R v Harris [2005] NSWCCA 204

New South Wales Court of Criminal Appeal

CITATION: R v Harris [2005] NSWCCA 204

HEARING DATE(S): 1 June 2005

JUDGMENT DATE: 1 June 2005

JUDGMENT OF: Studdert J at 1; Howie J at 17; Latham J at 18

DECISION: Leave to appeal granted; appeal dismissed.

Crimes Act, s 97 LEGISLATION CITED: Crimes (Sentencing Procedure) Act

CASES CITED: R v Henry (1999) 46 NSWLR 346

PARTIES: Regina v Wayne John Harris

FILE NUMBER(S): CCA 2005/524

V. Lydiard (Crown) COUNSEL: L. Flannery (Appellant)

S. Kavanagh (Crown) SOLICITORS: S.E. O'Connor (Appellant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1200; 03/11/1199

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/524

STUDDERT J HOWIE J LATHAM J

Wednesday 1 June 2005 REGINA v WAYNE JOHN HARRIS Judgment 1 STUDDERT J: On 27 August 2004 the applicant, Wayne John Harris, was sentenced in respect of two charges of armed robbery. When sentencing the applicant for the later of the offences, the sentencing judge, as requested, took into account a further offence scheduled under the Crimes (Sentencing Procedure) Act. 2 The sentence imposed for the second offence charged was partially accumulated on the sentence imposed for the earlier offence. The earlier offence attracted a fixed term sentence of three years six months to commence on 26 June 2003 and to expire on 25 December 2006. The later offence, taking into account the matter on the Form 1, attracted a non parole period of three years to date from 25 September 2004 and to expire on 25 September 2007, and a total term of five years to expire on 25 September 2009. 3 The applicant seeks leave to appeal against the sentences imposed. 4 The offence of armed robbery is one for which s 97 of the Crimes Act provides a maximum penalty of twenty years imprisonment. 5 The sentencing judge was provided with a statement of agreed facts. His Honour set these out at pp 1 and 2 of the remarks on sentence: "As to the first charge, at about 3.30pm on 25 June 2003 a male person armed with two long bladed kitchen knives entered the ANZ bank at Epping. That person ordered the customers to lay on the floor and demanded money from two tellers who were in that bank. He also threatened to stab a customer by the name of Chopra. The robber wore a balaclava and sunglasses. He was dressed in a grey sweatshirt with a Puma logo across his chest. Black tracksuit pants and light coloured running shoes with black laces. As a result of his demands the robber was given $867 and fled from the bank. As to the second offence, which relates to the events of 26 June 2003. A male entered the Turramurra Pharmacy at about 3pm. He demanded money and prescription drugs, Valium and Serapax from a sales assistant and was given approximately $1,000 in cash and a quantity of drugs in white yellow and blue boxes. That person wore wrap-around sunglasses and a Puma top. That man was seen to run from the pharmacy with the money and drugs he obtained, seen to deposit knives in a council wheelie bin near the shop and then ran to the nearby Turramurra railway station where he boarded a northbound train. Police arrived at the railway station as the train was about to leave. The train was stopped and a police officer was directed to the lower level of the front carriage by passengers in that train. The Accused was found and arrested. $1,025 in cash was secreted in his socks and located near him were boxes of drugs taken from the pharmacy. At the time of his arrest the Accused was wearing a Puma shirt which appeared to be identical to the one worn by the person who robbed the ANZ bank on the previous day. The Accused participated in an electronically recorded interview, admitted he was involved in the Turramurra pharmacy but named another person as the actual person who had robbed the pharmacy. He denied any responsibility for the committing of the Epping robbery." 6 The Form 1 matter concerned the attempted robbery of the Haymarket branch of the Commonwealth Bank. That attempt was committed shortly before the robbery at the Turramurra pharmacy. At about 1.00 pm on 26 June 2003 the applicant entered the Haymarket branch of the Commonwealth Bank armed with two knives. His head was covered with a beanie with two eyeholes cut out. He demanded money from the teller, who activated the security screens. The applicant fled from the bank empty-handed. He deposited the knives in a nearby garbage bin and proceeded to catch the train to Turramurra. 7 On 9 December 2003 the applicant was committed for trial in respect of the armed robbery committed on 26 June 2003 having previously indicated he proposed to plead guilty to the offence of 25 June 2003. Then, on 19 April 2004, he pleaded guilty to both offences charged and asked that the attempted armed robbery on 26 June 2003 be taken into account on the Form 1. 8 The sentencing judge reviewed the relevant subjective features in the case in the remarks on sentence, by which time the applicant was twenty-three years of age. 9 The applicant had a previous criminal history, having been convicted of offences of goods in custody, obstructing an officer in the execution of his duty, offensive language, shoplifting, administering a prohibited drug, entering enclosed lands, taking and driving motor vehicles without consent, larceny, and negligent driving. None of those earlier offences attracted a custodial sentence. 10 The applicant became a drug user, starting with cannabis at the age of thirteen, and he progressed onto narcotics by the time he was fifteen years of age. He had a daily heroin habit from the age of seventeen up to the time of his arrest, and attempts at rehabilitation before his arrest had been unsuccessful. However, the applicant had become drug free whilst in custody. 11 The judge remarked that the applicant had the benefit of a supportive family and a good education. At the time of sentence, the applicant was supported not only by his parents but by a young woman with whom he had formed a relationship. There were two children of that relationship, the first of whom had died of cot death shortly after birth. An earlier relationship had ended in tragedy when the applicant's then girlfriend had been killed in a motor vehicle accident whilst pregnant with the applicant's child. 12 The sentencing judge noted that the applicant had expressed remorse and contrition by writing letters to victims of his crimes. His Honour also noted that the applicant had taken positive steps towards his own rehabilitation, that he would require professional assistance to overcome his grief issues by reason of the deaths referred to and also that he would require professional assistance for drug issues. 13 His Honour regarded the objective criminality displayed by the applicant as high but determined that it was appropriate to discount the sentences that would normally have been imposed by approximately twenty-five percent by reason of the pleas entered. 14 It has been submitted that the sentences imposed, viewed individually and/or as an effective total, were manifestly excessive, particularly having regard to the favourable subjective findings made by the sentencing judge as to the applicant's supportive parents and supportive partner, his attempts to address his dependency on drugs and his remorse and contrition. It was submitted that there were sufficient features of the case profile to enliven the guideline in R v Henry (1999) 46 NSWLR 346. Since the judge allowed a twenty-five percent discount, the starting point for the second count must have been six years eight months, and this was significantly higher than the upper term of five years indicated in Henry. Ms Flannery in her written submissions and in her submissions before this Court has put all that could possibly be put in support of this application. 15 However, in my opinion, the sentences imposed were not manifestly excessive. The fixed term sentence for the earlier offence was well within the range indicated in Henry. Moreover, I detect no error in the partial accumulation of the sentence for the later offence and, particularly when one has regard to the circumstance that his Honour was required to take into account the Form 1 matter when sentencing for the offence committed at the pharmacy, a non parole period of three years and a total term of five years was within the sentencing range available to his Honour for the later offence. A reading of his Honour's comprehensive remarks on sentence discloses no error in approach and having regard to the serious nature of the offences and considerations of general and specific deterrence, I see no basis upon which these sentences ought to be disturbed. 16 I would grant leave to appeal, but in my opinion the appeal should be dismissed. 17 HOWIE J: I agree. 18 LATHAM J: I also agree. 19 STUDDERT J: The orders of the Court will be as I have proposed. **********