New South Wales Court of Criminal Appeal CITATION: Sternbeck v Regina [2006] NSWCCA 132 HEARING DATE(S): 21/04/2006 JUDGMENT DATE: 18 May 2006 JUDGMENT OF: Hodgson JA at 1; James J at 2; Hoeben J at 3 DECISION: Leave to appeal granted.; Appeal dismissed. CATCHWORDS: Criminal law - sentence appeal - whether sentences manifestly excessive - no challenge to individual sentences but challenge to overall terms in breach of principle of totality - full review of facts and law by sentencing judge - sentences not shown to be outside proper sentencing discretion. LEGISLATION CITED: Crimes Act 1900 CASES CITED: Attorney-General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 56 NSWLR 146 at [40-42] R v Way (2004) 16 NSWLR 168 at [106-107] PARTIES: Gary John Sternbeck - Applicant Regina - Respondent FILE NUMBER(S): CCA 2005/2429 COUNSEL: Ms A Francis - Applicant Mr G Rowling -Crown SOLICITORS: SE O'Connor, Legal Aid Commission of NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0435 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2429 HODGSON JA JAMES J HOEBEN J Thursday, 18 May, 2006 Gary John STERNBECK v REGINA Judgment 1 HODGSON JA: I agree with Hoeben J. 2 JAMES J: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence: On 19 April 2005 the applicant was sentenced by Coolahan DCJ in respect of the following offences: Count 1: Armed robbery with an offensive weapon causing grievous bodily harm contrary to s98 of the Crimes Act 1900 (maximum penalty imprisonment for 25 years). Included on a Form 1 were two offences of aggravated robbery contrary to s95 of the Crimes Act. Count 2: Armed robbery with an offensive weapon, contrary to s97 of the Crimes Act (maximum penalty imprisonment for 20 years). Included on a Form 1 was an offence of robbery with an offensive weapon contrary to s97 of the Crimes Act. 4 His Honour imposed the following sentences: Count 1: Imprisonment for a non-parole period of 6 years to commence 16 March 2004 and to expire 15 March 2010 with a balance of sentence of 3 years to expire 15 March 2013. Count 2: Imprisonment for a non-parole period of 3 years to commence 16 September 2008 and to expire 15 September 2011 with a balance of sentence of 3.5 years to expire on 15 March 2015. 5 The effect of his Honour's sentences was a non-parole period of 7 ½ years with a balance of term of 3½ years. The applicant was arrested on 16 March 2004 and has been in custody since that date. Background to offences: Count 1 6 In relation to count 1, on 26 June 2003 the victim, a young woman, was working alone at Theo's Liquor Store at Boolaroo. About midday the applicant entered the store and purchased a beer. He left the store, returned a short time later and asked the victim for a full carton of beer. The victim was followed into the cool room by the applicant. The applicant pushed her and produced a knife. He tied the victim up with her hands behind her back. The applicant left the cool room but returned a short time later demanding access to the cash register and subsequently to a safe. The applicant took the victim's car keys. 7 The victim escaped and made her way towards the counter. The applicant returned and again tied the victim's hands and made her get onto the ground. A short time later the victim got to her feet and the applicant struck her on the back of the head. The applicant then punched the victim on the right side of her face. The victim fell and was punched again by the applicant as she hit the floor. As a result the victim suffered three fractures to her facial bones and later required surgery to insert surgical plates. The applicant re-tied the victim's hands, tied her feet and threatened to stab her with the knife. 8 The applicant left the store, stealing business takings of $290, the store security video cassette recorder and the victim's handbag, including its contents. The victim managed to release herself and run from the store and raise the alarm. The applicant was identified by DNA evidence, that was located on items left at the scene. 9 In relation to the first matter on the Form 1 relating to Count 1, on 5 June 2003 at approximately 11.40am the victim in that matter, again a young woman, was cleaning shelves at the Civic Video Store at Adamstown. While doing so she saw the applicant enter and go to the rear of the store. The applicant requested a certain video. As the victim turned towards the applicant, she saw him holding what she described as a double barrel shotgun in his right hand. 10 The applicant stated that he was not going to hurt her but demanded to know where the safe was. The victim was told to lie on the floor and the applicant tied her hands behind her back and tied her ankles together with two pieces of cloth. The applicant went to the counter and took the contents of the cash tin. The applicant then left the scene. The victim untied her hands and feet and pressed the panic alarm in the store. The proceeds of the robbery were $442. The applicant was identified by DNA evidence left at the scene. 11 As to the second matter on the Form 1 relating to count 1, on 21 June 2003 at about 11.50am the applicant entered a shop known as Pine Cottage in the Kotara Shopping Centre. The victim in that matter, a young woman, was working alone and there were no other customers inside the shop. The victim spoke to the applicant and then entered the rear area of the shop. A short time later, the applicant approached the victim and after displaying a knife, ordered her to lie face down on the floor. The applicant used a length of electrical wire to restrain the victim's ankles and wrists in a hog-tie manner. The victim was able to free one hand and the applicant retied the restraint. 12 The applicant used a piece of cloth located in the shop as a gag on the victim and threw a transparent raincoat over her head. The applicant demanded money and opened the safe using a key which the victim located for him. The applicant took an amount of $200 from the safe and a further $20 in change from the victim's handbag. He also stole her purse containing two credit cards and other personal items. 13 The applicant demanded the victim's PIN number for her Westpac keycard. The victim supplied a number, which was slightly different from the true PIN number. The applicant told the victim that if the PIN number were correct he would call police and assist in her release but if it were incorrect, he would return and obtain the correct one. The applicant left the shop and the victim was able to untie herself. She went to a nearby shop where she reported the robbery. A total of $1,160 was stolen from the victim's account through the use of her ATM card. Count 2 14 In relation to count 2 the victim, a young woman, was working alone at the Video-Ezy store in Cardiff on 9 July 2003. At about 11.40am the applicant approached the counter and demanded money. The victim refused. The applicant then said "I'm not joking give me all the money. I will kill you if you don't." The applicant raised his hand from behind the counter and produced a black coloured handgun. 15 At this point a female customer, and her seven year old son, entered the store. The victim attempted to warn them, however, the applicant approached the woman and her son and ordered them to lie on the floor. Both complied while the applicant stood over them. He then stole the customer's handbag and its contents. The applicant took money from the cash register and ran from the store. The total amount of money stolen from the video store was $290. The total of the property belonging to the customer was $80 in cash and some personal papers. The applicant was identified by DNA evidence located at the scene of the crime. It was the robbery of the customer in the Video-Ezy store which comprised the Form 1 matter in respect of count 2. 16 As indicated, the injuries suffered by the victim in count 1 were considerable. She was hospitalised and required an operation to repair the damage to her face. She was left with some neurological difficulties in her face and problems with concentration and short-term memory. She also developed depression and a form of anxiety. As of the date of sentence, the victim was still suffering significant physical and mental sequelae as a result of the applicant's conduct. Remarks on sentence 17 The applicant was born on 27 August 1967 and was 37 at the time of sentence. His criminal record included a number of drink, drive and drug matters in the 1990's. In 2000 he received varying sentences not involving fulltime custody for break, enter and steal, fraud, larceny and making a false instrument with intent. His Honour noted that there was nothing in the applicant's history as serious as these offences and nothing which involved violence. 18 His Honour had regard to a report from Peter Ashcar, a psychologist who saw the applicant at the Parklea Correctional Centre on 12 January 2005. In relation to the applicant's background, Mr Ashcar recorded that although the applicant had commenced using cannabis at age 15, he had completed a four year apprenticeship as a sheet metal worker and worked for 10 years with the same company in that industry until it closed down. At the time of the offences, however, the applicant was not working. 19 The psychologist noted that the applicant had an extensive history of substance abuse involving alcohol, amphetamines and most recently, crystal methamphetamine. Although the applicant had sought counselling in the past for his drug problems, this had not been successful. 20 According to the psychologist, the applicant's use of crystal methamphetamine commenced when he was 35 years of age. The applicant described its effect as giving him a sense of euphoria and omnipotence. The applicant told Mr Ashcar that it also caused him to become obsessed with whatever it was that was on his mind at the time. The applicant was aware that it caused him to become agitated and aggressive, particularly when withdrawing from the substance. 21 The applicant told Mr Ashcar that he was using crystal methamphetamine in the days prior to the commission of these offences. He was "off his head" and "coming down" from the effects of the substance at the time of the offences. He said that he committed the offences to obtain money to purchase further crystal methamphetamine. 22 It was Mr Ashcar's opinion that the applicant's criminal behaviour relating to these offences was a direct result of a substance dependence disorder. Because of the applicant's lack of violent criminal history, his behaviour in relation to these offences was directly attributable to his use of the drug crystal methamphetamine. If the applicant could abstain from using that drug Mr Ashcar thought that the risk of him engaging in such violent offending behaviour in the future would be significantly reduced. 23 The applicant gave evidence before his Honour. He confirmed most of which was contained in the psychologist's report. He expressed remorse for what had happened to the victim in count 1 and said he was horrified to find that he was capable of doing such things. He attributed his behaviour to the effects of the use of crystal methamphetamine. His Honour concluded that the applicant was genuine in his remorse and his Honour was prepared to accept that the applicant's violent behaviour was due to his addiction to that drug. While this explained to some extent the applicant's behaviour, his Honour noted that the applicant on his own admission knew that the use of the drug rendered him prone to violence. 24 Having noted the competing submissions of the Crown and counsel for the applicant, his Honour set out his conclusions as follows: "In dealing with the offender I have taken into account those matters required to be considered under s21A of the Act. Aggravating factors not contemplated by the offences themselves are difficult to identify. However of course, the offences themselves are extremely serious and are to be so regarded because of the maximum penalties provided for them, along with decisions of the Court of Criminal Appeal over the years including of course the guideline decision in Henry . Mitigating factors are few. I cannot say that the offender has good prospects of rehabilitation. But I think that I should accept, on balance, that he currently has a resolve to deal with his drug addiction. Anecdotally, he is also of an age when people, with long standing drug addictions, tend to make efforts to rehabilitate. Of course I take into account the offender's pleas of guilty, entered as they were at the first available opportunity, and for which I would allow a discount of 25%. I am satisfied that there should be findings of special circumstances based on the need for supervised rehabilitation upon release from custody and also because this will be the offender's first custodial sentence. But I do not think that a significant departure from the normal ratio between non-parole period and parole period is justified. So far as count 1 is concerned, there are obvious reasons for departing from the standard non-parole period. Firstly there is the offender's plea of guilty, and secondly there is the finding of special circumstances. As against that, however, the Form 1 matters are to be taken into account. These in themselves are very serious matters so perhaps not objectively falling at the midway point of seriousness. Nonetheless it is clear that more than lip service must be paid to those offences when dealing with the offender for the account on the indictment. I am of the view that there should be some partial accumulation. The offences were distinct offences. However, in dealing with the offender I have taken into account the principle of totality. On that basis the finding of special circumstances in relation to count 2 will produce a more significant reduction in the non-parole period than for count 1." 25 In relation to the standard non-parole period, his Honour commented on the Crown's submission that from an objective point of view that offence was at the mid range of seriousness: "I would have thought that it was certainly in the mid range, and probably towards the upper end of that range." Grounds of appeal Ground 2: The sentence is manifestly excessive 26 This was the only ground of appeal relied upon. No complaint was made in relation to the individual sentences imposed by his Honour. The submission was that the overall term was excessive and offended the principle of totality. It was submitted that there should have been greater concurrency between the sentences so as to reduce the overall term. 27 In support of that submission, the following propositions were put: (i) The applicant had no record of violence until these five episodes which occurred in June-July 2003. (ii) These episodes of significant criminality were restricted to a period of less than two months and could be accounted for by the applicant's addiction to crystal methamphetamine. (iii) Between 9 July 2003 and 16 March 2004 when the applicant was apprehended, there had been no repetition of such violent criminality which indicated some measure of rehabilitation. 28 The Court was also invited to approach the matter on the basis that if allowance were made for the 25% discount for the pleas of guilty at the earliest opportunity, the original head sentence would have been almost fifteen years. This, it was submitted, indicated that the combined effect of the sentences was manifestly excessive. 29 I have some difficulty with that last submission. If only one sentence had been passed it could have had more force. In this case, however, two sentences are involved and it is the extent of the accumulation or lack of adequate concurrency which is criticised. In any event the applicant does not dispute undiscounted head sentences of 12 years and 8 years 8 months in respect of counts 1 and 2. In those circumstances it is difficult to see how an undiscounted head sentence of slightly less than 15 years is manifestly excessive. 30 Although the period of criminality was brief the offences which occurred during that period were objectively very serious. Not only was the level of violence in count 1 significant going beyond that which was necessary to make out the ingredients of the offence (R v Way (2004) 16 NSWLR 168 at [106-107]) but the Form 1 matters, which were to be taken into account in relation to it, themselves involved serious criminality. This latter consideration required greater weight to be given in relation to the sentence for count 1 to personal deterrence and society's entitlement to extract retribution for offences for which no specific punishment had been imposed (Attorney-General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [40-42]). 31 His Honour was well aware of the link between the applicant's episodes of violent criminality and his ingestion of crystal methamphetamine. His Honour referred at some length to the opinion of the psychologist, Mr Ashcar. His Honour also had regard to the fact that the applicant was aware that the ingestion of crystal methamphetamine by him brought on violent and aggressive episodes. His Honour did not think that those subjective considerations significantly reduced the objective seriousness of the offences. His Honour did not think that the applicant had particularly good prospects of rehabilitation. 32 Against that background with no challenge having been made to the individual sentences, the question for this Court is whether his Honour's approach to accumulation and concurrency was outside a proper sentencing discretion. As has often been said, this is a Court of error. Unless error can be shown in the exercise of his Honour's discretion this Court has no power to intervene. The totality of the sentences imposed by his Honour had to properly reflect the objective seriousness of the offences and reflect all of the circumstances, both positive and negative, surrounding those offences. His Honour had regard to those matters. I am not persuaded that in accumulating the sentences as his Honour did, he erred in his exercise of discretion. 33 The orders which I propose are: (i) Leave to appeal be granted. (ii) The appeal be dismissed. ********** 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.