New South Wales Court of Criminal Appeal CITATION: Matthew Scott Olsen v Regina [2006] NSWCCA 88 HEARING DATE(S): 20 March 2006 JUDGMENT DATE: 29 March 2006 JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 2; Hislop J at 29 DECISION: Leave to appeal against sentence granted; Appeal against sentence dismissed LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) CASES CITED: Reg v Henry & ors (1999) 46 NSWLR 346 PARTIES: Matthew Scott Olsen Regina FILE NUMBER(S): CCA 2006/22 COUNSEL: P. E. Barrett - Crown In person - Applicant SOLICITORS: S. Kavanagh - Crown In person - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3172 LOWER COURT JUDICIAL OFFICER: Sorby DCJ IN THE COURT OF CRIMINAL APPEAL 2006/22 McCLELLAN CJ at CL SULLY J HISLOP J 29 March 2006 Matthew Scott OLSEN v REGINA Judgment 1 McCLELLAN CJ at CL I agree with Sully J. 2 SULLY J: This is an application for leave to appeal against sentence. The applicant, Mr. Olsen, has conducted his own case on the application. 3 On 25 November 2004 the applicant was indicted before his Honour Judge Sorby in the District Court at Campbelltown. The indictment contained two counts. The first count charged that on 17 May 2003 the applicant had robbed a certain pharmacy, he having been armed at the time with an offensive weapon, namely "a large kitchen-style knife". Such an offence contravenes section 97(1) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. The second count charged a similar offence, allegedly carried out at the same pharmacy, but on 19 May 2003. 4 The applicant pleaded guilty to both of the said charges. He asked that there be taken into account pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) an additional offence, namely a third armed robbery while armed with an offensive weapon. This third armed robbery was of the same pharmacy and was carried out on 18 May 2003. Judge Sorby acceded to the request. 5 Judge Sorby sentenced the applicant on 25 November 2004. His Honour passed, on each of the two offences charged in the indictment, an effective sentence of imprisonment for 4 years, the two sentences being dated so as to run concurrently. His Honour set a non-parole period in each case of 20 months and a balance of term of 28 months. The additional offence was taken into account in the setting of a sentence for the offence first charged in the indictment. 6 The relevant facts are summarised as follows: "The robbery of 17 May 2003. On 17 May 2003 the prisoner, in company with a Frank Smith, entered the Black and White Pharmacy on the Hume Highway, Liverpool where the owner, Mrs. Mao was behind the counter. Both the prisoner and Smith produced large kitchen-style knives and demanded cash. Mrs. Mao handed over $100 and the prisoner and Smith fled the premises, later using the money to purchase drugs. The robbery of 18 May 2003. The next day, 18 May 2003, the prisoner, ………..(and) ……… Smith again attended the same pharmacy at Liverpool which was on that day attended by two female shop assistants. Knives were again produced and money and drugs demanded. One hundred and fifty dollars was handed over with an amount of Valium before Smith and the prisoner fled. The following day, on 19 May 2003, the prisoner, Smith and a female known as Peta Hearne went ……….(to) …….. the Black and White Pharmacy at Liverpool. Two female employees were again in attendance at the shop. Again, Smith and the prisoners (sic) produced knives and made demands. They were given $70 in notes and some $2 coins and a packet of Serepax. Hearne entered the shop and took some items. The three then fled and were arrested shortly afterwards in a nearby unit. After being arrested and charged, the prisoner before me made frank confessions and his cooperation has continued since, a matter I will deal with in more detail shortly." [AB 9, 10] 7 Before considering each of the grounds upon which the applicant now relies, it is useful to consider the remarks on sentence. 8 Judge Sorby noted that the offences were "objectively serious and far too prevalent in today's society". His Honour noted the serious fear caused to a victim who is confronted by a knife-wielding robber. His Honour emphasised that sentencing for any offence of armed robbery must keep carefully in mind the need for deterrence both specific and general. I respectfully agree with the entirety of those observations. 9 His Honour referred specifically to the guideline judgment in Reg v Henry & ors. (1999) 46 NSWLR 346. His Honour thought, and I agree, that the typical profile which was taken as the point of reference for the purposes of that guideline judgment, fitted the applicant "four square". That entailed the need to sentence upon the basis of an indicative, albeit not a prescriptive, guideline of a sentencing range for each head sentence of imprisonment for between 4 and 5 years. 10 It was not controversial that the applicant had pleaded guilty at the first practicable opportunity. He was given, correctly, a discount of 25% on that account. 11 It was not controversial that the applicant had given assistance to the authorities. His Honour described it thus: "He cooperated fully from the time of his arrest. He agreed to give evidence against the co-offender Smith and was subpoenaed to do so and turned up at Court and no doubt his willingness to give evidence contributed to Smith's decision to plead guilty at the trial. The prisoner is entitled to a discount for his cooperation. I allow thirty percent." [AB 13] 12 I see no error in those statements. 13 His Honour struck the overall sentencing balance in this fashion: "I have taken into account the objective seriousness of the offences where victims were put in fear. The maximum penalties imposed by the statute, the need for general deterrence and the guideline judgment of Henry . I have balanced the objective factors against the subjective factors in the prisoner's favour, including his youth, lack of substantial criminal record and his rehabilitation to date and prospects of the future, his early ……. (sic: but read "his early plea") …… and the considerable assistance he offered the authorities." [AB 15] 14 I see no error in that approach. 15 The applicant takes, put simply, two points in support of his present application: first, a parity point; and secondly, a point relating to a period of 165 days spent in what the applicant describes as pre-sentence "quasi custody". 16 As to the parity point, the applicant submits that Judge Sorby took an impermissibly high starting point, especially when the sentence ultimately passed upon him is compared with the sentence ultimately passed upon his co-offender, Smith. 17 Mr. Smith was sentenced on 25 June 2004 by his Honour Judge Maguire. He had been presented for trial before his Honour on an indictment containing three counts, each of which charged one of the three armed robbery offences of which I have hitherto spoken. He originally pleaded not guilty to each charge; but on the second day of trial he changed each plea to one of guilty. He was sentenced for each offence to imprisonment for 6 years of which the non-parole period was set at 3 years. All sentences were dated so as to be wholly concurrent. 18 Mr. Smith was a little older than the present applicant. He had worse criminal antecedents including one armed robbery offence in 2001. His antecedents did not suggest that his prospects of rehabilitation were particularly good. He had been on parole at the time of the offences for which he stood for sentence by Judge Maguire. His case had some not insignificant subjective features which included assessments of his intellectual capacities which placed those capacities at a significantly lower level than the corresponding intellectual capacities of the applicant. 19 Mr. Smith received no discounts of sentence by reason of either a plea of guilty or of assistance to the authorities. Judge Maguire's remarks on sentence contain, therefore, no process of reasoning which indicates that his Honour had taken a particular sentence, or sentencing range, as a pre-discount starting point. This complicates somewhat any attempt at a precise arithmetical comparison of the sentences passed respectively on Mr. Smith and on the present applicant. 20 In my opinion it is more useful to eschew bare and necessarily artificial arithmetical comparisons, and to make a more broadly based comparison between the two end results. 21 It seems to me that there is nothing of substance to choose between the respective objective criminal culpability of each of Mr. Smith and the applicant in connection with the three armed robberies. The applicant was entitled to the full measure of sentence discounts for his plea of guilty and for his assistance to authorities. He received a total sentence discount of 55% which was, in my opinion, the full measure of his just entitlements. His subjective features were different in some, and not insignificant, respects from those of his co-offender; but it is trite law that subjective circumstances must not be allowed to overwhelm or to dilute excessively the objective gravity of the particular offence(s); and certainly not in the context of armed robbery offences where general deterrence is always a significant matter for consideration. 22 I am unpersuaded that effective head sentences of 6 years for the co-offender and of 4 years for the applicant manifest a disparity justifying the intervention, conformably with correct principle, of this Court. I take the same view with respect to the non-parole period of 3 years set in the case of Mr. Smith; and the non-parole period of 20 months set for the present applicant. 23 As to the "quasi custody" point, it is sufficient to say that the 165 days to which the applicant points were not spent in prison in pre-sentence custody correctly so described. The days seem to be related, rather, to periods spent by the applicant in various rehabilitation programmes, in some of which he seems to have achieved at least some success. The applicant was not entitled to have those 165 days taken off his sentence in a precise, arithmetical way. He was entitled to have his attempts at rehabilitation, in so far as he had made an effort to take proper advantage of those opportunities, taken into account in a broadly inclusive way in the fixing of, in particular, a non-parole period. In my opinion a fair reading of Judge Sorby's remarks on sentence shows that his Honour gave the applicant proper credit for his pre-sentence attempts at rehabilitation. 24 For the whole of the foregoing reasons I am unpersuaded that error has been demonstrated, and that the intervention of this Court is therefore warranted. 25 I wish to add that, even had I been of the contrary opinion, I would not have accepted that a more lenient sentence was warranted in law. There are two particular reasons for that. 26 First: I observe that his Honour treated all three offences as "three offences (which) were part of a single episode of criminal conduct". In my respectful opinion that view was erroneous. It seems to me that a fair reading of the evidence that was placed before the learned sentencing Judge disclosed three discrete offences, each distinctly conceived and executed. There ought to have been, in my opinion, some prudent but real measure of accumulation. That there was not, entails in my view that the applicant's sentence is, to that extent, undeservedly lenient. 27 Secondly: the way in which the sentences were structured seems to me, with respect, to have imposed no penalty at all on account of the additional offence which was taken into account when the applicant was sentenced on Count 1 of the indictment. It seems to me that the applicant has received on that account, also, an undeserved wind-fall. 28 In my opinion, the Court should order: [1] that leave to appeal against sentence be granted; [2] that the appeal against sentence be dismissed. 29 HISLOP J: I agree with Sully J. ********** 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.