Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RD v R [2013] NSWCCA 306 Hearing dates: 22 November 2013 Decision date: 20 December 2013 Before: Hoeben CJ at CL at [1] Blanch J at [40] R A Hulme J at [41] Decision: Leave to appeal against sentence granted. Appeal dismissed. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - three offences of aggravated robbery with a dangerous weapon - whether sentencing judge erred in treating the fact that the offences were committed in company as an aggravating factor - whether double counting of this factor had occurred - alleged error not made out - alternatively, no lesser sentence is warranted in law. Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 - s97(2) Crimes (Sentencing Procedure) Act 1999 - s 32 Criminal Appeal Act 1912 Cases Cited: Hamze v R [2006] NSWCCA 36 Category: Principal judgment Parties: RD - Applicant Regina - Respondent Crown Representation: Counsel: Mr P Lange - Applicant Ms H Wilson SC - Respondent Crown Solicitors: Hanna Legal - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2010/309528 Decision under appeal Date of Decision: 2012-12-13 00:00:00 Before: Charteris SC DCJ File Number(s): 2010/309528 Judgment 1HOEBEN CJ at CL: Offences and sentence On 9 March 2012, which was the morning on which his trial was due to start, the applicant pleaded guilty to three offences of aggravated robbery with a dangerous weapon, contrary to s97(2) Crimes Act 1900. When being sentenced in respect of count 2 the applicant asked that two further robberies committed with a dangerous weapon, contrary to s97(2) Crimes Act be taken into account in accordance with s32 Crimes (Sentencing Procedure) Act 1999. The maximum sentence for each offence is imprisonment for 25 years. There is no standard non-parole period. 2The applicant was sentenced by Charteris SC DCJ as follows: Count 1 - Imprisonment with a non-parole period of 4 years commencing 1 February 2011 and expiring 31 January 2015, with a balance of term of 3 years and 3 months, expiring 30 April 2018. Count 3 - Imprisonment with a non-parole period of 4 years commencing 1 August 2012 and expiring 31 July 2016, with a balance of term of 3 years and 3 months, expiring 31 October 2019. Count 2 - (taking into account the matters on the Form 1) - Imprisonment with a non-parole period of 4 years and 3 months, commencing 1 November 2013 and expiring 31 January 2018, with a balance of term of 4 years and 3 months, expiring 30 April 2022. 3The overall sentence was one of imprisonment with a non-parole period of 7 years and a balance of term of 4 years and 3 months. 4The applicant seeks leave to appeal on a single ground of appeal as follows: Ground 1 - His Honour erred in treating the fact that the offences were committed in company as an aggravating factor. Factual background 5The first count on the indictment related to an armed robbery on 27 July 2010 at the Stella Inn at Tempe. At 8.50pm, RD with an unknown accomplice entered the Stella Inn via a rear car-park. RD was armed with a silver kitchen knife with a 15 cm blade. He was disguised in a black balaclava. The unknown accomplice was armed with a replica firearm. He also was disguised in a black balaclava. 6RD and the accomplice confronted staff in the kitchen and forced them along a corridor to the main bar area. In that location, the applicant forced the staff and patrons of the hotel to the floor. The applicant and his accomplice violently assaulted one of the patrons who refused to comply. They struck him with a bottle and a chair and repeatedly kicked him as he fell to the floor. 7The offenders demanded money from staff and approximately $7000 was taken from cash registers. The offenders fled in a Hyundai XL sedan, which had been stolen earlier in the day and was recovered by the police at Redfern on 14 August 2010. 8The second count on the indictment was an armed robbery at the Newington Inn at Petersham on 25 August 2010. At about 10.05pm three males, who were armed with replica firearms and a baseball bat, entered the Newington Inn from the rear car-park. They confronted staff and patrons. One offender, who was armed with a shotgun, demanded cash from the registers and a safe. The other offenders assembled the patrons and staff in the beer garden and the TAB. A total of $4500 was stolen by the offenders, who then fled in a Toyota Corolla which had been stolen some 10 days earlier. 9All of the offenders were disguised with hooded jumpers, balaclavas, gloves and material covering their faces. The applicant was the person who was armed with a baseball bat. 10The next robbery was the first matter on the Form 1. This was an armed robbery at the Royal Sheath Hotel at Burwood on 3 September 2010. At 20 minutes past midnight, three males armed with a replica pistol, a sword and a baseball bat entered the hotel. They confronted staff and patrons and demanded money from the registers and the safe. A total of $3000 in cash was taken from the hotel, as well as a bag containing property belonging to a barman, which included a mobile phone. Identification was also stolen. The offenders fled in the stolen Toyota Corolla sedan referred to in relation to count 2. As before, the offenders were disguised with hooded jumpers and material covering their faces. The applicant was the one armed with a baseball bat. 11The second matter on the Form 1 was an armed robbery which occurred on 7 September 2010 at the Dan Murphy Liquor store at Alexandria. At about 7.55pm on 7 September 2010 three males, who were armed with a replica silver handgun, a chain and a baseball bat entered Dan Murphy's. They confronted staff and customers. One of the offenders, who was armed with a replica handgun, chased an employee. That employee ran in fear through the store and threw bottles of liquor at the robber who was pursuing him. Another offender bashed the customer service counters with a baseball bat. The third offender stood guard at the store entrance, swinging a chain around his head. 12The offenders stole $600 in cash. All of the offenders were disguised with hooded jumpers, balaclavas and material covering their faces. The applicant was the offender who was armed with the baseball bat. 13The third count on the indictment was an armed robbery at the Petersham Inn at Petersham on 14 September 2010. At 10.10pm that day, four males armed with replica firearms and a baseball bat entered the Petersham Inn Hotel. They confronted staff and patrons, assembled them together in the main bar and forced them onto the floor before stealing money from cash registers. 14The manager of the hotel was forced to go to the office where more money was stolen from the safe. The proceeds of the robbery totalled $9000 and included two mobile phones. As before, the offenders were disguised with balaclavas and hooded jackets. This time they fled in a Nissan which had been stolen from Sydenham earlier that evening. The applicant was the offender armed with the baseball bat. 15A series of telephone communications were intercepted which revealed that the applicant, together with other accomplices, met at an address in Surry Hills to plan the robbery. Police subsequently executed a search warrant at that address. Objects found in that search linked the applicant to the robberies. He was arrested on 16 September 2010. 16His Honour regarded all of the offences as extremely serious because of the fear which was engendered in both staff and patrons and because of the violence which occurred on occasions. His Honour said in relation to all of the offences: "The aggravating circumstances in each of the offences allege the possession of dangerous weapons and the fact that the offender was in company with others. I take that matter into account." (ROS 8.8) 17The applicant was born in 1993 and was aged between 17 years and 3 months and 17 years and 5 months at the time when the offences occurred. The applicant's criminal record, even at that young age, was considerable. He had convictions for stealing a car, stealing property in a dwelling house and in 2008 he was sentenced for robbery in company. There were, in addition, convictions for breaking, entering and stealing. 18As well as these offences, when the applicant came into custody he was dealt with for other offences. He received an 18 months sentence, with a 9 month non-parole period for the assault of a law enforcement officer not being a police officer. That sentence commenced on 23 May 2011 and these sentences were backdated to 1 February 2011 to have regard to that period of custody. 19A pre-sentence report was before the sentencing judge. This showed that the applicant had an extremely difficult childhood and upbringing. He first came to the attention of Probation and Parole in January 2010. The applicant's response to supervision by the Probation and Parole Service was unsatisfactory. Not only did he fail to report when required, but he was engaged in further offending behaviour. 20The applicant was raised in Kempsey and Coffs Harbour. He is of Aboriginal background. His mother died when he was aged 11 as a result of a drug overdose. Following his mother's death, he entered the care of the Department of Community Services and thereafter resided in refuges before being held in various juvenile detention centres. His foster mother stated that the most stable period of his life was from the age of 15 to 18 when he was in juvenile detention. Despite his unfortunate background, the applicant completed year 10. His results at school show him to be quite intelligent. 21The applicant started smoking cannabis when he was aged 12. By the age of 14 he was using 30 cones of cannabis a day. He commenced using heroin at age 14 and that use escalated to smoking a gram of heroin every second day at a cost of $200. Despite attending alcohol and drug counselling courses, he has continued to use illicit drugs. The applicant said that when he committed the armed robberies, he was under the influence of heroin. 22From an early age the applicant used to abscond from his mother's care and then his grandmother's and aunt's care. He was regularly exposed to domestic violence, alcohol and drug abuse. Although he was assessed by DOCS as being intelligent and capable, he was also assessed as "very vulnerable to being drawn into criminal and drug related behaviour". 23A matter of aggravation was that the applicant was subject to conditional liberty from a Children's Court bond at the time of the commission of the offences. His Honour took that into account as a matter of aggravation. His Honour also had regard to the Children (Criminal Proceedings) Act 1987 with its emphasis on rehabilitation, rather than punishment and deterrence. 24His Honour rejected a submission that the applicant's offending was less serious because the weapons used were replica weapons. His Honour noted that this would not have been known to the victims who would have been put in fear because of their belief that the weapons were real. 25Because of the limited nature of the appeal ground, I propose to set out his Honour's concluding remarks which together with the observation at [16] form the basis of the appeal. "As regards the assessment of the criminality, Mr Edwards does not dispute that the offences themselves are very serious criminal conduct. They fall within the very broad middle range of criminality that responds to this section of the Crimes Act 1900 (NSW). In my view it could be argued that each of the offences may be towards the upper range of that broad middle range. I intend to sentence him on the basis that the criminality is in the broad middle range. Mr Edwards did not dispute that it was within my discretion to allow a discount of ten per cent to reflect the utilitarian value of the pleas of guilty. The prosecution made submissions directing my attention to the need to impose individual penalties for what are three discrete offences. I am asked to have regard of course to the Form 1 matters when I come to impose sentence on Count 2. There is more than one aggravating circumstance in each of the offences; I take that into account. I also take into account an unknown number of patrons who were placed in fear by the conduct of the offenders. The Crown does not dispute that the record of the offender does not qualify as an aggravating matter. The Crown does not dispute a finding of special circumstances. I take into account the fact that the offender was on conditional liberty at the time he committed the offences. I note that there are two circumstances of aggravation pleaded in each of the matters, but only one matter is required at law. I consider the offender does have good prospects of rehabilitation subject to his addressing his drug use. I have had regard to his plea of guilty. I have regard to his youth." (ROS 18.8 - 19.7) Submissions and consideration 26The applicant submitted that s97 Crimes Act 1900 included as part of the foundational offence that the robbery occurred in company and that by referring to this factor as an aggravating feature, his Honour was in effect double counting. This, it was submitted, amounted to error which required this Court to re-sentence. The applicant submitted that in accordance with s6(3) of the Criminal Appeal Act 1912 another sentence was warranted at law and on re-sentence this Court would impose a lesser sentence. 27Section 97 provides: "97 (1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person ... ... shall be liable to imprisonment for twenty years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. ..." 28The applicant submitted that there is only one circumstance of aggravation provided for by s97, namely being armed with a dangerous weapon. It was therefore wrong for his Honour to take into account that the offences were committed in company as a matter of aggravation. On this issue, the applicant relied upon Hamze v R [2006] NSWCCA 36 which involved a similar ground of appeal. There Giles JA (with whom Grove J and I agreed) said: "36 The applicant submitted that, the charge including being in company, commission of the offence in company could not be taken into account as an aggravating factor. The Crown submitted that commission in company was "not strictly required for an offence under s 97(2)", and that there was therefore no error in taking into account as an aggravating factor that the offence was committed in company. The Crown further submitted that the offence was committed in company with three other men, that the presence of four men would have instilled greater fear in the victim than if there had been only two men and increased the risk of harm to the victim or a bystander, and that the judge should be taken to have had this in mind in his remarks. 37 Section 97(2) builds upon s 97(1), and incorporates the commission of an offence under s 97(1). The two limbs in s 97(1) can also be cumulative, and the applicant was charged with an offence with the two elements. To repeat, the purpose of the limitation in s 21A(2) was to guard against double counting by increasing the offender's punishment because of something already taken into account by virtue of the conviction. It would be an error in this case to take into account that the robbery was in company. It would still be open to a sentencing judge, in assessing the seriousness of an offence, to conclude that the company of a number of men rather than a few increased the seriousness; this would depend on the facts ... . But I am unable to conclude that the judge took this approach. He did not explain, and I do not feel able to conclude from the apparent fact that he took into account the factor in par (e) only in relation to the offence charged in count 1, which had multiple companions, that he did more than have regard to the fact that the offence was committed in company as an aggravating factor. In my opinion, there was error in this respect." 29The applicant submitted that the sentencing judge fell into the same error. 30The respondent submitted that in the sentencing proceedings, the phrase "aggravating feature" was used rather loosely by counsel for the applicant. In particular, he referred to the fact that the offences were committed "in company" as being "an aggravating feature". In doing so, counsel for the applicant did not specifically refer to s21A(2) of the Crimes (Sentencing Procedure) Act 1999. The respondent submitted that his Honour used the phrase "aggravating circumstances" at 8.8 and 19.5 ROS in the same imprecise way. 31The respondent submitted that apart from the specific statutory use of the word "aggravating" in s21A of the Crimes (Sentencing Procedure) Act it did have other usages relevant to the criminal law. The respondent submitted that one of those usages was as set out in s97(2) - an "aggravated offence". The respondent submitted that another use of the word "aggravated" or its variants was in relation to the assessment of the seriousness of an offence for the purpose of determining an appropriate sentence, i.e., referring to a feature of the crime as an aggravating feature in the sense that it made the crime more serious than it otherwise might have been without an intention of concluding that the particular feature was caught by s21A(2). The respondent submitted that his Honour used the word in that way and was not taking the "in company" feature into account so as to double count it. 32The respondent submitted that support for this proposition could be found in the way in which the sentencing judge described the offences as "armed robberies in company" and "aggravated armed robbery" elsewhere in his sentence remarks. The respondent submitted that it was apparent from a consideration of the whole of the remarks on sentence, informed by the proceedings on sentence, that his Honour was referring to those features of the crime that constituted "aggravated armed robbery", i.e., "being in company" and "the use of a dangerous weapon" rather than two separate features of aggravation relevant to s21A of the Act. The respondent submitted that this conclusion was supported by the way in which his Honour expressed himself in the two passages relied upon by the applicant. 33The respondent submitted that the ground of appeal was based on what could best be described as "infelicities of expression" in the sentencing judgment but that those "infelicities" did not amount to error and did not impermissibly inflate the sentences imposed. 34In the alternative, the respondent submitted that if error were disclosed, no lesser sentence was warranted in law when applying s6(3) of the Criminal Appeal Act 1912. 35The respondent submitted that the only unqualified factors in the applicant's favour were his youth and his deprived background. His prospects of rehabilitation were problematic and depended upon him abstaining from drug taking. His criminal record was very bad. Despite substantial periods of detention and attending rehabilitation programs, he had not been deterred from engaging in the very serious offences the subject of these proceedings. 36The seriousness of these offences emerges from the factual details. In count 1, actual violence was administered to a non-compliant patron and in the second Form 1 matter, a staff member was pursued by an armed offender. Except for count 1, each crime involved not just two armed and disguised offenders but a larger number. The respondent noted that the applicant was on conditional liberty at the time of these offences and although entitled to be regarded as a minor was only 7 months short of his 18th birthday and was very much conducting himself as an adult. 37There is considerable force in the respondent's submission to the effect that on reading the whole of the remarks on sentence, his Honour was not double counting the "in company" feature of the offending by taking it into account pursuant to s21A (2) of the Crimes (Sentencing Procedure) Act 1999. His Honour appeared to be using the word "aggravating" in an "infelicitous" way to simply emphasise the seriousness of the totality of the offending. I am not persuaded that his Honour did take the feature of being "in company" into account in the way in which the applicant asserts and that the ground of appeal has been made out. 38If I am incorrect in that conclusion, the facts of the offending are so serious as to inevitably lead to a conclusion that no lesser sentence is warranted in law. This is so despite the applicant being aged 17 and coming from a very deprived background. Not only were the offences of a very serious kind, but the structure of the sentences comprehended a significant degree of leniency. Each offence was unrelated to the others and each offence was very serious. It was only a generous application of the principles of totality which resulted in the degree of concurrence reflected by the sentences. In allowing for this level of concurrence, the sentencing judge was clearly mindful of the applicant's youth and deprived background. 39The order which I propose is that leave to appeal against sentence be granted but that the appeal be dismissed. 40BLANCH J: I agree with Hoeben CJ at CL. 41R A HULME J: I agree with Hoeben CJ at CL. ********** 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: 08 January 2014