New South Wales Court of Criminal Appeal CITATION : REGINA v STIRRAT [2003] NSWCCA 350 HEARING DATE(S) : 19 November 2003 JUDGMENT DATE : 19 November 2003 JUDGMENT OF : Handley JA at 1, 40; Grove J at 34; Adams J at 35 DECISION : Application for leave to appeal dismissed. CATCHWORDS : Criminal law - sentencing - no question of principle R v Carter (2001) NSWCCA 245 CASES CITED : R v Henry (1999) 46 NSWLR 346 R v Pearce (1998) 194 CLR 610 PARTIES : Regina v Graham Emlyn Stirrat FILE NUMBER(S) : CCA 60256 of 2003 COUNSEL : In person (Appellant) E. Wilkins (Crown) SOLICITORS : In person (Appellant) Director of Public Prosecutions (NSW) (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0338 FILE NUMBER(S) : LOWER COURT Nader ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60256 of 2003 HANDLEY JA GROVE J ADAMS J 19 November 2003 REGINA v GRAHAM EMLYN STIRRAT Judgment 1 HANDLEY JA: The applicant pleaded guilty in the Newcastle Local Court on 27 September 2002 to four charges, two of armed robbery and two of robbery, and was committed for sentence to the Newcastle District Court under s 51A of the Justices Act. 2 He came before Nader ADCJ for sentence on 29 October 2002, having been in custody following his arrest on 8 August and he was sentenced on 4 December 2002. 3 In addition to the four charges to which he pleaded guilty, there were also two other offences of demanding money with menaces, which the applicant asked to be taken into account under a Form 1. 4 The first charge was that on 23 July 2002 at Newcastle he robbed Sally Leslie of $350 in cash while armed. The second was that on 24 July, the following day, he robbed Tracey Maher of $370 in cash at Cooks Hill, also in Newcastle. That was not a charge of armed robbery but simple robbery. 5 The third charge was that on 28 July he robbed Colby Hill of $130, the property of the restaurant Henny Penny. That again was a charge of simple robbery. The fourth charge was that on 7 August 2002 at The Junction, again in the Newcastle district, he robbed Debra Haigh of $2,815, the property of the Greater Building Society while being armed with a knife. 6 The first Form 1 offence of demanding money with menaces related to the Racecourse Newsagency at Hamilton, and occurred on 31 July. The other second related to the St George Bank at Hamilton on 7 August. The applicant was arrested on 8 August. Nader ADCJ imposed the following sentences: For Count 1 he imposed a sentence of two years and five months to commence on 8 August 2002 and expire on 7 January 2005. The non-parole period was subsumed by sentences imposed for the other offences. 7 On Count 2, for simple robbery, he imposed a sentence of one year and six months commencing on 8 April 2004 and expiring on 7 October 2005. That was made consecutive on the non-parole period in the sentence on Count 1. 8 On Count 3, again simple robbery, he imposed a sentence of one year and six months to commence on 8 April 2005 and to expire on 7 October 2006. This was partly cumulative and partly concurrent with the non-parole period under the second sentence. It was concurrent for six months. 9 On Count 4 and the Form 1 matters, armed robbery and the two offences of demanding money with menaces, he imposed a sentence of four years to commence 8 April 2004 and to expire on 7 April 2008 and fixed a non-parole period of 2 years to expire on 7 April 2006. 10 That sentence was made cumulative on the non-parole period of the sentence on Count 1 but concurrent with the non-parole periods of the sentences on Counts 2 and 3. Effectively the applicant has been sentenced for a total period of five years and eight months. 11 The sentence is challenged on a number of grounds. The applicant relies on his prior good record, the fact that this is his first custodial sentence, and on a number of subjective matters relating to the death of his parents, the break up of his marriage, and his substantial prospects of rehabilitation. 12 All these matters were before Nader ADCJ and were properly taken into account by him in fixing the sentences in question and by themselves do not call for the intervention of this Court. 13 The next matter he relied upon is that Nader ADCJ was a customer of the Building Society which was the victim of the fourth count. This matter was disclosed by the Judge during the sentencing proceedings, where the applicant was represented by counsel, and no objection was taken to his Honour's continuing to deal with the matter. 14 In any event the fact that a judge is a customer of a bank or building society does not disqualify the Judge from dealing with a case of this nature. 15 Another matter relied upon by the applicant is that no pre-sentence report or psychological or psychiatric report was obtained prior to him being sentenced. 16 There is more than one answer to this submission. The first is, he was legally represented during the sentence proceedings which took place over a considerable period. He first appeared before Coolahan DCJ on 3 October and the proceedings were stood over to Nader ADCJ on 29 October. 17 No application was made by his legal representatives for reports of this nature to be obtained and in those circumstances there was no reason why the Judge should not proceed to sentence on the information and evidence available before him. 18 In any event there was ample background information available to the Judge relating to the circumstances of the applicant. He gave evidence himself as did his brother and there was also evidence from The Salvation Army Prison Chaplain and the drug and alcohol counsellor at the Cessnock Correctional Centre. 19 As his counsel accepted before Nader ADCJ, and the applicant himself accepted before us, a full-time custodial sentence was inevitable and this significantly diminished any possible relevance of the reports in question. No error in the sentencing process has been established in this respect. 20 The applicant contends that he should have been given the benefit of what is known as an Ellis discount, namely, the discount that is properly awarded in sentencing, or allowed for in sentencing, when an offender pleads guilty to offences which were not known to the prosecuting authorities, or where there would have been substantial difficulty in proving a case against the offender in the absence of a plea of guilty. 21 In the present case there was no need for any Ellis discount and no basis on which it could properly have been allowed. The offences took place within a very short period of time. The applicant had made no attempt to disguise himself. There were video films of his involvement in at least one of the offences which enabled the authorities to publish his photograph and call for information leading to his identification and arrest. In those circumstances his detection and arrest within a short time were inevitable. 22 There is no reason, in view of the shortness of the time which had elapsed, to think that there would have been difficulty in identifying him as the offender in relation to each of these offences. There is no substance in the contention that the applicant was entitled to an Ellis discount. 23 The principal point which is made in his written submissions and which he has made orally is that overall the sentences are excessive and that his criminality occurred within a relatively short period of time, of the order of 14 days, and that in those circumstances the total head sentences and the total non-parole periods are excessive. 24 He relies upon a statement attributed to Howie J in R v Carter (2001) NSWCCA 245. Neither the applicant nor the Crown had the case of R v Carter in Court and this makes it difficult to assess the statement which the applicant quotes from Howie J and its relevance in the present case. 25 However, the basic instruction to this Court in R v Pearce (1998) 194 CLR 610 is that a sentencing Judge must impose a discrete sentence for each offence. He or she must then assess the overall effect of the sentences in the light of the principal of totality. In a proper case this will require the Judge to reduce the effect of those sentences on the prisoner by adjusting the period to be spent in full-time custody. This must be done so that the sentence does not crush the prisoner having regard to his overall criminality. 26 The sentencing Judge had this principle well in mind and adjusted the sentences in the manner already referred to so as to take proper account of the instruction in R v Pearce and the totality principle. 27 No error is shown by the fact that some of the sentences are consecutive and some of them are concurrent and concurrent to a different extent. 28 The applicant also submitted that the overall sentences were manifestly excessive. However they are not outside the guidelines, established by R v Henry (1999) 46 NSWLR 346, for offences of armed robbery by a young offender who pleads guilty without any significant prior criminal history. 29 The Judge's notional starting point of three years imprisonment on Count 4 with the two matters on the Form 1 gave the applicant an effective reduction on his sentence in excess of the standard 25 per cent reduction for his guilty plea and evidence of genuine remorse. No error is shown in that respect either. In fact the sentence on Count 4 was at the lenient end of the range established by the statistics. 30 The final matter is that his Honour referred, at p 16 of his remarks on sentence, to the fact that the first and third counts were armed robberies, whereas in fact the armed robberies were the first and fourth counts and the simple robberies were the second and third. 31 It is clear that this was a mere verbal slip for, on the following page, his Honour said: "Counts 2 and 3 are less criminal than Counts 1 and 4 and must be met with less severe sentences". This shows that his Honour was well aware of the fact that the armed robbery counts were Counts 1 and 4 and the simple robbery counts were Counts 2 and 3 and, again, no error has been established. 32 In these circumstances I have concluded that his Honour's sentences were appropriate in all the circumstances and not beyond the range available for the exercise of the sentencing discretion of the primary Judge. 33 I would, therefore, propose that leave to appeal be refused. 34 GROVE J: I agree. 35 ADAMS J: I agree. I wish to add a comment concerning Carter's case. The passage quoted by the applicant is at [2001] NSWCCA 245 para 21: "Further, the two offences, although different acts of criminality, were part of the same course of conduct in that they were similar offences, occurred within a period of about two weeks and were a result of the same set of circumstances, being the applicant's drug addiction. It was not as if the applicant had been arrested for one offence and then committed the other while on bail. There was, in my view, nothing to warrant the accumulation of the punishment for each offence. This was a simple case in which the overall criminality could easily be accommodated in the penalty appropriate for the second offence, taking into account that it was committed while on parole, it had other aggravating features and was not an isolated act of criminality." 36 It is clear that his Honour was not stating a general principle but the appropriate mode of dealing with the two offences which the Court was considering in that case. 37 Here there were four offences and two further offences on a schedule. In my view it would have been quite wrong for the learned sentencing Judge to have attempted to reflect the totality of the criminality by extending one of the sentences sufficiently and making all the sentences concurrent. The distortion would have been inappropriately large, even if (which I doubt), this would have sufficiently reflected the respondent's culpability. 38 In my view his Honour's disposition of the sentences was entirely correct and in no relevant sense is what his Honour has done inconsistent with what, in the particular circumstances of Carter, Howie J did. 39 As I have already said, I agree with the judgment and conclusions of the learned presiding Judge. 40 HANDLEY JA: The order of the Court will be, application for leave to appeal dismissed. ********** Last Modified: 11/27/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.