New South Wales Court of Criminal Appeal R v ROBERTS [2005] NSWCCA 401 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 28 September 2005 JUDGMENT DATE: 22 November 2005 JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Rothman J at 3 DECISION: Leave to appeal be granted and the appeal be dismissed. CATCHWORDS: Criminal Law - Sentencing - Aggravated break, enter and steal - s.112(2) Crimes Act - Flexibility in sentencing - No error of law - Not manifestly excessive - Parity LEGISLATION CITED: Crimes Act 1900 (NSW) CASES CITED: Johnson v The Queen (2004) 78 ALFR 616 The Queen PARTIES: ROBERTS, Troy John FILE NUMBER(S): CCA 2005/994 Crown - Mr G Rowling COUNSEL: App - Ms N Mikhaiel LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/1174 LOWER COURT JUDICIAL OFFICER: Morgan DCJ - 1 - IN THE COURT OF CRIMINAL APPEAL 2005/994 McCLELLAN CJ at CL HISLOP J ROTHMAN J 22 November 2005 REGINA v Troy John ROBERTS Judgment 1 McCLELLAN CJ at CL: I agree with Rothman J. 2 HISLOP J: I agree with Rothman J. 3 ROTHMAN J: The appellant, Troy John Roberts, seeks leave to appeal against the sentence imposed upon him for aggravated break, enter and steal contrary to the provisions of s.112(2) of the Crimes Act 1900 (NSW). If leave is granted, the appellant seeks to agitate the appeal on the basis that the sentence imposed was manifestly excessive. Facts 4 At or about 4.00 am on 15 January 2002 three men, Messrs Sharpe, Patterson and Roberts broke into and entered the Harvey Norman Bathurst Warehouse at Kelso. Each of them was wearing a balaclava. They were carrying a pinch bar (at least one between the three of them) and each of them had a two-way radio device. 5 Upon entering the warehouse, they collected a number of electrical items and stacked them on trolleys intending to steal them. Unbeknownst to them their entry into the warehouse triggered an alarm system and a security guard was sent to the warehouse. When the security guard entered the warehouse the robbers, unsurprisingly, left. In doing so they left behind the electrical items they had collected and the security guard chased them over a couple of properties towards a caravan park. During the chase the security guard fired two shots, one of which hit one of the men, Mr Sharpe, whom he apprehended. Mr Sharpe was found to be in possession of a two-way radio tuned to channel 28. Messrs Roberts and Patterson escaped and met up with Mr Multari who was driving the getaway car, being the car that Mr Sharpe had hired. The three of them then drove to Sydney and enroute to Sydney they were stopped by police at Lithgow and were arrested. The car in which they were travelling contained the pinch bar wrapped in a plastic bag, a pair of binoculars, a radio scanner and five two-way radios, four of which were tuned to channel 28. 6 Mr Roberts, at all times, maintained his innocence of the charges against him and continues to maintain his innocence even after conviction. There is no appeal against the conviction. Because of the maintenance of his innocence, Mr Roberts has refused to accept guilt for the offence that has been found proven and expresses no contrition for that which happened and that which, on his version, did not involve him. 7 There were varying degrees of criminality associated with the break enter and steal which, because it was done in company, is committed in circumstances of aggravation and covered by the terms of sub-section 112(2) of the Crimes Act. The sentencing judge found that the offence was "part of a planned criminal activity" but did not consider that the applicant was involved in the planning to the same extent as the offenders Messrs Sharpe and Multari. The criminality was, in the view of the sentencing judge, equivalent to that of Mr Patterson. This assessment is accepted and, indeed, relied upon by counsel for the appellant. Mr Patterson pleaded guilty. Mr Patterson expressed contrition and was sentenced to a total term of 3 years and 3 months with a non-parole period of 2 years. This sentence was imposed after allowing a discount of 15%, on account of the guilty plea. The sentencing judge, in sentencing Mr Patterson, made clear that the original head sentence, before discount was applied, was for a period of 4 years. 8 Her Honour Judge Morgan, in sentencing Mr Roberts and having come to the conclusion that the criminality of Mr Roberts was equivalent to that of Mr Patterson, imposed a sentence of 4 years to date from 29 April 2004 with a non-parole period of 2½ years to expire on 28 October 2006. 9 Counsel for the appellant seeks to rely upon statistical evidence on sentences imposed for crimes of a like kind. Courts must be wary when relying upon statistical evidence in that, if applied strictly, the necessary flexibility involved in sentencing would be constrained. Nevertheless, the statistical evidence submitted does not suggest that the sentence imposed by her Honour Morgan DCJ was outside the range of sentences available. This was not the first offence of the applicant and previous offences, while not for the same crime, involve similar kinds of criminal activity. In the circumstances it was appropriate for her Honour to impose condign punishment. 10 This Court has often stated that there is a necessity to allow sentencing judges as much flexibility as is consistent with legal principle in the determination of sentences imposed. This court will not tinker with a sentence imposed and will not interfere with the exercise of judgment by a sentencing judge below unless the principles in House v The King are satisfied. In Johnson v The Queen (2004) 78 ALJR 616 at [26], Gummow, Callinan and Heydon JJ said: "Judges of the first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected." 11 The exercise of jurisdiction by Morgan DCJ in sentencing Mr Roberts, the applicant for leave to appeal, does not suffer from any error of the kind described in House v The King and it is not manifestly excessive. It accords with the statutory regime under which the jurisdiction is exercised and is wholly consistent with the parity principles associated with the sentence imposed upon Mr Patterson. 12 It is suggested, and must be for the applicant to succeed, that the sentence of Mr Patterson was itself excessive. There is no warrant for such a criticism and there is no basis upon which this Court should interfere with the judgment below. 13 For these reasons I propose that leave to appeal be granted and the appeal be dismissed. ********** 13/12/2005 - - Paragraph(s) 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.