New South Wales Court of Criminal Appeal CITATION : Regina v GIBBS [2004] NSWCCA 399 HEARING DATE(S) : 30/9/04 JUDGMENT DATE : 30 September 2004 JUDGMENT OF : Wood CJ at CL at 1, 27; Hislop J at 25; Smart AJ at 26 DECISION : Leave to appeal granted. Appeal dismissed. CATCHWORDS : CRIMINAL LAW - appeal against severity of sentence - robbery - plea of guilty - whether sentencing Judge took into account material which was not in evidence. LEGISLATION CITED : Crimes Act 1900 - s 94 CASES CITED : Regina v Lattouf (1980) 2 A Crim R 65 PARTIES : Regina Noel George GIBBS FILE NUMBER(S) : CCA 2004/1889 COUNSEL : G Rowling (Crown) T Golding SOLICITORS : S Kavanagh (Crown) S E O'Connor LOWER COURT Local Court JURISDICTION : LOWER COURT 03/11/1155 FILE NUMBER(S) : LOWER COURT Ainslie Wallace DCJ JUDICIAL OFFICER : - 4 - IN THE COURT OF CRIMINAL APPEAL 1889/04 WOOD CJ at CL HISLOP J SMART AJ Thursday 30 September 2004 Regina v Noel George GIBBS Judgment 1 WOOD CJ at CL: The Applicant pleaded guilty in the Local Court to a charge of robbery (s 94 of the Crimes Act) On 4 December 2003 he was sentenced by Ainslie-Wallace DCJ to imprisonment for three years with a non parole period of sixteen months. The plea was accepted by her Honour as having been entered at the earliest time, although the extent of the discount was not disclosed in the reasons for sentence. FACTS 2 On 14 October 2002 the Applicant was standing at the entrance to Redfern Railway Station. The victim walked towards the entrance carrying a brief case. The Applicant approached the victim, and a struggle following during which the Applicant pushed the victim to the forehead, took the bag from him and decamped. Property and papers to the value of $400 were in the bag, which in due course was returned to the victim empty. On 30 October 2002 the Applicant went to the Riverstone Police Station and handed himself in. He confessed to the crime, was arrested and charged. 3 At the time of this offence the Applicant was serving an additional term of a control order that had been imposed in the Wee Waa Children's Court, on 31 January 2002, for offences of aggravated robbery and stealing. 4 Her Honour accepted that the degree of violence was at the lower end of the scale of seriousness. She also accepted that the offence had been impulsive, and not premeditated. 5 Notwithstanding those findings, her Honour accepted that the offence was serious and that a deterrent element was required when sentencing offenders who loiter around railway stations and exploit that opportunity to rob passers-by, whether that occurred impulsively or as a result of deliberate pre-planning. 6 The Applicant was given bail on 30 October 2002, after which he travelled to Narrabri to live with relatives. While there he handed himself into the police for an earlier offence of assault, for which he was thereafter sentenced to imprisonment for one month, a sentence that he served during the month of September 2003. 7 The sentence for the present offence was dated to commence on 1 October 2003, that is at the expiration of the sentence last mentioned. 8 Subjectively her Honour took into account the following circumstances: (a) the Applicant, who was an Aboriginal, had just turned 18 years at the time of the offence, having been born on 10 September 1984. (b) he had a criminal history beginning in the Children's Court in 2002, which included the convictions for stealing and aggravated robbery. As an adult he had a conviction for assault. (c) he came from a seriously dysfunctional family background in which his father had left his mother when he was very young. Thereafter his mother, who had a drinking problem had taken up a relationship with another man who had been very violent towards her. (d) his mother had also been violent towards the Applicant and following DOCS' intervention he and his siblings were placed into foster care for nine months. (e) at the age of 12 years he went to live with his step father, but soon afterwards that man moved away, leaving him to fend for himself after which he lived with relatives in various parts of the state. (f) he began to drink and use cannabis at the age of 13 and progressed to other drugs including amphetamines, cocaine, ecstasy and heroin and acknowledged that the present offence was committed for the purpose of obtaining money because he was "hanging out for drugs". (g) the pre-sentence report showed that he had been diagnosed with ADHD at the age of 10 years and that he had referred himself to the Narrabri Community Health Program at the age of 17 years, at which point he was assessed as depressed and as having an explosive personality. (h) since being in custody he had reported hearing voices, as a result of which he had been given anti-psychotic medication. (i) he was assessed as being of borderline intelligence. (j) as a result of the violence perpetrated against him during his childhood, he had himself developed violent tendencies and needed drug therapy and alcohol counselling. (k) although he had been encouraged to undertake drug and alcohol counselling and to seek employment during an earlier period of supervision, her Honour found that he had not accepted these recommendations but instead had been "mucking around". (l) the relatives with whom he had been living in Narrabri after his release from the control order did not drink or use drugs and during the seven months of parole he had not re-offended, due to their influence. (m) he had re-offended, on his own account, when he had returned to Sydney and fallen into his old ways. (n) he expressed contrition and remorse for the offence both in his evidence and to the professionals who examined him for the purpose of reporting to the court. (o) there were "promising" signs in his rehabilitation in that he stayed out of trouble while living at Narrabri, had sought out psychological help and wished to sort out his life. However, her Honour qualified this to a degree insofar as she observed that "it would be difficult to see his future rehabilitation as being untroubled". At the same time she noted that his recent experience in an adult prison may have impressed upon him the reality of life if he continued to offend. 9 In her remarks on sentence her Honour made an entirely appropriate and correct reference to the fact that, in sentencing young offenders, the consideration of general deterrence was of less weight than matters of rehabilitation. Further she observed: "...it is important, while keeping firmly in mind the seriousness with which the courts have regarded offences such as this and that the offence for which the offender is to be sentenced would usually attract a custodial sentence, what Acting Chief Justice Mahoney said in Lattouf [ Regina v Lattouf) (1980) 2 A Crim R 65]: 'A sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment, but if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such that sentence process is inconsistent with public interest.'" 10 Finally she observed, before determining that a custodial sentence was required and that special circumstances had been established: "While the Court must have regard to the objective seriousness of this offence, the sentence must take into account the youth of the offender, that there are prospects for his rehabilitation and that he will need, on his eventual release from prison, supervision and intervention both for alcohol and drug abuse, but also for his own mental health. If he was living in Narrabri there is a better chance that he might succeed in being rehabilitated". 11 It is submitted that her Honour erred insofar as she noted that the Applicant had acknowledged not having accepted the recommendations during earlier periods of parole, for drug and alcohol counselling, and for employment and had said that instead he had been "mucking around". 12 This, it was argued, involved a mistake, or a misunderstanding or a mishearing of the evidence that was placed before her, in that no such evidence had in fact been tendered. On the contrary, it was contended that the evidence showed that the Applicant had always been willing to accept whatever assistance had been offered to address his behavioural and other problems. 13 It followed, it was submitted, that her Honour's assessment of the Applicant's rehabilitation prospects had been adversely affected leading to an inappropriately guarded assessment. 14 The source of her Honour's observations is unclear. Nothing was tendered before her that would suggest that the Applicant had ever said in the terms identified, that he had been "mucking around". The only reference to this, which may have been the source of the problem, is the following passage in his re-examination at page 11: "Q. How much contact did you have with juvenile justice? A. Every two weeks or so sometimes four. Q. And what would you do with them? A. I would sit down and talk to them and they would ask me what's going on and that. Q. Did you talk to them about your drug problem? A. No not really because I was going over seeing the drug and alcohol counsellor and anger management. Q. Were you talking to them about your anger problems? A. Yeah and mainly me drug and alcohol. Q. And did they assist you with employment at all? A. Yeah they tried to help me get some work and that. Q. And what happened with that? A. There was nothing around at the time yeah." 15 While her Honour's findings are troublesome, I am not persuaded that it was this factor that materially affected her assessment of the Applicant's prospects of rehabilitation. Clearly his background and history were regrettably such that there had to be a reservation concerning his future prospects, notwithstanding the desire that he had expressed, to overcome his problems, and notwithstanding the entirely creditable fact that he had twice handed himself into police to answer offences that he had committed. 16 There were a number of material circumstances justifying a reservation in relation to the prospects of rehabilitation, which it has to be remembered were generally said to be "promising". They included the following: (a) his continuing use of drugs and alcohol while on parole. (b) the fact of re-offending while on conditional liberty. (c) his background of substance abuse commencing from an early age and his earlier exposure to violence, which it was found had pre-disposed him to similar behaviour. (d) his admitted problems with anger management and his reported explosive personality. (e) his acknowledgment of mainly getting into trouble when he came down to Sydney. (f) his evidence in re-examination previously noted. (g) the various references in the psychologist's report of 18 November 2003 to the fact that the Applicant "appears to have little insight into his offending behaviour itself and may have difficulty assessing this"; that his "borderline level of intelligence affects his responsivity to programs"; that his belief that "the attempt to give the brief case back displays a pro-social attitude, however, he has little insight into the psychological impact of his offending on his victims"; and the assessment that he was "quite immature for his age and could easily be influenced by older peers". (h) his poor education and employment record. (i) the assessment by the psychologist that he scored in the moderate risk/needs range for re-offending with a risk score of 48 percent for re-offending in the first year following release from custody. (j) the report of the New England Area Health Counsellor of 7 February 2003 to the effect that he had experienced some difficulty sitting in counselling for longer than 20 minutes, and that he seemed "somewhat flighty" and which also noted that he was showing signs of depression as well as a lack of trust in relation to counselling. 17 These various difficulties regrettably, and understandably, are the product of his impoverished and transient background and of his neglect as a child, for which others than he were responsible. Nevertheless they are factors which must inevitably have qualified even the strongest desires he may have had to achieve rehabilitation and for living a lawful community life. As the pre-sentence report makes abundantly clear that will depend entirely upon him addressing his substance abuse issues and his problems with violence. 18 In all of these circumstances I am not persuaded that her Honour's findings in relation to his prospects of rehabilitation miscarried or that this circumstance resulted in a sentence that was manifestly excessive. 19 As I have earlier observed her Honour carefully took into account all of the subjective circumstances, as well as the relevant sentencing principles. The sentence imposed was, in my view, within the range of a legitimate exercise of sentencing discretion for an offence for which the maximum available penalty is one of imprisonment for 14 years. 20 Reference to the Judicial Commission statistics does show that both the non-parole period and the term of sentence were just below mid range but nevertheless within the range. 21 The one aspect of concern, which possibly emerged in that regard, was her Honour's observation as follows: "It was submitted for the offender that while there was violence it falls to the lower end of the scale of offences of this type. I accept that submission". 22 On one view, that might have indicated that her Honour should have fixed a sentence that fell below the mid-range, however, properly read I am of the view that what her Honour meant was that the violence in this case fell to the lower end of the scale of violence for offences of this type. 23 As has been indicated in many other decisions there is a legitimate range of sentencing discretion and that is not to be determined solely by reference to the Judicial Commission's statistics. They do provide some guidance but nevertheless they encompass a wide range of cases including those with very different objective and subjective circumstances. 24 I am of the view that this sentence fell within the proper range of sentencing discretion and I am unpersuaded that any lesser sentence was warranted in law and should have been imposed. I would grant leave to appeal but I would dismiss the appeal. 25 HISLOP J: I agree. 26 SMART AJ: I also agree. 27 WOOD CJ at CL: The order of the Court will be as I have proposed. ********** Last Modified: 11/18/2004 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.