New South Wales Court of Criminal Appeal CITATION: TS v Regina [2007] NSWCCA 194 HEARING DATE(S): 25 June 2007 JUDGMENT DATE: 5 July 2007 JUDGMENT OF: Giles JA at 1; James J at 37; Hislop J at 38 DECISION: (1) Grant leave to appeal. (2) Appeal allowed. (3) Quash the sentences imposed on 29 September 2006 and in lieu thereof sentence the applicant: (a) for each of offences 1, 2 and 3, to imprisonment for a non-parole period of 1 year 9 months commencing on 31 March 2005, and a balance of term of 1 year; (b) for offence 4, to imprisonment for a non-parole period of 2 years commencing on 30 September 2005, and a balance of term of 1 year 3 months; and (c) for offence 5, taking into account the offences on the Form 1, to imprisonment for a non-parole period of 2 years 6 months commencing on 31 March 2006, and a balance of term of 1 year 6 months. The appellant will be eligible for parole on 1 October 2008. CATCHWORDS: Criminal law - sentencing - offences of armed robbery - errors in relation to pleas at earliest opportunity - and aggravating factors - and taking account of offences on a Form 1 - resentencing - reliance on material in reports without sworn evidence - juvenile offender - reliance on guideline judgment in R v Henry - resentencing more lenient than for adult offender. Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; R v Hemsley [2004] NSWCCA 228; R v Henry (1999) 46 NSWLR 346; R v Johnson [2004] NSWCCA 76; R v Pham & Ly (1991) 55 A Crim R 128; R v Qutami (2001) 127 A Crim R 369; CASES CITED: R v SDM (2001) 51 NSWLR 530; R v Shankley [2003] NSWCCA 253; R v Thompson & Houlton (2000) 49 NSWLR 383; R v Townsend & Cooper (CCA, 14 February 1995, unreported); R v Tran (1999) NSWCCA 109; R v Walker [2005] NSWCCA 109; R v Wickham [2004] NSWCCA 193; Veen v The Queen (No 2) (1988) 164 CLR 465. PARTIES: TS - Applicant The Crown - Respondent FILE NUMBER(S): CCA 2007/971 COUNSEL: N Mikhaiel - Applicant R A Herps - Respondent SOLICITORS: Jane Saunders - Applicant S Kavanagh - Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 06/21/3075 LOWER COURT JUDICIAL OFFICER: Maguire DCJ LOWER COURT DATE OF DECISION: 29 September 2006 (Sentence) IN THE COURT OF CRIMINAL APPEAL CCA 971/2007 DC 06/21/3075 GILES JA JAMES J HISLOP J Thursday 5 July 2007 TS v REGINA Judgment 1 GILES JA: On 21 February 2006 the applicant pleaded guilty to five charges of robbery armed with an offensive weapon, a knife. After a sentencing hearing on 26 July 2006, at which the applicant asked that a further nine offences on a Form 1 be taken into account in the sentencing for the fifth of these offences, on 29 September 2006 he was sentenced by Maguire DCJ to imprisonment for an overall non-parole period of 4 years commencing 31 March 2005 and a balance of term of 3 years 6 months. The applicant had been arrested on 30 March 2005 and had been in custody since that date. 2 The applicant was just under sixteen at the time of four of the offences on the Form 1, and was aged sixteen at the time of the remaining offences. Accordingly, the restrictions on publishing his name in s 11 of the Children (Criminal Proceedings) Act 1987 apply. The offences 3 I will call the offences for which the applicant was sentenced offences 1 to 5, and the offences on the Form 1 offences F1 to F9. 4 On 3 September 2004 the applicant was one of a group of persons who surrounded three people waiting for a bus at Liverpool railway station, and became aggressive towards them. The applicant asked one of them for money, and was given $10. Members of the group then attacked the three people, knocking them to the ground and kicking and punching them. From this came offences F6 to F9, one offence of robbery in company and three offences of assault occasioning actual bodily harm. 5 The applicant was arrested and given bail, and was on bail when in March 2005 he committed offences 1 to 5 and the further offences on the Form 1. 6 Offence 1 was armed robbery of the Captain Cook Convenience Store at Liverpool on 20 March 2005. After originally requesting cigarettes, the applicant produced a knife and asked the attendant to open the cash drawer. The attendant said that he did not know how to open it. The applicant placed the knife near the attendant's neck and told him, "Open the cash drawer". The applicant took money, cigarettes and confectionery. 7 Offences 2 and 3 were armed robbery of the Win Fu Jewellery Store at Liverpool on 21 March 2005. The applicant inquired about an item of jewellery, left the store, and then returned and went behind a display counter where he pulled out a knife and demanded money from an attendant. The other attendant called for help and jumped the display counter, and the applicant struck the counter causing the glass to shatter. He took items of jewellery and, when the first attendant held the door to the store shut to try and keep the applicant within it, he picked up a stool and shattered the glass. He left the store with about $3,000 worth of jewellery. Offence 2 was armed robbery of the first attendant. Offence 3 was armed robbery of the owner of the store. 8 Offence F1, related to these armed robberies, was malicious damage to property, being the display counter and the door of the Win Fu Jewellery Store. Offence F2 was also related to these armed robberies. The attendant who had called for help pursued the applicant, and was joined in the pursuit by the owner of the store. The owner caught up with the applicant, who by then was with another person, and the applicant punched the owner in the face more than once before decamping. From this came offence F2, common assault. 9 Offence 4 was armed robbery of a 7-Eleven store at Parramatta in the early hours of 22 March 2005. On this occasion the applicant was accompanied by a co-offender. The applicant produced a knife and demanded that the attendant open the cash drawer, saying "Give me the money or I will stab you". The attendant opened the cash drawer. The applicant took money, cigarettes and lighters to a total value of approximately $670. 10 Offence 5 was armed robbery of another 7-Eleven store at Parramatta late in the evening of 22 March 2005. The applicant approached the attendant and punched him in the stomach with a clenched fist. He was accompanied by a co-offender. He grabbed the attendant around the collar and jiggled a knife from his right sleeve into his hand and held it at waist level, and said "Give me money or else I will kill you". The attendant replied that the money was in the till, they went to the till behind the counter, and the applicant said to the co-offender, "Come on grab all the things". The co-offender entered the service area and began to remove phone cards from behind the counter. The applicant said to the attendant, "Open the till. If you don't open the till by the time I count five I will kill you." The attendant opened the till, and the applicant and the co-offender took money from the till and money stored in a cabinet under the counter. The co-offender also took cigarettes, cigars and SIM cards and the applicant also took the attendant's wallet and phone. The value of the money and other property was about $3,630. 11 Offence F3 was armed robbery of a service station at Bonnyrigg on the night of 23-24 March 2005. Very early in the morning hours the applicant purchased some food, then returned a short time later and demanded that the attendant give him all his money. The applicant was accompanied by another person. The applicant took a knife from his pocket and pointed it at the attendant. The other person said to the attendant, "Just give us the money we're not going to hurt you", and the applicant said, "Just go to the till and open it" and held the knife close to the attendant's leg. The attendant opened the till. The applicant took the notes from the till, and also took two cartons of cigarettes and gave them to the co-offender. The value of the money and cigarettes was approximately $500. 12 Offence F4 was armed robbery of a Quix service station at Lansvale on 24 March 2005, about two hours after the robbery of the service station at Bonnyrig. When the attendant opened the door to the service area, the applicant jammed it open with some magazines. He walked towards the attendant, produced a knife and asked for money and cigarettes. The attendant complied. The value of the money and cigarettes was approximately $850. 13 Offence F5 was goods in custody. When arrested on 30 March 2005 the applicant had an NRMA card in someone else's name, the card having been in that person's vehicle when it was stolen late on 30 March 2005. 14 As have said, at the time of the March 2005 offences the applicant was on bail for the 3 September 2004 offences, and the offences were in contravention of the terms of his conditional liberty. He had also been charged earlier in 2004 on one count of robbery armed with an offensive weapon and three counts of robbery in company, and on 26 July 2004 had been the subject of a suspended control order in the Children's Court, under s 33(1)(g) of the Children (Criminal Proceedings) Act. It appears that the offences were also in breach of a good behaviour bond part of suspension of the control order, but since that was not made clear I take no account of it. The sentences 15 The applicant was sentenced for each of offences 1, 2, 3 and 4 to imprisonment for a non-parole period of 3 years 6 months commencing on 31 March 2005 and a balance of term of 3 years 6 months. For offence 5, in which sentencing the offences on the Form 1 were to be taken into account, he was sentenced to a non-parole period of 3 years 6 months, commencing on 30 September 2005 and a balance of term of 3 years 6 months. Accordingly, the sentence for offence 5 was accumulated by six months upon the other sentences. 16 The judge found special circumstances in the applicant's prospects of rehabilitation, and directed that his sentences be served as a juvenile offender. The grounds of appeal 17 The grounds of appeal were - "1. The learned sentencing judge failed to give sufficient weight to the plea of guilty; 2. The learned sentencing judge erred in failing to give recognition to the plea of guilty as evidence of contrition; 3. The learned sentencing judge misapplied the guideline judgment in R v Henry (1999) 46 NSWLR 346; 4. The learned sentencing judge erred in failing to have proper regard to the provisions of section 6 of the Children (Criminal) Proceedings Act 1987 when sentencing the applicant. 5. The learned sentencing judge erred in collectively taking into account a number of what were said to be aggravating features of the case. 6. The learned sentencing judge erred in taking into account as an aggravating feature the applicant's criminal history; 7. The sentence is manifestly excessive." There were errors in sentencing 18 It is not necessary to consider the grounds of appeal seriatim and at length. Regrettably, there were errors in the sentencing of the applicant. 19 The judge referred, as was appropriate, to the guideline judgment in R v Henry (1999) 46 NSWLR 346. He said that he had examined the criteria laid down in that case, and that he "accept[ed] the written submissions from the Crown that these all apply to the case in hand". He also said, "His guilty plea is to be taken into account as a mitigating factor, however the judgment in Henry contemplates a guilty plea and accordingly no further discount is called for". 20 It was common ground before the judge that the applicant had pleaded guilty at the earliest opportunity. The criteria in R v Henry at [162] included "Plea of guilty, the significance of which is limited by a strong Crown case", and the guideline is to be regarded as applying a to a late and not an early plea of guilty: R v Thompson & Houlton (2000) 49 NSWLR 383 at [161], R v Hemsley [2004] NSWCCA 228 at [30]. The Crown had drawn attention to the guideline in R v Henry, but had not accepted in written submissions that all the criteria applied to the case in hand; indeed, in oral submissions the Crown pointed out that R v Henry was a plea of guilty at a late stage and, reflecting the common ground abovementioned, "This was accepted at an earlier stage". The judge either overlooked that the applicant was entitled to the benefit of a plea of guilty at the earliest opportunity, or misapprehended the guidance to be obtained from R v Henry. 21 The armed robbery offences were laid under s 97(1) of the Crimes Act 1900. Being armed with an offensive weapon and being in company are alternatives under s 97(1), and being in company increased the seriousness of the offences with which the applicant was charged. The judge said that the applicant's "previous record, the presence of his companions and the fact that he was on conditional liberty, all serve as aggravating factors". This treated all the offences as subject to the aggravating factor of the presence of the applicant's companions. Offences 4 and 5 were in company, while offences 1, 2 and 3 were not. It appears that the judge overlooked that the presence of the applicant's companions did not apply to offences 1, 2 and 3, so that the applicant was sentenced for those offences on an erroneous basis. 22 The judge said that he "regard[ed] a measure of accumulation as appropriate", and that he was "mindful of the principles relating to totality and have taken them into account". He did not further expose his reasoning. In sentencing in accordance with Pearce v The Queen (1998) 194 CLR 610, in which the principles relating to totality can be found, the difference last mentioned in the offences should have been noted, or an explanation should have been given for treating them all in the same manner. 23 In his reference to aggravating factors the judge also treated the applicant's previous record as an aggravating factor. He did not explain further. That the offender has a record of previous convictions is an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, but only if used in accordance with the common law principles in Veen v The Queen (No 2) (1988) 164 CLR 465: R v Johnson [2004] NSWCCA 76; R v Wickham [2004] NSWCCA 193. It may not increase the objective seriousness of the offence, but may mean that retribution, deterrence and protection of society indicate that a more severe sentence is warranted: R v Shankley [2003] NSWCCA 253 at [31]. The judge did not say that he took it into account in that manner; on the contrary, he said that because the applicant was "at the time well short of adulthood" more weight should be given to rehabilitation and less to general deterrence and punishment. On my reading of the remarks on sentence, he treated it as increasing the seriousness of the offences. As was said by Johnson J in R v Walker [2005] NSWCCA 109 at [32], failure to explain the manner in which a record of previous convictions is taken into account "does not enlighten the sentencing process", and where the offender's criminal history is not capable of attracting the principles in Veen (No 2) v The Queen error may be demonstrated which affects the sentencing process. In my opinion, that is so in the present case. 24 The judge said that the offences on the Form 1 had been taken into account in sentencing for offence 5, but did not otherwise expose the course he took. The sentence for offence 5 was the same as the sentences for offences 1 to 4, but with the six months accumulation. In my opinion, there had to have been an increase in the sentence for offence 5 by reason of the offences on the Form 1. The principles in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 could not be met by an identical sentence. If the judge thought that the accumulation met those principles, in my opinion it did not. This error favoured the applicant, and there is no Crown appeal, but it is underlined that the sentencing fundamentally miscarried. 25 I do not enter upon whether the errors included failure to have proper regard to s 6 of the Children (Criminal Proceedings) Act. The judge was reminded of s 6 in the course of the sentencing hearing. He did not refer to it, or to the principles there stated, in his remarks on sentence, but nor was what he said inconsistent with having regard to the principles. I do not accept the submission that there was inconsistency when the judge described the applicant's crimes as "very serious", and observed that the guideline judgment in R v Henry called for severe punishment. It is not incumbent on a sentencing judge to note in rote fashion the general principles expressed in s 6. The applicant's submission came down to the submission that it should be inferred from the severity of the sentencing that the principles had been overlooked. It is not necessary to engage with that submission. 26 In my opinion the sentences should be quashed, and the applicant must be re-sentenced. Re-sentencing 27 The judge said that the applicant did not give evidence, but that he (the judge) placed great reliance on Juvenile Justice reports dated 10 April 2006 and 25 July 2006. He said that evidence of contrition "clearly emerges from these reports", and noted that in one of them it was said that the applicant was responding well to counselling and had developed an insight into his problems. Citing at more length from that report, he said that the relevant passage "seems to me to bode well for his rehabilitation but he still has a long way to go". 28 In one of the reports it was said that the applicant attributed his 3 September 2004 offences to his "sheer stupidity", in a situation of peer pressure. The judge stated as what was "edited from" that report a passage which included - "In regard to the charges that occurred in March 2005 [the applicant] stated that he was not in the right state of mind, 'totally lost control and did not care'. He claimed to have been at the peak of anger after his girlfriend terminated her pregnancy without his agreement. He stated that he exploded by way of going out with his friends and sometimes with people he met in the street to drink every day and to do the most daring things at the suggestion of those accompanying him. He stated that when he committed the offences he was heavily under the influence of alcohol. He is the only child of his mother and her estranged husband who are both of Samoan dissent [sic]. They separated in 1995 in New Zealand. Shortly thereafter the mother and the young person came to Australia and the father remained in New Zealand. The mother is working as a distributor for a magazine. She has been living at the current address for approximately three years. Further [the applicant's mother] reported that it [sic] an attempt to distance the young person from his negative peers in March '03 she sent him to visit his father in New Zealand. The young person described the short stay with his father as an extremely unhappy period. He apparently had difficulty fitting in with his father's younger family. He was then sent to Samoa to live with a grandmother and he ran away from her and eventually returned to Australian in 2004. He then recommenced living with his mother. He appears to have had a disruptive history of schooling. Her had a great deal of difficulty fitting in at school. He left school early following his return from New Zealand and Samoa." 29 Although appearing in the remarks on sentence as if a verbatim citation from the report, it was not. With minor discrepancies, it accorded with the report until "heavily under the influence of alcohol". Thereafter it was much more of a paraphrase. It may be that the transcription of the remarks on sentence did not reflect the judge's intention. 30 This Court has cautioned against reliance on second hand material in reports where the offender has not given evidence. In R v Qutami (2001) 127 A Crim R 369 Smart AJ said at [58]-[59] that very considerable caution should be exercised in relying on statements made to experts, and that in many cases only very limited weight can be given to the statements. Those remarks were pertinent in the present case, and the Crown Prosecutor's submissions to the judge included that in the absence of sworn evidence "third person statements" should be given little weight. 31 However, the judge appears to have accepted and acted upon the edited material set out above, and no point was taken in that respect in this Court. With some misgivings, I will do so in re-sentencing the applicant. Nonetheless, the anger and alcohol are not a satisfactory explanation for the series of serious armed robberies, and so far as the applicant's immaturity might make them more acceptable as an explanation it must not be forgotten that the offences were adult offences so that regard to his youth is tempered: R v Townsend & Cooper (CCA, 14 February 1995, unreported); R v Pham & Ly (1991) 55 A Crim R 128; R v Tran (1999) NSWCCA 109. 32 The guideline in R v Henry is relevant to sentencing those who are in law children (R v SDM (2001) 51 NSWLR 530). The Court's reference in the criteria to a "young offender" did not, however, mean a child (ibid at [40], and the principles in s 6 of the Children (Criminal Proceedings) Act and subordination of punishment and general deterrence to rehabilitation remain as additional sentencing considerations, albeit qualified in the present case by the nature of the armed robbery offences. The applicant has the benefit of his early pleas of guilty, contrition and the judge's implicit acceptance of the particular occasion for his losing control and of favourable prospects of rehabilitation. But the applicant was on conditional liberty, and the offences involved express threats of harm. 33 It seems to me appropriate to group the offences into offences 1, 2 and 3 being the offences of armed robbery when unaccompanied; offence 4 being an offence of armed robbery when accompanied, and offence 5 being an offence of armed robbery when accompanied with the offences on the Form 1 taken into account. The lastmentioned offences included two armed robberies in themselves serious. The offences were part of the one course of criminality, on the judge's acceptance of the explanation in the Juvenile Justice report all founded in the same loss of control, but there were clearly separate occasions of offending and I do not think there can properly be complete concurrency. There should be modest accumulation of the three groups. 34 In my opinion, the applicant should be sentenced - (a) for each of offences 1, 2 and 3, to imprisonment for a non-parole period of 1 year 9 months commencing on 31 March 2005, and a balance of term of 1 year; (b) for offence 4, to imprisonment for a non-parole period of 2 years and a balance of term of 1 year 3 months commencing on 30 September 2005; and (c) for offence 5, taking into account the offences on the Form 1, to imprisonment for a non-parole period of 2 years 6 months commencing on 31 March 2006 and a balance of term of 1 year 6 months. 35 The overall non-parole period is 3 years 6 months and the overall balance of term is 1 year 6 months. There are special circumstances in the accumulation and the applicant's rehabilitation. The sentences are markedly more lenient than would have been imposed on an adult offender. 36 I propose the orders - 1. Grant leave to appeal. 2. Appeal allowed. 3. Quash the sentences imposed on 29 September 2006 and in lieu thereof sentence the applicant - (a) for each of offences 1, 2 and 3, to imprisonment for a non-parole period of 1 year 9 months commencing on 31 March 2005, and a balance of term of 1 year; (b) for offence 4, to imprisonment for a non-parole period of 2 years commencing on 30 September 2005, and a balance of term of 1 year 3 months; and (c) for offence 5, taking into account the offences on the Form 1, to imprisonment for a non-parole period of 2 years 6 months commencing on 31 March 2006, and a balance of term of 1 year 6 months. The appellant will be eligible for parole on 1 October 2008. 37 JAMES J: I agree with Giles JA 38 HISLOP J: I agree with Giles JA. ********** 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.