Cavanagh v R [2009] NSWCCA 174

New South Wales Court of Criminal Appeal

CITATION: Cavanagh v R [2009] NSWCCA 174

HEARING DATE(S): 1 May 2009

JUDGMENT DATE: 30 June 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 20; Buddin J at 21

DECISION: 1. Grant leave to appeal. 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal - armed robbery - on parole - whether sentences imposed were manifestly excessive - comparison of sentence with statistics from Judicial Commission

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

Clinch v R (1994) 72 A Crim R 301 CASES CITED : Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v MAK; R v MSK [2006] NSWCCA 381 at [15]-[17]; 167 A Crim R 159 Veen v R (No 2) [1988] HCA 14 at [14]; 164 CLR 465

PARTIES: Barry Paul Cavanagh (Applicant) The Crown

FILE NUMBER(S): CCA 2007/13593

COUNSEL: C Davenport SC (Applicant) N Noman (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0449

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

LOWER COURT DATE OF DECISION: 6 June 2008

IN THE COURT OF CRIMINAL APPEAL 2007/13593

McCLELLAN CJ at CL GROVE J BUDDIN J

TUESDAY 30 JUNE 2009 CAVANAGH, Barry Paul v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to four counts of armed robbery and one count of assault with intent to rob whilst in company. When he was sentenced he asked the sentencing judge to take into account further matters contained in two Form 1's – one containing five further offences of armed robbery and the other containing a further seven offences, being malicious damage (2), carry cutting weapon, resist officer in the execution of his duty, assault police officer in the execution of his duty and attempt to take and drive conveyance without consent (2). The sentencing judge took the Form 1 matters into account when sentencing for count 1 on the indictment. 2 The maximum penalty for each of the armed robbery offences is 20 years imprisonment (s 97 Crimes Act 1900). The charge of assault with intent to rob carried the same penalty (s 95 Crimes Act 1900). 3 All of the robbery offences were committed between 18 July and 22 August 2006. They each involved a robbery of personnel employed in various retail stores or similar facilities. In all but one offence the applicant was armed with a knife. 4 At the time he committed the offences the applicant was free on parole having been previously convicted and sentenced in August 2002 for three counts of armed robbery. For those offences he received a term of imprisonment of 8 years with a non-parole period of 5 years. He was released to parole on 27 June 2006 and committed the first of the series of armed robberies of present concern some 3 weeks later. 5 In relation to the present offences for counts 2 to 5 the applicant was sentenced to a fixed term of 4½ years. With respect to count 1 he was sentenced to a term of 10 years imprisonment with a non-parole period of 6 years. Each of the sentences was accumulated by 1 year on the others. The consequence was that the overall sentence was 14 years with a non-parole period of 10 years. 6 Apart from the commission of these offences when on parole the applicant had otherwise breached his parole conditions. When arrested for these offences he had a period of 2 years and 7 months of his earlier sentence left to serve. The consequence is that he will be required to serve a period of 7 years and 7 months in custody before being eligible for parole in relation to the current offences. 7 Each of the armed robbery offences was similar. On most occasions the applicant chose to carry a knife although on one occasion, count 2, he was armed with a screwdriver. The amount stolen varied from $70 up to $13,471. Most of the offences involved a sum of multiple thousand dollars. 8 At the time of his sentencing the applicant was aged 25 years. He first came to attention in 2000 when he appeared in a Children's Court in relation to drug and larceny matters and was released on probation. In May 2000 he was placed on a control order for 4 months on a charge of robbery and a further control order of 12 months with a non-parole period of 3 months on a charge of break, enter and steal. In August 2002, as I have previously related, the applicant was sentenced on 3 charges of armed robbery. 9 The sentencing judge received a pre-sentence report. It does not present a favourable picture. It indicates that between the ages of 13 and 18 the applicant appeared at the Children's Court on 28 occasions and was convicted of 68 offences. 10 The applicant was reared in the western suburbs of Sydney. His father who is of Maori origin was deported to New Zealand when the applicant was aged 7 and there has been no contact between them since. At about aged 12 the applicant commenced living on the streets and began his life of abusing drugs and criminal offending. He commenced using marijuana when he was 13 and by age 16 had commenced using heroin. He readily admits that the offences upon which he was sentenced were committed to finance his need for drugs. 11 The applicant entered his plea on the day fixed for trial. The sentencing judge provided a discount in the order of 10% for the utilitarian value of the plea. The sentencing judge was not prepared to make a finding that the applicant was remorseful and/or has reasonable prospects for rehabilitation. Her Honour was mindful of the fact that the applicant did not give evidence before her and continued to use drugs whilst he was in custody where he has not sought any assistance for his drug addiction. 12 The sentencing judge concluded that each of the offences was "extremely serious". Her Honour found that they were: "All committed upon vulnerable people who were carrying out their normal business activities and were confronted by the offender carrying a knife." 13 Her Honour said: "The courts have stated repeatedly that those who use knives when perpetrating criminal offences must expect to receive a significant measure of criminal punishment in consequence, and a knife is held in universal abhorrence in the community, and this view is shared by the criminal courts." 14 The applicant raised two grounds of appeal. It was submitted that the sentences imposed were manifestly excessive. In addition it was submitted that the overall sentence of 14 years with a non-parole period of 10 years was excessive when compared with the statistics available from the Judicial Commission. Those statistics reveal that only one offender has received a total sentence of 14 years and a non-parole period of 10 years. It was submitted that because the sentence for these offences was in reality accumulated upon a previous sentence of 5 years and 3 months the resulting overall position was a sentence that would "induce a feeling of hopelessness and destroy any expectation of a useful life after release in the applicant." 15 The statistics to which the applicant referred confirmed that the overall sentence imposed upon the applicant was at the high end of sentences which have previously been imposed. However, having regard to the fact that her Honour was required to sentence the applicant for multiple serious offences, and also had regard to the other serious matters on the Form 1's a sentence at the top of any established range was inevitable. Although the applicant's previous record could not be considered in relation to the criminality of each of the offences it was relevant, and in this case particularly so in relation to considerations of personal deterrence and see Veen v R (No 2) [1988] HCA 14 at [14]; 164 CLR 465. 16 The applicant emphasised that when a court is sentencing for multiple offences considerations of totality have to be clearly borne in mind. This will be the case when sentencing an offender who is already serving a sentence after conviction for other offences R v MAK; R v MSK [2006] NSWCCA 381 at [15]-[17]; 167 A Crim R 159. The aggregation of all the sentences must be a "just and appropriate measure of the total criminality involved." Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 307-308. As the court identified in MAK drawing upon the remarks of Malcolm CJ in Clinch v R (1994) 72 A Crim R 301 at 306 the severity of a sentence increases as the sentence is lengthened at a greater rate than the overall length of the sentence. 17 This Court has on many occasions considered the approach to questions of totality when a court is sentencing for multiple offences or when the offender has already been sentenced for unrelated offences. Amongst other matters the totality principle has been accepted as designed to avoid a court imposing a crushing sentence and so as not to induce "a feeling of hopelessness and destroy any expectation of a useful life after release" MAK at [17]. 18 Although I appreciate that the sentence which her Honour imposed will require the applicant to spend a period of 15 years and 3 months in custody broken only by about three months before again being eligible for parole, I am not persuaded that the total sentence was excessive. The applicant has demonstrated a determination to continue to disobey the law and commit serious offences against vulnerable persons. The sentencing judge was unable to find any indication of remorse or a determination in the applicant to put his criminal past behind him. Although of a relatively young age I am not persuaded that his sentence is such that this Court should intervene. I am mindful of the need for a sentencing court to ensure that the sentence which it imposes is not such as to destroy an offender's motivation to abandon his criminal past and take up a useful life. However, given the serious and almost continuous offending by the applicant, who having been released to parole, emphatically rejected the chance to turn his life around, those considerations cannot prevail against the need to punish the applicant, provide for the protection of society and the need for personal and general deterrence. 19 Although I would grant leave to appeal the appeal should be dismissed. 20 GROVE J: I agree with McClellan CJ at CL. 21 BUDDIN J: I agree with McClellan CJ at CL. **********