Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Osborne v Regina [2011] NSWCCA 112 Hearing dates: 11 May 2011 Decision date: 11 May 2011 Before: Johnson J at 1; Hall J at 2; Price J at 3 Decision: (i) Leave to appeal granted (ii) Appeal dismissed Catchwords: CRIMINAL LAW - appeal - sentencing - robbery - repeat offending - whether sentences manifestly excessive Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Fernando [2002] NSWCCA 28 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Beau Allan Osborne (Applicant) Crown Representation: V Lydiard (Crown) Beau Allan Osborne (in person, unrepresented) Director of Public Prosecutions (Crown) File Number(s): 2008/0098433 Decision under appeal Date of Decision: 2009-05-19 00:00:00 Before: Coolahan DCJ Judgment 1JOHNSON J: I agree with the reasons and orders proposed by Price J. 2HALL J: I agree with Price J 3PRICE J: Beau Allan Osborne, the applicant, seeks leave to appeal against the severity of the sentences imposed upon him in the District Court at Newcastle on 19 May 2009 by Coolahan DCJ (the judge). He had been arraigned upon an indictment containing six counts of robbery contrary to s 94 Crimes Act 1900 and had pleaded not guilty to each count. Following a trial before a jury, the applicant was found guilty of each of the offences. 4The judge imposed a total effective sentence of 6 years 6 months with a non-parole period of 4 years. The earliest date the applicant is eligible for release to parole is 21 April 2012. The individual sentences were as follows: Counts 1 and 2: On each count, imprisonment for a fixed term of 2 years commencing on 22 April 2008 and expiring on 21 April 2010; Counts 3 and 4: On each count, imprisonment for a fixed term of 2 years 2 months commencing on 22 October 2008 and expiring on 21 December 2010; Count 5: Imprisonment for a fixed term of 2 years 4 months commencing on 22 April 2009 and expiring on 21 August 2011; and Count 6: Imprisonment for 5 years commencing on 22 October 2009 and expiring on 21 October 2014 with a non-parole period of 2 years 6 months expiring on 21 April 2012. 5An offence contrary to s 94 Crimes Act is punishable by imprisonment for 14 years. 6In this appeal the applicant is self-represented. The sole ground of appeal is that the [total] sentence was excessive. 7Before proceeding further, it is convenient to record the facts of each of the offences as found by the judge (AB 13-14): "The charges arise out of robberies which took place on four building societies. The brief facts are that at about 9.20am on 22 July 2006, the offender, who was partly disguised but who had some part of his face visible, entered the premises of the Greater Permanent Building Society at Tanilba Bay. He walked up to Ms Brady who was behind the teller counter and pushed a grey plastic shopping bag through the bars saying, "This is a robbery, put all your money in the bag." Ms Brady took money from her drawer and put it into the bag. The offender then took the bag and walked to Ms Hawkins who was in an adjacent teller's booth, saying, "You too". Ms Brady described the offender as being as cool as a cucumber. Ms Hawkins, in her evidence, confirmed the evidence of Ms Brady. She described the offender as being very calm. A total of $6,800 approximately, was taken during the course of the robbery [counts 1 and 2]. On 8 December 2006 at about 11.30am, the offender entered the Greater Building Society branch at Rutherford and walked up to Ms Rennie who was working at her workstation. She was serving a customer. The offender went to the counter and said, "This is a robbery. Fill up the bag." He has pushed a green plastic shopping bag over the counter. Ms Rennie placed money in the bag and the offender then walked to the next teller, Ms Pearce. Ms Rennie described the offender as being very calm. Ms Pearce said that a man appeared in front of her teller box saying, "This is a robbery, put all the money in the bag, 50s and 20s". She started to fill the bag up, he said, "Don't be stupid, give it all to me". A total of around $3,600 was obtained from these robberies [counts 3 and 4]. On 8 June 2007, just before 1pm the offender entered the premises of the Newcastle Permanent Building Society at The Junction and went up to Ms Luton, a member services officer, who was working at her teller box. He pushed a scrunched up plastic shopping bag through the window, saying, "Put the money in it". As she was doing this, he said, "All of it". He then left. Ms Luton described him as being very assertive in what he was saying. A total of approximately $7,000 was taken [count 5]. On 29 June 2007 at about 9.10am, the offender entered the Greater Building Society branch at Toukley and went up to Ms McPherson who was employed there as a senior teller. He said, "This is a robbery, give me the money". She described the offender as being matter of fact in what he said. A total of approximately $4,000 was obtained [count 6]." 8The judge observed that in none of the robberies were letters or notes of demand produced, no actual threats of violence were made nor were weapons produced. His Honour found that the offences were serious, being committed on building societies and the tellers or customer service officers being put in fear by "the implicit threat involved in the demands for money". The victims, his Honour said, were in a vulnerable position and specific reference was made to the victim impact statements made by Ms Rennie and Ms Brady. The judge observed that general deterrence and the protection of the community "must feature highly in sentencing considerations" (AB 4). 9His Honour found the vulnerability of the victims to be an aggravating factor as was the degree of planning involved in the commission of the offences. Another factor of aggravation was that in all but the offences committed at Tanilba Bay (counts 1 and 2), the applicant was on conditional liberty in relation to Local Court matters. At least so far as Ms Rennie and Ms Brady were concerned, the judge considered "some real degree of harm was occasioned" but said that he would have thought "that any victim of a robbery would be likely to suffer similar problems as those two victims" (AB 19). Whilst the applicant had a gambling problem, the judge said that it would appear that the proceeds of the robberies "by and large, were spent on household items and living expenses". His Honour considered that the offences should be assessed "as being somewhere below the mid point of seriousness" (AB 20). 10The applicant did not give evidence during the sentencing proceedings but had given evidence during the trial. A report from Peter Champion, a psychologist was tendered as was a report from Christine Bridekirk, an alcohol and other drugs worker from the Metropolitan Special Programs Centre. 11At the time of sentence the applicant was 27 years old. He was unemployed and in a de facto relationship to which a child had been born. His lengthy criminal record included convictions for offences involving violence and offences involving dishonesty. The judge found that whilst the applicant had a significant criminal history, it did not contain offences of a similar nature to robbery and could not be regarded as an aggravating factor. 12In a report dated 16 April 2009, Mr Champion reported that the applicant had a history of mental health issues for which he was currently medicated. He had given a history of a troubled upbringing and a history of poly substance abuse with dependency/addiction. He reported medical problems. 13The psychologist stated that the applicant "presents with a history of significant mood/disturbance depression, for which he is currently in receipt of anti depressant medication, as he has been in the past; there being a number of potential causes for this disorder, including his inability to resolve a series of traumatic losses" (AB 49). 14In his sentencing remarks, the judge considered in some detail the psychologist's report and accepted what the applicant had told Mr Champion about his continuing pain, his long standing drug problems and his mood disorder. The judge observed that there was "a history of a motor vehicle accident in 2000 which apparently has left the offender with a serious back disability, for which he is also being medicated and for which, in the past, he has to attend a pain clinic" (AB 17). His Honour also accepted that the applicant had seen Ms Bridekirk for one on one counselling sessions and that he had actively participated and demonstrated insight and motivation to address his substance abuse and related issues. 15The judge did not, however, accept that the applicant's history of a dysfunctional upbringing and mental health issues had a bearing on the commission of the offences. His Honour said that he was unable to identify any mitigating factors. Although his Honour could not say that the applicant had good prospects of rehabilitation, he was prepared to accept that the applicant had some prospects of rehabilitation. 16Special circumstances were found so as to justify a variation in the statutory ratio referred to in s 44(2) Crimes (Sentencing Procedure) Act 1999, being the applicant's first substantial period in custody and his need for rehabilitation. 17As I have indicated, the sole ground of appeal is that the sentence is excessive. To establish this ground of appeal, the applicant must demonstrate that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. 18In written submissions, the applicant contends that the six robberies were all done in exactly the same way, not one being worse than the other. He considers that on all counts the sentences should be comparative and did not know why the sentence for count 6 was so excessive. The applicant argues that there were no mitigating or aggravating circumstances within his crimes and complained that leniency had not been shown to him as this was his first charge of robbery. He asks why his sentences were increased two months for every sentence. He asks the Court to consider that the sentences for counts 3 to 6 be made comparative with the sentences for counts 1 and 2. 19In oral submissions, he argues that there were mitigating circumstances in the commission of the crimes. He referred to no weapon being involved and there being no physical harm to the victims. His principal complaint is that the sentences increased as they were pronounced. 20There are a number of difficulties with the applicant's submissions. Although the applicant had not committed any robbery offences before he robbed the Greater Permanent Building Society at Tanilba Bay on 22 July 2006 (counts 1 and 2), by the time he came before the judge, he was being sentenced for six robberies. These were individual offences and it is of little consequence that they were committed in the same way. His repeat offending demonstrated a continuing disregard for the law and considerations of retribution, deterrence, both personal and general and protection of society were important considerations in his Honour's sentencing task: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566. It is unsurprising that the overall length of the sentence imposed for count 6, being the sixth offence of robbery, was significantly longer than the sentences imposed for counts 1 to 5. 21I would disagree with the applicant's contention that there were no aggravating factors. The judge correctly identified the factors of aggravation as being the limited degree of planning involved in the commission of the offences, the vulnerability of the victims, the emotional harm occasioned and the commission of offences when the applicant was on conditional liberty. 22At the time the applicant committed the robbery at Rutherford, he was awaiting a hearing in the Local Court for an offence of low range PCA, which was finalised at Newcastle Local Court on 2 February 2007. When he committed the robberies at The Junction and at Toukley, he was on bail for offences, including goods suspected to have been stolen, driving whilst disqualified, possession of an unregistered firearm and ammunition without a permit. He had been charged for these offences on 11 February 2007 and was sentenced in the Wyong Local Court on 9 July 2007. He had also been charged on 8 April 2007 for driving under the influence, which was ultimately dealt with by the magistrate at the same time as the other offences. I do make it plain to the applicant that the commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: see, for example, R v Fernando [2002] NSWCCA 28 at [40] - [42]. 23As the judge was sentencing the applicant for six offences, he was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. His Honour expressly referred to the principle of totality when formulating and structuring the sentences that were imposed. 24In relation to the first two counts during which an amount of approximately $6,800 was stolen, concurrent fixed terms of 2 years imprisonment were imposed, as they were effectively the same offending but with two victims. The applicant was not on conditional liberty at the time but his unattractive prior criminal record did not warrant leniency. The sentences for counts 3 and 4, which were committed at Rutherford on 8 December 2006 and an amount of around $3,600 was stolen, were for the same reasons made concurrent. As a consequence of the accumulation of these sentences upon the sentences for counts 1 and 2 by six months, the total sentence for the first four charges was a fixed term of 2 years 8 months. The sentence for the robbery at the Junction on 8 June 2007 during which $7,078 was stolen (count 5) was accumulated upon the sentences for counts 3 and 4 by six months. The overall result was a fixed term of imprisonment of 3 years 4 months for counts 1 to 5. In my opinion, these sentences could hardly be described as being excessive. 25The overall sentence for the robbery at Toukley on 29 June 2007 (count 6), during which $4,046 was stolen, was imprisonment for 5 years with a non-parole period of 2 years 6 months. As this sentence was fixed to commence on 22 October 2009, the mandatory period of incarceration that is solely referable to this offence is confined to 8 months. The applicant was on bail at the time that counts 5 - 6 were committed. I would reject the contention that the sentence for count 6 is excessive. 26In a little over 12 months, the applicant robbed four Building Societies. A strong element of personal and general deterrence was called for in the sentences. Furthermore, it was necessary that the sentences reflected the existence of six different victims of the four robberies, as to whom there was direct evidence in the form of victim impact statements from two as to the detrimental effect of the crimes upon them. One of the purposes of sentencing is to recognise the harm done to the victims of crime and the community: s 3A(g) Crimes (Sentencing Procedure) Act . In my opinion, the sentences imposed were well within the legitimate exercise of his Honour's sentencing discretion. I am far from being persuaded that the sentences are manifestly excessive. Accordingly, the orders I propose are: (i) Leave to appeal granted (ii) 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: 13 May 2011