New South Wales Court of Criminal Appeal CITATION : R v Tozer [2003] NSWCCA 72 HEARING DATE(S) : 19 March 2003 JUDGMENT DATE : 27 March 2003 JUDGMENT OF : Studdert J at 1; Shaw J at 51 DECISION : Leave to appeal granted; appeal dismissed. CATCHWORDS : Criminal law - appeal against sentence - two armed robberies - driving motor vehicle without consent - whether sentences excessive - application of Pearce v The Queen - consideration of parity - adequacy of discount for utilitarian features and remorse - necessity for R v Ellis allowance concerning sentence for earlier armed robbery. LEGISLATION CITED : Crimes Act, ss 97(1), 154A Criminal Appeal Act, s 6(3) Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Ellis (1986) 6 NSWLR 603 CASES CITED : R v Henry (1999) 46 NSWLR 346 R v Simpson (2001) 53 NSWLR 704 R v Thompson (2000) 49 NSWLR 383 R v Winchester 58 A Crim R 345 Ryan v The Queen (2001) 206 CLR 267 PARTIES : Regina v James Reginald Tozer FILE NUMBER(S) : CCA 60360/02 COUNSEL : P.E. Ingram (Crown) G.A. Bashir (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0063 FILE NUMBER(S) : LOWER COURT Bellear DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60360/02 STUDDERT J SHAW J Thursday 27 March 2003 REGINA v JAMES REGINALD TOZER Judgment 1 STUDDERT J: The applicant, James Reginald Tozer, pleaded guilty in the Local Court to two offences of robbery being armed with an offensive weapon and to an offence of driving a conveyance without consent. He adhered to those pleas when he appeared in the District Court. 2 His Honour Bellear DCJ sentenced the applicant on 30 May 2002 as follows: in relation to the earlier of the two offences of armed robbery committed on 15 December 2001, the applicant was sentenced to a fixed term of imprisonment of three years six months to commence on 18 December 2001 and to expire on 17 June 2005. In relation to the offence of driving a conveyance without consent on 18 December 2001, the applicant was sentenced to a fixed term of imprisonment of two years, again commencing on 18 December 2001 and to expire on 17 December 2003. In relation to the second offence of armed robbery committed on 18 December 2001, the applicant was sentenced to a term of imprisonment of five years six months to commence on 18 December 2003 and to expire on 17 June 2009. In respect of that offence his Honour fixed a non parole period of three years six months to commence on 18 December 2003 and to expire on 17 June 2007. 3 This means then that the first of the offences of armed robbery and the offence in relation to the motor vehicle were to be served concurrently and that the second of the offences of armed robbery was to be served cumulatively to the motor vehicle offence and partly concurrently and partly cumulatively in relation to the first of the armed robbery offences. 4 The applicant seeks leave to appeal against the severity of the sentences imposed. 5 Each of the offences of armed robbery was in a category in respect of which s 97(1) of the Crimes Act imposed a maximum penalty of imprisonment for twenty years. The offence of driving a motor vehicle without consent is in a category for which s 154A of the Crimes Act, in conjunction with s 117 of the Act, imposes a maximum penalty of five years. 6 The objective facts in relation to the various offences are conveniently summarised in the remarks on sentence of the sentencing judge. 7 I deal firstly with the offences committed on 18 December 2001 by the applicant and a co-offender whose name was Darcy McNamara. Shortly after 7.00 pm, the applicant and his co-offender arrived at a video outlet in Carlingford in a stolen motor vehicle driven by the applicant (the offence under s 154A concerns this use). Each man wore a balaclava on his head and each ran across the street from where the car was parked to the video shop. McNamara entered the shop armed with a black curved hollow pipe with a red torch taped to the end of it, giving it the appearance of a shotgun in the perception of the victims. The applicant was armed with a hunting style knife which he held in his hand. There were three female employees in the shop and a female customer. The co-offender McNamara called out to those in the shop "Get down. Give us your money." The applicant approached the counter and ordered one of the victims to empty the content of the cash drawer into a black backpack. When the victim did so, the offenders ran from the shop, re-entered the stolen motor vehicle and drove off. 8 They were followed by a motorist who had seen them enter the store wearing balaclavas. He alerted the police by means of a mobile phone, relaying directions as to where the offenders were headed. In due course a highway patrol vehicle followed the stolen vehicle and caused that vehicle to stop. Its occupants ran away. Each was apprehended by the police fairly quickly with the aid of a police dog unit. 9 The applicant having been arrested was taken to the police station and interviewed. In the course of his interview he frankly admitted his involvement in the offences that had been committed. 10 Subsequently the applicant was charged with the earlier offence of armed robbery committed on 15 December 2001. The circumstances of that earlier offence were not dissimilar from those of the later one. The applicant and an unknown person used a stolen motor vehicle to go to a paint shop in Sefton at about 1.45 pm that day. The applicant parked the vehicle on the street outside the store and he and his companion entered the store. The applicant was armed with a large hunting knife and the co-offender was armed with a tyre lever, with a torch attached to it wrapped in cloth. This was represented in the course of the robbery as being a firearm. The applicant was wearing black sunglasses and a grey beanie and his co-offender was wearing a black balaclava. Two staff members were threatened and the applicant brandished his knife at one of them demanding that the till be opened. Money was handed to the applicant who placed the notes in the cream calico bank bag he was carrying. As the bag was being filled, the applicant's companion was standing by, brandishing the tyre lever and threatening to shoot if the money was not handed over. Both offenders ran from the store with the bag and made off in the stolen motor vehicle. 11 The amount taken in the later robbery on 18 December was a relatively modest sum in the vicinity of $700. That sum was recovered. The amount taken in the earlier robbery was $285 and that has not been recovered. 12 For the purposes of determining on appropriate sentences for these offences committed by the applicant, the sentencing judge directed himself to Henry (1999) 46 NSWLR 346, and in particular to the category of case used for the guideline considered at p 380. 13 His Honour found as a fact that the applicant was armed with a hunting knife which was employed to encourage the surrender of the money. His Honour correctly observed that the weapon was capable of causing serious injury, if not death, and no doubt its presentation impacted upon those against whom it was brandished. 14 The next matter considered by his Honour was the planning and he concluded there had been more than just a limited degree of planning. A vehicle had been stolen, balaclavas used, weapons used and the black backpack was brought to the crime scene to take away the proceeds of the crime. 15 His Honour also analysed those significant features of the earlier armed robbery offence relevant to the assessment of the objective gravity of that offence. Once again he found there was planning of a like type to that in the later offence, the brandishing of the weapon and the threat to the victims. The technique employed in committing each of these offences was very similar. 16 His Honour found common to both armed robbery offences was the feature that those in the stores were vulnerable, particularly was this so in relation to the offence committed later in the day. His Honour went on to remark correctly that the use of weapons in robberies was far too prevalent and proper regard had to be had in his sentencing task to the considerations of protection of the public and deterrence both general and personal. 17 There can be no question but that each of the armed robbery offences was an offence of a serious nature. 18 I turn then to the subjective features of this case. His Honour considered these in his careful and detailed reasons. 19 The applicant was born on 19 July 1960 so that he was forty-one years of age at the time of sentence. The applicant left home at the age of eighteen years and after leaving school with his Higher School Certificate, he obtained an apprenticeship as a plumber/drainer/gas fitter and achieved his trade qualification. This trade he pursued and set up his own business in the late 1970s. For a time he worked as a hospital wards man. He married at the age of twenty-four but the marriage did not last and there are no children of that marriage. No doubt his employment history was significantly disrupted by periods of imprisonment. I shall refer to his criminal history shortly. 20 In more recent times the applicant cared for his father for four years before his father's death in 2001. The applicant also claimed to have supported his mother between February and November 2001, although he was living on unemployment benefits for some time prior to the commission of the crimes in December 2001. 21 The applicant gave a history of extensive substance abuse. He progressed from marijuana to heroin and had tried to address his drug habit unsuccessfully. After being taken into custody in respect of the offences for which he was to be sentenced by Judge Bellear, the applicant underwent a drug and alcohol prevention course. 22 The applicant had an extensive criminal history. This included offences for break enter and steal, and larceny, breach of a recognizance and possession of utensils for smoking Indian hemp in 1982. He had break enter and steal offences in 1983 together with offences of possession of a shortened firearm, stealing a motor vehicle and heroin usage. Then in 1985 he was sentenced for offences of larceny, armed robbery, stealing from a dwelling and using heroin. In 1988 he committed offences of break enter and steal, possessing a firearm with intent, breach of parole and causing grievous bodily harm. There were several offences of shoplifting in 1999, an offence of larceny, an offence of goods in custody and being carried in a conveyance taken without the consent of the owner. Several of the above offences attracted very significant prison sentences, the details of which I find it unnecessary here to record. I do however note that on 24 January 1985 the applicant was sentenced to nine years penal servitude for armed robbery. I observe that after being released in 1994 his parole was revoked. He was sentenced to later periods in custody, the most recent of these being for a period of three months in 1999 for shoplifting. 23 His Honour found that there were special circumstances in the applicant's case, identifying the following features: (i) his difficult childhood upbringing; (ii) his extensive history of substance abuse; (iii) his failed endeavours at self rehabilitation; (iv) the perceived need for further psychological assessment, counselling, treatment and monitoring; (v) the need for drug and alcohol rehabilitation to continue on release on an ongoing basis; (vi) the overall need for supervision and guidance when the applicant is eventually released for the duration of his parole. 24 Against the above background I will now consider the various grounds upon which the applicant here relies: 1. His Honour erred in failing to take into account the "Ellis" discount for the armed robbery offence of 15 December 2001 25 It is well settled that a significant added element of leniency is required in sentencing an offender in respect of offences disclosed which were otherwise unknown to the authorities but the extent of that added element will vary according to the degree of likelihood that the offender's guilt would have been established in any event: see Ellis (1986) 6 NSWLR 603 and Ryan v The Queen (2001) 206 CLR 267 and in particular the judgment of Kirby J at para 95. 26 It is submitted that the judge here failed to reflect the principle so expressed. 27 After he was arrested on 18 December 2001 the applicant was remanded in custody and on 5 February 2002 he was interviewed by the police and questioned directly in relation to the armed robbery on 15 December 2001. He did not identify his accomplice but he admitted freely his own involvement in that crime and admitted that the same vehicle was used for the purposes of that crime as was used three days later. 28 Obviously the applicant was under suspicion for the earlier offence when the police began to question him about it, but the Crown who appeared in the sentencing procedure conceded that it was the admissions of the applicant which resulted in the charge, and consistently with that concession the Crown here acknowledges that the applicant was entitled not only to a discount for the plea of guilty but for an added discount because of the admissions made concerning his involvement in the offence of 15 December. 29 There was some discussion of Ellis in submissions before sentence, but the recorded exchanges inspire no confidence that the learned judge intended to give an "Ellis" discount. In his detailed remarks on sentence there appears no reference to Ellis or to Ryan (supra) and there is no clear indication that his Honour gave an Ellis discount unless it is to be found in the sentence itself. Whilst there is no rigid formula to be applied, a "significant" discount clearly means a discount greater than a minimal discount, and in my view a discount in excess of the discount to which he was entitled for the plea of guilty itself. It would have been altogether appropriate for his Honour to have made clear to the applicant that he was receiving a significant added element of leniency for his disclosures in the interview of 5 February 2002, and in my opinion his Honour ought to have done so. 30 The Crown has submitted though that the sentencing procedure did not miscarry because it is apparent from the sentence which his Honour fixed for the offence of 15 December 2001 that appropriate allowance was made for Ellis. His Honour referred to features of the crime which took the applicant outside the four to five year full term range proposed for cases in the category identified in para 162 in Henry: (i) the applicant was forty years of age; (ii) he had very significant criminal antecedents, including the prior armed robbery offence attracting a sentence of nine years and the later breach of parole following release; (iii) the circumstance that there were two offenders acting in concert; (iv) the use of weapons, being a hunting knife and a device sufficiently concealed to make it look like a firearm; (v) a significant level of planning; (vi) the extent of the threats used – the co-offender's threat to shoot unless money was handed over. 31 Elsewhere in his sentencing remarks the judge indicated he allowed a twenty-five percent discount for the plea. If this was all the applicant was given, the starting point of the sentence before the discount was four years eight months and having regard to the obvious attention his Honour gave to Henry's case, a starting point sentence in excess of fifty-six months was warranted. There is to my mind much force in that submission by counsel and indeed I am persuaded by it that the sentence of three years six months is by no means excessive, paying full weight to the applicant's admissions. 2. His Honour erred in failing to give sufficient weight to the applicant's guilty pleas 32 His Honour's remarks on sentence make it clear that in respect of all three offences, the applicant was to be given a discount "of the order of the twenty-five percent" for his remorse and the utilitarian component of his sentence. 33 It has been submitted that the utilitarian benefit alone should have been twenty-five percent because of the timing of the pleas, and that the assistance given to the police warranted an additional element. 34 So far as contrition is concerned, the extent to which that calls for added leniency (that is over and above that for the utilitarian element), will vary from case to case depending "to a large degree upon whether or not the plea resulted from a recognition of the inevitable" (see Winchester 58 A Crim R 345 at 350). 35 As to the offences committed on 18 December, the Crown case was powerful, because the applicant had been followed from the scene of the crime. It was open to his Honour to conclude that the plea for the offence committed on that day simply acknowledged the strength of the prosecution case. 36 Thompson (2000) 49 NSWLR 383 recognises a discretion in determining the discount for the utilitarian value of the plea, and imposes no rigid application of a twenty-five percent discount, and I am not persuaded that his Honour was wrong in considering twenty-five percent to be an appropriate discount for the utilitarian aspect and for such little, if any, added discount to be provided for remorse, acknowledging the strength of the Crown case. 37 I have considered earlier the issue of the appropriate discount for the offence of 15 December when looking at the Ellis ground. So far as the offences of 18 December are concerned, in my opinion no error has been demonstrated in the exercise of the judge's discretion in arriving at a discount of twenty-five percent. 38 In her thorough submissions Ms Bashir further argued that having regard to the plea the sentence of five years six months for the offence of armed robbery committed on 18 December 2001 was excessive. I do not accept this submission. 39 As I observed earlier, his Honour considered the features identified in Henry and their application to this case in relation to the armed robbery offence committed on 18 December, as indeed he did in relation to the commission of the offence three days earlier. As in the category of case outlined in Henry (para 162), the significance of the plea of guilty here was limited by a strong Crown case. Having regard to the age of the applicant, his criminal antecedents, his involvement with another offender, the planning of the offence, the treatment of the victims and the disguises worn, this offence warranted a full term above the four to five year term proposed in para 165 in Henry, and I accept the Crown's submission that the sentence imposed for the armed robbery on 18 December was no less than was warranted in view of the "aggravating features" (employing the expression used in Henry at para 169). 3. His Honour erred in failing to take into account principles of accumulation and totality 40 What the learned judge did in this case was to make the motor vehicle offence sentence concurrent with the first armed robbery offence but then to accumulate the sentence for the second armed robbery offence on that sentence concerning the motor vehicle offence. At the same time his Honour fixed the sentence for the second armed robbery offence to be served partially concurrently with and partially cumulatively upon the sentence for the earlier armed robbery offence. 41 With respect to the learned judge, it is difficult to see why the sentence for the motor vehicle offence was ordered to be served with the sentence for earlier armed robbery offence to which it was not related. However, that his Honour made the sentence imposed for the motor vehicle offence entirely concurrent with the earlier armed robbery sentence worked in the applicant's favour because it put to one side the effect of any argument based upon the differences of conduct in those two offences. 42 It is submitted by the applicant that the learned judge did not comply with the principles expressed in Pearce v The Queen (1998) 194 CLR 610 in that he did not duly consider questions of cumulation or concurrence nor indeed did he consider the issue of totality. What Pearce required was that the sentencing judge "fix an appropriate sentence for each offence, and then consider questions of cumulation or concurrence, as well, of course, as questions of totality" (see Pearce at 623-624 (at para 45)). 43 His Honour did fix sentences for each offence and it is apparent that his Honour did consider questions of concurrence or cumulation because he specifically addressed such matters in the sentencing process. The Crown argued that it was implicit in the structuring of the sentences that his Honour also considered totality. Nevertheless the better course would have been for his Honour to have disclosed explicitly and more fully the reasoning process that led him to the sentences which he pronounced. 4. Parity 44 McNamara was sentenced at the same time as the applicant. The learned judge imposed the same sentence upon McNamara as he did upon the applicant for the armed robbery committed on 18 December. Like the applicant, McNamara was charged with an offence under s 154A(1)(b) of the Crimes Act concerning the use of the vehicle and was sentenced to a fixed term of eighteen months for that offence compared with the fixed term of two years imposed upon the applicant. In imposing the sentence for the armed robbery on McNamara, the judge commented that the offences for which he was to be sentenced were committed whilst the offender was on bonds and the breach of these bonds were matters to be taken into account against McNamara. There was no analogous feature in the applicant's case. 45 It was submitted that the applicant therefore had a justifiable sense of grievance and that this warranted disturbance of the sentences imposed on him, consistently with the principles in Lowe v The Queen (1984) 154 CLR 606 at 610 and in Postiglione v The Queen (1997) 189 CLR 295. 46 Concerning firstly the s 154A offences, it was the applicant who was the driver of the vehicle of course but the more significant matter was that the applicant was sentenced for not one but two offences of armed robbery. His total criminality was manifestly greater than that of McNamara. It follows that a reasonable person looking at the circumstances would not regard any grievance entertained by the applicant as justified. Were less severe sentences than those imposed warranted in law? 47 I have identified what I perceive to be shortcomings in the expression by the learned sentencing judge of his reasons for sentence when considering grounds 1 and 3. It does not of course follow that this Court should interfere. Section 6(3) of the Criminal Appeal Act requires that the court must form a positive opinion that some other sentence is warranted in law and should have been passed: see R v Simpson (2001) 53 NSWLR 704 and in particular the judgment of Spigelman CJ at para 79 and the judgment of Sully J at paras 99-100. 48 The sentences imposed have the effect that the full aggregate term that the applicant faces is seven and a half years imprisonment with a non parole period of five and a half years Having regard to the applicant's total criminality and having regard to the nature and circumstances of the commission of these offences, that end result is not one which, in my view, warrants any interference from this Court. 49 I am of course conscious of the fact that the learned judge found special circumstances and ultimately that the effective non parole period is little less than seventy-five percent of the full term, but, in my opinion, these offences require that the applicant should remain in prison for the period that he presently faces under the non parole period set by his Honour. 50 In the result I propose that leave to appeal be granted, but that the appeal be dismissed. 51 SHAW J: I agree with Studdert J. ********** Last Modified: 03/28/2003 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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