New South Wales Court of Criminal Appeal CITATION: GRAY v R [2007] NSWCCA 366 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 24 September 2007 JUDGMENT DATE: 21 December 2007 JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 2; Harrison J at 37 DECISION: 1. In respect of the sentence on the first charge the appeal is dismissed.; 2. In respect of the sentence on the second charge the appeal is allowed, the sentence imposed is quashed; in lieu thereof the appellant is sentenced to a fixed term of three years commencing 12 July 2007 and expiring 11 July 2010.; 3. In respect of the third charge the appeal is allowed and the sentence is quashed; in lieu thereof the appellant is sentenced to an overall term of five years and six months commencing 12 July 2010 and ending 11 January 2016 with a non-parole period commencing 12 July 2010 and expiring 11 July 2012. The appellant is to be released on parole on 11 July 2012. CATCHWORDS: Sentence appeal - robbery - excessive use of force but no injury - accumulation of sentences - utilitarian discount - need to ensure reflected in overall sentence LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss12, 44 CASES CITED: R v Henry (1999) 46 NSWLR 346 PARTIES: Lee Homer GRAY (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2006/5255 COUNSEL: Mr P Byrne QC (Applicant) Mr G I O Rowling (Crown) SOLICITORS: Mr S C Kavanagh (Applicant) Mr Ian Knight (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0333 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 22 November 2006 IN THE COURT OF CRIMINAL APPEAL 06/5255 McCLELLAN CJ at CL ADAMS J HARRISON J 21 December 2007 Lee Homer GRAY v REGINA Judgment 1 McCLELLAN CJ AT CL: I agree with Adams J. 2 ADAMS J: On 20 October 2005 the applicant pleaded guilty in the Local Court to three charges as follows – 1. On 7 April 2003 at Woy Woy he robbed Carly Lytham of $14,000, the property of Target Country Woy Woy and, at the time of the robbery, deprived Ms Lytham of her liberty. 2. On 2 July 2003 at Woy Woy he robbed Helen Jenkins of $15,000 the property of Target Country Woy Woy, whilst armed with an offensive weapon, namely a knife. 3. On 2 November 2004 at Wyoming, he broke and entered a dwelling house, stealing $500, two gold bracelets, mobile telephone and a radio scanner in circumstances of aggravation, namely using corporal violence on the occupier of the premises. Each of these offences is subject to a maximum penalty of twenty years' imprisonment whilst the Form 1 offence attracts a maximum penalty of fourteen years' imprisonment. 3 The applicant appeared in the District Court on 13 November 2006 and adhered to his pleas of guilty and asked for a further offence – breaking, entering and stealing between 31 March 2005 and 1 April 2005 – to be taken into account on a Form 1. He was sentenced on 22 November 2006 as follows – 1 On the first charge to a fixed term of four years' imprisonment commencing on 12 July 2005 and expiring on 11 July 2009; 2 In relation to the second charge, a fixed term of five years' imprisonment commencing on 12 July 2008 and expiring on 11 July 2013; 3 Taking into account the offence on the Form 1, an overall sentence of twelve years' imprisonment commencing on 12 July 2013 and expiring on 11 July 2025 with a non-parole period of six years expiring on 11 July 2019. 4 The effect of these orders is that the applicant was sentenced to twenty years' imprisonment commencing on 12 July 2005 and expiring on 11 July 2025 with a non-parole period of fourteen years' imprisonment expiring on 11 July 2019. 5 The applicant appeals to this Court against the severity of these sentences. The facts 6 Agreed statements of facts were tendered on the sentencing proceedings without objection. The following account is largely taken from that material. 7 At about 7am on 7 April 2003 Ms Lytham, who was then nineteen years of age and employed as assistant manager at the Target store, arrived for work. Shortly after, the buzzer went at the rear fire doors, which she opened. As she did so, the applicant pulled the door fully open and pushed Ms Lytham back into the store, causing her to fall to the ground. He then rolled her over so that she was lying face down and tied her hands behind her back with masking tape. He brought her to her feet and, whilst holding her by her tied hands, forced her towards the office area and the safe. He took the store keys from her belt and opened the manager's office after Ms Lytham had indicated which key to use. Inside the office, the applicant pushed Ms Lytham to the desk and forced her to kneel on the ground. He opened the safe with the key. The applicant removed the plastic container holding the from the safe, placed it into a backpack he was carrying, took the cash from the float, cut the telephone cord in the office, took Ms Lytham's mobile phone from her handbag and fled. Ms Lytham managed to free herself shortly afterwards. A check of the store records revealed the applicant had stolen $14,000, which has not been recovered. 8 On 2 July 2003 the applicant approached Ms Jenkins, who was the manager at the same Target store which he had robbed three months earlier. He told Ms Jenkins that he was from the Brisbane Water Police and that he had to speak to her about that earlier robbery. Ms Jenkins asked him to show identification but he told her that it had been left in the car. Ms Jenkins then informed the applicant that she was too busy at that moment and arrangements were made for the applicant to return to the store later that afternoon. Some three hours later, Ms Jenkins was informed that the applicant had returned. She walked over to where he was waiting and he followed her into the office. She asked again to see his identification and turned towards him. She then saw that the applicant was carrying a knife. The applicant grabbed her and demanded that she open the office door. She did this. She was forced to the floor and, holding the knife against her throat, the applicant threatened to cut her throat if she screamed. The applicant pulled the keys from her hand and took $15,000 from the safe. Shortly after he left the office and ran out through the store. He was chased through the shopping centre and into the car park, throwing away the knife, but made good his escape. 9 On 2 November 2004 the occupant of a house in Wyoming was alone in the kitchen when the applicant open the front entry flyscreen door and entered the house. He walked through to the kitchen and confronted the occupant, grabbing her left forearm, telling her that he was from the drug squad, had been watching the house and wanted her drugs and money. The applicant pushed the occupant into the hallway, forced her to the ground, forcibly interlocked her fingers and tied her wrists with adhesive tape. He grabbed her throat and lifted her to her feet. He then pushed the applicant further up the hallway into her bedroom, demanding her handbag. She managed to free her hands and complied with the applicant's demands to empty her bag onto the bed. The applicant rummaged through her personal property and took a number of items listed in the charge before running out the front door. At the time the occupant's son's girlfriend was in the house, heard the commotion and tried to telephone for help. She grabbed a baseball bat and entered the hallway just as the offender was running out the front door. The occupant had suffered a cut to her forearm and was crying and trembling. In July and September 2005 detectives spoke to the applicant about all these offences and was charged with them but declined to be interviewed. 10 So far as the offence of 2 November 2004 is concerned, a victim impact statement was tendered in the form of the report of a clinical psychologist. The occupant said that she was "scared to death" during the incident and suffered some post trauma symptoms afterwards. She reported hyper-vigilance, thinking she could hear footsteps and people knocking at the door, though no one was there. The victim could spend two or three days without thinking about the incident, but then the image of the applicant would "flash up". She said that when she did not think or talk about it she was all right but if the subject arose she wanted to "go home and be safe". The frequency and intensity of most of the victim's symptoms have decreased over time. Overall, the psychologist said that the victim's symptoms appear to be in the "mild range of severity and to be mildly disabling". 11 The Form 1 offence comprised the breaking and entering into a storeroom and stealing power tools, electrical cabling and assorted tools. Prior record 12 The applicant was just short of his thirty-sixth birthday when he was sentenced. For present purposes his criminal record commenced when he was nineteen with a conviction of breaking, entering and stealing and there follows a sorry succession of criminal offences almost every year except when he was in gaol. Overwhelmingly, the offences involved breaking, entering and stealing or offences connected with this crime, making a false instrument, dishonestly attempting to obtain money by deception and the like. Except for offences in 2001 of threatening to use an offensive weapon to prevent lawful apprehension, in 1994 resisting arrest and in 1997, common assault, the applicant's record is remarkable for its lack of offences of violence, in marked distinction to the offences under consideration. At the same time it is important to note that, although his conduct must have been terrifying and involved physical force, except for the scratch on the arm of the house occupant, no physical injuries were inflicted. 13 On 31 January 2003 the applicant was imprisoned for six months for the offence of having goods in his personal custody reasonably suspected of being stolen, the sentence being suspended on his entering into a bond under s12 of the Crimes (Sentencing Procedure) Act 1999 for six months concluding on 30 July 2004. It follows that he was subject to this bond at the time of the offences under consideration. Subjective circumstances 14 The applicant gave evidence in these proceedings, which was summarised by the sentencing judge. Dealing with the circumstances of his imprisonment, the applicant had been classified to strict non-association for six months because he had provided information to the authorities. This involved his confinement to a cell for twenty-three hours a day although on three days a week he was allowed out for an hour for exercise. He has almost no contact with other inmates. The judge concluded that "he will be most likely serving the whole of, or a substantial part of, the sentences" in this manner. In this Court, the Crown did not seek to controvert this finding. 15 In connection with the offences, the applicant said that at the time he was addicted to and regularly using crystal methamphetamine, known as ice. He was on sickness benefits and suffering from bi-polar disorder and depression. He said he committed the offences to fund his drug habit and to provide funds for his car and for gambling. He said that he felt sorry for the victims and would like to say so to each of them. 16 The applicant had attended some drug and alcohol courses whilst in gaol on remand together with a course in preventing and managing relapse. Whilst in the community he had gone to some Narcotics Anonymous' meetings but then stopped. He was diagnosed with manic depression in 2002 and was prescribed Zoloft, which he has been taking ever since. The medication helped to stabilise his moods. He has been seeing a psychologist and a psychiatrist whilst in gaol. 17 Tendered on the applicant's behalf was the report of a psychologist dated 10 January 2006. It appears that the applicant had an extremely unstable and dysfunctional childhood and adolescence, variously living with his mother and his father when they separated shortly after he was born. When he was five, the applicant and his siblings were placed into an orphanage by DOCS, though later he returned to live with his mother. At one time he was kidnapped by his father who took him and his sister to Queensland. He said he was terrified of his father who was a violent man who drank every night. Eventually he contacted Lifeline, which helped him move away from his father and into foster care. He returned to live in Ultimo with his mother, who was in a new relationship with a man who was a heavy drinker and violent towards his mother. After two years he was expelled from the family home and went to live with his sister, beginning to drink heavily and to using cannabis. In his twenties, whilst in a relationship with a heroin addict, he took up heroin himself, during which time he served a number of short custodial sentences for drug related offences. Eventually he left the relationship, went to a refuge and stopped using heroin, completing ten months of a drug and alcohol rehabilitation program in 2001. When he was twenty-eight years of age he became addicted to methamphetamine when he became depressed. It seems that he was again diagnosed with severe manic depression in 2004. The psychological testing revealed a number of problematical elements in his personality including high scores for the bipolar (manic and dysthymia) scales, and high scores for severe current reactive mood state and thought disorder. The psychologist noted that the applicant was socially phobic and frequently depressed with recurrent symptoms of depression and an enduring pattern of thoughts, attitudes, behaviours and self-concepts related to depression with mood swings, however, ranging from elation to depression. Information given to the psychologist from an officer within the correctional centre indicated that the applicant "is intelligent, cooperative and polite in his dealings with staff…a hard worker who uses his initiative, has learnt to defuse reactive situations and mentors the younger prisoners". 18 The psychologist also noted that the applicant had expressed remorse for his offending behaviour. The psychologist thought that the applicant required regular long-term psychotherapy and counselling to deal with his anxiety and depression and stabilise his mood swings. The sentencing assessment 19 The learned sentencing judge described the offences as involving "a degree of cold, calculated planning" and rejected the applicant's evidence that he was feeling irrational and did not know what he was doing. His Honour concluded that "the offender well knew what he was doing…[and that] what he was doing was gravely wrong". He noted that counsel had not submitted that the principles applicable to sentencing persons suffering a mental disorder were applicable and concluded that they were not. The judge noted the applicant's evidence that the prescribed medication had controlled or stabilised his moods and there was no evidence that at the time the offences were committed he was in any kind of psychotic state. 20 The judge described the offences of robbery, armed robbery and breaking, entering and stealing involving the infliction of actual physical harm as "offences of extreme gravity", being offences not only against property but also against the person. His Honour noted that the offence of aggravated break, enter and steal attracted a standard non-parole period of five years' imprisonment. He also referred to the decision in R v Henry (1999) 46 NSWLR 346 in which "a narrow sentencing range [of between four and five years for the full term] within which this Court would accept sentences in such cases to fall". The judge pointed out that the robbery offences committed by the applicant were markedly more serious than the "common" case to which the guideline applied. His Honour characterised the offences as "extremely serious, violent, cruel and callous". During the sentencing proceedings, his Honour referred to the level of violence as "just so extreme". Totality 21 The sentences in respect of the first and second charges overlapped by three years, whilst the sentence in respect of the third was wholly accumulated on the sentence imposed on the second. The judge said that he did this because of the sixteen month gap between these offences. Referring to Pearce v The Queen (1998) 194 CLR 610, his Honour pointed to the need to consider questions of concurrence, accumulation and totality. 22 The judge considered that the accumulation of the sentences was a special circumstance requiring a variation in the statutory ratio provided by s44 of the Crimes (Sentencing Procedure) Act 1999 between the non-parole period and the total sentence imposed for the third charge, so that, in the result, an effective non-parole period of fourteen years was imposed. Having regard to the overall term of twenty years, applying the statutory ratio would have produced an overall non-parole period of fifteen years, so it is evident that his Honour thought it right to reduce this period. 23 There was no reference to the question of totality in the context of considering the impact of the utilitarian discount, that is to say, whether the total overall senence, before allowing the discount, was excessive. The utilitarian discount 24 The sentencing judge found that the applicant's pleas of guilty were entered at the first reasonable opportunity and concluded he was therefore entitled to a discount of 25%. The applicant had also provided some assistance to authorities in relation to which his Honour said "some small reduction" was appropriate. Accordingly, a total reduction in the sentence otherwise to be imposed was of the order of 30%. His Honour said that the sentences should be further moderated because of the likelihood that the applicant would serve the whole or a substantial part of them on strict protection, as the applicant described in evidence. In light of the applicant's history and the psychological material before him, the sentencing judge was unable to find that the applicant's future prospects of rehabilitation were favourable. The submissions on appeal 25 Mr Byrne SC for the applicant submitted that, although the offences were serious, they did not fall within the upper range of objective seriousness as found by the sentencing judge. This became especially evident, he submitted, if it were assumed that indeed the sentencing judge applied to each sentence a utilitarian discount of 30%. Thus, for example, the sentence for the third charge was twelve years' imprisonment. If a 30% discount had been applied, the starting point was several months over seventeen years which, it was submitted, must be excessive having regard to the statutory maximum of twenty years' imprisonment. In respect to the second count, the fixed term of imprisonment of five years, assuming a 30% discount had been applied, means that the starting point for the non-parole period was just over seven years, implying (applying the statutory ratio provided by s44 of the Crimes (Sentencing Procedure) Act 1999), a starting point for sentence of something slightly over nine years. It is difficult to see in these sentences that any moderation has been applied to take account of the very harsh circumstances in which the applicant would be required to serve most if not all of his time in prison. 26 The second line of contention on the applicant's behalf was the very limited concurrency applied to the sentences. It is submitted that the judge's allowance of special circumstances referred only to the calculation of the non-parole period of fourteen years and that his Honour overlooked the issue of totality. Had the judge considered this issue, it is submitted, he would have explained why he thought that the total accumulation of the third sentence was justified, even though this offence occurred sixteen months after the second offence. It is contended that the ultimate overall sentence is excessive having regard to the overall criminality involved. 27 It is further contended that the applicant's mental state justified his being treated as not an appropriate vehicle for general deterrence and moderated the culpability of his offences. Discussion 28 If the sentences, considered individually, had not been said to result from a 30% utilitarian discount, I would readily have accepted that they were in range of the sentencing judge's discretion. However, it seems to me, with respect, that when the discount element is applied, the sentences imposed were manifestly excessive. This is most obviously the case with the third count, even taking into account the Form 1 offence. I have already pointed out the strong language used by the judge to describe the offences. The offences were indeed "serious, violent, cruel and callous" but I do not think that they were "extremely" so. In this respect, the fact that no physical injuries were actually inflicted is significant. Sentences must reflect the distinction between the use of force and the infliction of actual injuries, lest it be thought that there is no point in limiting the violence used to commit crimes. I do not for a moment wish to suggest that manhandling the victims as the applicant did in these offences was other than a serious escalation of the gravity of his misconduct, but it was not in any sense "extreme". 29 If the discount of 30% is thought appropriate (and I think it is), the starting point for considering the totality of the overall sentence is an implied sentence of something over twenty-eight years. Serious as the applicant's offences undoubtedly was, I am of the respectful opinion that this starting point is manifestly excessive. With respect, although the sentencing judge may have applied the utilitarian discount to the individual sentences, it appears very likely that his Honour did not consider whether the accumulation of the sentences had the effect of nullifying the discount, in which event of course, it was of no utility whatever. On either view, I would respectfully hold that the judge erred. 30 This conclusion is reinforced by the consideration that the applicant would spend most, if not all, of the sentence under a regime markedly harsher than the general prison population because he attempted to assist the authorities. Fourteen years of incarceration, for most if not all of which he is kept in his cell 23 hours a day, with an hour for exercise three days a week and almost no contact with other inmates is, in my respectful view, a punishment considerably harsher than the seriousness of his crimes warrants. If this sentence reflects an allowance for the form of imprisonment, the starting point must have been higher again. 31 Furthermore, the applicant's significant mental problems – even if he is not mentally ill – are likely to make it more difficult for him to cope with this regime. I would, with respect, agree with the sentencing judge that there is nothing that suggests the applicant's offences were committed whilst he was affected by any significant disability: to the contrary, they are consistent with the exercise of cool, deliberate judgment. At the same time, there is no reason not to accept the history related in and the conclusions of the psychologist's report to which I have adverted. Conclusion 32 Leave to appeal should be granted. 33 Although the sentence for the first charge is, in my view, at the top of the appropriate discretionary range I do not think it was manifestly excessive justifying the intervention of this Court. 34 In my view, the sentence in respect of the second count is manifestly excessive and should be reduced. In the normal course, the sentence for a second serious offence of this kind would be longer than that imposed for the first offence and, had this Court allowed the appeal in respect of the first sentence, the usual course should have been followed. However, because the sentence imposed on the first count was not imposed by this Court, the sentence for the second offence must be considered independently by this Court exercising its own discretion afresh. I propose a starting point of seven years. (Had it not been for the unusual conditions of the appellant's imprisonment, I would have proposed a higher commencing point). Reducing that period by the order of 30% yields four years. Applying the statutory ratio results in a non-parole period of three years. Accordingly, I would quash the sentence on count 2 and impose in lieu thereof a fixed term of imprisonment of three years to commence on 12 July 2007 and expire on 11 July 2010. It will be seen that there is a two year overlap. 35 In my view, the sentence for the third charge is also manifestly excessive and this Court must resentence the appellant. Again, the sentence that I propose would have been significantly higher had it not been for the conditions of the appellant's incarceration. I propose a starting point of eight years' imprisonment which, when discounted, yields a full term of five years and six months. I would respectfully agree with the sentencing judge that this offence was temporally distinct from the others. Nevertheless, it formed part of a series of crimes and, totality aside, the question whether its punishment ought to have been wholly accumulated was a live one. However, I am not satisfied that the sentencing judge erred in wholly accumulating the sentence for the third charge. Accordingly, this sentence should commence on 12 July 2010 and end on 11 January 2016. 36 The overall resulting sentence is ten years and six months commencing on 12 July 2005. Standing back and considering the principle of totality, I am satisfied that further moderation of the sentences is not required. I am also satisfied that it does not diminish the effect of the utilitarian discount that has been applied to the individual sentences. It is necessary to consider whether special circumstances require some adjustment of the statutory ratio for calculating the non-parole period applicable to the third charge. Considering this charge independently, the statutory ratio would result in a non-parole period of four years and one month. Applying it to the overall sentence, the appropriate effective non-parole period would be seven years and something over eleven months. It seems to me that special circumstances exist justifying variation of the statutory ratio in respect of the non-parole period for the third charge, namely, the conditions of the applicant's imprisonment and his psychological state, so that a longer period of parole than would otherwise be available is desirable in the public interest bearing in mind the period of imprisonment between the date upon which the appellant commenced serving his sentences and date upon which he is to be released. In making this adjustment, I am not double-counting the conditions of the appellant's imprisonment. Rather, the adjustment reflects my view that this factor requires a longer period on parole than the statutory formula would provide. The statutory ratio applying to the third charge should therefore be varied to result in a total effective non-parole period of seven years. Accordingly, I propose, in respect of the third charge, that the appellant is to be released on parole on 11 July 2012 and that the balance of his sentence will expire on 11 January 2016. 37 Accordingly, the orders I propose are as follows – 1. In respect of the sentence on the first charge the appeal is dismissed. 2. In respect of the sentence on the second charge the appeal is allowed, the sentence imposed is quashed; in lieu thereof the appellant is sentenced to a fixed term of three years commencing 12 July 2007 and expiring 11 July 2010. 3. In respect of the third charge the appeal is allowed and the sentence is quashed; in lieu thereof the appellant is sentenced to an overall term of five years and six months commencing 12 July 2010 and ending 11 January 2016 with a non-parole period commencing 12 July 2010 and expiring 11 July 2012. The appellant is to be released on parole on 11 July 2012. 38 HARRISON J: I agree with Adams J. ********** 07/04/2008 - Sentences added to the end of paras 21 and 23 - Paragraph(s) 21, 23 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.