New South Wales Court of Criminal Appeal CITATION: Steele v R [2009] NSWCCA 209 HEARING DATE(S): 2 July 2009 JUDGMENT OF: McClellan CJatCL at 1; Hidden J at 23; McCallum J at 24 EX TEMPORE JUDGMENT DATE: 2 July 2009 DECISION: Grant leave to appeal but dismiss the appeal. CATCHWORDS: CRIMINAL LAW - appeal - appeal against sentence - subjective features of appellant - discount for assistance to authorities - sentence manifestly excessive - appeal dismissed LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment R v Henry (1999) NSWCCA 111; (1999) 46 NSWLR 346 CASES CITED : R v Sukkar (2006) 172 A Crim R 151 SZ v R [2007] NSWCCA 19; 168 A Crim R 249 PARTIES: Lyndon Russell Steele (Applicant) The Crown FILE NUMBER(S): CCA 2007/8627 COUNSEL: K Ginges (Applicant) V Lydiard (Crown) SOLICITORS: Hal Ginges & Co (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/8627 LOWER COURT JUDICIAL OFFICER: R A Hulme DCJ LOWER COURT DATE OF DECISION: 14 August 2008 IN THE COURT OF CRIMINAL APPEAL 2007/8627 McCLELLAN CJ at CL HIDDEN J McCALLUM J THURSDAY 2 JULY 2009 STEELE, Lyndon v R Judgment 1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court on 14 August 2008. On 8 May 2008 the applicant pleaded guilty to a charge of robbery in company. The offence is contrary to s 97(1) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. 2 The applicant was sentenced to a period of imprisonment comprising a non-parole period of two years with a balance of term of one year and nine months. He seeks leave to raise the following grounds of appeal: 1. The honourable trial judge's sentencing discretion miscarried because he failed to properly or adequately account for the applicant's subjective features. 2. The honourable trial judge's sentencing discretion miscarried because he failed properly or adequately to account for the assistance the applicant provided (and was prepared to provide) to authorities in that he only allowed the applicant a discount of 15%. 3. The honourable trail judge imposed a sentence which was, in all the circumstances, manifestly excessive. Facts 3 There was an agreed statement of facts from which the sentencing judge made the following findings: "The offender caught a train at Penrith on the evening of 18 January 2007. The co-offender, William Charles Kemp, a young person, CD and the victim Manion Hogan all boarded the train at Penrith. At a point near Mt Victoria railway station the offender, Kemp and CD went and sat near Mr Hogan. The offender asked Mr Hogan for a cigarette and he was given one. CD asked him for some money and when he said he did not have any the offender patted him down, searching for money. Kemp started to pull a backpack off Mr Hogan but he resisted, saying that it contained nothing but his mobile. Kemp demanded the phone but Mr Hogan took it out and threw it against the wall of the carriage in order to damage it to prevent it being used. Kemp then kicked Mr Hogan in the head and the offender joined in the kicking and punching. This caused Mr Hogan to fall to the floor of the carriage but the offender and Kemp continued kicking and punching him to the head and upper body. Mr Hogan somehow managed to trip over one of the attackers and then attempted to get to his feet. At this stage CD jumped on his back and caused him to fall again. The offender and Kemp continued kicking and punching Mr Hogan on the ground. He crept head first under the seat to protect his head. By this stage the train was approaching Lithgow. The offender and Kemp took Mr Hogan to a water tap on the train and used Mr Hogan's t-shirt that had been inside his backpack to throw water and clean up the blood on his face. The offender then threatened Mr Hogan, saying 'Keep walking. If you go to the cops we're going to kill you.' The offender and Mr Kemp sent him to a carriage at the rear of the train. The offender, Kemp, CD and the offender's partner left the train at Lithgow. So did Mr Hogan, a short time later. Mr Hogan did not immediately complain to the police or seek medical attention because he was fearful of the threat that the offender had made. His statement indicates that he went to hospital around midday on 19 January 2007 and went to the police station after that. The backpack was found at the offender's home when police executed a search warrant on 1 March 2007. He participated in a police interview in which he denied participation in the robbery but admitted participation in the assault. He made a statement on 7 May 2008 in which he said that some of the answers he had given in the interview were not truthful and that he was entering a plea of guilty to the charge after receiving legal advice. In his statement the offender made partial admissions to participating in the robbery and he said he was prepared to give evidence for the crown against the co-offender. The statement of the treating doctor includes that Mr Hogan had facial bruising and lacerations and multiple abrasions to his upper limbs and chest. He complained of posterior headache, pain to his ribs in the left axillary region and pain to his right renal angle. Photographs taken at the police station on 19 January 2007 provide a good indication of the extent of his injuries." 4 The sentencing judge gave careful consideration to the circumstances of the offence and of the applicant's involvement in the crime. The applicant pleaded guilty. He did not offer his plea until a week before the date listed for trial. His Honour determined that the sentence should reflect the utilitarian benefit of that plea. 5 At the time of offering his plea the applicant also provided a statement to the police and offered to give evidence against his co-offender. His Honour considered the content of the applicant's statement and compared it with the statement of agreed facts. He concluded that the applicant's statement was vague on matters of detail and its value was confined to the fact that it was consistent with the version of events offered by the victim and identified his co-offender. Because the victim was unable to identify his attackers the sentencing judge concluded that the applicant's evidence would have been of considerable assistance in the prosecution of the co-offender if he had maintained his plea of not guilty. The co-offender apparently changed his plea to guilty when he was informed that the applicant was prepared to give evidence against him. 6 The sentencing judge considered the objective seriousness of the offence having regard to the elements identified by this Court in R v Henry (1999) NSWCCA 111; (1999) 46 NSWLR 346. He concluded that because the violence was sustained by both offenders for quite a time the offence was more serious than a typical case. His Honour emphasised that the offence involved kicking the victim while he was on the ground. 7 With respect to the subjective circumstances of the applicant his Honour identified the fact that he had a criminal history comprising convictions for entering inclosed lands, shoplifting, goods in custody, damaging property and assault occasioning actual bodily harm. There were also traffic matters and a subsequent conviction for assault occasioning actual bodily harm for which he received a two year good behaviour bond. His Honour concluded that although these matters were not as serious as the instant offence the applicant was not entitled to the leniency that might be extended to a first offender. 8 The applicant was aged 22 at the time of the offence. He has little contact with his parents. He is in a domestic relationship with three children and is described as being a positive and supportive father. He left school at 15 and although he has been employed in the past, he has been without employment for a number of years. At the time of the offence he was working as a casual labourer. He has completed a Pathways to Employment Education and Training program. 9 The applicant has a history of abusing alcohol as well as cannabis and amphetamines. He has previously been under the supervision of the Probation and Parole Service which apparently had a positive impact upon his use of these substances. He has also undertaken an Alternative to Violence program and has since reported to a Probation and Parole Officer that as a result he had learned new skills in assisting and controlling anger. 10 His Honour had careful regard to these various matters and expressed the conclusion that the applicant has reasonable prospects of rehabilitation primarily through the counselling and courses he has completed under supervision for the previous assault offence. 11 The applicant did not give evidence before the sentencing judge and his Honour initially found that he could not be satisfied that his expression of remorse should be accepted. When delivering his remarks on sentence his Honour was provided with a letter from the applicant in which he said he was remorseful. However, his Honour remained sceptical of this statement and in particular emphasised the fact that although the offence was committed on 18 January 2007 it took the offender until May of 2008 to enter his plea of guilty. 12 His Honour found special circumstances being the fact that the applicant was to be imprisoned for the first time and a need for assistance in finding employment and re-establishing his life upon release. 13 The applicant submitted that the discount which his Honour provided for the plea of guilty and assistance was erroneously low. That submission must be rejected. The plea of guilty was entered during the week that the matter had been listed for trial. Although his Honour did not identify a precise discount for the plea a discount of 10% was not inappropriate. With respect to the assistance given to authorities his Honour determined that this should have been at the lower end of the range of 15 - 25%. It would seem that his Honour allowed 15% for assistance. His Honour provided a total discount of 25%. 14 This Court considered in detail the appropriate approach to any discount for assistance to authorities in R v Sukkar (2006) 172 A Crim R 151. The leading judgment was that of Howie J with which I concurred. In that judgment Howie J said at [5]: "It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact." 15 In Sukkar Latham J observed that a combined discount of 50% for a plea of guilty and assistance to authorities would only be appropriate where the assistance was of high order. In SZ v R [2007] NSWCCA 19; 168 A Crim R 249 Howie J stated that a combined discount for a plea of guilty and for assistance should not normally exceed 50%. 16 In my opinion having regard to the features identified by the sentencing judge a discount for assistance in the order of 15% was within the appropriate range in the circumstances of this case. In the absence of any evidence of risk to the applicant or any other detriment to him, in particular difficulties within the prison system, a greater discount would have been difficult to justify. 17 With respect to the applicant's subjective features it was submitted by his counsel that although the sentencing judge identified various subjective matters he did not state how and in what way those matters were to be reflected in the sentence. It was submitted that the severity of the sentence imposed indicated that his Honour failed to attribute sufficient regard to the applicant's subjective case, in particular his prospects of rehabilitation. 18 To my mind this submission must be rejected. His honour identified with clarity the relevant features of the applicant's subjective case. He determined that by reason of his previous offending he was not entitled to leniency but that because of his response in the past to counselling and education programs he had reasonable prospects of rehabilitation. Although his Honour was not satisfied that he was remorseful his Honour nevertheless recognised the fact that the applicant had provided assistance to the authorities which his Honour said was the most significant aspect of the applicant's case. 19 Before this Court in oral submission, the applicant's counsel, in support of the submission that his Honour had failed to properly or adequately consider the applicant's subjective features, drew attention to the sentence which was imposed upon the applicant's co-offender, although an argument in support of a submission that the applicant was entitled to a justifiable sense of grievance in relation to his co-offender's sentence, was not put forward. It was submitted that error in sentencing the applicant could be demonstrated by the fact that his Honour identified that the co-offender was entitled to a lesser sentence by reason of his particular subjective circumstances, in particular his intellectual disability, the circumstances of his custody and his lack of record of significant previous convictions, his remorse, and goods prospects of rehabilitation. 20 Having identified those matters, his Honour said of the present applicant that in relation to his subjective circumstances, the most significant aspect was the assistance which he had given to the authorities. This Court has been provided with his Honour's remarks on sentence in relation to the co-offender and it would seem that the findings which his Honour made when passing sentence on the applicant, were appropriate. To my mind, no error is revealed by reason of a comparison of the circumstances of the applicant with those of his co-offender. 21 When considering the appropriate sentence for the applicant his Honour was mindful of the guideline judgment of this Court in Henry. The guideline provided in that case incorporated a discount of about 10% for a late plea of guilty. The sentencing judge assessed the present matter as being more serious than the typical case in Henry because of the sustained level of violence perpetrated by the applicant and his co-offender. Despite this assessment it is apparent that his Honour commenced consideration of the appropriate sentence at five years which is in the middle range suggested in the Henry guidelines. The applicant committed the offence while he was subjected to a bond. Although his Honour recognised this fact he made no reference to it as an aggravating factor. I am satisfied that having regard to both the objective criminality and the applicant's personal circumstances the sentence which his Honour imposed was well within the appropriate range. When consideration is given to the fact that the applicant was, at the relevant time on a bond a more severe sentence would not have been unreasonable. 22 Although I would grant leave to appeal the appeal should be dismissed. 23 HIDDEN J: I agree. 24 McCALLUM J: I also agree. 25 McCLELLAN CJ at CL: The orders of the court are accordingly as I have proposed. ********** 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.