New South Wales Court of Criminal Appeal CITATION: R v Les FERENC [2009] NSWCCA 126 HEARING DATE(S): 23/04/2009 JUDGMENT OF: Grove J at 1, 34; Howie J at 2, 36; RA Hulme J at 35 EX TEMPORE JUDGMENT DATE: 23 April 2009 DECISION: 1. The appeal is allowed and the sentence imposed in the District Court is quashed. 2. The respondent is sentenced to a term of imprisonment of 4 years 3 months. There is to be a non-parole period of 3 years. The sentence is to date from 1 May 2008. The respondent is eligible to be released to parole on 30 April 2011. There is a balance of term of 15 months. CATCHWORDS: Criminal Law - Crown appeal on sentence - Aggravated robbery by offender on parole - whether judge erred in assessing the offence as in the low range - whether sentence manifestly inadequate by being substantially concurrent with balance of parole - whether Court should resentence the respondent. LEGISLATION CITED: Crimes Act 1900 - ss 95(1), 97(1) Crimes (Sentencing Procedure) Act 1999 - s 3A CATEGORY: Principal judgment R v Henry (1999) 46 NSWLR 346 R v Li (NSWCCA, 9 July 1997, unreported) CASES CITED : Azzi v R [2008] NSWCCA 169 R v Tortell and Tsegay [2007] NSWCCA 313 Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 Markarian v The Queen [2005] HCA 25; 228 CLR 357 PARTIES: Regina v Les Ferenc FILE NUMBER(S): CCA 2008/8131 COUNSEL: P A Leask - Crown A Haesler SC - Respondent SOLICITORS: S Kavanagh - Crown S O'Connor - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/8131 LOWER COURT JUDICIAL OFFICER: Johnstone DCJ LOWER COURT DATE OF DECISION: 17/02/2009 IN THE COURT OF CRIMINAL APPEAL 2008/8131 GROVE J HOWIE J RA HULME J THURSDAY 23 APRIL 2009 REGINA v Les FERENC Judgment 1 GROVE J: The court is now in a position to deliver judgment in this matter. I ask Justice Howie to deliver the first judgment. 2 HOWIE J: This is a Crown appeal in respect of a sentence imposed upon the respondent in the District Court by Johnstone DCJ (the Judge) on a charge of aggravated robbery. That was an offence contrary to s 95(1) of the Crimes Act and carried a maximum penalty of imprisonment for 20 years. On 17 February 2009 the respondent was sentenced to a term of imprisonment comprising a non-parole period of 18 months with a balance of term of 12 months. The sentence dated from 1 May 2008 and the respondent is to be released to parole on 31 October 2009. 3 The Crown appeal was filed on 27 February 2009 and served on the respondent on 2 March 2009. 4 The facts can be stated briefly. At about 11.30pm on Saturday 29 December 2007, the respondent ordered pizzas to be delivered to a house in Granville. About 20 minutes later the pizzas were delivered by the victim, a 19 year old male. The respondent led the victim into a room of the house where he immediately attacked him by striking him in the face a number of times causing pain and bleeding from the nose. The victim fled from the house into the backyard. The respondent followed him demanding money. The victim handed over a bag containing about $400 in cash. As the respondent searched the bag, the victim ran to his vehicle. The respondent followed and as the vehicle drove away punched the side window. 5 The respondent was arrested the next day. He was interviewed but denied the offence claiming he was at a hotel at the relevant time. He was released but arrested again on 21 January 2008 after police were unable to identify the respondent on CCTV footage at the hotel. Again he was interviewed, but once more denied the offence. 6 The respondent was aged 24 years at the date of the offence. He has a criminal history that commenced in 1998 when he was sentenced in the Children's Court for supplying drugs. In 2000 he was sentenced to a control order for 9 months for an offence of assault with intent to rob. In 2000 he was again sentenced to a control order for 2 counts of armed robbery. In 2003 he received a suspended sentence for child sexual assault offences. In 2004 he was placed on a bond for an offence of take and drive a conveyance. In 2005 he received a community service order for larceny as a servant. 7 Of particular significance is that on 27 November 2006 he was sentenced in the Parramatta District Court to imprisonment for 3 years with a non-parole period of 18 months for robbery in company. He was released to parole on 22 December 2007, just 8 days before the present offence was committed. His parole was revoked on 7 February 2008 and he was to serve the balance of the term of about 17 months. That sentence expires on 14 July 2009. 8 There was a psychological report in evidence dated 8 October 2006. This report had been prepared for the respondent's court appearance in November 2006. It discloses his background as follows. His parents separated when the respondent was aged 9 months. He stayed in the care of his mother who had a number of relationships of varying lengths of time. He remained in contact with his father even living with him for a period. Although the respondent sought an independent existence at the age of 18, this failed when he lost his job and thereafter he lived with one parent or the other. He has generally been employed in storeman positions. He was at the time of the report in a relationship with a young woman who was expecting his baby. They had been living with the respondent's father. 9 The respondent reported having commenced consuming alcohol at the age of 13 years and engaged in regular binge drinking. He acknowledged a difficulty with alcohol. He commenced using drugs at 14 and quickly developed an addiction to heroin. However, he later replaced this addiction with a dependence on alcohol. He admitted that he enjoyed "escaping" through the use of drugs or alcohol with the support of his peer network. 10 That report contained the following: [The respondent] is a young man of below average intellectual resources and, although he has reportedly maintained some employment stability, he has little experience of independent community living and, until recently, has maintained antisocial peer connections. This has contributed to his offending behaviour. Perusal of his criminal history suggests that, in recent years, the respondent has been able to achieve greater stability and the current offence seems best accounted for by the impulsive behaviour associated with problematic and regular alcohol use and negative peer influence. It is, thereby, possible that [the respondent] is demonstrating some evidence of late maturation. 11 There was a report from the same psychologist dated 14 October 2008. The report states that during the period of the respondent's custody he had participated in the Young Adult Offender Program during which he underwent a drug and alcohol program, a lifestyle skills course and a relapse prevention program. The respondent entered a works release program for six to seven months prior to his release and thereby secured employment in a shipping container yard. The respondent while in works release met and developed a relationship with his current fiancée, his previous relationship having broken down while he was in custody. 12 The respondent reported that he was released in December 2007 to his father's home and continued working in the shipping container yard. He also attended church regularly with his fiancée and her family. He claimed that he had not used drugs and had only consumed alcohol with his father. On the day of the offence he had been drinking with a group of long-standing friends. He said he was unable to recall the circumstances of the offence by reason of the state of intoxication. He was at a loss to explain his behaviour and expressed disappointment at what he had done and its impact on himself and others. He was suffering from depression. 13 The report contains the following paragraph: At the time of my last assessment with [the respondent], I suggested that he may have been transitioning through a late stage of maturation and I still believe this to be the case. He appears to have matured considerably in the last two years and, thus, [the respondent] is more reflective and insightful and he has also developed more realistic plans for the future. Further to this, he is likely to have gained through participating in previous programmes in gaol. Where [the respondent] falls down is that he does not yet understand the psychosocial ramifications of his earlier life and, in particular, how these are connected to his substance abuse and antisocial behaviour and, therefore, he has not yet been able to stop his offending successfully. 14 The respondent had written a three-page document entitled " My Apology" that was placed before the court. The document contains expressions of sorrow in relation to the victim. He stated he had no recollection of committing the offence and did not understand why he would commit the robbery in light of the fact that he had over $6,000 in an account. He indicated that he wished to change his life so much that he had even given up smoking. He stated that he wanted to cut his ties with his former associates. He asked for a sentence consisting of a "lower custodial sentence and a higher parole period". 15 The respondent gave evidence at the sentencing proceedings. He said that on release he was living with his father and reporting to the Probation and Parole Service. He could not recall the circumstances surrounding the offence as he had been drinking most of the day. Since his return to custody he had completed further courses and enrolled in others. He stated that he had not used drugs or alcohol since his release and was undertaking a Bible Study course by correspondence. 16 The sentencing remarks are brief. The Judge noted that the offence was "objectively serious" and that the respondent was on parole having been released 8 days earlier. His Honour noted that the offence had to be considered in accordance with the guideline in R v Henry (1999) 46 NSWLR 346. He then stated: The Crown submits that the objective seriousness is mid range, it being an unprovoked violent attack on a young man just doing his job. Having regard to the fact that the offence already involved the element of aggravation, no further weight is to be given to that factor. In my view, this offence falls in the low range for this type of offence. There was no weapon involved and there is no evidence of serious or permanent injury to the victim. Apart from the absence of a weapon there are other elements as set out in R v Henry that were present, and in this case the offender has a significant criminal history. There are, however, some mitigating factors. Firstly there was the plea of guilty at arraignment such that the offender is entitled to the utilitarian discount on his sentence. It is to be noted, however, that the R v Henry guideline already contains an allowance of some ten percent. His record, which I mention involves violence and that cannot be used by way of mitigation. 17 The Judge found that there were good prospects of rehabilitation but that it was difficult to determine whether he was likely to re-offend. He backdated the sentence to 1 May 2008, about a month after the date from which his parole was revoked. The Judge found that there were special circumstances being "the need for an extended period of supervision whilst on parole in respect of, in particular, drug and alcohol treatment and other considerations such as anger management". 18 The Crown submits that the sentence is manifestly inadequate. It notes three specific errors that it attributes to the Judge as follows: (a) Incorporating significant common currency with the parole revocation period for the robbery in company offence. (b) Taking into account the absence of a weapon in finding that the offence was in the low range. (c) Imposing a sentence well below the 4 – 5 years set out in the Henry guideline in circumstances where the offender was not so young and had a criminal history. 19 It is convenient to deal with the second and of third of those points before the first. The offence for which the respondent was being sentenced was an aggravated robbery. The circumstance of aggravation alleged was the use of corporal violence. It could also have been the infliction of actual bodily harm. The prosecution is required only to prove one circumstance of aggravation in the charge but the sentencing court is entitled to take into account whatever circumstance of aggravation appears from the facts: R v Li (NSWCCA, 9 July 1997, unreported). Here the offence was aggravated by the fact that the respondent used corporal violence and inflicted actual bodily harm. The Judge was in error in rejecting the prosecutor's submission as to the significance of the nature of the attack upon the victim. It was a relevant fact that the corporal violence was unprovoked and that the victim was clearly lured in to a private place where he could be attacked. 20 But this is not the Crown's complaint on appeal. The Judge took into account that the respondent was unarmed. But had he been armed it would have been a different offence albeit one that carried the same maximum penalty, see s 97(1) of the Crimes Act. It is obviously not a matter of mitigation that the offender did not commit a different offence. Further, had there been a more serious or permanent injury inflicted upon the victim, another matter the Judge found to be mitigating, it is likely that the respondent would have faced a separate charge to deal with such an injury. This is an example of the not uncommon error of a sentencing judge finding an offence mitigated because some other offence was not committed. 21 The Judge was in error in determining that the offence was in the low range of an offence of this kind. It was significantly more serious than that. The victim was vulnerable: persons delivering pizzas are not infrequently the subject of robberies because they are alone, carry cash and are usually attacked when out of public sight by going to private homes to make the delivery. The offence was obviously planned and, as the prosecutor submitted to the Judge, the victim was not even given the chance of handing over his money without being physically assaulted. 22 The Crown complains under (c) above that, although the Judge purported to apply the Henry guideline, the sentence imposed does not accord with a proper application of the guideline. It has been held that the guideline has general applicability, with appropriate adaptation, to offences of robbery with a maximum penalty the same as for armed robbery: Azzi v R [2008] NSWCCA 169. However, some caution is necessary because the guideline was concerned with an offence involving a weapon: R v Tortell and Tsegay [2007] NSWCCA 313. The Judge recognised that the Henry guideline did have some application and noted two differences between it and the circumstances of the offending before him: that the respondent did not have a weapon and the respondent "had a significant criminal record". 23 However to the extent that Henry could be applied it did not significantly advantage the offender: he was not a young offender with no or little criminal history, but to the contrary he had a record of robbery offences and was on parole for such an offence. The absence of a weapon is balanced to some extent by the fact that actual physical violence was used here to inflict an injury, albeit minor. 24 The Crown complains that the Judge underestimated the significance of the respondent's record. That complaint has merit. The Judge noted that the respondent had a record of violence and "that cannot be used by way of mitigation". Quite frankly, and with respect, I simply do not understand that comment. The fact that the respondent had a record for offences, not only of violence, but also for robberies, obviously could not be a matter of mitigation. Rather it was a matter of aggravation. This was clearly a case, especially as the respondent had been released from prison on parole for robbery just days before the offence, where specific deterrence was of substantial significance despite what had been said by the psychologist and the respondent about his endeavours to reform. 25 On behalf of the respondent it was submitted that it was within the exercise of the Judge's discretion to try to promote the respondent's rehabilitation notwithstanding his reoffending so shortly after release to parole. There is no doubt that his Honour could have taken that view provided that the non-parole period also reflected the seriousness of the offence and the importance of deterrence. In any event it is difficult to see from the Judge's remarks that he appreciated he was imposing a very lenient sentence and was doing so for the purpose of assisting in the reform of the respondent. To the contrary the Judge stated: I have no tolerance for people who breach bonds or parole. Courts give offenders a chance. They must be made to understand that such leniency is not likely (lightly?) extended and if that trust is breached, there will be consequences. Those sentiments find no reflection in the actual sentence imposed. 26 The sentence itself was manifestly inadequate and, in particular, the non-parole period failed almost every aspect of sentencing that his Honour had set out in his remarks when referring to s 3A of the Crimes (Sentencing Procedure) Act 1999. Clearly the Judge underestimated to a very significant degree the seriousness of the offending. He must have given far too much weight to the respondent's subjective circumstances even though they were of little assistance to him. 27 This was not a case for a low non-parole period as the respondent and the psychologist sought, but for a minimum period of custody to teach the respondent a lesson that he should have learned during the course of his last sentence. He had made promises for reform when he was last before the court for a similar offence and had been given the chance of a non-parole period of 50 per cent on the last sentence. All the courses and education programmes cannot avail an offender who repeatedly breaches the law by serious violent offences. 28 With all respect to the psychologist it was not a case of the respondent understanding "the psychosocial ramifications of his earlier life". It was a case of him understanding a much simpler concept: if he drinks alcohol to excess he is likely to commit a serious offence of violence. He was no longer a young man whose rehabilitation was paramount. He was an adult with a propensity to violence when drunk and who was a fitting case for a sentence with a marked degree of both specific and general deterrence. There were in my opinion no special circumstances but the Crown has not raised that matter as a ground of appeal. 29 The complaint under (a) above is that the respondent will serve only 3½ months referrable to the offence for which he was sentenced. The Crown concedes that it was within the discretion of a sentencing judge to determine whether and to what degree to backdate a sentence where parole had been revoked by reason of the offence for which the offender is then being sentenced: see Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145. 30 The Judge does not explain why he backdated the sentence to the date he did other than that he did not want to double count the fact that the respondent had been on parole. That might be the case, but I cannot see how the sentence imposed sufficiently took into account as an aggravating factor that the respondent was on parole for similar offending. However, the inadequacy of the punishment for the present offence will be to a significant degree overcome if this Court were to resentence the respondent. 31 I am mindful of the limitations on this Court in a Crown appeal, to which reference was made in the written submissions filed on the respondent's behalf, and the respect that ought to be shown to the sentence imposed at first instance: see Markarian v The Queen [2005] HCA 25; 228 CLR 357. However, the sentence in the present case was unreasonable and cannot be allowed to stand. I appreciate the double jeopardy involved in a Crown appeal and the disappointment occasioned to a respondent to such an appeal. However, the present sentence is so inadequate that in my opinion this Court should intervene. I have taken into account an affidavit by the respondent as to his conduct in custody but, in my opinion, that material does not justify the Court staying its hand. 32 The sentence will date from that fixed by the Judge by way of leniency due to the fact this is a Crown appeal and that the respondent was looking to release next October. The sentence is less than ought to have been imposed. The sentence should have been at least 6 years less a discount of about 15 per cent. In light of the fact this is a Crown appeal I would impose a sentence of 5 years less 15 per cent. In my opinion the non-parole period I propose is the very least period of custody the respondent should have to serve before again being eligible to be released to parole. 33 I propose the following orders: 1. The appeal is allowed and the sentence imposed in the District Court is quashed. 2. The respondent is sentenced to a term of imprisonment of 4 years 3 months. There is to be a non-parole period of 3 years. The sentence is to date from 1 May 2008. The respondent is eligible to be released to parole on 30 April 2011. There is a balance of term of 15 months. 34 GROVE J: I agree. 35 R A HULME J: I also agree. 36 HOWIE J: The orders of the Court are 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.