Daniel James MARR v R [2011] NSWCCA 15

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Daniel James MARR v R [2011] NSWCCA 15 Hearing dates: 11 November 2010 Decision date: 16 February 2011 Before: Simpson J Kirby J Latham J Decision: Leave to appeal granted Appeal dismissed Catchwords: CRIMINAL LAW - plea of guilty to one count of aggravated robbery - appeal against sentence - whether Judge erred by giving insufficient weight to applicant's drug addiction - whether Judge erred by failing to find special circumstances Legislation Cited: Crimes Act 1900 Cases Cited: R v Henry & Ors. [1999] NSWCCA 111 Category: Principal judgment Parties: Daniel James Marr - (Applicant) Regina - (Respondent) Representation: Counsel: J Trevallion - (Applicant) V Lydiard - (Respondent) Solicitors: Archbold Legal - (Applicant) S Kavanagh Solicitor for Public Prosecutions - (Respondent) File Number(s): 2009/7762003 Decision under appeal Date of Decision: 2009-09-18 00:00:00 Before: Toner SC DCJ File Number(s): 2009/7762

Judgment 1SIMPSON J : I agree with Latham J 2KIRBY J : I agree with Latham J 3LATHAM J : Daniel James Marr, the applicant, seeks leave to appeal against the sentence imposed by Judge Toner (the Judge) at Taree District Court on 18 September 2009, in respect of one count of aggravated robbery pursuant to s 95 (1) of the Crimes Act 1900 . The offence carries a maximum penalty of 20 years imprisonment. 4The applicant pleaded guilty at the Local Court on 19 May 2009. The timing of that plea was recognized by the Judge in imposing a sentence of 5 years, including a non-parole period of 3 years and 9 months. 5The applicant contends that the Judge did not give sufficient weight to the applicant's drug addiction when determining the sentence to be imposed, having regard to the objective gravity of the offence and the applicant's subjective circumstances. Further, the applicant contends that the Judge erred in failing to find special circumstances, so that some alteration to the statutory proportion between the non-parole period and the parole period might be made in order to secure the applicant's rehabilitation. Lastly, the applicant maintains that the sentence is manifestly excessive in all the circumstances. 6The applicant was sentenced on the basis of an agreed statement of facts. Briefly, they were that on 23 January 2009, a 35-year-old male lifeguard (the victim) employed by the council at the Cundletown swimming pool, arrived for work at 5:20 am. He placed his wallet containing approximately $180 cash and a mobile phone on the counter. 7At about 6:45 am he walked out of the pump room where he was confronted by the applicant and another male. Both offenders had T-shirts wrapped around their heads concealing their faces, but for their eyes. The offenders approached the victim with their fists clenched. Anticipating an assault, the victim said, "the money's over there, take the money, please don't hurt me." 8Notwithstanding that plea, the offenders commenced to punch the victim to the face and head. One of the offenders pulled two gold chains from the victim's neck and punched him in the head, causing him to fall to the floor. At this point he was kicked to the head, neck and body. Whilst lying on the floor in a semiconscious state, one of the offenders stomped on his head a number of times. 9The applicant ran from the scene and telephoned a taxi, using the victim's phone. The applicant was identified by CCTV within the taxi, wearing the gold chains that belonged to the victim. The victim received a number of injuries including a broken nose, bruising to the base of the neck, swelling and bruising to most parts of the face, including around both eyes, and multiple soft tissue injury to his back, shoulders and arms. The infliction of actual bodily harm constitutes the circumstances of aggravation. 10I turn to the first and second grounds of the application, which may be conveniently dealt with together. 11The evidence before the Judge relating to the applicant's drug abuse emerged from the presentence report and a report from Dr Delaforce, a psychiatrist. The applicant commenced using alcohol and drugs in his primary school years. He first used cannabis at about age 8 and continued daily use from the age of 10. The applicant first used heroin at 13 years of age, coinciding with his father's death from a heroin overdose. Daily use of heroin followed up until the present time. When heroin was not available he used any other substance, mainly crystalline methamphetamine. 12The applicant first embarked on methadone treatment in 2007 during a period of liberty. He said he ceased methadone use because it made him feel sick and gave him insomnia. A second attempt on prescribed methadone occurred between January and May 2009 whilst in custody. He again ceased methadone treatment for the same reasons, despite being advised by Justice Health staff against ending treatment. 13Whilst in custody, the applicant participated in drug and alcohol sessions, but he had never entered any residential treatment program. He expressed to Dr Delaforce in September 2009 a desire to do so, although the Probation and Parole officer noted in June 2009 that "it is of concern that [the applicant] blamed his current offence on his drug addiction, but as yet, had not adopted a resolve to address that issue despite previous therapeutic engagement." 14The Probation and Parole Service report also noted that the applicant "blamed his lack of self-control on a dysfunctional environment and unresolved grief and loss issues" and that he "relegated blame for his actions to his drug addiction, boredom, lack of coping skills and negative associates." 15The full context of the Judge's treatment of this aspect of the applicant's subjective circumstances appears below :- Mr Marr has had an unhappy life. He does not seem to have ever worked although he is now 24. The only time that he seems to have been employed at all is while he has been in gaol or in other institutions. Since 2002 he seems to have been broadly incarcerated full-time, although there was one period of freedom, other than the time at which he committed this crime. His life has been blighted by heroin addiction and substance abuse generally. At the time that he committed this crime he was probably affected by the drug ice. He was withdrawing from heroin and as I understand the reports he was "hanging out" for drugs to maintain whatever equilibrium abuse of those substances gave him. He seems to have been a violent man when he used drugs and his partner said as much to the probation and parole service ..... Drug abuse of course cannot be used as a mitigating factor, but it represents an explanation as to why the crime happened. Sadly the motivation here is probably driven by the fact of his drug addictions and his need to obtain money to satisfy them. It is a sad and common reality that this court confronts every day. The consequences for the community are dramatic, as is demonstrated by what has happened to [the victim] in this instance. 16The applicant relies on the judgments of Woods CJ at CL and Simpson J in R v Henry & Ors . [1999] NSWCCA 111, in particular [269] to [274] and [351] to [356]. It is not necessary to set those passages out in full. It is sufficient to observe that the following emerges from them :- (1)The objective of rehabilitation is but one aspect of sentencing which needs to be taken into account along with the objectives of retribution and deterrence. (2)The fact of drug dependency may be a relevant fact reflecting on the objective circumstances of the offence, and/or the subjective circumstances of the offender, and particularly on the relativity of the minimum and additional terms. (3)The need to acquire funds to support a drug habit, even a severe habit, of itself is not a matter of mitigation, although the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence, in so far as it throws light on the impulsivity of the offence and the extent of any planning, the existence or nonexistence of any other reason that may operate to aggravate the offence, and the state of mind or capacity of the offender to exercise judgment. (4)The need to support a drug habit may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might impact upon the prospects of rehabilitation, suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it occurs at a very young age, and might justify special consideration in the case of offenders at the "cross roads". (5)Where the offender's addiction arises out of circumstances that diminish his/her moral culpability for drug abuse, and there is demonstrated progress towards rehabilitation, general deterrence may give way to rehabilitation. 17The Judge was acutely aware of the applicant's history and the circumstances under which he commenced abusing illicit substances. The somewhat shorthand references to the applicant's "unhappy life" and the fact that his life was "blighted by heroin addiction and substance abuse generally" comprehends the contents of Dr Delaforce's report and the Probation and Parole Service report, both of which were discussed at length by the Judge and counsel in the course of the sentencing proceedings. The considerations referred to above in R v Henry were also the subject of discussion. 18At the risk of stating the obvious, those considerations are discretionary, that is, it is a matter within the exercise of the sentencing discretion whether the fact of drug dependency impacts upon the objective and/or subjective circumstances of an offender, or on the proportion between the non-parole period and the balance of the sentence. In so far as the applicant committed the offence to acquire funds to support his drug habit, the offence demonstrated a degree of forethought. The applicant and his co-offender disguised their faces and lay in wait for the victim. I would not regard the offence as impulsive, although it is apparent that when the applicant was "hanging out", his judgment was impaired to some degree and he was prone to violence. Nonetheless, the offence was a particularly vicious and gratuitous attack on a defenceless man who surrendered his wallet when first confronted by the offenders. 19The relevance of the applicant's drug dependency as a subjective circumstance, and to a finding of special circumstances, was undoubtedly tempered by the applicant's failure to benefit from rehabilitation programs in the past. There was certainly no "demonstrated progress towards rehabilitation". He had twice voluntarily removed himself from treatment, on the last occasion against advice. I accept that the applicant's moral culpability for his drug dependency was diminished by the fact that he was introduced to heroin at such a tender age, but that factor did not of itself warrant general deterrence giving way to rehabilitation in the circumstances of this offence. 20The applicant's argument on grounds 1 and 2 cannot be sustained. I am not persuaded that the Judge failed to have regard to the relevant principles or that inadequate weight was attributed to them in the sentencing exercise. 21Ground 3 asserts manifest excess. It is difficult to justify such a ground in this case. The applicant's criminal history was extensive and included an aggravated robbery with wounding, occasioning grievous bodily harm in 2002. On three occasions the applicant's parole was revoked. The applicant did not conform to the theoretical offender for the purposes of the Henry guideline for that reason, and a sentence of more than 5 years would still have been within the appropriate range. The sentence imposed in fact reflects some allowance for the applicant's subjective circumstances, including his long history of substance abuse. 22Ground 3 also fails. I propose the following orders :- 1. Leave to appeal granted. 2. Appeal dismissed. 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. Decision last updated: 17 February 2011