Regina v Solomon [2005] NSWCCA 158

Reported Decision : 153 A Crim R 32

New South Wales Court of Criminal Appeal

CITATION: Regina v Solomon [2005] NSWCCA 158

HEARING DATE(S): 22/04/2005

JUDGMENT DATE: 28 April 2005

JUDGMENT OF: Grove J at 1; Howie J at 2; Latham J at 33

DECISION: Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentencing - s 21A(2) aggravating factors - harm suffered by victims of armed robbery offences.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 21A

R v Youkhana [2004] NSWCCA 412 R v Henry (1999) 46 NSWLR 346 R v Wickham [2004] NSWCCA 193 CASES CITED: R v Tozer [2003] NSWCCA 72 R v Trad [2003] NSWCCA 213 R v Dorsett [2002] NSWCCA 326 R v Gonzales [2002] NSWCCA 287

PARTIES: Regina v Donald John Solomon

FILE NUMBER(S): CCA 2004/3315 CCAP

V. Lydiard - Crown COUNSEL: P. Winch - Applicant

S. Kavanagh - Crown SOLICITORS: S.E. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0940

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/3315 CCAP

GROVE J HOWIE J LATHAM J

THURSDAY 28 APRIL 2005 REGINA v DONALD JOHN SOLOMON Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: The applicant was sentenced in the District Court by Judge Ainslie-Wallace (the Judge) for two offences contrary to s 97 of the Crimes Act, one being an armed robbery and the other an attempted armed robbery. In each case the maximum penalty prescribed was imprisonment for 20 years. In respect of the offence of armed robbery the Judge was asked to take into account one matter on a Form 1 being a charge that the applicant allowed himself to be conveyed in a stolen vehicle. The Judge also sentenced the applicant for an offence of break enter and steal arising from a breach of a good behaviour bond for that offence. 3 In respect of the offence of attempted armed robbery the Judge sentenced the applicant to imprisonment for 8 years to date from 5 June 2003 with a non-parole period of 6 years to expire on 4 June 2009. For the offence of armed robbery, and taking into account the matter on the Form 1, the Judge sentenced the applicant to imprisonment for 10 years to date from 5 June 2005 with a non-parole period of 6 years to expire on 4 June 2011. For the breach of the bond the applicant was sentenced to imprisonment for three years to date from 5 June 2003. The overall sentence imposed upon the applicant was, therefore, one of 12 years with a total minimum period of custody of 8 years. 4 The applicant initially pleaded not guilty to the charges but, when challenges to evidence in the Crown case proved unsuccessful, the applicant changed his plea on the third day of the trial. The Judge allowed a discount of 10 per cent for the utilitarian value of the late pleas of guilty. 5 The armed robbery offence was committed on 23 December 2002 when the applicant in company with two other persons entered a jewellery store in Paddington. The men wore hats and sunglasses by way of disguise and were armed with iron bars. The female proprietor of the store attempted to telephone for help but one of the robbers smashed the phone and she was forced to lie on the floor. Glass display cases were broken. Property to the value of $500,000 retail was taken before the men left in a vehicle that had been stolen earlier that day. The applicant cut himself during the offence and DNA from the blood was matched to him. None of the property has been recovered. 6 The attempted armed robbery took place on 17 January 2003 when the applicant and another person entered a cheesecake shop in Seven Hills. Again both men wore hats and sunglasses and carried iron bars. When the shopkeeper attempted to prevent the robbery he was pushed to the ground and kicked, suffering abrasions to the nose and a dislodged tooth. The robbers were unsuccessful in their attempt to take the cash register and left empty-handed. During the struggle with the proprietor, the applicant's hat and glasses came off and he was later identified in a video of the robbery taken by a security camera. On 12 February 2003 the applicant surrendered himself to police. 7 The applicant was aged 28 years at the time of sentencing and is of the Aboriginal race. He has a record for offences of dishonesty and personal violence commencing in the Children's Court in 1992. He served short sentences of imprisonment in 1995, 1998 and 1999. He was placed on a 12 month good behaviour bond in February 2002 for a break, enter and steal offence. He was in breach of that bond when he committed the two robbery offences. 8 There were in evidence two psychological reports that indicated that the applicant's intellectual functioning was at the borderline between mild intellectual handicap and low average intellectual ability. The Judge rejected a submission that, because of the applicant's limited mental capacity, less weight should be given to general deterrence than might otherwise have been the case. It is not suggested that the Judge was in error in this regard. The reports also set out the applicant's dysfunctional background and his use of drugs from the age of 14 when he commenced using cannabis to the age of 23 when he progressed to heroin. The Judge indicated in her sentencing remarks that she could not ignore the circumstances of the applicant's past and that they provided "a cogent explanation for his past criminal offending". 9 The sentencing judge took into account as mitigating factors under s 21A(3) remorse, the prospect of rehabilitation and the plea of guilty. As I have already indicated the discount for the utilitarian value of the plea was 10 per cent. 10 The Judge took into account a number of aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act but the only one in contention was that in relation to the effect of the offences upon the victims. In that regard there were in evidence two victim impact statements, one in respect of each of the robbery offences. The first ground of appeal is that both these statements contained inadmissible material that caused an error in the exercise of the Judge's sentencing discretion. 11 The Crown concedes that there were parts of both of the victim impact statements that should have been rejected had objection been taken to the statements or parts of them. In the case of the proprietor of the jewellery store, she had referred to the effects of a second robbery of the premises that did not involve the applicant. The victim also made comments about the sentencing process and the court's perceived attitude to offenders that were inappropriate for inclusion in a victim impact statement. However the statement contained the following in respect of the offence committed by the applicant: