Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BLOOMFIELD, Gary v R [2013] NSWCCA 315 Hearing dates: 29 August 2013 Decision date: 11 December 2013 Before: Latham J at [1] Rothman J at [2] Davies J at [48] Decision: (1) Leave to appeal granted; (2) Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - robbery in company - alleged misapplication of Henry guideline - alleged manifest excess - appeal dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Murchie v R [1999] NSWCCA 424; (1999) 108 A Crim R 482 Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 Tammer-Spence v R [2013] NSWCCA 297 Category: Principal judgment Parties: Gary Bloomfield (Applicant) Crown (Respondent) Representation: Counsel: I Nash (Applicant) P G Ingram SC (Crown) Solicitors: Aboriginal Legal Service (NSW/ACT) Ltd (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/205645 Publication restriction: None Decision under appeal Date of Decision: 2012-05-03 00:00:00 Before: English DCJ File Number(s): 2011/205645 Judgment 1LATHAM J: I agree with Rothman J. 2ROTHMAN J: Gary Robert Bloomfield, the Applicant, applies to this Court for leave to appeal against the sentence imposed upon him by the District Court for the offence of robbery in company (being contrary to s 97(1) of the Crimes Act 1900), which carries a maximum sentence of 20 years' imprisonment. The Applicant pleaded guilty to the offence. 3The Applicant was sentenced to a non-parole period of 3 years and 4 months and 15 days' imprisonment commencing 23 June 2011, with a remainder of term of 13 months and 15 days, bringing the head sentence to 4 years and 6 months (ending 22 December 2015). There is no standard non-parole period. 4If leave to appeal were granted, the Applicant agitates the appeal on the following grounds: (1)The sentencing judge erred in her application of Henry (1999) 46 NSWLR 346; 106 A Crim R 149; (2)The sentence imposed was manifestly excessive. The application for leave to appeal and the appeal were heard simultaneously. The offence 5The Applicant was sentenced on 3 May 2012, having entered a plea of guilty, for one offence of robbery in company. The circumstances of the offence were, for the purposes of the sentence, agreed. Unsurprisingly, there is no challenge to any of those facts on appeal. 6On the evening of 23 June 2011, the victim, a 15-year-old male student, was on a train travelling west from Blacktown Station. Just after St Marys Station, the Applicant and co-accused, Mr Scott Trindall, approached the victim, who complied with a request by Mr Trindall for $2. The victim then complied with a request made by the Applicant to move to the downstairs section of the train for "a chat". He was asked for a cigarette by the Applicant and gave the Applicant four cigarettes. 7Mr Trindall then said, "You have got more than two dollars mate, empty out all your change". The victim said he needed the change, to which Mr Trindall responded aggressively, "Don't lie to me mate, you have a $50 note in there." The victim said, "Yeah, that's to last me a fortnight." Mr Trindall grabbed the victim's arms and pulled them behind his back. He dragged the victim to the floor and onto his back with his hands behind his back. He put his left knee on the victim's chest. 8The Applicant then said, "I've got a knife on me." The facts before the District Court stated that "[t]he victim saw what appeared to be a black handle, similar to a knife handle, down the front of [the Applicant's] pants". During evidence-in-chief, the Applicant denied that he had possessed a knife (Transcript 5). The contrary was not put to him in cross-examination. It was positively suggested that he had lied when he told the victim that he had a knife (Transcript 12). The sentencing judge concluded that she could not be satisfied beyond reasonable doubt that the Applicant had a knife during the robbery (ROS 2). 9The Applicant then emptied the victim's wallet, taking a $50 note, some change, a NAB key card and a packet of cigarettes. Mr Trindall asked for the PIN and the Applicant said he was not sure of it. 10The Applicant let the victim off at Kingswood and said he would hold the doors open so that the victim would not tell the guards what had happened. In the car park the victim spoke to some police who then drove him to Penrith where he identified the offenders. Subjective circumstances 11The Applicant was 26 at the time of the offence and is Aboriginal. The evidence before the Court at sentence included his criminal history, pre-sentence report of Joan Horsell dated 25 April 2012 and psychological report of Peter Champion dated 19 April 2012. 12His record contained antecedents in the Children's Court for stealing, resisting arrest, break, enter and steal and robbery in company. His convictions as an adult included numerous driving offences, common assault, possession of prohibited drugs, larceny, steal from person and break and enter with intent. 13The reports, confirmed by his oral evidence, related that he had a truncated educational experience and commenced using drugs at a young age. The Applicant is one of eight children raised in a close family environment, although he had minimal contact with his father during his formative years. He was exposed to significant domestic violence and claims to have been sexually abused as a child. That claim was not examined during counselling. 14The Applicant had been subject to violent relationships with his step-father, who was particularly violent when drunk. Peter Champion assessed him as being of low average intelligence, with survival level literacy skills, and concluded that he was not mentally ill, nor suffering from a developmental disability. 15The Applicant has a daughter with whom he maintains contact and he intends to reside with his sister on release. He left school in year 7 at the age of 13 and has had minimal employment. 16The sentencing judge afforded him a 25 per cent discount for the utilitarian value of the plea. She concluded that the prospects of rehabilitation were "extremely guarded" and that the likelihood of his reoffending was "high". She found that the offence was spontaneous rather than planned and that the victim was "particularly vulnerable", which findings relate more to the circumstances of the offence rather than the offender. Nevertheless, it is convenient to reiterate them at this juncture. 17The Applicant had a long-standing substance abuse problem, having commenced cannabis use at 15 years of age and heroin and amphetamines at 18. He has twice attempted residential rehabilitation, without success. 18At the time of the offence, he was daily using cannabis, heroin and amphetamines. Since his incarceration, he has been on a methadone programme. Yet the Applicant does not want to participate in community based rehabilitation, but would like similar programme opportunities in prison. He has failed a previously-prescribed methadone programme in the community. The Applicant acknowledges his long-term dysfunctional behaviour. Ground 1: Misapplication of the Henry guidelines 19The Court (Spigelman CJ, Wood CJ at CL, Newman, Hulme and Simpson JJ) in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 was dealing with the offence of armed robbery and, on application, issued a guideline judgment, setting a guide for what was considered to be a sufficiently common set of circumstances. Those circumstances were: a young offender with no or little criminal history; the use of a weapon like a knife, capable of killing or inflicting serious injury; a limited degree of planning; limited, if any, actual violence but a real threat of it; a victim in a vulnerable position, such as a shopkeeper or taxi driver; a small amount of money (or goods) taken; and a plea of guilty, the significance of which is limited by a strong Crown case. The Court set a range for such a sentence, because, it noted, other characteristics would be relevant and each of the characteristics is inherently variable. 20The Court set a range for the head sentence for the above offence and offender, being a sentence that generally should fall within four and five years' imprisonment. In Henry, the Court once more emphasised that a guideline judgment does not lay down a rule or prescription. The failure to adhere to the guideline is not itself a ground of appeal: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, per Brennan J; Henry at [13]-[31], especially at [29]-[30], and the cases cited therein. 21Because the Henry guideline is to be treated in that way, it may sometimes be used as a useful guidepost for offences not strictly caught by the common characteristics that were used to formulate the guideline. In that way, this Court expressed the view that the Henry judgment could be used as a guide for sentencing an offender for robbery in company: Murchie v R [1999] NSWCCA 424; (1999) 108 A Crim R 482. As the Court said in Murchie: "[20] The legislature has prescribed the same maximum penalty for robbery in company as it has prescribed for armed robbery. I consider that the guideline promulgated by this Court in relation to armed robbery offences is equally applicable to offences of robbery in company which can be seen as broadly equivalent. I would therefore proceed on the basis that the sentence promulgated in Henry in relation to offences of armed robbery provides equally a guideline in relation to offences of robbery in company. Of course, as was stressed in Henry and Jurisic (1998) 45 NSWLR 209; 101 A Crim R 259, a guideline sentence is precisely that and is not to be applied inflexibly." (Per Simpson J.) 22The Applicant, under this ground of appeal, submits that the guideline has been misapplied and the degree of seriousness of the offence overstated. While not expressly put in these terms, the Applicant submits that there has been double counting of the factor associated with the robbery having been carried out in company: first, by using robbery in company as the qualifying factor for use of the guideline; and, secondly, by using the fact that there were two assailants as an aggravating factor (although not described in that way) in assessing the seriousness of the offence. 23As earlier stated, a guideline judgment is intended to be a guide only. It is not to be used as a template or prescription from which sentencing judges subtract or to which they add with mathematical precision. 24The submissions of the Applicant and of the Crown take an overly precise or mathematical approach. The only permitted "mathematical" aspect is that, given the sentencing judge's reduction of the sentence by 25 per cent to account for a plea at the earliest possible time, a comparison which the guideline judgment should allow for a comparison of like with like. 25The starting point for the sentence imposed on the Applicant is 6 years' imprisonment (i.e. the head sentence before allowing for a 25 per cent discount to arrive at 4 years and 6 months' imprisonment). Utilising a similar arithmetic approach, the Crown calculates that the upper most starting point for a head sentence under the guideline is 5 years and 7 months' imprisonment, allowing for a 10 per cent discount for a late plea: see R v Hemsley [2004] NSWCCA 228 at [30]. (Indeed, if more than 10 per cent discount were to be accommodated, the starting point in the guideline would need to be higher.) 26The Applicant's submission then relies on the proposition that the mid-point of the Henry range is 4 years and 6 months and, therefore, the: "[s]tarting point, prior to a 10 per cent discount, would be 5 years. Therefore, the mid point of the range, where a 25 per cent discount is applicable, is 3 years and 9 months". In drawing a criticism of her Honour from the foregoing, the Applicant is confusing an arithmetic mid-point in a guideline judgment with the mid-range of offending. 27As her Honour correctly noted, the maximum sentence for the offence is 20 years' imprisonment. The guideline judgment is intended to be a range for a particular kind of offence of armed robbery and a particular kind of offender. It is not intended to set a range for a "mid-range offence", but for the kind of offence described by the Court as sufficiently common. 28Other than the issue raised as "double counting", no attempt has been made to criticise the sentencing judge's categorisation of the offence as "above the range envisaged by the guideline judgment". It is necessary, therefore, to deal with the comparison within the range, otherwise than arithmetically, including the issue of whether there has been "double counting". 29First, it is necessary to reiterate that the Applicant was 26 years of age at the time of the offence. He is, and was at the time, no longer a "young offender", for whom significantly different principles apply: see Tammer-Spence v R [2013] NSWCCA 297 at [36]-[37] and the authorities cited therein, particularly BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4] per Hodgson JA. 30As a consequence, one of the fundamental criteria for the application of the guideline judgment disappears and a significant reason for leniency has been eliminated. 31Secondly, the vulnerability of the victim as a factor is exacerbated, because, not only was he young (15 years of age), he was travelling on public transport, with no means of escape, he was detained (i.e. required to follow the offender) and was, in the knowledge of the offender, deprived of his means of livelihood for the next two week period. 32I deal next with the alleged "double counting". One of the reasons for equating robbery in company with armed robbery is the identicality of the maximum sentence for each offence. Another reason is that each aggravated offence has a particularly problematic effect on the victim, inducing fear and often resulting in lasting trauma. 33Where, as here, the robbery in company is accompanied by the threat of a weapon (even though an empty threat), the seriousness of the effect of the offence on the victim is exacerbated. In my view, it is for that reason that her Honour listed the factors at ROS 8-9 about which the Applicant complains on appeal. It is appropriate to reiterate her Honour's comments: "The offence is one which falls above the range envisaged by the guideline judgment taking into account the circumstances of the offence which involved actual violence in addition to the threat of the use of a knife which as I found was non existent. But a threat nonetheless to heighten the victim's fears and to make him comply with the offender's demands, the presence of two offenders, a vulnerable victim only fifteen years of age at the time, the small sum taken and a threat was made not to inform the authorities and the offence was committed by someone in company who has significant prior criminal antecedents. It does however appear to have been an offence which was opportunistic or spontaneous rather than something which was planned. It was committed in circumstances wherein the offenders were highly likely to be caught. In mitigation the offender entered his plea at the earliest opportunity and I allow him a twenty-five per cent discount. I find he is remorseful and contrite and does show insight into the impact his offender behaviour would have had upon his victim." 34On one view, the possession of a knife, which is neither used nor the existence of which is known to the victim, has less impact on a victim than it might in a situation where, as here, the victim is told of a knife and sees what looks like a knife handle, but no knife is actually possessed. 35Her Honour was sentencing an adult for an offence that carried a maximum penalty of 20 years' imprisonment, in circumstances where there was the threat that a knife would be used and significant disempowering conduct. The reason her Honour re-stated, in the cited passage, both the company and the threat of the knife was to emphasise the effect on the victim and not to utilise as an aggravating factor that which gave rise (or was essential) to the offence in question, or was itself an element of the offence: see s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 36The Applicant's first ground of appeal is not made out. Ground 2: Manifest Excess 37The Applicant once more relies on the fact that the sentence imposed was above the Henry guideline. Of itself, that is not a basis for the establishment of manifest excess. 38In dealing with the first ground of appeal, I have noted that there were good reasons for a sentence above the Henry guideline, particularly that the offender was no longer young, in the sense relevant to criminal culpability. 39The Applicant relies on an analysis of statistical material and on "comparable" verdicts. Statistics may sometimes be a useful tool, but are always a poor master: Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520. 40Even so the statistics establish a range which puts the sentence imposed on the Applicant in the top 23 per cent of sentences for robbery in company. The difficulty is that most offences of this kind are committed by young offenders, under 21 years of age, for whom different outcomes would be expected because of the different approach: see above. 41On the other hand, armed robbery cannot be described in the same manner and the statistics apply to both offences, but not to the aggravated offence of robbery while armed with a dangerous weapon. 42The fundamental difficulty with the use of statistics is that those statistics become a self-fulfilling range and become a de facto guidepost in place of the maximum sentence and, where relevant, the standard non-parole period. It is necessary to be very careful in the manner in which such statistics are used. 43The Applicant also relies on a number of comparable situations. In each case, the sentence was imposed on a young offender, the eldest of whom was 21 years of age. 44As already stated, young offenders are not generally appropriate for comparison purposes. Interestingly, an analysis of those cases in which a head sentence of 4 years and 6 months was imposed, upon which the Applicant relies in the Judicial Commission statistics, shows a marked similarity with the Applicant and, of the 90 offenders in that category, 65 of them are over 25 years of age. 45More importantly, many of the circumstances of the offences for which a head sentence of 4 years and 6 months has been set are comparable with the Applicant's circumstances, including a discount for an early plea of guilty. 46Ultimately, sentencing is an intuitive process for which there is no single correct answer. The sentence imposed is "within range" and was not manifestly excessive. I do not consider that any lesser sentence is warranted. Even if I were of another view and would have fixed a lower sentence, such a view, if formed, is not the test for manifest excess. This sentence was available as an exercise of her Honour's discretion for this offence and offender. This ground also fails. Conclusion 47Each of the grounds of appeal, in my view, fails. As a consequence, I would propose that the Court make the following orders: (1)Leave to appeal granted; (2)Appeal dismissed. 48DAVIES J: I agree with Rothman 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2013