New South Wales Court of Criminal Appeal CITATION: Regina v Taylor [2005] NSWCCA 242 HEARING DATE(S): 28 June 2005 JUDGMENT DATE: 28 June 2005 JUDGMENT OF: Grove J at 1; Hoeben J at 26; Hall J at 27 DECISION: APPEAL ALLOWED; APPELLANT RESENTENCED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - ELEMENT OF OFFENCE TREATED AS ADDITIONAL AGGRAVATING FACTOR - PARITY WITH CO-OFFENDERS - LONG PRISON TERM CONTRASTED WITH WHOLLY NON-CUSTODIAL PUNISHMENTS - LONG DELAY IN OFFENDER BEING TRIED OWING TO FINDINGS OF UNFITNESS TO BE TRIED - SIGNIFICANT MENTAL HEALTH ISSUES LEGISLATION CITED: s 21A(2) Crimes (Sentencing Procedure) Act 1999 PARTIES: Regina v Darren Rodney Taylor FILE NUMBER(S): CCA 2005/610 G. Rowling (Crown) COUNSEL: J. Stratton SC (Appellant) S. Kavanagh (DPP) SOLICITORS: S. O'Connor (Appellant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 01/31/0204 LOWER COURT JUDICIAL OFFICER: Bell DCJ IN THE COURT OF CRIMINAL APPEAL 2005/610 GROVE J HOEBEN J HALL J Tuesday 28 June 2005 REGINA v DARREN RODNEY TAYLOR Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Bell DCJ in the District Court following the trial of the applicant at Tamworth upon an indictment containing two counts charging breaking, entering and stealing and robbery with a dangerous weapon. Those offences carry prescribed maximum penalties of fourteen years and twenty five years imprisonment respectively. His Honour sentenced the applicant on count 1 to imprisonment for a fixed term of four years and on count 2 to imprisonment consisting of a non parole period of two years with a total term of four years and six months commencing after the service of three years, part of the sentence imposed upon the first count. The effective aggregate sentence amounted to a non parole period of five years with a total term of seven years and six months. His Honour's statement in his remarks that the totality of sentence was eight and half years was inaccurate. 2 The first offence had occurred between 23 and 28 December 1997 and the second on 1 January 1998. The applicant was arrested on 31 May 2000 at Darwin in the Northern Territory. His Honour set out the detailed history which led to the delay in the applicant being presented for trial. Significantly he had been referred to the Mental Health Review Tribunal and was not declared fit for trial until 2004. 3 The offences occurred when the applicant was aged eighteen years. He was staying with his mother at her residence in Tamworth. Mrs Taylor's neighbours were leaving their house to visit Sydney. There was an arrangement for Mrs Taylor to feed their animals. The neighbour was the President of Tamworth Pistol Club and kept a number of weapons in a safe in the bedroom of his house. The applicant and one Walters broke and entered the neighbour's house and removed the safe. They took it to Walters' home where they, in company with a third man, Blackman, attempted to open the safe. Their attempts were unsuccessful and they acquired the assistance of a fourth man, Carr, who used tools to open the safe. The safe contained mainly weaponry. 4 The second offence, as can be deduced from the date specified in the indictment occurred within three to eleven days of the first offence. The applicant, Walters and Blackman went to premises at Calala on information that the occupants there were in possession of "hydro" (hydroponically grown marijuana) and possibly money as a result of dealing. The three entered the premises their faces disguised by balaclavas or in one case a scarf. Each was armed with a pistol. Violence was administered, in particular one of the occupants was struck on his back with a weapon. Contrary to a written submission by the Crown that it was the applicant who struck this victim, his Honour expressly found that he was unable to determine beyond reasonable doubt that it was the applicant who struck this man and he stated that this "does not become part of the facts". 5 The occupants of the house denied that they had any drugs and the intruders left. Blackman took a wallet and a package of cigarettes. 6 The implication of the applicant, Walters and Blackman in the offences became known to authority as a result of contact by Carr (who had assisted in breaking open the safe) when he contacted Crimestoppers in May 1998. 7 As a result Blackman and Walters were both arrested. Blackman pleaded guilty to one count of being an accessory before the fact to breaking, entering and stealing, one count of being an accessory after the fact to that offence and one count of armed robbery with a dangerous weapon. For the first two offences he received a good behaviour bond for a period of four years and for the armed robbery he was sentenced to two years imprisonment which was suspended upon his entering upon an appropriate recognizance. 8 Walters pleaded guilty to one count of breaking, entering and stealing and one count of armed robbery with a dangerous weapon in respect of the first count of which he was ordered to enter a bond to be of good behaviour and for the armed robbery he received a two year suspended sentence similar to that received by Blackman. The charges against Walters were identical to those upon which the applicant was ultimately found guilty by the jury. 9 Three grounds of appeal are pursued: (1) His Honour erred in the sentencing proceedings by taking into account as aggravating factors, matters which were elements of the offence. (2) The disparity between the sentence imposed upon the applicant and the sentences imposed upon his co-offenders is such as to leave the appellant with a justifiable sense of grievance. (3) The sentences imposed were manifestly excessive. 10 Using language which I regret to observe is becoming increasingly common, but which must have been totally incomprehensible to the offender who should be the prime recipient of remarks on sentence, his Honour said: "As to the second offence, the following aggravating factors are established: sub paras (b), (c) and (g)." 11 The references to sub paras (b) and (c) may be understood as references to s 21A(2) of the Crimes (Sentencing Procedure) Act which specifies that aggravating factors to be taken into account include a circumstance that the offence involved actual or threatened use of violence and the offence involved the actual or threatened use of a weapon. The use of such aggravating factors for the purpose of sentence assessment is subject to the qualification (within the statute itself) that the Court is not to have additional regard to any such aggravating factor (as specified) in sentencing if it is an element of the offence. 12 In a written submission the Crown conceded that actual or threatened use of violence and actual or threatened use of a dangerous weapon were elements of the offence of robbery whilst armed with a dangerous weapon. That concession is correct. The Crown argued, however, that his Honour was entitled to take into account the actual level of violence being greater than that necessary to establish the elements of the offence and that the offence was committed by more than one person, each of whom was armed with a hand gun which was a dangerous weapon. His Honour had found in accordance with subparagraph (e) of s 21A(2) that each of the offences was committed in company and no complaint is made of his Honour's taking this into account as a factor of aggravation in accordance with the statutory prescription. 13 Whilst the correctness of the principle argued by the Crown cannot be doubted, it does not reflect what his Honour said he was doing. He did not say that he was measuring the level of violence as being greater than that needed to establish the offence nor that he was dealing with the actual threatened use of a weapon in the context of others being also armed. What he said was simply what I have recited above. 14 It is apparent therefrom that his Honour did take into account as additional factors of aggravation matters which were elements of the offence and ground 1 is made out. 15 Ground 2 is an appeal to this Court based upon the asserted disparity between the sentences received by co-offenders and the applicant. The applicable principles have been canvassed so often as not to require repetition for the purposes of this appeal. It is relevant that Walters and Blackman pleaded guilty in contrast to the applicant who stood trial. Therefore the applicant was not entitled to leniency on utilitarian or any other basis connected with a plea of guilty. Further, both Walters and Blackman gave evidence against the applicant and their cooperation with authority by so doing is an additional matter which entitled them to leniency to a significant degree. 16 It is convenient to observe that, in a Crown appeal asserting the inadequacy of the sentences received by Walters and Blackman there had been a finding at first instance in the proceedings against them that the applicant was the ringleader in the commission of the offences. In the light of the evidence before him, Bell DCJ found that the applicant's role was more that of primus inter pares than ringleader. He was, of course, the possessor of the information concerning the absence of the President of the Pistol Club and the presence of the weaponry in the unoccupied house. To that extent his Honour found that the applicant's responsibility was more substantial, and that finding is not the subject of challenge. 17 The challenge is simply based upon the stark disparity between two offenders who received entirely non custodial penalties and the applicant who was sentenced to a minimum period of custody of five years with an overall term of seven and half years. All of the offenders, including the applicant, had no prior convictions. They were all just beyond the threshold of adulthood. 18 In my opinion the disparity between a minimum of five years in custody and no custody at all, even allowing for the matters of leniency upon which the co-offenders could draw, was so gross as to attract the intervention of this Court. 19 The third ground can be looked at sufficiently for present purposes in the context of the undisputed serious illness of the applicant. As the delay in bringing him to trial manifests, his mental health has been severely compromised. The evidence before his Honour was that, this having been identified, he was amenable to suitable drug treatment. There was also evidence before his Honour, unchallenged, that those psychiatrists and psychologists who had the opportunity of examining him only some considerable time after the offences, were nevertheless able to postulate that he must have been affected by, at least incipient mental illness at the time the offences were committed. 20 Apart from these offences, the applicant had a blameless record and an initial sentence of the severity here imposed is such as that, in my opinion, the ground that it was manifestly excessive is made out. 21 This Court should proceed to resentence. For that purpose we have received an affidavit by the applicant affirmed on 23 June instant. That affidavit demonstrates that the applicant has been the subject of neither charge nor disciplinary proceedings whilst in custody. To the extent that it has been available to him he has used his time in custody to progress towards rehabilitation. Importantly he is continuing to be treated for the diagnosed schizophrenia and is currently on appropriate medication. He has stated: "I believe that my illness has been stable since I came into custody this time and is still stable now. I know that I must keep taking medication or I may relapse." 22 The applicant was in and out of custody during the period between arrest and his ultimate conviction. It was agreed that the total number of days in custody was 404 and that any sentence should commence on 10 April 2003 in order to accommodate that pre sentence custody exclusively referrable to these offences. 23 For the reasons given by his Honour which I need not repeat, there should be a departure in favour of the applicant from the statutory proportion between non parole period and total term. 24 As I have indicated his Honour saw fit to include a marked element of accumulation in the sentences imposed upon each offence. It was open to him so to conclude. However, there is another view open which I would apply when proceeding to resentence, namely that the first offence which involved the acquisition of weapons was intimately connected with the second offence in that it was obvious that the acquisition of weapons was for the purpose of the second offence. I am not suggesting that the evidence shows that the applicant had the particular offence which was committed in mind, but what is clear is that weaponry was obtained in order to enable the carrying out of an offence of that nature. To that extent some accumulation is appropriate but in my mind not to the extent that orders for accumulation were made at first instance. 25 I propose the following orders: (1) Application for leave to appeal granted. (2) Appeal allowed and sentences imposed in the District Court quashed. (3) In lieu thereof the applicant sentenced as follows: On count 1 (breaking, entering and stealing) to imprisonment for a fixed term of two years and six months commencing on 10 April 2003 and expiring on 9 October 2005. On count 2 (robbery whilst armed with a dangerous weapon) to imprisonment consisting of a non parole period of two years commencing on 10 April 2004 and expiring on 9 April 2006 with a total term of four years commencing on 10 April 2004. (4) The effective overall sentence thus consists of a non parole period of three years and a total term of five years. The fixed term on count one co-ordinates with the approach of the original sentencing judge and it is convenient to continue to adopt it. (5) The earliest date of eligibility for parole is specified as 9 April 2006. 26 HOEBEN J: I agree with Grove J. 27 HALL J: I also agree with the reasons and the orders proposed by Grove J. 28 GROVE J: The orders of the Court will therefore be as I have proposed. ********** 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.