R v HERNANDO [2005] NSWCCA 59

New South Wales Court of Criminal Appeal

CITATION: R v HERNANDO [2005] NSWCCA 59

HEARING DATE(S): 3 February 2005

JUDGMENT DATE: 3 February 2005

JUDGMENT OF: Studdert J at 26; Hulme J at 1

DECISION: Appeal dismissed

Regina PARTIES: Janian Roy HERNANDO

FILE NUMBER(S): CCA 2004/2497

Crown: E Wilkins COUNSEL: Applicant: R Button

Crown: S Kavanagh SOLICITORS: Applicant: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3049

LOWER COURT JUDICIAL OFFICER: Marien DCJ

- 7 - IN THE COURT OF CRIMINAL APPEAL 2004/2497

STUDDERT J HULME J

Thursday, 3 February 2005 R v Janian Roy HERNANDO Judgment

1 HULME J: On 20 February 2004 the above named applicant for leave to appeal was sentenced in respect to a number of offences. On a count of armed robbery and taking into account a further charge of armed robbery the applicant was sentenced to imprisonment for four years and seven months, including a non-parole period of two years and seven months, both periods dating from 11 October 2003. 2 Both offences were committed in company, one at about 3.50pm and the other at about 4.15pm on 22 August 2002. Each offence involved the placing of a knife against the side of a train passenger and the demanding of a mobile phone and wallet. The drivers licences of both victims were inspected and one victim was told that his address was an easy one to remember. 3 The plea of guilty in respect of the first of these matters and the applicant's agreement to the second matter being taken into account occurred during the course of the trial for these offences. 4 Another indictment contained further charges. There were two further offences of armed robbery and one of assault with intent to rob whilst being armed with an offensive weapon. These charges arising in respect of an incident when the applicant approached three persons in a carpark. The applicant produced a knife and grabbed one of the victims, pointed the knife at his stomach, threatened to stab him and demanded the victims' phones, watches and money. Again he looked at the licences of all three victims stating "don't do anything, I'll get youse because I know where you live now." These offences occurred at about 12.30am on 20 August 2002. 5 Another offence, the fourth on the second indictment, occurred at about 7.05pm on the same day when the applicant and a co-offender approached another victim and a third person sitting in a carpark. The applicant produced a knife, placed it against the victim's ribs saying "just give me your phone or I'll stab you." The victim then pushed the applicant's hand away before fleeing. The charge in respect of this incident was also of assault with intent to rob whilst armed with an offensive weapon. 6 In respect of these last four offences the applicant was sentenced to imprisonment for five years and six months, including a non-parole period of three years and six months, both such periods also to date from 11 October 2003. 7 At the time of these offences the applicant was on parole, having been sentenced in December 2001 to imprisonment for two years, including a non-parole period of six months, both such periods to commence on 6 September 2001. After the applicant was arrested on 27 September 2002 his parole was revoked effective 22 July 2002 and the revoked parole period extended to 11 October 2003, the date Judge Marien selected as the commencing date for the sentences he imposed. 8 During the hearing of the appeal the applicant was given leave to rely upon evidence which, while not fresh, was thought proper by the Crown to have before the Court which sets out the history of proceedings before the Parole Board. That history indicates that the applicant relapsed on one occasion on 26 June 2002. He was further directed by the parole authorities to remain at home at night unless otherwise instructed but on 17 and 18 July 2002 he seems not to have done so. 9 On 18 July the applicant was again warned he was to remain at home at night and he was to continue to contact the Wollongong Crisis Centre until his induction into what would seem to be a drug rehabilitation program. He was further directed to report on 22 July 2002 and he failed to do so. He then appeared to stabilise for the following two weeks, according to a report from the Probation and Parole Service, but after those two weeks ceased contact with his family and the service. It would seem that on 10 October 2002 his parole was revoked on the grounds of failure to abide all reasonable directions, fail to report to an officer of the Probation and Parole Service and fail to reside at an address agreed upon. 10 By that date of course the applicant had been arrested. The matter was adjourned to December for the results of the outstanding court matters and to set a parole consideration date but the Board does not seem to have embarked upon a full consideration of the applicant's situation until after he was sentenced. 11 Having regard to the grounds of appeal it is unnecessary for me to refer to all of the subjective matters which were raised or taken into account on the sentencing of the applicant. It should, however, be mentioned that he was born in January 1982 and prior to the sentencing with which this Court is concerned had a not insignificant record. 12 That record commenced in August 1998 when he was convicted of having goods in custody, robbery in company, in respect of which the applicant was charged on 11 June 1999 and in respect of which a community service order was imposed; robbery in company, in respect of which the applicant was charged on 10 September 1999 and in respect of which a recognisance was imposed; stealing from a person, and two counts of assault occasioning actual bodily harm, in respect of which the applicant was charged on 5 February 2001; and a further charge of robbery in company, in respect of which the applicant was charged on 6 September 2001. 13 In respect to these last four charges, and a further one of shop lifting, the applicant was sentenced to imprisonment for six months commencing 6 September 2001, that is to a period concurrent with the non-parole period of the two year sentence to which I have previously referred. 14 Thus, prior to committing the offences with which this Court is concerned, the applicant had previously been convicted of four offences of robbery in company, one of stealing from a person and two of assault occasioning actual bodily harm. 15 There are two grounds of appeal. 1. The learned sentencing judge has wrongly taken into account elements of the offences as aggravating features, contrary to the concluding words of section 21A(2) of the Crimes (Sentencing Procedure) Act. 2. The learned sentencing judge erred by not backdating the sentence so that it was at least partially concurrent with the expired balance of parole, especially in light of the fact that the breach of parole was taken into account as an aggravating feature.