New South Wales Court of Criminal Appeal CITATION : Regina v JJM [2004] NSWCCA 71 HEARING DATE(S) : 17 March 2004 JUDGMENT DATE : 17 March 2004 JUDGMENT OF : Hodgson JA at 1,20,24; Shaw J at 22; Smart AJ at 2 DECISION : 1. No material to be published which would identify or tend to identify the applicant. 2. Leave to appeal granted. Appeal allowed. Sentence quashed. 3. In lieu of the sentence imposed, the applicant is sentenced to imprisonment for 4 years with a non-parole period of 2 years commencing on 14 March 2003 and expiring on 13 March 2005. CATCHWORDS : Sentence imposed did not adequately reflect mitigating factors LEGISLATION CITED : Crimes Act CASES CITED : Nil PARTIES : Regina v JJM FILE NUMBER(S) : CCA 60448/03 COUNSEL : (A) C Craigie SC (C) B Knox SC SOLICITORS : (A) S O'Connor (C) S Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0407 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60448/03 HODGSON JA SHAW J SMART AJ NON PUBLICATION ORDER Regina v JJM JUDGMENT 1. HODGSON JA: I will ask Smart AJ to deliver the first judgment. 2. SMART AJ: JJM seeks leave to appeal against the severity of a sentence of five years imprisonment with a non-parole period of three years for the offence of armed robbery with an offensive weapon in company and wounding. Under section 98 of the Crimes Act the maximum penalty is 25 years. 3. The judge found the following facts: "... about 10.15 am on 1 August 2002 the offender and Stower walked to business premises known as the Kanwal General Store and Fuel Supply, located at the intersection of Pearce Road and Craigie Avenue, Kanwal. Stower was armed with a knife and also with a toy, but no doubt on cursory glance, lifelike gun. The offender was also armed with a toy gun, although there was no suggestion that he in any way removed it from where it was visibly lodged in his clothing. In any event, the offender and his co-offender entered the store. The offender himself throughout remained near the front door, his task being to prevent access into or exit from the premises, a task which he performed as it appears somewhat inadequately. It is not suggested that he was directly involved in the violence which subsequently ensued, the perpetrator of such violence being Stower. However, there is no doubt that the offender and Stower were involved in a joint enterprise in which violence was contemplated and the offender is accordingly equally liable with Stower for whatever he did. Stower called to the owner of the store, Ms Phyllis Clayton, 'It's a hold-up'. She raised her hands and Stower called out, 'It's a hold-up. Give me all your money'. He then produced a knife which he commenced to wave in her direction, striking her with it and causing a one centimetre laceration to the webbing between her right thumb and right second finger. She sought to restrain Stower and a struggle ensued wherein she was forced backwards onto a console. Stower then removed the toy gun from his trousers and said to Ms Clayton, 'Right do you want to be stabbed or shot. I want the money. You must have a cash box'. That was no doubt an extremely frightening experience for Ms Clayton for which the offender must take full responsibility. She walked to a storeroom at the rear of the counter and moved to operate a panic alarm. Stower, seeing this, struck her and made further threats. She responded by saying, 'All right, I'll give you the money'. Stower then led her by her shirt to the service counter where she opened the cash register and removed a number of $50 notes which she handed to him. He himself reached towards the till and removed further cash and notes. In all, an amount of $249 was stolen. Stower then noticed Ms Clayton's father who was standing nearby and apparently intended to prevent his exit from the store. Stower said, 'Do you want me to shoot you?' As he did so, he approached Ms Clayton's father, pushed him and wielded the knife towards him. In an attempt to rescue her father, Ms Clayton moved forward and was again struck by the knife held by Stower, causing a laceration to the palmar surface of the distal digit of her middle finger. This and the earlier injury subsequently required medical treatment. Throughout these events the offender remained in his position at the front of the store. Although he made no direct intervention he did not seek to disengage himself from the terrible crime which was occurring. He must accept responsibility for Stower's conduct. The two criminals then met up and ran from the store, the offender into nearby bushland, where he was confronted by an employee of the store, which had been robbed. He evaded him and continued to run, removing as he did so, items of clothing designed to disguise his appearance, including sunglasses, tracksuit pants, a jumper, shoes and socks. He also discarded a knife. Then apparently thinking better of what he had done, he ran to Wallama Clinic in the grounds of the nearby Wyong Hospital where he spoke to staff and admitted the offence. He has been nothing but full and frank in his admissions ever since ... ". 4. This was a serious criminal offence. The applicant pleaded guilty at the earliest opportunity. The judge accepted that the applicant was genuinely contrite. 5. The applicant was born on 10 January 1975. The judge found that the applicant had no relevant criminal antecedents, the only matters on his record being traffic offences. However, on 10 July 2001 in respect of an offence of drive with a high range PCA, he was placed on a bond to be of good behaviour for three years. The present offence constituted a breach of that bond. 6. The judge relied heavily on the report of 27 February 2003 of Dr Bruce Westmore, consultant psychiatrist. The applicant explained to Dr Westmore that on the day before the offence he had met up with his ex-girlfriend and her father and then with Stower, whom he had first met earlier that day. The applicant said that he had lost his money on the poker machines and that he and Stower decided to do a robbery. He was distressed because his young son was going to visit him that weekend and he had no money to buy food to feed his son. (The correct spelling appears to be Stower not Stowar) 7. Dr Westmore recorded that the applicant has had lung operations following a work injury. He was diagnosed with the illness schizophrenia a few years ago, has been hospitalised in Mandala twice, and at the James Fletcher Hospital once. He has been scheduled to hospital on two previous occasions. He suffers from drug and alcohol abuse. The applicant has been unemployed since 1995. The applicant acknowledged that what he did at the service station was wrong. 8. Doctor Westmore wrote: "On the history provided by Mr Jones, and supported to some degree by the clinical examination, he qualifies for the diagnosis of having a paranoid schizophrenic illness, possibly of a chronic course. The differential diagnosis for his mental illness would be that he has a drug-induced paranoid psychosis. He suffers from polysubstance abuse and in the past, alcohol abuse, although that problem has now gone into remission. He probably has a pathological gambling problem. He suffers chronic pain and has symptoms of anxiety." And: "This man appears to suffer chronic symptoms of the mental illness schizophrenia but there is no history to indicate that his mental illness played any direct or relevant role in the offending behaviour. He does not, therefore, have a mental illness defence available to him. He had taken five Rohypnol tablets the night before the incident, and was probably still affected by that medication, and he also had taken eight, possibly nine, cans of bourbon during the day and so alcohol may have also played some role in the matters now before the Court." And: "He needs long term rehabilitation for his drug and alcohol problems and long term psychiatric support for his mental illness. He has a number of other problems noted in this report, including chronic symptoms of pain and anxiety. He appears to be an isolated man and he has limited personal resources. He does appear to be very attached to his son, another positive prognostic feature in his background history." The report of Dr Westmore establishes that the applicant is a disadvantaged man from many perspectives and that he has reasonable prospects of rehabilitation but will need sustained support. 9. Of particular importance is the assistance which the applicant gave to the police at an early date. Information was supplied which enabled the co-accused to be identified and located and led to the police arresting and charging Stower. The judge regarded the assistance as valuable. 10. Discarded clothing with Stower's DNA was found a short time after the robbery. Stower was the dominant figure in the robbery. Stower pleaded guilty on arraignment on 30 October 2003. He was sentenced on 30 January 2004 to imprisonment for five and a half years, with a non-parole period of three years nine months. I regard this sentence as lenient, even unduly lenient. 11. In his remarks, Williams DCJ expressed the view that a head sentence in excess of six years would have been appropriate in Stower's case had it not been for the plea of guilty. Having regard to the gravity of Stower's criminality, a starting point of less than eight years could not be contemplated. In Stower's case, the plea was entered at a later date; he did not hand himself into the police as the applicant did; he provided no assistance to the authorities; his subjective case was not as powerful as that of the applicant; and Stower's criminality was greater than that of the applicant. Further, Stower had a past record of violence and Williams DCJ held that Stower's record did not entitle him to any leniency. 12. Judge Patten referred to the early surrender of the applicant to the police, his early full and frank admissions, his early plea of guilty, his contrition and his assistance to the authorities. Those matters, in combination, warranted a significant discount, one of the order of thirty-three and a third to forty per cent. 13. The applicant's complaint is that despite the judge's statements, the sentence is in error because the sentence does not reflect the matters stated in the previous paragraph. The sentence does not reflect the discount to which the applicant is entitled. Nor does it reflect the applicant's powerful subjective features. 14. The crime is a serious one, even allowing for the applicant's lesser role. While the applicant must accept responsibility for the joint criminal enterprise, the Court can have regard to the role each offender played. A starting point of six to seven years before any deductions would be correct in the applicant's case. Once a discount of thirty-three and a third per cent was applied, and allowing for the applicant's powerful subjective features, a resultant head sentence of four years would be correct. 15. The applicant's primary submission that the sentence imposed does not reflect the mitigating matters previously mentioned has been established and error has been shown. The judge correctly found that special circumstances existed. 16. Because of his disabilities, the applicant will find his time in custody particularly onerous. This much disadvantaged applicant will need extended support and supervision, as pointed out by Dr Westmore. The judge was right to take the view that the applicant needed two years on parole. This need continues despite the reduced length of the full term of the sentence. 17. It is necessary, however, to reflect on the minimum period which the applicant should spend in gaol. If it had not been for the applicant effectively handing himself into the police, his full and frank admissions, his early plea of guilty, his contrition and rendering valuable assistance to the authorities, a longer non-parole period would have been correct. The applicant has demonstrated that in his case a non-parole period of two years suffices. 18. On resentencing I have taken into account the applicant's affidavit of 12 March 2004 and that of his mother. It is apparent that the applicant's serious health problems continue. 19. I propose the following orders; 1. No material be published which would identify or tend to identify the applicant. 2. Leave to appeal granted. Appeal allowed. Sentence quashed. 3. In lieu of the sentence imposed, the applicant is sentenced to imprisonment for four years with a non-parole period of two years, commencing on 14 March 2003 and expiring on 13 March 2005. 20. HODGSON JA: I agree. The result proposed by Smart AJ is, I believe, one that is appropriate in this case, without regard to issues of parity and proportionality with regard to the co-offender Stower. 21. However, I would also say that it seems to me that the result bears a relationship to the penalty imposed on Stower, such that any continuing disproportion is favourable to Stower, rather than the appellant, when one has regard to the factors appropriate to be taken into account in the appellant's favour in mitigation of his penalty. 22. SHAW J: I agree in substance with the judgment of Smart AJ. However, I would add that I am unable to see, as at present advised, that the sentence in relation to Mr Stower imposed by his Honour Judge Williams was out of the bounds of his Honour's reasonable discretion in sentencing. 23. Despite that observation, I agree with the judgments that have been delivered in this Court. 24. HODGSON JA: The orders of the Court will be as proposed by Smart AJ. ********** Last Modified: 03/26/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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