs as forming the basis for a finding of special circumstances. There was evidence the applicant had had a disadvantaged childhood, that his teenage years from 13 to 17 were severely disrupted, and that there were prospects of rehabilitation if he was able to forego drugs and alcohol. Most of his offences were at the lower end of the criminal scale, they commenced during the period of disruption and none resulted in a custodial sentence. The applicant is of robust cognitive ability and has the capacity to make something of himself if he takes the opportunity to do so. In the light of these factors, I have concluded insufficient consideration was given by his Honour to the prospects of rehabilitation. 29 The prospects of rehabilitation give rise to special circumstances for the purposes of s 44 (2) of the Crimes (Sentencing Procedure) Act 1999 which justify departure from the statutory ratio imposed by that subsection. I propose the non-parole period be reduced to 3 years and 3 months. In determining the non-parole period, I have taken into account not only the matters referred to above, but also the evidence tendered on the appeal that the applicant is studying advanced mathematics and hopes to do a TAFE course in electronic engineering and then work in that field, and that he has received a good report for his work in gaol, including that he requires minimal supervision. Orders 30 I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence of imprisonment for 5 years and 4 months to commence on 14 June 2003 confirmed. 4. The non-parole period of 4 years is quashed. In lieu thereof, non-parole period of 3 years 3 months commencing on 14 June 2003 and expiring on 13 September 2006 substituted. 31 SMART AJ: I agree with Hislop J. ********** Last Modified: 12/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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