New South Wales Court of Criminal Appeal CITATION: Frahm v R [2009] NSWCCA 249 HEARING DATE(S): 24 September 2009 JUDGMENT DATE: 24 September 2009 JUDGMENT OF: McClellan CJatCL at 21; Buddin J at 1; Hall J at 22 1 Grant leave to appeal. DECISION: 2 Allow the appeal and quash the sentence imposed in the District Court. 3 In substitution therefore, sentence the applicant to a non-parole period of 2 years to commence on 1 April 2008 and to expire on 31 March 2010 with a total term of 3 years 3 months to expire on 30 June 2011. 4 The applicant is eligible for release to parole on 31 March 2010. CATCHWORDS: Appeal - Criminal law - sentencing - assault with intent to rob in company - significant criminal history - treatment of guideline judgment in R v Henry - whether sentence manifestly excessive CATEGORY: Principal judgment Legge v R [2007] NSWCCA 244 R v Black [2001] NSWCCA 41 R v Henry (1999) 46 NSWLR 346 R v Lesi [2005] NSWCCA 63 CASES CITED : R v Murchie [1999] 108 A Crim R 482 R v Osborne [2001] NSWCCA 371 R v Perese (2001) 126 A Crim R 508 R v Stanley [2003] NSWCCA 233 R v Thomson and Houlton (2000) 49 NSWLR 383 Veen v The Queen (No2) (1988) 164 CLR 465 PARTIES: Mark Robert Frahm Regina FILE NUMBER(S): CCA 2008/10544 COUNSEL: Ms H Cox (Applicant) Ms V Lydiard (Crown) SOLICITORS: S O'Connor (Solicitor for Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/10544 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 12 December 2008 IN THE COURT OF CRIMINAL APPEAL 2008/10544 McCLELLAN CJ at CL BUDDIN J HALL J 24 SEPTEMBER 2009 MARK FRAHM v R Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty to an offence of assault with intent to rob in company. The maximum penalty for the offence is imprisonment for 20 years. The applicant was sentenced to a head sentence of 4 years 6 months imprisonment with a non-parole period of 3 years. The sentencing judge indicated that, but for the applicant's early plea of guilty which attracted a discount on sentence of 25%, the head sentence would have been 6 years imprisonment. Her Honour made a finding of "special circumstances" because of her conclusion that the applicant needed a "longer than normal period of supervised parole to enhance his prospects for rehabilitation". 2 The sentencing hearing proceeded by way of an Agreed Statement of Facts. That material indicated that on the day in question the applicant entered a grocery store and enquired about using the EFTPOS facility in order to withdraw $10. When he was advised that the facility was not available, he left the store. The applicant returned 10 minutes later in the company of a co-offender who has not been identified. The applicant and the co-offender approached the store owner. The applicant produced a paper bag and said to the victim "Put all your money in the bag". When the victim replied "What did you say?", the applicant said in an aggressive voice, "Put all the money in the bag." The victim refused to do so and ran from the area of the cash register. The applicant went behind the sales counter and attempted unsuccessfully to open the cash register. He and his co-offender left the store empty handed. Police ascertained from CCTV footage that the applicant and the co-offender had been in a nearby hotel, in the company of two unidentified females, just prior to the robbery. After initially declining to be interviewed by police, the applicant admitted the offence and said that he had been under the influence of "ice" at the time. Subjective features 3 The applicant was aged 24 at the time of the offence. The relationship between his parents broke down when he was very young. Since then the applicant has had only sporadic contact with his father, who has managed in all to have 25 children to various partners. The applicant however continues to enjoy a good relationship with his mother who remains supportive of him. His childhood was disrupted and he was raised in what the sentencing judge described as "a socially disadvantaged environment". The applicant did not perform well academically and as a result was placed in remedial classes. He left school prior to completing Year 8 and lacks basic literacy and numeracy skills although he is currently studying for his school certificate whilst in custody. He was introduced to alcohol at the age of 13 and quickly progressed to consuming it on a daily basis, often to the point of intoxication. At the same age he commenced using cannabis, which he also consumed on a daily basis, for a period of about 5 years. He also used amphetamines and heroin before turning to "ice" in 1997. He says that he developed a severe dependency upon it and that his use escalated to a daily habit of $1500 a day. There was evidence before the court that he had been attending counselling in relation to substance abuse whilst in custody. A number of the applicant's siblings have also engaged in illicit drug use. Rather distressingly, one of his brothers died of a heroin overdose, whilst others are presently in gaol. The applicant has also developed a significant gambling addiction. The applicant reported that when he was young both he and two of his siblings had been sexually abused by their grandmother's then partner. When he was 19 the applicant worked for a period of 3 years as a baker. He has also held various unskilled positions but in recent years has seldom worked. He has two sons but has had only an intermittent relationship with his partner. 4 A psychologist assessed the applicant as functioning at a below average level intellectually and it appears that he also "suffers from attention deficit disorder". The applicant has a recent history of self-harm. The sentencing judge found that the applicant was remorseful. 5 The applicant has an extensive criminal record and the sentencing judge estimated that he had "spent eight of the past ten years in custody". Given his "entrenched drug habit", his "gambling addiction" and his lack of "living skills", it is unsurprising that the sentencing judge regarded his prospects for rehabilitation as being "extremely guarded". 6 The applicant relies upon the following Grounds of Appeal: 1 Her Honour erred in the manner in which she took into account the applicant's previous criminal history and placed excessive weight on it. 2 Her Honour erred by failing to adequately reflect the low objective seriousness of the offence in the sentence imposed. 3 Her Honour erred by placing too great a weight on the guideline judgment of R v Henry . 4 The overall sentence and non-parole period is manifestly excessive. Ground 1: 7 The sentencing judge referred to the applicant's prior criminal record in the following terms: His criminal antecedents are lengthy. He has matters on his juvenile record for possession of dangerous articles other than firearms, common assault, possessing housebreaking implements, custody of a knife in a public place, being carried in a stolen conveyance, receiving, larceny, break enter and steal, and three counts of robbery armed with an offensive weapon, and one count of escaping lawful custody. As an adult he has convictions for shoplifting, contravening an apprehended violence order, larceny, break enter and steal, failing to appear, motor vehicle theft, resisting arrest, having custody of a knife in a public place, and entering or occupying a boat without the consent of its owner. … The offender has an appalling criminal history. It disentitles him to leniency. He has matters of a like nature on his criminal antecedents. The robbery armed with an offensive weapon committed in June 2000 was committed when he was sixteen. The robbery in company committed in October 2000 was also committed when he was sixteen years of age and in 2001 the robbery in company was committed when he was seventeen. I am not precluded from taking them into account pursuant to the provisions of the Children (Criminal Proceedings) Act 1987 having regard to his age at the time he committed these offences and the recording of a conviction in respect of them. Issues of retribution, denunciation and deterrence therefore loom very large. 8 The applicant conceded that the sentencing judge was entitled to have regard to his criminal antecedents. No particular error in her Honour's approach was identified. Indeed, as it appears to me, her Honour's remarks are entirely consistent with what the High Court said in Veen v The Queen (No2) (1988) 164 CLR 465 at 477. The real gravamen of the complaint appears to be that it should be inferred from the sentence which was imposed that the sentencing judge had placed undue weight upon the applicant's prior record. This submission can best be dealt with in the context of the other Grounds of Appeal. Grounds 2-4 9 These grounds can conveniently be dealt with together. The ultimate submission which was advanced is that the sentence which was imposed was manifestly excessive given that the offence itself was at a low level of objective seriousness. Allied to that submission was a contention that her Honour gave the Henry guideline judgment a greater degree of prominence than the circumstances warranted. 10 The sentencing judge's approach is apparent from the following passage which appears in the Remarks on Sentence: The offence is an objectively serious one attracting, as it does, a maximum penalty of twenty years imprisonment and a guideline judgment to ensure that salutary sentences are imposed when appropriate. That guideline judgment of The Queen v Henry , which is directed at the offence of armed robbery, has been held to be equally applicable to the offence of robbery in company, attracting the same maximum penalty. It calls for the imposition of sentences commencing in the range of four to five years when there are a number of factors present, which are set out in that judgment. 11 The factors, to which her Honour refers, that were identified in R v Henry (1999) 46 NSWLR 346 are set out below: "(i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case." (at para 162) 12 Her Honour was correct in concluding that the Henry guideline judgment is equally applicable to an offence of robbery in company: R v Murchie [1999] 108 A Crim R 482; R v Osborne [2001] NSWCCA 371; R v Lesi [2005] NSWCCA 63. Moreover, there is authority for the proposition that the Henry guideline also applies to an offence of the kind presently under consideration: R v Stanley [2003] NSWCCA 233. 13 The sentencing judge described the offence as falling "below the mid-range of objective seriousness, towards the lower end". Her Honour found that the victim, being a shopkeeper, was vulnerable although she observed that there was no evidence that he had suffered "substantial ongoing emotional harm". Putting to one side that factor as well as the applicant's antecedents, all the other factors identified in Henry as being relevant to an assessment of the seriousness of the offence, pointed in the applicant's favour. There was minimal planning, there was no loss of property, there was no violence inflicted or any "real threat thereof", and nor was a weapon used. Moreover, the assault which was relied upon to establish one of the necessary elements of the offence, was said to arise from the applicant's aggressive tone when he instructed the victim to "put all the money in the bag". Indeed, when those factors are considered in combination, it becomes readily apparent that this was an offence that lay at the very lowest end of the spectrum of offences of this kind. 14 The applicant placed some emphasis upon the fact that he did not have a weapon. In R v Black [2001] NSWCCA 41 James J, with whom Whealy J agreed, said: When a judge is sentencing an offender, not for armed robbery but for some other kind of aggravated robbery, the guideline judgment of the Court of Criminal Appeal in R v Henry for sentencing for offences of armed robbery may well afford some assistance. However, I do not consider that, where a sentencing judge is sentencing for some kind of aggravated robbery other than armed robbery, and even though all of the characteristics set out in para (162) of the Chief Justice's judgment in Henry are satisfied, apart from the characteristic that the offender was armed, a sentencing judge is required to adopt as a starting point or as a prima facie sentence a sentence of four to five years and then to enquire whether any circumstances are present which would permit or require him to impose a heavier or a lighter sentence. The characteristic that the offender should have been armed was stated by Spigelman CJ in para (162) of his judgment in Henry as "(having a) weapon like a knife capable of killing or inflicting serious injury". I accept the submission made by counsel for the applicant that this characteristic, that the offender should have been armed with a weapon capable of killing or inflicting serious injury, is an important characteristic which distinguishes the kind of offence which the Chief Justice was considering in Henry from the kind of offence for which the applicant was being sentenced. [at paras 12-13] 15 In R v Perese (2001) 126 A Crim R 508 Hulme J said: So far as the other matters listed are concerned, the absence of a weapon such as a knife or gun argues significantly for lesser criminality than an offence which involves such a weapon. I appreciate that under s 97(1) of the Crimes Act both robbery in company and robbery whilst the offender is armed with an offensive weapon or instrument carry the same maximum penalty, but experience and the authorities show that the risks associated with the mere presence of a lethal weapon in the stressful circumstances of a robbery are such that it is a seriously aggravating circumstance. [at par 25] 16 McClellan J (with whom Beazley JA agreed) said: The decision in Henry concerned the offence of armed robbery and the principles which it provides must be understood as particularly relevant to an offence which involves a weapon (at 380-181). Because the present matter did not involve a weapon, the guidelines set out in Henry were of less utility than might otherwise have been the case. [at para 66] 17 The applicant also contended that although the guideline judgment is not to be treated as a "straight jacket", the sentencing judge had proceeded as if it were. Reference was made in this context to the observations of Spigelman CJ in Legge v R [2007] NSWCCA 244, in which his Honour remarked that "the authorities in this court make it quite clear that a guideline is not a tramline" (at para 59). 18 Obviously enough, the applicant's antecedent criminal history had to be brought into account. As I indicated earlier, her Honour was of the view that the appropriate starting point was a sentence of 6 years. Such a conclusion can only have been arrived at were her Honour to have taken the view that the applicant's criminal history required that the starting-point for the sentence should be above the range identified in Henry. If, as seems apparent, her Honour approached the matter in that fashion, then she clearly fell into error. Indeed, given the low level of objective gravity of the offence committed by the applicant, the Henry guideline should not, in my view, have assumed the prominent role in the sentencing exercise which it evidently did even allowing for the applicant's antecedents and the vulnerability of the victim. Nor should it be overlooked, that the plea of guilty contemplated in Henry was for a late plea "of limited value": see R v Thomson and Houlton (2000) 49 NSWLR 383 at 419. By way of contrast, the applicant received a discount of 25% which is at the top of the range identified in Thomson (supra). 19 Accordingly, I am of the view that the applicant has made good his submission that the sentence which was imposed was manifestly excessive. In re-sentencing the applicant, I have had regard to the additional affidavit material which indicates that the applicant has been spending his time in custody in a productive fashion. I would, as the sentencing judge did, make a finding of "special circumstances". Orders 20 I propose the following orders: 1 Grant leave to appeal. 2 Allow the appeal and quash the sentence imposed in the District Court. 3 In substitution therefore, sentence the applicant to a non-parole period of 2 years to commence on 1 April 2008 and to expire on 31 March 2010 with a total term of 3 years 3 months to expire on 30 June 2011. 4 The applicant is eligible for release to parole on 31 March 2010. 21 McCLELLAN CJ at CL: I agree with Buddin J. But for the applicant's antecedents a more lenient sentence may have been appropriate in the circumstances of this offence. However, having regard to those antecedents the sentence proposed by Buddin J is appropriate. 22 HALL J: I also agree with the orders proposed by Buddin J. 23 McCLELLAN CJ at CL: The orders of the Court are as proposed by Buddin 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.