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: During the robbery I was crouched on the floor, being screamed at, trodden on and was constantly being covered in smashing glass from the cabinets next to me being smashed, I was absolutely terrified that I would not see my children again. I cannot get that feeling of fear to leave me. I suffer constant nightmares of having glass smashed over me, of being stabbed and cut. He constantly screamed at me that I would be killed if I moved, that he would "fucking kill me" again and again and again. I jump at the sound of any car screeching and speeding, instantly taken back to the moments of the robbery. I have recurring panic attacks brought on by the terror of the robbery. As a result of the robbery I can no longer go to work in our shop for fear of another robbery, the trauma is constant and real. I am terrified of guys in beanies/caps that are so commonplace these days as they instantly take me back to the robbery. I have tried hard to move on and done to a large extent but the vulnerability and fear never ever leave. This has meant a huge economic hardship to us, huge guilt on my behalf, it's wrecked our business. I have been treated for severe anxiety and panic attacks, I found myself a few months after the robbery to be not coping at all in day to day life. I was unable at times to leave the house. I would be sitting sobbing and shaking in the car in the garage trying to convince myself its ok to go out but being so terrified, unable to do so. This permeated through every activity, every day. I cannot wait in queues in shops as I have this huge surge of fear that it will be robbed while I am there. 12 The statement of the proprietor of the cheesecake shop, Mr Pereira, and an associated psychologist report contained references to the effect upon him of nine other robberies to which he had been subjected. However, the statement contains the following: I must emphasise that this last robbery by Donald Solomon was by far the most violent and terrifying for me, and has had the most severe and lasting impact. As a result of the bashing that I received in this robbery, my face was cut and bruised and a broken front tooth was stabilized and a plate requires (sic) to be inserted. Another condition that remains is that I see flashing lights on the periphery of my vision at dusk. An eye specialist has diagnosed damage to the soft tissue of the eye as a result of the impact to my head of the iron rod used to bash me during the robbery. The statement went on to deal with the emotional effects upon him of the offence in which the applicant was involved including constant headaches, sleeplessness and general nervousness. 13 In respect of the effect of the offences on the victims, the Judge said: I accept having read the victim impact statements that the robberies occasioned significant emotional distress which continues to resonate with both victims and in the case of Mr Pereira physical injuries some of which persist. 14 Section 21A(2) sets out a number of aggravating factors that a sentencing judge is required to take into account in determining the appropriate sentence to be imposed for an offence. One of those aggravating factors is contained in paragraph (g) which states "the injury, emotional harm, loss or damage caused by the offence was substantial" 15 The relevance of the effects on victims of an armed robbery offence to the aggravating factor under s 21A(2)(g) was considered in R v Youkhana [2004] NSWCCA 412. In that case the sentencing judge had found the aggravating factor to be present when he held that there "clearly was some emotional harm to the three victims" of an armed robbery offence. That finding was made on the basis of part of the statements of two of the victims describing their reactions to the threats made by the robber. One victim stated that he "started to feel scared" during the course of the robbery and the other stated that he was concerned that the robber might shoot him when he pointed the weapon at him. This victim also stated, "I am still shaken and very nervous as a result of the incident." 16 The Court held that the sentencing judge was in error in taking into account those statements as being evidence of an aggravating factor under s 21A(2)(g). In particular Hidden J, with whom the other members of the Court agreed, stated: [26] However, before a judge could find "substantial emotional harm" within the meaning of s 21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery. There was no such evidence here. 17 As I understand the judgment of Hidden J, there would need to be evidence of "an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery" before the aggravating factor could be found because the seriousness with which courts consider the offence of armed robbery offences generally is based, in part at least, upon the nature of the threat posed to the victim and the normal reaction of a person to that threat. The courts sentence that offence on the assumption that the victim of an armed robbery would have been put in fear of death or serious injury by the threats made by the robber and the weapon with which he is armed. 18 The relevance of the effect upon the victim of an armed robbery offence to sentencing for that offence was considered in R v Henry (1999) 46 NSWLR 346, the guideline judgment on sentences for armed robbery offences. The following is the relevant passage in the judgment of the Chief Justice: 94 The second body of material to which the Crown sought to make reference concerned the impact of armed robbery on victims. This included academic literature and the report of a clinical psychologist prepared for these proceedings. This material was said to establish the objective gravity and seriousness of the offence of armed robbery. There is no doubt that impact on victims is an aspect of the seriousness of an individual offence. General patterns of impact of the character referred to in the literature to which the Crown referred, including statistical surveys, confirm the seriousness of the offence. 95 Plainly the actual impact in each particular case will vary and, appropriately, cause variations in the sentence imposed. This is not a manifestation of inconsistency. Rather, it represents the consistent application of a principle which varies in its import according to the circumstances. 96 The surveys and other literature, to which the Crown referred, establish that armed robbery is perceived as a life threatening situation for a majority of victims. In one Australian survey 86 per cent reported the robbery as being the most threatening experience they had ever had. Victims experienced both physiological and psychological problems. The physical effects included chronic nervousness, insomnia, nightmares, headaches, digestive problems. Psychological problems included generalised fear, depression, aggressiveness, mood changes. Sometimes the response was such as to develop into the clinical condition of post traumatic stress disorder. 97 The surveys and academic literature confirm what trial judges and appellate judges would in any event know, namely, that armed robbery is a serious offence by reason, inter alia, of the significant impact it has on its victims. Indeed, the submissions on behalf of the Respondents to the Crown appeals did not, in contrast with criticism of the reliance by the Crown on crime statistics, challenge the materials put before the Court on the impact of the crime of armed robbery on its victims. 98 The Crown also put before the Court a report prepared for purposes of this appeal by a clinical psychologist on the effects of emotional distress in the aftermath of personal trauma, not limited to cases of armed robbery. Nothing in the report was startling or controversial and no submissions were directed to it. 99 This material confirms what this Court would in any event accept on the basis of commonsense and common knowledge. Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment. 19 Because the court assumes, without evidence, that the victim of a robbery would be affected both physically and psychologically from the commission of the offence and because that consequence of the offence is taken into account generally in determining that the offence is to be considered as a serious one requiring condign punishment, it would be unfair for the court to take into account as an additional aggravating factor under s 21A(2)(g) the fact that the victim of an armed robbery suffered the type of harm that is assumed to be the case for any victim of that offence: there would be in effect a double counting of an aggravating feature of the offence. Therefore, in order to take into account the effect upon the victim of the offence as an aggravating feature over and above that which applies to armed robbery offences in general, something more is required than that which the court has assumed to be the case. 20 Nothing in Youkhana should be taken to suggest that the normal or assumed effects of an armed robbery upon a victim are not substantial. The case is simply authority for the proposition that, in order to avoid double counting of aggravating factors, the court cannot take into account as an aggravating feature of a particular crime the effects upon a victim that would be expected to result from the commission of that type of offence. There may be cases at the margin where some judgment might have to be made about whether the severity of the effect of a particular offence on a particular victim is such that the offence should be considered to be aggravated. But the present case is not one of them. In my opinion from the passages of the victim impact statements set out above it is clear that it was open for the Judge to find that the offences were each aggravated by the effect that they had upon the relevant victim. 21 The Judge referred to the "significant emotional distress" of the victims whereas the aggravating factor refers to the injury and emotional harm being "substantial". In R v Wickham [2004] NSWCCA 193 this Court referred to the importance of sentencing judges making findings under s 21A(2) in accordance with the words of the particular aggravating factor being addressed. However, in the present case there was ample evidence properly admissible in the victim impact statements to justify a finding that the injury or emotional harm occasioned to each of the victims was substantial and there was no error in her Honour treating the offences as aggravated under s 21A(2)(g). 22 The offences were each serious examples of their kind. The Judge rightly observed that the guideline in Henry did not apply because the offences were not of the kind that fell within the ambit of the guideline. The first offence was in my view one falling within the upper range of seriousness of an offence of its kind by reason of the nature of the offence and the amount of property stolen. The applicant could not receive any leniency by reason of his criminal record and his particular offending was aggravated by the fact that he was on a good behaviour bond at the time. In my opinion a sentence of 10 years was well justified for the offence and I am not persuaded that it is manifestly excessive when regard is had to the maximum penalty for that offence. 23 Counsel for the applicant has drawn the Court's attention to statistics for offences of this nature and submitted that a sentence of 10 years was at the top of the range. That fact itself does not indicate to me that the sentence was excessive. Quite frankly, as against a maximum penalty of 20 years I cannot understand how any lesser sentence could have been imposed for the offence. 24 The sentence imposed for the second offence was one of eight years. As I understand the submissions made on the applicant's behalf, it is not suggested that this sentence was itself excessive. This was also a serious instance of this type of offence by reason of the actual violence inflicted upon the proprietor of the shop who had the audacity to try to protect his property. For his trouble he was forced to the ground and kicked by the applicant and his co-offender inflicting injuries upon him of a substantial nature, to say nothing of the psychological trauma. The sentence imposed was in my view an appropriate one. 25 There clearly needed to be some degree of accumulation of the sentences for the two offences, they being completely distinct acts of serious criminality. 26 The Judge determined that the overall sentence to reflect the totality of the criminality was one of 12 years imprisonment. The submission is made that the overall sentence is manifestly excessive and again resort is made to statistical information to submit that such a sentence exceeds the range for multiple offences of armed robbery. It was submitted that the highest sentences imposed for multiple armed robberies is 12 years and yet in the present case a discount of 10 per cent was given. Further, decisions of this Court were relied upon to show that the overall sentence was excessive when compared with individual sentences imposed upon particular offenders. 27 Reference is made to the decision of a two judge bench in R v Tozer [2003] NSWCCA 72 where for two offences of armed robbery the applicant received sentences totalling seven and a half years with a non-parole period of five years. The submission is that this is an example of the type of sentence imposed upon persons sentenced for two armed robberies. However, the robberies in that case were not of the same seriousness as in the present case and the Henry guideline applied to them. The discount for the plea was 25 per cent. The subjective features were different to the present applicant, some more favourable and some less favourable. The sentence confirmed by this Court tells me nothing about the appropriateness of the sentence in the present case. 28 Reliance is placed upon cases where there were far more robberies committed than in the present case and yet similar or lesser sentences were imposed. For example in R v Trad [2003] NSWCCA 213 the applicant was sentenced to a total term of imprisonment of 12 years with a non-parole period of 8 years for an aggravated armed robbery, seven counts of robbery and attempt robbery and four further offences of armed robbery taken into account on a Form 1. The discount was between 10 and 15 per cent. Some of the offences were committed while on bail. None of the offences individually were as serious as those committed by the applicant. This was an application for leave to appeal and was dismissed notwithstanding that there had been error shown in relation to the determination of the discount for the plea. 29 In R v Dorsett [2002] NSWCCA 326 an overall sentence of 12 years with a non-parole period of 8 years was imposed for six offences of armed robbery with five further counts being taken on a form 1. The discount was 20 per cent. The robberies were of the nature considered in Henry, that is offences where the applicant went into stores armed with a knife and threatened the attendant into giving him money. There was no actual violence. The applicant was on parole. The application was dismissed. 30 In R v Gonzales [2002] NSWCCA 287 a sentence of 12 years with a non-parole period of 9 years for 20 armed robberies was reduced by a two judge bench to a total sentence of 10 years and 6 months with a non-parole period of 7 years and 10 months. The discount was 25 per cent. The offences were of the type considered in Henry and there was no actual violence. On occasions the applicants left the scene without any property when the victim refused to comply with their demands. It was held that the sentence imposed did not reflect the subjective features of the applicants or the totality of the criminality. With respect to the members of that bench, I have difficulty in understanding how the sentences imposed by this Court reflected the objective seriousness of the offences. 31 There is nothing in the decisions to which this Court has been referred that lead me to the view that the sentences imposed for the two serious instances of armed robbery for which the applicant was sentenced are manifestly excessive. Although the total sentence imposed was at the top of the range, it was one that it my view was appropriate to reflect the seriousness of the offences committed by the applicant and the fact that he was subject to a good behaviour bond at the time. 32 I would grant the applicant leave to appeal but dismiss the appeal. 33 LATHAM J: I agree with Howie J. ********** 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.