New South Wales Court of Criminal Appeal CITATION: WRIGHT v R [2006] NSWCCA 122 HEARING DATE(S): 3 March 2006 JUDGMENT DATE: 13 April 2006 JUDGMENT OF: McClellan CJ at CL at 1; Rothman J at 2; Smart AJ at 34 DECISION: BY MAJORITY (Rothman J dissenting); (i) Leave to appeal be granted; (ii) Appeal be dismissed. CATCHWORDS: CRIMINAL LAW - SENTENCING - Demand money with menaces - special circumstances - manifest excess - lower sentence not warranted Crimes Act 1900 LEGISLATION CITED: Crimes (Sententing Procedure) Act 1999 Criminal Appeal Act 1912 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 PARTIES: A: Damien Vincent WRIGHT R: The Crown FILE NUMBER(S): CCA 2005/1569 COUNSEL: A: A Francis R: W Dawe QC SOLICITORS: A: Steve O'Connor, Legal Aid Commission R: S Kavanagh, Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/3211 LOWER COURT JUDICIAL OFFICER: Marien SC DCJ - 1 - IN THE COURT OF CRIMINAL APPEAL 2005/1569 McCLELLAN CJ at CL ROTHMAN J SMART AJ 13 April 2006 Damien Vincent WRIGHT v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Smart AJ. 2 ROTHMAN J: Damien Wright seeks leave to appeal his sentence. He was sentenced by his Honour Judge Marien SC at Campbelltown District Court on 24 January 2005 for six offences being offences for demanding money with menaces with intent to steal. His Honour imposed an overall effective sentence of three years' imprisonment as a non-parole period commencing 24 January 2005 and expiring on 23 January 2008 with a balance of term of one year expiring on 23 January 2009. 3 There are two grounds of appeal: that the sentencing judge erred by failing to give effect to the finding of special circumstances; and, secondly, that the sentence is manifestly excessive. Before dealing with each of these grounds of sentence it is necessary to set out the facts giving rise to the offences and the remarks of the sentencing judge insofar as relevant. Lastly, if error is shown, the Court needs to deal with the question of whether a lesser sentence is warranted. Facts 4 All of the offences to which the applicant pleaded guilty relate to the extortion of the victim, Damien Magee. The victim and the applicant worked together at Woolworths in Bass Hill. In February 2003, the victim witnessed some conduct by Wright at work in the liquor section of the store, which it seems indicated theft. The victim spoke to the applicant about it. A few days later, the victim told the store manager of the conduct and the applicant was dismissed from employment. Thereafter, the applicant extorted $8,995 from the victim by using threats of retribution, violence and death. It is necessary to detail how this was effected. 5 The applicant approached the victim soon after the victim had spoken to the store manager. He declined to accept an apology offered by the victim and expressed his views about the victim in a direct and abrupt fashion. When the victim asked the applicant whether he would "flog" him, the applicant replied: "No, you won't be flogged, not by me anyway." Two days later the victim was informed that the applicant's employment had been terminated. The victim was worried that the applicant would come looking for him and requested that his shifts be changed. This change was implemented and the new shifts continued for a period of time. In April, the victim returned to his regular shifts. On 4 April 2003, the applicant approached the victim in the Woolworths' car park. The victim was afraid. The applicant demanded $1,000 from him and escorted him to the local ATM to make withdrawals totalling $1,000 (as bank records corroborate). The applicant made clear that he blamed the victim for the loss of his job and told him not to go to the police. Similar events occurred on each of the dates listed in the charges and each time the victim was frightened. I will deal in turn with each of the charges. 6 Count 1 is demand money with menaces with intent to steal, which occurred on 4 April 2003. It is a contravention of s.99(1) of the Crimes Act 1900, for which the maximum penalty is imprisonment for 10 years. 7 On 4 April 2003, the victim finished work at about 1 pm and was walking to his car when he was approached from behind and the applicant said to him: "Hey you, I've been looking for you." The victim was immediately afraid, the applicant being close enough to touch the victim if he had wanted to. The applicant said: "I've had people out here waiting for you. The only reason you are still walking is because of me, and how we were before." He then said: "What sort of recompense can I get?" The victim said that he did not know what he meant and was very frightened. The victim thought that he was about to be bashed. The applicant said to him: "How about you give me $1,000?" The victim said that he was unable to do so because he could only withdrawal $500 at a time. To that response the applicant said: "I know you are with the Commonwealth Bank, let's go." They walked to the Twin Willows Hotel ATM. The applicant urged the victim to get $900 out, which he did. He told the victim to get another $100. The applicant took the money from him. The victim's bank statement shows that $900 and $100 were withdrawn by the victim at the Twin Willows Hotel from his Savings Passbook Account at 13:16 and 13:19 respectively. The applicant then insisted that the two of them have a drink at the hotel. The victim agreed because he was frightened that some harm might come to him. The applicant walked back to the victim's car, after the drink, and told the victim that it was the victim's fault that he, the applicant, had lost his job. He told the victim not to go to the police. The applicant's Streamline Account balance at this time was $1. 8 Count 2 is demand money with menaces with intent to steal, which occurred on 11 April 2003. One week after the first offence, the applicant approached the victim in the Woolworths car park again and said he needed to borrow some money from the victim. The victim agreed because he was afraid to argue with the applicant. Although the applicant asked to borrow it, the victim understood that he would not get the money back. 9 The victim again attended the Twin Willows ATM and withdrew $1,000. The applicant took the money and asked for a further $200. The victim informed the applicant that he had exceeded his daily withdrawal and if the applicant returned the next day at 3:30 am he could get the rest to him. The victim's bank statement show that $1,000 was withdrawn. 10 Count 3 is demand money with menaces with intent to steal occurring on 24 April 2003. The events in question were almost identical to the events related in Count 2. This time the victim said that he only had $750 and could not give the applicant $1,000. The bank statements show that the victim withdrew $600 from one of his accounts at 12:48 pm and $150.00 from another. The applicant took the money from him. On this occasion a person we now know to be the applicant's cousin, Peter Stevenson, asked the applicant whether he was still working at Woolworths. After being informed of what had occurred, Stevenson said to the victim: "If you had done that to me, I would kill you; take you out the back of Bourke, cut you into little pieces and feed you to the wild pigs." The victim said he had never been so frightened in his life. 11 Further, Stevenson told the victim not to go against the applicant at Court or make a statement against him. Stevenson poked his finger in the victim's leg in a threatening manner. Other threats were made to the victim. Stevenson said to the victim: "I'll be down here with six other guys, we will spread you round the pub. Don't go against Damien. Pay him the $750 and you will never see me again." When the victim left the pub, the applicant said to him: "Look, nothing is going to happen to you unless I authorise it." 12 Count 4 is demand money with menaces with intent to steal occurring on 22 May 2003. Once more the victim was confronted after work. This time the applicant told him that Peter (Stevenson) was going to ask the victim to get a loan. The victim said that there was no way he would be getting a loan. He walked to the ATM and took out a total of $500 from the two accounts earlier mentioned. The applicant followed him and took the money. 13 Count 5 is demand money with menaces with intent to steal occurring on 12 June 2003. This time the applicant was waiting for the victim when he arrived at work at 3:55 am. Statements were made by the applicant involving threats of grievous bodily harm against the victim by Peter Stevenson. The victim withdrew $390 and that amount was taken by the applicant. 14 Count 6 is demand money with menaces with intent to steal occurring on 19 June 2003. Once more the victim was approached when leaving work. The applicant told the victim to come to the hotel. At the hotel the applicant told the victim that he had to take out a loan for $5,000 as the applicant needed it for "legals". Following this conversation the victim attempted to obtain a loan but each attempt was unsuccessful. The victim left the Sydney area and went to visit his family. After receiving some advice he ultimately went to the police. 15 The applicant was arrested and interviewed on 2 October 2003. He participated in an ERISP on that day but his response was inconsistent with guilt and/or remorse. 16 Ultimately the applicant pleaded guilty at Campbelltown District Court on 20 August 2004 and thereupon approached the police and offered to participate in a further record of interview. On 14 October 2004 he provided a further ERISP and nominated Peter Stevenson, his cousin, as the other person involved in the extortion. After the plea of guilty and for the purposes of the sentence, the applicant also sought to have the Court take into account 7 incidents of demand money with menaces against the same victim. Those offences were essentially to the same effect as the charges already described. They occurred on 12 April 2003, 13 April 2003, 17 April 2003, 7 May 2003, 15 May 2003, 30 May 2003 and 5 June 2003. Each were for demand money with menaces with intent to steal. 17 The formal sentences imposed by his Honour Judge Marien SC were: Count 1 to 3 : On each Count a fixed term of imprisonment for two years commencing 24 January 2005 and expiring 23 January 2007; Count 4 to 6 : On each Count, and taking into account the matters on the Form 1 on Count 6, non-parole period for two years commencing 24 January 2006 and expiring 23 January 2008 with a balance of term of 1 year expiring on 23 January 2009. Together these amounted to an effective sentence of 3 years non-parole period and 1 year balance of term. As is clear, the ratio of non-parole period to the balance of term is precisely 3:1. (See s.44(1) of the Crimes (Sentencing Procedure) Act 1999 ) Remarks on Sentence 18 His Honour found, and the finding is not challenged, that the plea of guilty was entered at the first reasonable opportunity. The applicant had no prior convictions and had been leading an upright existence prior to leaving home and living with Stevenson. The applicant said that Stevenson was the person who came up with the idea of the extortion and for the loan. 19 The applicant freely and voluntarily approached the victim at first. Later, according to the applicant, Stevenson pressured him with threats of violence. While at first the two went 50:50 on the takings, the applicant says that fairly soon thereafter, all of the money went to Stevenson whom the applicant feared because the applicant use to go "schizo on the drugs, gambling habit." The applicant said that he felt sick when Stevenson had threatened to kill the victim and he, the applicant, also, felt trapped in the situation. The applicant related a series of physical assaults during the beginning of June at the hands of Stevenson who believed that the applicant had "ripped him off". His Honour the sentencing judge was a little incredulous of the applicant's claim that he only received $200 out of the extortion, with the rest being given to Stevenson. 20 The sentencing judge found that the objective seriousness of these offences was "extremely high" for the following reasons: · Any duress upon Wright cannot be taken as a mitigating factor; · He voluntarily entered the criminal enterprise and perhaps should have anticipated such a falling out; · The motive was greed; · The offences were planned; · It was, relatively, a lengthy time; · There were 13 separate occasions of demanding money; · The threats of violence were very serious, including those made at the start when the applicant said that he had people waiting for the victim and the only reason he was still walking was because of the applicant; · There was a high level of fear in the victim's mind, increased by the applicant being in the company of Stevenson; · The applicant was present when Stevenson made threats to kill the victim; and · The applicant, having voluntarily entered the scheme, never sought to bring it to an end. 21 His Honour considered the following subjective factors: · The applicant had a supportive family and has moved back home; · There was significant remorse and a feeling of shame at the conduct he had perpetrated; · His life had changed dramatically for the worse in the period of living with Stevenson; · Favourable reports were tendered from the current employer and the parish priest; · No prior record; · Early pleas of guilty; · The assistance to authorities in the investigation against Stevenson which included the second ERISP. The sentencing judge found that the information provided in the second ERISP was still not entirely frank; · The sentencing judge allowed a reduction of 40 percent for the plea at the first reasonable opportunity and the assistance to police. 22 The learned sentencing judge could not find that the applicant was unlikely to re-offend as the sentencing judge considered that there was no other motivation for these offences, that he could identify, other than greed. The sentencing judge received a submission from the Crown that it would be within the sentencing discretion to order a custodial sentence served by way of periodic detention. His Honour found that it would be "wholly outside my sentencing discretion to impose anything other than full-time custody." 23 Lastly, his Honour took the view that because of the applicant's good character and the fact that this was the first time that the applicant would be in custody that "there are special circumstances warranting a variation of the statutory ratio between the non-parole period and the total term of the sentence." 24 After referring to the High Court judgment in Pearce his Honour expressed the requirement that he "impose an appropriate sentence for each offence and then take into account matters of accumulation, concurrence and totality. …In my view it would be appropriate to partly accumulate the last three counts on the indictment on the sentences I will impose for the first three which will be concurrent." Manifest Excess 25 The applicant's submission on manifest excess was, in part, based upon the applicant's miscalculation of the starting point of the sentence. At the hearing, the applicant resiled from that miscalculation. It was accepted by all sides that the offences in question were serious. It should also be accepted that the offences arise from the one course of conduct. The sentencing judge allowed a discount of 40 percent, as previously stated, and the starting point for the overall sentence was, in aggregate, six years and eight months. That is a sentence which is well within the range of sentences available to his Honour and is not, and could not be, described as manifestly excessive. Failure to Give Effect to the Finding of Special Circumstances 26 The sentencing judge, as previously outlined, found that there were special circumstances which warranted a departure from the statutory ratio. The overall sentence imposed was one which mirrors precisely the statutory ratio. 27 Prior to the offences in question, which occurred when the applicant was 24 and 25 years of age, the applicant had no criminal record. He had lived with his family and left the family to live with Peter Stevenson. It was during his cohabitation with Peter Stevenson that his lifestyle and attitudes seemed to have changed dramatically. By the time the sentencing judge imposed the sentence, the applicant was back living at home with his family and was enjoying their support. His father gave evidence on his behalf and the applicant, but for the short time already mentioned, appeared to be part of a stable and supportive family. There is little doubt that there was a basis for the finding by the sentencing judge of special circumstances. 28 The difficulty is that the sentencing judge imposed a sentence which does not in its overall effect reflect the finding of special circumstances. 29 The Crown submission on this question is correct. The mere fact that circumstances exist which are capable of constituting a "special circumstance" within the meaning of s.44(1) of the Crimes (Sentencing Procedure) Act does not mean that a sentencing judge is obliged to vary the statutory proportion. There is abundant authority for that proposition. However, the submission, in that form, misses the point. The abundant authority to which reference is there made, makes clear that there is no obligation to vary the statutory ratio but those cases are concerned only with the alleged existence of such an obligation. In this case, unlike those on which the Crown relied, the judge expressly found that the special circumstances did justify a variation to the statutory ratio. 30 In relation to Counts 4 to 6, the statutory ratio was varied by the sentencing judge. The fact that there is an accumulation of sentences would, in ordinary circumstances, itself, justify the finding of special circumstances to give effect to the statutory ratio on the overall sentence. However, his Honour found that the statutory ratio should be varied, not because of the effect of accumulation, but because of the subjective special circumstances attributable to the applicant. It was his Honour's express intention to have a shortened non-parole period and a longer period of supervision. That intention was not effected. In those circumstances, it was an error, having so found, not to reflect that finding in the sentence imposed. His Honour, with respect, having found special circumstances, failed to take into account those special circumstances in the fixing of the sentence and, in so doing, failed to take into account a relevant consideration in the exercise of his sentencing discretion. Is a Lesser Sentence Warranted in Law? 31 The Crown relied on the provisions of s.6(3) of the Criminal Appeal Act 1912, namely that, even if error were to be found, a less severe sentence is not warranted in law. Frankly, this does not sit well with the Crown submission during the original sentencing hearing that it was within the discretion of the sentencing judge to order that the custodial sentence imposed be served by way of periodic detention. While I agree with the sentencing judge that, notwithstanding the Crown submission, such an alternative was not available, the submission at sentencing is inconsistent with the proposition that the special circumstances found to exist by his Honour ought not be given effect in the fixing of a shorter non-parole period. 32 I do not consider that the overall sentence is, in any sense, outside the range available to his Honour, or excessive. Nor do I consider that either one of the sentences imposed for Counts 1 to 3 or Counts 4 to 6 are themselves excessive. 33 Taking into account the aberrant nature of this period of behaviour in the life of the applicant and that this is the first time that the applicant has been in custody, I take the view that the Court should implement the stated intention of the sentencing judge and propose that the following orders be made: a Leave to appeal be granted; b The appeal be granted in part; c That the sentence imposed by his Honour Judge Marien SC on 24 January 2005 in relation to Counts 4 to 6 be quashed and in lieu thereof, on each Count, and taking into account on Count 6 the matters on the Form 1, such the applicant be sentenced to a non-parole period of 18 months, commencing 24 January 2006 and expiring on 23 July 2007 with a balance of term of 18 months expiring on 23 January 2009. d The applicant will be eligible for parole for these offences on 23 July 2007. 34 SMART AJ: The background is set out in the judgment of Rothman J. 35 The applicant pleaded guilty to six counts of demand money with menaces and asked that a further seven offences of demand money with menaces be taken into account. These 13 offences occurred over the period April to June 2003. The offender was the supervisor of the victim at their former mutual place of employment. Both worked in the stores area. The victim saw the offender assisting in what appeared to the victim to be the pilfering of liquor from the employer's store. He was not meant to see this. When pressed by his employer he related what he had seen. On being subsequently confronted by the offender, the victim admitted he had, in response to questions from store management, stated what he had seen. The offender expressed his extreme displeasure about being "dobbed in". 36 From what the offender said the victim sensed that trouble lay ahead. In the course of his many demands for money the offender terrified the victim. A worrying feature of the demands was that they were mostly made as the victim left or came to his employment. He was not allowed to go to and from his work in peace. 37 There was thus sustained criminality of a very severe degree. The maximum penalty for each offence was imprisonment for 10 years. 38 On each of Counts 1, 2 and 3 (being the demands made on 4, 11 and 24 April 2003) the applicant was sentenced to a fixed term of imprisonment for 2 years commencing on 24 January 2005. On each of Counts 4, 5 and 6, and taking into account the matters on the Form 1 on Count 6, the applicant was sentenced to a non-parole period of 2 years commencing 24 January 2006 and expiring 23 January 2008, with a balance of term of 1 year expiring 23 January 2009. 39 The applicant attributed his continuance with his demands for money to the overwhelming and baleful influence and pressure from his cousin, Peter Stevenson. This did not apply to the initial demand and the judge was sceptical about this proffered explanation. He doubted if the police had been told the full story. The applicant pleaded guilty at the earliest opportunity. He also offered to assist the authorities and the judge was told that some charges had been laid against Stevenson. The judge reduced the sentence by 40-per cent, taking into account the plea of guilty and future assistance. 40 The evidence did not enable the judge to identify what motivated the offender to engage in the criminal behaviour in question, other than greed. Accordingly, the judge did not feel he could make a finding that the offender was unlikely to re-offend. 41 The judge, however, found: "because of his good character and that this will be his first time in custody that there are special circumstances warranting a variation of the statutory ratio between the non parole period and the total term of the sentence." 42 After referring to Pearce v The Queen (1998) 194 CLR 610, the judge said: "…it would be appropriate to partly accumulate [the sentences on] the last three counts on the indictment on the sentences I will impose for the first three which will be concurrent" and "… with respect to count 6, I must take into account the matters on the Form 1 … in the way as described … in Attorney-General's Application No 1 of 2002 [2002] NSWCCA 518." 43 The sentence imposed on Counts 4, 5 and 6 does allow for special circumstances in that the parole period of 1 year was more than one-third of the non-parole period. 44 However, if the sentences are taken together the parole period is one-third of the total non-parole periods. The judge does not refer to the effect of the accumulation of the sentences. That in itself is capable of being a special circumstance. A judge does not have to allow a reduction in sentence because of it. The sentencing judge did not. 45 Even allowing for the applicant's favourable subjective case, including the discount covering the plea of guilty and assistance to the authorities, the sentences were very lenient. It is hard to justify the low sentence imposed on Count 6, on which seven other offences of demand money with menaces with intent to steal property were taken into account. That sentence was concurrent with the sentences on Counts 4 and 5. 46 For the serious criminality revealed and despite the position as to special circumstances, lesser sentences than those imposed are not warranted in law. 47 While I would grant leave to appeal, I would dismiss the appeal. ********** 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.