R v Pace [2008] NSWCCA 233

New South Wales Court of Criminal Appeal

CITATION: R v Pace [2008] NSWCCA 233

HEARING DATE(S): 30/9/08

JUDGMENT DATE: 30 October 2008

JUDGMENT OF: Bell JA at 1; Latham J at 1; Fullerton J at 1

DECISION: Appeal dismissed

CATCHWORDS: SENTENCE - Crown appeal - principles of restraint - significance of respondent's psychiatric illness

Crimes Act 1900 (NSW) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Mental Health (Criminal Procedure) Act 1990

Everett v R (1994) 181 CLR 295 Griffiths v The Queen (1997) 137 CLR 239 Markarian v R [2005] HCA 25; 228 CLR 357 CASES CITED : R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 288 R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383

PARTIES: Regina (Applicant) Daniel Simon Pace (Respondent)

FILE NUMBER(S): CCA 2008/00001354

COUNSEL: Mr D Arnott SC (Crown) Mr A Haesler SC (Respondent)

SOLICITORS: S Kavanagh (Applicant) S O'Connor (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/11/0004

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 15/8/08

IN THE COURT OF CRIMINAL APPEAL

CCA 2008/00001354

BELL JA LATHAM J FULLERTON J

Thursday 30 October 2008 R v Daniel PACE Judgment 1 THE COURT: On 30 September 2008, the Court dismissed an appeal brought by the Director of Public Prosecutions against the asserted inadequacy of the sentences imposed on the respondent on 15 August 2008. These are the Court's reasons for making that order. 2 The respondent pleaded guilty in the District Court to four counts in an indictment charging offences under s 94 of the Crimes Act 1900 (NSW). Counts 1 and 2 charged completed offences and counts 3 and 4 charged attempted offences. 3 The first offence was committed on 28 August 2007. The respondent walked into a convenience store in Randwick. He kept his right arm behind his back while gesturing with his left arm towards the cash register. He instructed the shop assistant to "open the till or I'll kill you, I swear to God I will kill you". The assistant handed the respondent the sum of $1,000 in cash. The respondent directed him not to move, repeating the threat to kill him. CCTV film depicted the respondent wearing the same clothing that he had been wearing a few hours earlier when he reported to the police in accordance with his bail conditions. The police made enquiries of the respondent's family. At about 11 am the following morning, the respondent attended the police station and confessed to the robbery. He told the police, "I did it. I'm confused. I'm having a bad time in the last couple of days". Detective Senior Constable Gouge, who was aware of the respondent's "possible mental health issues", assessed him as being "a vulnerable person" and arranged for his mother to attend the police station. In Detective Gouge's view, the respondent was unfit to be interviewed. He was released on bail on 7 September 2007. 4 The remaining three offences all occurred within a 24-hour period, commencing at around 7.30 pm on Sunday 23 September. The respondent entered a convenience store in Malabar, wearing a stocking over his head. He jumped over the front counter and tried to open the cash register. The proprietor and his wife were seated behind the counter. The proprietor took hold of a metal bar and repeatedly struck the respondent around the back of his head. The respondent ran empty-handed from the shop. (This was the offence charged in count 4). 5 Shortly after this incident, at about 7.45 pm, the respondent entered the Oporto restaurant in Kingsford, wearing a stocking over his head. He jumped over the front counter and took $620 from the till. The shop assistant ran to the rear of the shop and summonsed the manager. The respondent left the premises pursued by the manager. (This was the offence charged in count 2.) 6 At about 2.30 am on Monday 24 September, the respondent entered a shop in Darlinghurst. He removed a portable portion of the shop counter and confronted the shop assistant, demanding, "Give me all the money. Open the till otherwise I'm going to kill you". The assistant ran from the shop and enlisted the assistance of two security guards who were working at a nearby hotel. The respondent left the premises and was detained by the security guards, who kept hold of him until the police arrived. (This was the offence charged in count 3.) 7 Following his arrest, the respondent's behaviour was aggressive; he was punching the walls of his cell and calling out abuse. The police did not consider it appropriate to interview him at this time. He was interviewed on 31 October. At this time he was cooperative and he made full admissions of his involvement in all three offences. His account of his circumstances in the hours preceding the first attempted robbery was as follows: "I was just pretty much homeless at the time, like I was kicked out of my home the same day, 'cause my mum just thought that, she just, she just didn't want me there, like, and I, I think I was charged with, for breaching AVO 'cause I just went there because I didn't have a place to go". (A 38)