Andrews v Regina [2006] NSWCCA 42

Reported Decision : 160 A Crim R 505

New South Wales Court of Criminal Appeal

CITATION: Andrews v Regina [2006] NSWCCA 42

HEARING DATE(S): 3 February 2006

JUDGMENT DATE: 6 March 2006

JUDGMENT OF: Giles JA at 1; Grove J at 2; Hoeben J at 28

DECISION: APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - ROBBERY IN COMPANY - SENTENCE - "AGGRAVATING FACTORS" SCHEDULED IN STATUTE WHICH ARE ELEMENTS OF OFFENCE - ABSENCE OF EXPLANATION OF HOW SUCH FACTORS GIVEN ACCOUNT IN ASSESSMENT - RISK OF "DOUBLE COUNTING" - HOWEVER LESSER SENTENCE NOT WARRANTED

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R v Henry 1999 46 NSWLR 346 R v Kelly [2005] NSWCCA 280 CASES CITED: R v Murchie [1999] NSWCCA 424 R v Simpson 2001 53 NSWLR 704 R v Way [2004] NSWLR 168 Smith v Desmond 1965 AC 960

PARTIES: Mark Allen Andrews v Regina

FILE NUMBER(S): CCA 2005/1845

COUNSEL: C. Smith (Applicant) W. Dawe QC (Respondent/Crown)

SOLICITORS: S. O'Connor (Applicant) S. Kavanagh (Respondent/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0993

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1845

GILES JA GROVE J HOEBEN J

6 March 2006 MARK ALLAN ANDREWS v REGINA Judgment

1 GILES JA: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Dodd DCJ at Sydney District Court on 14 December 2004. 3 The applicant adhered to a plea of guilty previously given to a magistrate to a single count of robbery in company, an offence contrary to s97(1) of the Crimes Act 1900. His Honour sentenced the applicant to imprisonment consisting of a total term of six years commencing on 2 May 2004 with a non parole period of three years commencing also on that date. The first date of eligibility for parole therefore is 1 May 2007. The statutory maximum penalty is imprisonment for twenty years. 4 The applicant has a considerable criminal record which, omitting reference to earlier years, shows that he has spent most of the last half decade in custody serving various relatively short terms of imprisonment until he was committed to custody in respect of the present charge on 2 May 2004. 5 The facts were that on Sunday 2 May 2004 shortly after 6 pm the victim left the hotel at which he was staying in the Rocks area of Sydney and was exercising by jogging about the foreshore area. The applicant had encountered another person and whilst they were idly nearby they perceived the victim taking some money from an ATM. The applicant agreed with the suggestion from his companion that they would rob this person and he later told police that "we followed him and jumped him". 6 As the victim jogged along Hickson Road the applicant approached him, obstructing his progress thus giving the co-offender an opportunity to grasp the victim from behind. The victim denied to them that he had any money and the second offender said to him that he had a knife and "we will hurt you". 7 The victim called for help. A struggle ensued and the applicant put his hand into the victim's pocket and removed a Motorola flip style silver mobile phone. This was the item ultimately the subject of the robbery. The victim apparently was having the better of the two offenders in the struggle and they sought to flee, however a passing limousine driver, concerned by what he had seen, made enquiry of the victim whereafter he caught up with the applicant and detained him. Police were called and the applicant was placed under arrest by a constable. 8 He was taken to the police station where he was electronically interviewed and made full admissions about the offence, as indeed he had made such admissions to the arresting constable. 9 The applicant relies upon two express grounds of appeal: