Tilyard v Regina [2007] NSWCCA 7

New South Wales Court of Criminal Appeal

CITATION: Tilyard v Regina [2007] NSWCCA 7 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24/01/2007

JUDGMENT DATE: 29 January 2007

JUDGMENT OF: Adams J at 1; Howie J at 2; Price J at 33

DECISION: Application for leave to appeal granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentence - Robbery with a dangerous weapon - relevance of alcohol addiction - whether sentence manifestly excessive - whether error in finding no special circumstances.

LEGISLATION CITED: Crimes Act 1900 - s 97(2) Crimes (Sentencing Procedure) Act 1999 - s 3A

CASES CITED: R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255

PARTIES: Douglas Malcolm Tilyard v Regina

FILE NUMBER(S): CCA 2006/2352

COUNSEL: P. Ingram - Crown J. Manuell - Applicant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3202

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

LOWER COURT DATE OF DECISION: 25/11/2005

IN THE COURT OF CRIMINAL APPEAL 2006/2352

ADAMS J HOWIE J PRICE J

MONDAY 29 JANUARY 2007 Douglas Malcolm TILYARD v REGINA Judgment 1 ADAMS J: I agree with Howie J 2 HOWIE J: The applicant was convicted by a jury of a charge of robbery with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. This is an offence that carries a maximum penalty of imprisonment for 25 years. On 25 November 2005 Hughes DCJ (the Judge) sentenced him to a term of imprisonment made up of a non-parole period of four and a half years and an additional term of one and a half years. The sentence was to commence on 3 February 2004 and the applicant is eligible for release to parole on 2 August 2008. The applicant seeks leave to appeal against this sentence. 3 The Judge recited the following facts during his sentencing remarks. On 3 February 2004 in the early evening the applicant entered a chemist shop in Liverpool armed with a loaded revolver. The applicant approached the counter and asked the owner of the shop whether he kept morphine. He was told that they did not stock the drug and that it had to be ordered. The applicant claimed that he had a prescription for the drug but then produced the revolver from behind his back and pointed it in the direction of the storeowner. He demanded money. The owner opened the till and threw cash onto the counter. The applicant demanded more money but was informed that it was kept in a time delay safe. The applicant took the money from the counter, about thirty dollars, and walked out of the shop. He was arrested a short time later with the revolver tucked into his pants in the small of his back. There were five rounds in the revolver. 4 The applicant stood trial on the basis that he could not recall committing the offence. However, the Crown case was very strong as there was video footage that clearly showed the applicant committing the robbery. The applicant gave evidence that he remembered receiving the weapon from a person he knew as "Sam" although he was not sure when that occurred. He said that he did not know where the chemist shop was and had never seen it before. In cross-examination he admitted that, when the revolver was handed to him, he opened it up and saw five cartridges inside. He said that after that time he had no further recollection of what happened. 5 The applicant was born on 17 January 1949. He has a criminal record dating from 1980 when he was convicted in South Australia of being in possession of a dangerous weapon. In 1993 he was sentenced for offences of armed robbery, possessing a shortened firearm and discharging a firearm to avoid lawful apprehension. He received an overall sentence of a minimum term of 6 years and an additional term of 4 years. That sentence commenced on 3 May 1993 and he was released to parole on 6 May 1999. 6 He gave evidence on the sentencing proceedings. That evidence was to some extent inconsistent with the evidence he gave at trial because he said that the persons who came to the flat with the gun told him that there was morphine at the chemist shop and they wanted it. 7 There was in evidence a psychologist report dated 30 September 2004 that contains some relevant history of the applicant. He was single at the time of his arrest but had been married twice. He had limited contact with the children born of the first marriage. He was living in housing commission accommodation. He had not been in employment since his release from his first prison sentence and was in receipt of a pension. The applicant was in the Fire Brigade in New Zealand, and a member of the Australian Federal Police from September 1972 to October 1973 and he served as a member of the police force in the Northern Territory. He also worked in the mining industry. 8 As to the offence, the applicant told the psychologist that "three young blokes" came to his home and gave him the gun. He could not recall going to the chemist shop and assumed he had been drinking alcohol during the day. He told the psychologist he had been consuming alcohol since he was 18 or 19. He used to purchase ten casks of wine on each pension day before his arrest. He would also drink beer and scotch if he had funds to do so. He had unsuccessfully attended AA meetings at some time in the past. He was admitted to the Alcohol Related Brain Damage Unit at Cumberland Hospital between 7 May and 5 August 1992. He had reported a history of alcohol consumption for 30 years apparently drinking up to 6 litres of wine and a carton of beer daily before his admission. He was diagnosed with a number of alcohol related injuries including "minimal frontal lobe damage". He complained to the psychologist of seizures, blackouts, head injuries and headaches. He had been diagnosed with Post Traumatic Stress Disorder as a result of his experiences in the Police and Fire Services. 9 The psychological report contained the following assessment: