New South Wales Court of Criminal Appeal CITATION : R v JOHNSON [2004] NSWCCA 446 revised - 17/02/2005 HEARING DATE(S) : 23 June 2004 JUDGMENT DATE : 8 December 2004 JUDGMENT OF : Giles JA at 1; Levine J at 2; Hulme J at 3 DECISION : Leave to appeal is granted; Appeal is allowed; Sentence imposed by Judge English on 29 August 2003 is quashed; The Applicant is sentenced to imprisonment for a non-parole period of 2 years and 6 months commencing on 3 May 2003 and a balance of term of 2 years during which time the Applicant shall be eligible for parole; Specify the date on which the Applicant shall be eligible for parole to be 3 November 2005 PARTIES : Regina Jason Allan Johnson FILE NUMBER(S) : CCA 60091/04 COUNSEL : Crown: D Woodburne Appellant: P Strickland SOLICITORS : Crown: S Kavanagh Appellant: S O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/1096 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER : - 6 - IN THE COURT OF CRIMINAL APPEAL 60091/04 GILES JA LEVINE J HULME J Wednesday, 8 December 2004 R v Jason Allan JOHNSON Judgment 1 GILES JA: I have had the advantage of reading the reasons of Hulme J in draft. For the reasons his Honour gives, the sentence was excessive. As his Honour describes, there are some circumstances warranting a sentence above the range in R v Henry (1999) 46 NSWLR 346, and some warranting a sentence below the range. In my opinion, in weighing up all the circumstances and with regard on re-sentencing to the applicant's progress since August 2003, the sentence at which his Honour arrives is appropriate. I agree with the orders proposed. 2 LEVINE J: I agree with Hulme J. 3 HULME J: On 22 August 2003 this Applicant for leave to appeal pleaded guilty to a charge under s97(2) of the Crimes Act alleging that on 3 May 2003 when armed with a dangerous weapon namely a power head spear gun robbed Deborah Jordan of $502.50 the property of two persons trading as "The Oasis Service Station". The plea had first been entered in the Local Court a month after the offence was committed. 4 On 29 August 2003 Judge English sentenced the Applicant to a term of imprisonment including a non-parole period of 6 years commencing on 3 May 2003 and a further period of 3 years. 5 The circumstances of the offence fall within a short compass. At about 8.15pm on 3 May 2003 the Applicant and a pillion passenger rode an unregistered motor cycle to the service station, parking at the rear. The Applicant walked to the front of the service station wearing a full faced helmet and dust coat. He approached a female service station attendant, Deborah, at a public phone adjacent to the entrance doors, pulled back his coat to reveal the butt of the weapon protruding from his pants and demanded money. Both then entered the service station walking to the counter. 6 At about this time a second female attendant entered from a back room and was informed of the robbery. The Applicant again pulled back his coat and about this time the second female saw something that had the shape of a gun handle. The first attendant then placed bank notes from the till into a white shopping bag. The Applicant demanded, or was asked whether he wanted – the Statement of Facts and the statements of the 2 females differ in this regard - the coins as well and these were also then placed in the bag. The Applicant demanded the money from the back of the service station but was informed there was none. 7 The Applicant then touched the hand of one of the service station attendants saying the word "sorry". He turned and touched the second attendant on the shoulder again saying "sorry". He then walked out and rode off on the motor cycle. In fact the service station was one frequented by the Respondent and he knew, or at least had a passing acquaintanceship with, both of the females. 8 Police detected the cycle a little time later, acted their vehicle's warning devices and the Applicant accelerated away. A chase ensued. While rounding a corner the Applicant lost control of the motor cycle. It fell and he and his pillion passenger were arrested. The Applicant was found to have a blood alcohol reading of 0.275. 9 There was evidence which her Honour accepted from a bystander which was to the effect that he had seen the Applicant and the pillion passenger at the rear of the service station prior to the robbery. They appeared to be arguing and he heard the Applicant say "I told you I was going to do it", before placing the helmet on his head and going into the service station. 10 As has been said the Applicant's offence was one provided for by s97(2) of the Crimes Act upon the basis that the Applicant was armed with a "dangerous weapon". The "term" is defined in s4 of the Crimes Act so as to include a spear gun. However it must be recorded that although the weapon was a pneumatically operated spear gun, it did not have a spear or power head attached and there was no pneumatic charge in the weapon. Its overall length was 30cm. Its butt or grip was made of plastic but that part of it – and it was this which was protruding from the Applicant's trousers – looked similar in appearance to that of a handgun. 11 The only other aspect of the incident itself which need be mentioned are the statements by Ms Jordan that she was really worried that the Applicant would hurt herself or Ms Kirkby and was nervous and scared when she was shown the weapon, and the statement of Ms Kirkby that she "was quite relaxed when it all happened (but) concerned for Deb because she was very shaky. I was worried about what he would do if the buzzer to the till went off which it does if it stays open for too long." 12 The Applicant's record and other subjective circumstances also require mention. He was born in June 1967. He had previously been convicted on two occasions of driving without a licence, on two of driving whilst his licence was cancelled, on two of driving an unregistered vehicle, and on four of driving with an excess concentration of alcohol in his blood. These last mentioned offences occurred in December 1990, July 1992, November 1999 and October 2001. 13 There was one offence of assault, committed in 1991. In December 1993 he was convicted of conspiracy to rob and in respect of this offence sentence was deferred upon him entering into a 3 year good behaviour bond. In November 1998 there was an incident apparently arising out of the relationship between the Applicant and the mother of his children which led to charges of being armed with intent to commit an indictable offence, assault occasioning actual bodily harm and contravening an apprehended domestic violence order. In respect of the last 2 of these charges the Applicant was sentenced to 3 months periodic detention. For reasons it is unnecessary to explore, this was later converted to full time custody for 3 months. In respect of the charge of being armed with intent the Applicant, in August 1999, was placed on a 4 years good behaviour bond. In November 2001 he was placed on a bond for 2 years for the October offence of driving with a high range PCA. Thus at the time of the commission of the offence with which this Court is concerned, the Applicant was subject to 1 bond and 1 recognisance. 14 The Applicant had a turbulent childhood which it is unnecessary to detail. It must have involved a deal of trauma, not all of his making. He left high school early and since age 13 and up until November 2002 has been generally in employment. He ceased work then as a result of an accident in which he seriously injured his back, an event resulting in severe and constant pain. His General Practitioner reported that the Applicant's mood through the following six months included extreme anger, annoyance and tearful depression. A neurosurgeon advised against surgery. 15 The Applicant has 2 children aged, in August 2003, 16 and 10 to a woman with whom he had a relationship for 14 years. That broke up and during, or before 2000, he had custody of the children. He commenced a relationship in April 2002 with another woman and they became engaged. After the accident, the Applicant was in constant pain so much so that normal sexual relations became difficult if not impossible. His drinking increased and there was a substantial degree of arguing with his fiancé. She then had a miscarriage, after which the relationship failed. The Applicant's youngest son failed to return after visiting his mother for Christmas 2002. Then the Applicant and his eldest son began to argue and, according to the Applicant "I began to yell at him for no reason" and the son then chose to return to his mother. 16 In March 2003, i.e. before the robbery at the service station, the Applicant was referred by his General Practitioner to a psychologist who then assessed him in these terms:- "Mr Johnson was suffering a Major Depressive Episode and clinically significant stress and anger. Mr Johnson was living alone, drinking excessive amounts of alcohol, had little support, and did not have strategies to cope with his pain and psychological distress. I was concerned these factors may place Mr Johnson at risk of self-harm or suicide. I recommended a psychiatric assessment be conducted to address his depression symptoms, as medication was strongly indicated in his case." 17 Psychological intervention was also recommended and two of six planned treatment sessions were had prior to the commission of the offence. 18 Dr Allan White a psychiatrist who had assessed the Applicant since his arrest expressed the opinion that at the time of the offence:- "Mr Johnson was suffering from chronic pain due to a low back injury, from Major Depression, from chronic narcotic use, and from Alcohol Abuse and Alcohol Intoxication at the time of robbery." 19 The narcotic use to which reference is made seems clearly to have been in the form of medication prescribed for his back pain. 20 Dr White opined that should the Applicant remain abstinent from alcohol and have treatment for his depression both during and after imprisonment, recurrence was unlikely. 21 Miss Findlay, a psychologist who assessed the Applicant in August 2003 also recorded the result of some Depression Anxiety and Stress Scale tests she administered. She said the results were scores "in the extremely severe range for depression (99.5th percentile), extremely severe range for anxiety (99.5th percentile) and extremely severe range for stress (99.3th percentile)." 22 In the course of her remarks on sentence, her Honour seems to have accepted that the Applicant accepts full responsibility for his actions. She observed that he had prospects of rehabilitation and needed supervision to ensure he complies with a regime to reduce his abuse of alcohol, address his anger and tendency towards violence and found special circumstances to exist. Earlier in passages which were the subject of criticism by Counsel for the Applicant she had remarked:- "The issues of general and specific deterrence looms large. There is no need for me to further enlarge upon the seriousness of the offence, so much can be seen from the maximum penalty imposed and the inclusion of armed robberies in the table of offences to which standard non-parole periods now apply. Although this offence does not fall into that category. The objective seriousness of the offence I find places it towards the upper mid range for the scale constructed or such offences, particularly when regard is had to the offender's record and the circumstances of aggravation." 23 The criticism based on the first paragraphs just quoted was that although her Honour had recognised that the offence of which the Applicant was guilty was not one of those for which standard non-parole periods were specified in division 1A of part 4 of the Crimes (Sentencing Procedure) Act the passage cited indicated that she took those provisions into account in judging the seriousness of the offence which was charged. It was submitted that the second paragraph displayed a second error in the statement that the objective seriousness of the offence placed it towards "the upper mid-range for the scale" of such offences. A third error was said to lie in her Honour taking into account in a judgment of the objective seriousness of the offence, the offender's record. 24 A fourth ground of challenge to the sentence imposed was that it was said to be manifestly excessive. 25 I do not find it necessary to deal with the all of these grounds of complaint for in my opinion the second and fourth are made out. 26 In its objective characteristics the Applicant's offence was not greatly dissimilar from the typical case which was the subject of the guideline judgment of this court in R v Henry (1999) 46 NSWLR 346 at 380. The offence considered in R v Henry was, of course, one under s97(1) of the Crimes Act which deals with robbery with an offensive weapon and provides for a maximum penalty of imprisonment for 20 years whereas the Applicant's offence was robbery with a dangerous weapon which, under s97(2) of that Act, carries a maximum penalty of imprisonment for 25 years. On the other hand it must be recognised that in this case the weapon used was substantially less dangerous than that contemplated in R v Henry viz a "weapon like a knife, capable of killing or inflicting serious injury" and in this respect the subject offence is appreciably less serious than that contemplated in the guideline. While undoubtedly the weapon inspired fear, in its condition at the time of the robbery it was not in fact dangerous. Just as the courts hold the fact against an offender who uses a loaded rather than an unloaded gun, the Applicant is entitled to proper recognition of the fact that his weapon was in the unloaded category. 27 Although I do not need to rely on the proposition, it seems to me that in any consideration of the fact that the Applicant's offence was under s97(2), rather than s97(1), it must be borne in mind that a worst offence under sub-section 2 would seem, both by definition and in imagination, worse than a worst offence under sub-section 1. If that be right, then the Applicant's offence would be further down the s97(2) scale than it would be if considered under s97(1). 28 The obvious presence of the butt of the spear gun fulfilled the latter description of a threat of violence, one of the ingredients in the typical case contemplated in R v Henry. However, it must also be noted that the Respondent's conduct otherwise displayed none of the overtly hostile and aggressive tendencies calculated, and often designed, to instil additional fear in the victims of offences such as his. Nor did the Applicant's victims have a knife held at their throat or have to face the muzzle of an apparently loaded gun. 29 I do not mention those matters to trivialise the Respondent's serious offence. However, in any comparison of his offence with others which have been the subject of consideration by the courts, it is important to recognise the differences. In its objective features, I would regard the Applicant's offence as either in the bottom half of the group contemplated in R v Henry or possibly falling below that group because the weapon was not in fact "capable of killing or inflicting serious injury". Certainly, when one has regard to the gamut of armed robbery offences with which the courts have to deal, her Honour's statement that the objective seriousness of the offence placed it "towards the upper mid range" of such offences is not correct. 30 I should perhaps mention the Applicant's apologies to his victims at the scene. They are consistent with what I have referred to as the absence of (additional) overtly hostile and aggressive tendencies often present in armed robberies but of themselves those apologies do nothing to mitigate the Applicant's offence. His offence necessarily involved instilling fear in his victims. Their individual reactions are referred to in their statements and the Applicant is fortunate that the victims do not seem to have been traumatised – an event which would have been calculated to increase his sentence – R v Speeding [2001] NSWCCA 105 at [25]. 31 A second difference between the situation of the Applicant and that of the typical offender contemplated in R v Henry is that the Applicant's plea was entered at a very early stage. The time of entry contemplated in R v Henry was, according to R v Thomson and Houlton (2000) 49 NSWLR 383 at [161], late. 32 Counsel for the Applicant in fact submitted that although not in exact terms when regard was had to both objective and subjective factors, the Applicant's offence and offending was of a seriousness such that it was appropriate to apply the guideline of a total sentence of 4-5 years laid down in R v Henry to it. I have referred to 2 factors which favour the Applicant in the comparison suggested. However there were some arguing in the opposite direction. 33 In the first place the Applicant who does not come within either aspect of the description "young offender with no or little criminal history". He was 36 and had two offences on his record with some similarities to those with which the Court is presently concerned – conspiracy to rob and being armed with intent to commit an indictable offence, the first committed in 1993 and the second in 1998. Although the fact that the Applicant was given the benefit of a recognisance on each occasion indicates that those offences are unlikely to have been of the more serious of their type, the fact remains that the Applicant committed them and must have been made aware of the courts' attitude to them. Other aspects of the Applicant's record to which I have referred also demonstrate an attitude of disregard for the law. 34 I should mention that in a letter which was tendered on sentence, the Applicant contended that he was not guilty of an assault occasioning actual bodily harm of which he had been convicted, the charge having been fabricated by the mother of his children after they separated. It is obvious that that issue cannot be resolved in these proceedings. However, whether the Applicant be correct or not, the other charges on his Antecedent report are sufficiently frequent and serious to justify the sentence at the end of the immediately preceding paragraph. 35 Recognition must also be given to the fact that the offence with which this Court is concerned was committed while he was, on two counts, on conditional liberty. Such a factor, even where there is only one bond or the like, is always regarded as a seriously aggravating circumstance. R v Daridis (NSWCCA, 18 December 1986) and R v Tran (Haoi Vinh) [1999] NSWCCA 109. 36 However, operating in the other direction is the Applicant's psychological and perhaps other mental state at the time of his offence. It does seem to me that appreciable allowance must be made for his overall mental condition at that time. It is not difficult to understand that the loss of employment, working capacity, fiancée, custody of his children and health was calculated to be devastating. His resort to alcohol was clearly unwise but prior to the robbery the Applicant had at least embarked upon some more sensible methods to redress his problems or at least some of them. Recognition should also be given to the circumstances of the Applicant's childhood. On the other hand, it is appropriate to recognise, as counsel for the Crown pointed out, that the Applicant's problems with alcohol pre-dated the accident at work. 37 The motivation for the robbery is unclear. Her Honour seems to have accepted that "He does not know why he committed the robbery. He was not in need of money." Although the Applicant wore gloves and a motor cycle helmet and, as has been said, had the spear gun during the commission of the offence, he would seem to have been elsewhere during that day immediately prior to the robbery legitimately using those items and there is no evidence of any substantial premeditation. 38 Dr White said that as he understood the matter, "the combination of chronic pain, medications for chronic pain, depression, and Alcohol Abuse resulted in an impulsive and ill considered crime". It is difficult, with any degree of confidence, to understand the crime otherwise. I should add that I do not regard the Applicant's state of sobriety at the time of the offence as of any mitigating weight beyond giving weight to the fact that the offending may have been inspired as much by the Applicant being "mad" rather than "bad". Apart from the conspiracy to rob offence in 1993, the Applicant has no offences of dishonesty on his record. 39 There are some other matters to which reference should be made. Her Honour recorded that "he accepts full responsibility for his actions. He has written a letter of apology for his victims". The letter was not inspired by any legal advice. Her Honour made no express findings that the Applicant was remorseful but clearly he is. In this regard mention might be made again of the letter which the Applicant wrote to the sentencing judge. To my mind it demonstrates a far more mature attitude to life than the vast majority of offenders exhibit. 40 Her Honour found that the Applicant does have prospects of rehabilitation. I would adjudge them as appreciably above average. The Applicant does not have the all pervasive need for illegal drugs which some offenders have and clearly has had stability in his life for a substantial period. Her Honour gave no reason for expressing herself in the limited way she did and none, other than matters to which I have referred, appear. Her Honour found "special circumstances" which "entitle the offender to a lengthy period of supervised rehabilitation". 41 During the hearing of the appeal, affidavits from the Applicant and his solicitor were read on the usual conditional basis. That from the Applicant's solicitor annexed a report from Ms Mackie, an Alcohol and Drugs Counsellor at the Lithgow Correctional Centre. Ms Mackie's report indicates significant dealing with, by the Applicant, of psychological or emotional scars arising from his childhood, that he has completed Anger Management, Personal Effectiveness, and AOD Relapse Prevention Programs and been active in Educational programs and work. Two other reports and certificates annexed to the solicitor's affidavit corroborated in material measure, these statements. Ms Mackie's report concludes:- "Jason Johnson presents currently as emotionally stable, and without presenting any evidence of illicit drug or alcohol abuse. He participates well in groups and is polite and appropriate. He presents as having good insight into his behavioural patterns and although still somewhat incredulous in regard to his behaviour, accepting of responsibility for his offence." 42 The Affidavit from the Applicant both in what it says expressly and in the total picture revealed both corroborates what Ms Mackie has said and argues strongly that the Applicant has good, I think I may say very good, prospects of rehabilitation. Because this Court is to re-sentence the Applicant these matters must be taken into account. 43 During the course of submissions the Court's attention was directed to a number of prior decisions including R v Strangelman (1999) NSWCCA 343, Perese (2001) 126 A Crim R 508, R v White [2001] NSWCCA 108, R v Drollett [2002] NSWCCA 13, R v Dudgeon [2002] NSWCCA 41, R v Zahab [2002] NSWCCA 430, R v Inamata [2003] NSWCCA 19, and R v Peckham [2003] NSWCCA 293. In addition I had my tipstaff obtain summaries of the 11 cases referred to in the Judicial Commission statistics for May 1999 to September 2003 under the heading "Term of Sentence – excluding consecutive terms" where sentences of 9 or more years had been imposed for offences under s97(2). The cases are R v Douglas [2000] NSWCCA 275; R v Itamua [2000] NSWCCA 502; R v Cosier [2001] NSWCCA 513; R v Killick [2002] NSWCCA 1; R v Alvaras and McCulloch [2002] NSWCCA 283; R v Shanks [2002] NSWCCA 438; R v Kim [2003] NSWCCA 167; R v Trad [2003] NSWCCA 213; R v Hooper [2004] NSWCCA 10; 44 With some possible exceptions, there are substantial differences between those cases and between them and that the subject of this appeal. However, a consideration of both groups puts beyond doubt the conclusion at which I would otherwise have arrived that the sentence imposed in this case is manifestly excessive. 45 For reasons apparent from what I have said above, it seems to me that an appropriate way of determining an appropriate sentence to be imposed on the Applicant is to regard the observations in R v Henry as a guide, and to seek to then make allowance for the differences which exist. Of course, one must recognise that the Applicant falls to be sentenced under a form of s44 of the Crimes (Sentencing Procedure) Act different from that which was in force when R v Henry was decided but that is not presently material. Regard must be had also to the matters referred to in s21A of that Act. It is unnecessary that I detail them further than I have done. 46 Notwithstanding the Applicant's record, in light of his personal history, acceptance of responsibility, freedom from hard illegal drugs, and the matters referred to in Ms Mackie's report, I do not regard personal deterrence, rehabilitation and protection of the community as looming large in the sentencing of the Applicant. That is not to say that a significant period of supervision and, if necessary alcohol counselling, may not be required on his release. There are clearly special circumstances. 47 There remain of course the requirements of general deterrence and retribution. As has been said many times, members of the community, service station attendants and others in vulnerable occupations are entitled to go about their lives without the imposition of armed robbers. Particularly in light of the circumstances of the offence to which I have referred, I would sentence the Applicant to imprisonment to a non-parole period of 2½ years and a balance of term of 2 years during which the Applicant shall be eligible for parole. 48 Accordingly the orders I propose are:- (i) Leave to appeal is granted. (ii) Appeal is allowed. (iii) Sentence imposed by Judge English on 29 August 2003 is quashed. (iv) The Applicant is sentenced to imprisonment for a non-parole period of 2 years and 6 months commencing on 3 May 2003 and a balance of term of 2 years during which time the Applicant shall be eligible for parole. (v) Specify the date on which the Applicant shall be eligible for parole to be 3 November 2005. ********** Last Modified: 07/18/2007 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.