New South Wales Court of Criminal Appeal CITATION: WAKEFIELD v Regina [2010] NSWCCA 299 HEARING DATE(S): 29 November 2010 JUDGMENT DATE: 15 December 2010 JUDGMENT OF: Hall J at 1; Latham J at 2; Price J at 16 DECISION: 1. Leave to appeal granted 2. Appeal dismissed CATCHWORDS: CRIMINAL LAW - appeal against sentence - plea of guilty to two counts of armed robbery - whether sentence manifestly excessive in circumstances where no error identified but applicant's institutionalistion largely responsible for commission of offence. LEGISLATION CITED: Crimes Act 1900 CASES CITED : R v Henry & Ors (1999) 46 NSWLR 346 PARTIES: John Leslie Wakefield - Applicant Crown - Respondent FILE NUMBER(S): CCA 2009/63081 COUNSEL: Self Represented - Applicant P Ingram SC - Crown SOLICITORS: Self-Represented - Applicant S Cavanagh - Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/63081 LOWER COURT JUDICIAL OFFICER: Berman SC DCJ LOWER COURT DATE OF DECISION: 18 February 2010 IN THE COURT OF CRIMINAL APPEAL 2009/63081 HALL J LATHAM J PRICE J 15 DECEMBER 2010 JOHN LESLIE WAKEFIELD v REGINA Judgment 1 HALL J : I agree with Latham J 2 LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Berman SC DCJ (the Judge) on 18 February 2010 after the applicant pleaded guilty in the Local Court to two counts of armed robbery, pursuant to s 97(1) of the Crimes Act 1900, each carrying a maximum penalty of 20 years imprisonment. 3 The applicant was sentenced to a fixed term of 5 years, commencing 18 February 2010 and expiring on 17 February 2015, and a further term of 5 years, comprising a non-parole period of 3 years and 3 months, commencing 18 February 2012 and expiring 17 May 2015. The aggregate term imposed upon the applicant was one of 7 years imprisonment, comprising an aggregate non parole period of 5 years and 3 months. 4 The first offence was committed on 2 July 2009. The applicant approached the counter of the Australian Post Office in Panania, handed over a bag and said to the employee "put the money in the bag". The applicant was armed with a black rubber pipe, held in such a way that it resembled (and was intended by the applicant to resemble) the barrel of a gun. The applicant reinforced that impression by telling the female staff member that if she did not cooperate with him, he was going to shoot her. The staff member handed over a sum slightly in excess of $1000 and the applicant left the premises. 5 The second offence was committed on 25 July 2009. The applicant entered a video store, presented the same rubber pipe in a similar way and demanded money. The applicant obtained $300. 6 Police obtained a search warrant, went to the applicant's premises and found evidence incriminating him in these offences. The applicant immediately made full admissions to the police. 7 The applicant was represented before the Judge but appeared unrepresented on the appeal. The Court received a six-page handwritten document together with a Notice of Application for Leave to Appeal. There were no specific grounds identified, however, taken together, the documents in effect set out the applicant's case for a lower penalty than was imposed, principally on the grounds that the applicant's institutionalisation was largely responsible for the commission of the offence and that, accordingly, some additional element of leniency should be extended to him. The applicant supplemented these documents by extensive oral submissions. 8 In his oral submissions, the applicant acknowledged that the Judge had been fair and that his Honour had not fallen into any error that the applicant could identify. The Court has also satisfied itself that the sentencing exercise was not infected by any error, for the reasons outlined below. In those circumstances, this Court being a court of error, there is no basis for intervention. 9 The applicant's circumstances are regrettably illustrative of the long term effects of a life lived almost entirely in prison, for significant periods in maximum security. At 53 years of age, the applicant has spent approximately 37 of the last 42 years in gaol. His criminal history commences at the age of 14 and continues unbroken to the present time. The applicant has been convicted of 7 robbery offences, including robbery in company, armed robbery and aggravated robbery, in addition to numerous property offences. The applicant has escaped from custody on a number of occasions, resulting in increasingly higher classifications upon his return to gaol. On each of the four occasions the applicant has been released to parole, parole has been breached. 10 Both the Pre Sentence Report and a report under the hand of a psychologist, which were before the Judge for the purposes of sentencing, explored the reasons behind the commission of the offences. The applicant obtained full-time employment and took out a loan from a bank for the purchase of a car. Acting partly on the advice of the loans officer, the applicant borrowed $12,000 instead of $3,000, purchased a car, bought a gift for his daughter and proceeded to subsidise his lifestyle with the balance of the loan. A number of weeks later he was retrenched and unable to obtain other employment. Rather than discuss his financial situation with his supervising parole officer or the couple who had sponsored his release to parole, he resorted to the commission of the offences in order to pay off the loan. 11 This last period of parole was the most successful that the applicant had undertaken. He was reporting to the Probation and Parole Service and had undertaken counselling and therapy for his anger management and anxiety issues. He was under the observation of the Community Compliance Group. He had strong support from his sponsor couple, with whom he resided. There were grounds for cautious optimism with respect to the applicant's progress towards rehabilitation, notwithstanding the most recent offending. 12 All of this was duly noted by the Judge in his remarks on sentence. In particular, the Judge considered that the circumstances of the applicant's earlier offences, compared with the somewhat less serious circumstances attending the commission of the instant offences, supported to some extent the applicant's claims that he was on the path to rehabilitation. The Judge accepted that the applicant had a terrible upbringing that had exposed him to a life of crime from a very early age and that he had developed a degree of insight into his behaviour, recognized the futility of his life and was genuine in his desire to change once and for all. 13 Against these considerations, the Judge was required to have regard, and did have regard, to the objective gravity of the offences, by reference to the undoubted effect that the applicant's conduct had on each of the victims. General and specific deterrence were also recognised as relevant sentencing factors. 14 His Honour's consideration of the guideline judgment of R v Henry & Ors (1999) 46 NSWLR 346 left little scope for the imposition of a sentence of less than 5 years in respect of each offence. The discrete nature of the offences called for some measure of accumulation. There is no basis for a finding that the sentence is manifestly excessive. 15 Accordingly, I propose the following orders : 1. Leave to appeal granted. 2. Appeal dismissed. 16 PRICE J : I agree with Latham 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. 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