Reported Decision : 143 A Crim R 594 New South Wales Court of Criminal Appeal CITATION : R v Ronal Penalosa-Munoz [2004] NSWCCA 33 HEARING DATE(S) : 26/02/04 JUDGMENT DATE : 26 February 2004 JUDGMENT OF : Levine J at 33; Barr J at 34; Buddin J at 1 DECISION : Crown appeal dismissed. CATCHWORDS : Crown appeal - offence of robbery - compelling subjective case - HIV sufferer - "Ellis discount". LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 R v Boundy (2002) 132 A Crim R 482 R v Ellis (1986) 6 NSWLR 603 R v Govinden (1999) 106 A Crim R 314 R v Henry (1999) 46 NSWLR 346 R v Hernando [2002] NSWCCA 489 CASES CITED : R v Marinos [2003] NSWCCA 136 R v Pang (1998) 105 A Crim R 474 R v Parsons and Poore [2002] NSWCCA 296 R v Perrett [1999] NSWCCA 115 R v Simpson (2001) 53 NSWLR 704 R v Smith (1987) 27 A Crim R 315 R v Thomson & Houlton (2000) 49 NSWLR 383 PARTIES : Regina Ronal Penalosa-Munoz FILE NUMBER(S) : CCA 60370/03 COUNSEL : Ms E Wilkins (Crown) R Hulme SC (Respondent) SOLICITORS : S Kavanagh (Crown) SE O'Connor (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0296 FILE NUMBER(S) : LOWER COURT Mahoney ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60370/03 LEVINE J BARR J BUDDIN J THURSDAY 26 FEBRUARY 2004 REGINA v RONAL PENALOSA-MUNOZ Judgment 1 BUDDIN J: This is a Crown appeal brought pursuant to s 5D of the Criminal Appeal Act 1912 in respect of a sentence imposed upon the respondent in the District Court following his plea of guilty to a single count of robbery. The offence attracts a maximum penalty of imprisonment for 14 years. 2 On 8 September 2003 the respondent was sentenced to a term of imprisonment of 18 months to date from 8 August 2003 which was the date upon which he went into custody. A non-parole period of 1 month was fixed, the effect of which was that the respondent was released from custody on the day upon which he was sentenced. 3 Subject to one matter, the facts which give rise to the offence are not in dispute. They may be shortly stated. At about 3.30 am on 23 January 2003 the victim left his residence and walked to a nearby automatic teller machine located in Bourke Street, Surry Hills. The victim intended to obtain some cash so that he could purchase some medication for his partner who was ill. As the victim approached the machine he noticed a group of about five men crossing the road about ten metres away. As a precaution he paused to allow the men to pass. The victim commenced operating the machine in order to make a cash withdrawal. 4 Before the money had been issued by the machine, the respondent put his arm around the victim's neck from behind and said, "Have you got any money mate?" The victim replied that he did not at which stage he felt his head being moved backwards. The victim attempted to move around, hoping that an image of his assailant might be captured in any security camera that may have been operating at the time. There was in fact no such camera in operation. Two $20 notes were issued from the machine and the respondent took them. As the respondent walked away the victim said, "I'll get you for this", by which he meant that he intended calling the police. 5 The victim went straight home and telephoned the police. They arrived at his premises a short time later. The respondent and two other male companions were apprehended a short distance away. The respondent was interviewed by police but denied any involvement in the robbery. The respondent was then released without being charged. Although the victim was able to say from photographs shown to him by the police that the respondent was similar in appearance to the person who had robbed him, he was unable to make a positive identification of him. 6 The one factual matter which was in dispute was the victim's assertion that the respondent had said to him during the course of the incident "If you go to the police I'll kill you, you poofter cunt". The sentencing judge found beyond reasonable doubt that the respondent had threatened to kill the victim if he went to the police, but his Honour was not satisfied that he had used the alleged offensive language in the process of making this threat. 7 The sentencing judge made the following observations which aptly describe the objective gravity of the offence: It has been submitted by Mr Healy that the facts of this matter should be seen as falling well towards the bottom of the scale of seriousness for a charge of robbery. I give only qualified acceptance to this submission. Whilst I accept that no lasting physical harm was done to the victim and that no weapon was produced or threatened to be produced, I am satisfied beyond reasonable doubt that the victim was terrorised at the time. He was, in my view, in a vulnerable position. As far as I am aware, the courts of this state have only specifically mentioned vulnerability of shop assistants, taxidrivers and the like in this context, but to my mind a citizen facing an ATM machine, with his or her back to the world at large is in an exquisitely vulnerable situation. In addition, this victim was clearly of the opinion that his attacker was one of a group of five men, whereas he was alone. That having been said, I accept that this crime was committed by the offender on his own account, and that it was not a robbery in company. I also accept that in all probability it was a spur of the moment offence, unpremeditated and lacking any sophisticated planning or preparation. 8 The respondent gave evidence at the sentence hearing. He was not challenged about the history which he gave and his Honour appeared to accept it without reservation. He gave evidence of a turbulent childhood growing up in Bogota, Colombia where he was born on 18 January 1978. His father was a union organiser who was politically active from an early stage of the respondent's life. His father was originally a member of a guerrilla organisation which fought the government. Later he joined a political party which was opposed to the government. Membership of that party was fraught with danger and over the years a very large number of its members (including a number of friends of the respondent's family) were murdered apparently on account of their political activities. 9 The respondent's father's life was also threatened which eventually forced him into exile in the mountains of Colombia well away from the family who lived in the capital. The family itself also had to move frequently for fear of reprisals from the authorities. This was very disruptive both for the family and for the respondent's education. 10 The respondent became involved in his father's political party's youth group. It too was targeted and on one occasion he and his friends were fired upon in a public street. Although the respondent survived the attack, five of his friends were killed. The respondent nevertheless continued his political activities whilst at university. As a result he was on one occasion taken into custody by police. He was held there for a day or two during which time he was stripped naked and beaten with large sticks. Whilst being interrogated he was asked to reveal the names of the party's organisers and their meeting places. 11 This cycle of violence culminated in his father's death in January 1998. The respondent went to the morgue to identify his father's body. He had apparently been tortured. The following year the respondent was with his family at a festival when members of the army started shooting indiscriminately. His brother was shot in the leg. It was at that point in time that the respondent resolved to flee from his country of origin. He arrived in Australia in December 1999 on a tourist visa. He was granted refugee status in April 2000 and obtained citizenship in March 2003. His decision to leave Colombia has meant that he now has no contact with his family (other than intermittent phone calls to his aunt) and indeed he does not know where they are. 12 Since his arrival in Australia, the respondent has learnt English and has undertaken a commercial cookery course at TAFE. He has worked productively in that capacity in various parts of the hospitality industry. 13 The respondent also gave evidence that he was gay. He said that it was very difficult to maintain such a lifestyle in Colombia which he described as being a "very anti-gay society". 14 During the course of being screened for immigration purposes, the respondent returned a test result which revealed that he was HIV positive. By and large he has remained asymptomatic but he did spend two days in Royal North Shore Hospital in December 2002 for a lung infection which he had contracted. There was evidence which the sentencing judge accepted concerning the impact that imprisonment can have upon a person who has the HIV virus. The evidence revealed that a prisoner's status as an HIV sufferer is impossible to keep confidential within the prison system. Once such a person's status is known, he or she is likely to be subjected to harassment from other prisoners. Furthermore imprisonment inevitably creates considerable stress for inmates. Stress in turn can significantly compromise the body's immune system and its capacity to resist the spread of the illness. It is these and related considerations which have led the courts to recognise that imprisonment for a person who has the HIV virus will often be more burdensome than would otherwise be the case. See R v Smith (1987) 27 A Crim R 315 and the cases which have followed it. 15 There were other features of the case which the respondent was able to rely upon in mitigation of the otherwise appropriate penalty. First, he had an entirely clear criminal record. Secondly, there was, as the sentencing judge put it, "an abundance of respectable evidence of his very good character and commitment to lawful employment and self-improvement". Thirdly, he was, as the sentencing judge found, unlikely ever to re-offend. Fourthly, the evidence suggested that his prospects for rehabilitation were excellent. The respondent had been, on his own admission, drinking heavily at the time of this offence. He also revealed that he had a history of drinking to excess on occasions. Since the commission of the offence, the respondent had desisted from alcohol or drug use and had attended Langton Clinic for counselling in relation to his alcohol and drug problems. He had embarked upon a welfare course at the Blue Mountains TAFE and had become involved in a meditation retreat run by a Buddhist organisation. Fifthly, he had pleaded guilty at the earliest opportunity. Sixthly, he had expressed contrition for his offence which the sentencing judge accepted to be genuine. 16 In addition to the matters I have just enumerated there was another aspect of the case which assumed some significance in the sentencing process. The sentencing judge observed that: [d]espite his and his father's exposure to and harassment by the authorities in Colombia, which caused him to leave his family and flee to this country, and despite the fact of him not being charged on the night of this offence, he voluntarily surrendered himself six days later to the police and confessed his guilt for this offence. This last feature is, to my mind, the most compelling aspect of the whole range of subjective features, which have emerged in this case. To me, it demonstrates the genuineness of his contrition as well as being a clear sign that the rehabilitation factor in the sentencing exercise has already been fully achieved. In addition, the fact of him having given himself up to the police and fully confessed his guilt is as clear an indication as could ever be sought that he is not likely to offend again. There can have been very few other cases in which a person, having been arrested following on a complaint and later released from custody without being charged, has, a short time later, voluntarily surrendered himself to police and confessed his guilt. In over 40 years in the law I have not previously encountered one. 17 The respondent gave evidence that he was not initially truthful with police because he had a real fear, arising from his experiences in Colombia, of going to gaol. In the days following his initial arrest however he said that he had wrestled with his conscience and after speaking with a friend, had decided to make a full confession. Although the evidence on this point is not entirely clear it may well be that he attended the police station after police had made further contact with him. Be that as it may, it is quite clear that his confession made his conviction inevitable in circumstances in which the prosecution would not otherwise have been able to establish its case against him. 18 The sentencing judge concluded that "the seriousness of the crime would merit a sentence of 7½ years imprisonment". From that starting point, his Honour then allowed a discount of 30% on account of the utilitarian value of the early plea of guilty. His Honour then said: In addition to this, he should be rewarded by a further discount of 50% to take account of him having gone back to the police and confessed to the crime at a time when they seem to have concluded that they had no chance of obtaining a conviction against him. 19 In doing so, his Honour was seeking to apply the principles enunciated by this Court in R v Ellis (1986) 6 NSWLR 603. In that case Street CJ, with whom Hunt and Allen JJ agreed, said: This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given. When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned. (at 604) 20 The combined effect of the two discounts to which I have just referred was to reduce the starting point of 7½ years by 80% to produce a head sentence of 18 months. His Honour then found special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 and arrived at the non-parole period to which reference was earlier made. 21 The Director of Public Prosecutions signed a Notice of Appeal on 11 September 2003 and the respondent was duly served on 16 September 2003. No criticism can be, or is made, that the Crown did not move with due despatch in prosecuting the appeal. 22 The Crown advances two criticisms of the sentencing judge's approach in arriving at the head sentence which was imposed. The first is that his Honour erred in aggregating the discount for the various aspects of the plea of guilty in such a fashion as to arrive at an overall discount of 80% for this aspect of the case. Were that matter to be considered in isolation, I would unhesitatingly accept the submission. In R v Thomson & Houlton (2000) 49 NSWLR 383 this Court indicated that a discount in the range of 10% - 25% should be allowed on account of the utilitarian value of the plea of guilty. The Court also recognised that considerations other than the plea's utilitarian value, such as contrition, may entitle a particular offender to an additional discount. However the Court concluded that "[i]nsofar as existing sentencing practice has been to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, such a practice remains appropriate" (at 419) (emphasis added). Furthermore an overall discount of the magnitude allowed in this case would even exceed what could properly be regarded as the top of the range for a person who not only pleaded guilty but also provided assistance to the authorities by implicating and then giving evidence against other offenders. See for example R v Pang (1998) 105 A Crim R 474. There was of course no assistance to the authorities of that kind in the present case. That being so, to have allowed an overall discount of 80% for the plea of guilty alone is clearly indicative of an erroneous approach having been adopted. This is not to say however that the respondent was not entitled to an appropriate measure of leniency in order to reflect the considerations referred to in Ellis. The difficulty is that the discount allowed for that feature of the case was quite inappropriate. 23 The other submission made by the Crown in respect of the head sentence is that the sentencing judge fell into error in apparently having regard only to the respondent's plea of guilty, and thus ignoring the other subjective features of the respondent's case, in determining the appropriate overall sentence to be imposed. Again it appears that error has been demonstrated. However, it is not an error that has in any sense disadvantaged the Crown. Indeed such an error suggests that it was the respondent who was thus disadvantaged. 24 There is however a more important consideration which serves to place the Crown submissions in context. I accept the respondent's submission that a starting point of 7½ years for the head sentence for this particular offence was itself manifestly excessive. The offence of armed robbery would by reason of this Court's decision in R v Henry (1999) 46 NSWLR 346 ordinarily attract a sentence in the range of 4 – 5 years' imprisonment. This was of course an offence of robbery simpliciter which is usually regarded as a less serious offence. See R v Marinos [2003] NSWCCA 136. In those circumstances, there seems to be little point in considering any further the question of whether the specific errors which the Crown has identified have infected the result. 25 In its challenge to the non-parole period, the Crown submits that the sentencing judge erred in his approach to the question of "special circumstances". It is contended that some of the matters which his Honour treated as constituting "special circumstances" could not properly be so regarded. The Crown conceded however that it was nonetheless open to his Honour to have found "special circumstances". Clearly there were a number of features of the case which entitled his Honour to so conclude. The real question however is whether his Honour fell into error in fixing the non-parole period which was specified and whether his Honour in that respect had proper regard to the principles enunciated in this Court in R v Simpson (2001) 53 NSWLR 704 in so doing. 26 Ultimately therefore the fate of this appeal turns upon the Crown's contention that the sentence imposed, and in particular, the non-parole period, was manifestly inadequate. The Court was provided by the respondent with statistics from the Judicial Commission's database concerning the sentencing of offenders for the crime of robbery. The statistics show that 74% of all such offenders were sentenced to a term of imprisonment. However when factors which are of particular relevance to the respondent are taken into account namely, one count only, no prior convictions, no matters on a Form 1 and a plea of guilty, the statistics reveal that only 42% of such offenders were dealt with by way of full-time imprisonment. Reliance was also placed by the respondent upon this Court's decision in R v Perrett [1999] NSWCCA 115 which, it was submitted, shared features in common with the present case. In that case a Crown appeal, against the asserted inadequacy of a sentence in which an offender also charged with robbery received a three year bond, was dismissed. Reference may also be usefully made to R v Govinden (1999) 106 A Crim R 314. 27 This Court has repeatedly emphasised the limited use to which statistics and indeed comparable cases can be put, but nonetheless that material has some utility in enabling the court to form a view as to the appropriate range of sentences to be imposed for this type of offence. In my view, that material serves to confirm my own initial impression that the challenge to the head sentence must fail. I have found the question of appropriateness of the non-parole period a rather more difficult one to answer. The authorities make plain the exceptional nature of the jurisdiction which the Crown seeks to invoke in appeals such as the present one. This is a case in which the respondent was entitled to call in aid in mitigation a combination of highly unusual and compelling subjective features. The sentencing judge was, in those circumstances, entitled to extend a very significant and unusual measure of leniency to the respondent. In all the circumstances, I am not persuaded that the challenge to the non-parole period has been made good either notwithstanding the serious nature of the offence of which the respondent was convicted, and notwithstanding the significant extent of the departure from the normal statutory proportion that the non-parole period which was imposed bore to the head sentence. It may well be that the unusual structure of the sentence is, as the respondent submits, explicable not so much because of the relative shortness of the non-parole period but by reason of the length of the head sentence. 28 The conclusion that neither the head sentence nor the non-parole period was manifestly inadequate would of course have the consequence that the Crown appeal should be dismissed and that is the order which I shall in due course propose. Nevertheless it may be appropriate to give some brief consideration to the additional material with which the Court has been provided. That material reveals that since his release from custody the respondent has been regularly visiting St Vincent's Hospital for the management of his HIV disease. A letter from the HIV registrar of the hospital is in the following terms: Recent investigations reveal his CD4 count is 99 with a Viral Load over 750 000. This means that Ronal's immune system has been severely affected by HIV disease and he is at risk of developing AIDS related illnesses. He is currently on co-timoxazole and valiciclovir which may help to prevent certain infections. He is due to commence an antiretroviral therapy (anti-HIV treatment). It is important that Ronal continues to attend a centre where he has access to specialist HIV care in order to commence therapy in the near future. 29 The respondent says that a CD4 count of 99 is considerably lower than results which he normally receives. The material indicates that his condition has worsened since the sentence proceedings. Clearly there must be a substantial risk that the respondent's condition would deteriorate further should he be returned to prison. Furthermore as a result of his condition and the need for him to have access to specialist care, the respondent has had to abandon his plans to move to the Blue Mountains. This has prompted him to seek employment in Sydney. He is now working full-time as a cleaner in a complex of buildings at Walsh Bay. He has now made full restitution of the money which he took. He is also now involved in a relationship with a woman who is from Colombia. She has provided him with support and has helped him achieve a measure of balance in his life. An updated report from the Probation and Parole Service indicates that his response to supervision whilst he has been on parole has been very positive. The report indicates that he appears "to be leading a law abiding and constructive life". 30 Finally, although as I have already observed the delay in hearing this matter cannot in any way be attributed to the Crown, the fact remains that more that 5½ months have elapsed since the respondent completed the custodial portion of his sentence. 31 In R v Boundy (2002) 132 A Crim R 482, Smart AJ, with whom Mason P agreed, said that "the sentencing hearing took place eight months ago. It is not in the interests of justice to place an offender in full-time custody so long after he has been sentenced. That would disrupt if not negate his progress in rehabilitating himself and his employment" (at 495). His Honour also said that in considering the question of delay that "the critical time is that between the imposition of the sentence by the judge and the date of the offender's entry or suggested entry into custody" (at 496). To similar effect are the remarks of Heydon JA in R v Hernando [2002] NSWCCA 489. His Honour said that "the impact on the respondents of the uncertainty in the period between when the Crown gives notice of its desire to appeal and the time when the appeal is decided must be agonising. Those respondents may deserve greater punishment than they received at the sentencing stage, but not that type of punishment" (at para 18). See also R v Parsons and Poore [2002] NSWCCA 296. The views expressed by their Honours are equally apposite to the present case. 32 The various considerations to which I have just referred persuade me that had it been necessary to consider the question then this would be a case in which the court ought exercise its residual discretion and decline to interfere with the sentence imposed at first instance. I propose that the appeal be dismissed. 33 LEVINE J: I agree with the order proposed by Buddin J and with his Honour's reasons. I also agree with his Honour's remarks concerning the exercise of the Court's residual discretion. 34 BARR J: I agree with everything Buddin J has said and with the remarks of the presiding judge. 35 LEVINE J: The order of the Court will be as proposed by Buddin J. ********** Last Modified: 03/08/2004 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.