Tynan v R [2014] NSWCCA 75

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tynan v R [2014] NSWCCA 75 Hearing dates: 7 May 2014 Decision date: 07 May 2014 Before: Bathurst CJ at [1] Johnson J at [2] R A Hulme J at [3] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW - appeal and new trial - appeal against sentence - offences of robbery whilst armed - trial judge erroneously apprehended features of typical case in R v Henry [1999] NSWCCA 111 in some respects - judge invited submissions as to whether proposed sentence was "too much or too little" - applicant declined to be heard - no lesser sentence warranted - leave to appeal refused Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 Category: Principal judgment Parties: Jason Daniel Tynan (Applicant) Regina (Respondent) Representation: Counsel: Mr J Watts (Applicant) Ms N Noman SC (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2012/190953 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-12-03 00:00:00 Before: Armitage DCJ File Number(s): 2012/190953

Judgment 1BATHURST CJ: I agree with R A Hulme J. 2JOHNSON J: For the reasons given by R A Hulme J I agree that leave to appeal should be refused. 3R A HULME J: This is an application for leave to appeal against the severity of sentences imposed by his Honour Judge Armitage in the District Court at Parramatta on 3 December 2012. The applicant was sentenced in respect of two offences of robbery whilst armed committed on 9 and 18 June 2012. Such an offence is contrary to s 97(1) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 20 years. 4The applicant pleaded guilty at an early stage and the judge allowed a 25 percent reduction of the sentences on account of the utilitarian value of the pleas. The sentence imposed in each case was 3 years 6 months with a non-parole period of 2 years. The sentences were accumulated by 6 months so that the total effective sentence was 4 years with a minimum custodial component of 2 years 6 months. 5The applicant also pleaded guilty to an offence of driving whilst disqualified which had been referred to the District Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). A sentence of six months was imposed, to be served entirely concurrently with the first of the armed robbery offences. 6The proposed grounds of appeal concern the manner in which the judge had regard to the guideline for sentencing in commonly encountered armed robbery cases provided in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. Generally, it is contended that his Honour misapprehended the typical case there described for which it was suggested that a sentence in the range of 4 to 5 years was appropriate. It is also contended that his Honour erred in his comparison of objective and subjective features of the case at hand with that typical case. 7The robberies were similar to the typical case described in R v Henry but not in all respects. They were robberies committed at service stations by a 26 year old offender who was armed with a steel rod in one case and an umbrella shaft in the other case. The attendants were threatened and obviously put in some fear. The proceeds amounted to several hundred dollars. Other matters that the judge had to take into account included, on the one hand, that the applicant was on bail at the time of the offences but, on the other, that he had experienced some traumatic events in the past and had some mental health issues which the judge took into account in his favour in each of the mitigating respects described in R v Hemsley [2004] NSWCCA 228. An explanation for the applicant's offending was that he had become addicted to ice and had a gambling problem. Indebtedness as a result of those activities was the motivation for committing the offences. 8The judge accepted various other matters in the applicant's favour including that he had experienced a troubled childhood; did not have a significant criminal record; was genuinely remorseful; would find custody difficult because of his mental health and other issues; had a reasonable history and future prospects of gainful employment; was motivated to seek treatment for his mental health and drug abuse issues; and had good prospects of rehabilitation and not re-offending. 9I accept that there were some erroneous ways in which the judge did apprehend the features of the typical case described in Henry: for example, regarding it as being concerned with what he called a "street robbery" and regarding the present matter as being more serious because it concerned robberies of "commercial premises where an employee is particularly vulnerable". But in the end, having regard to all of the objective and subjective features of the case, the sentences imposed, remembering that they related to not one armed robbery but two, were quite unremarkable. Even if error was established, it would be necessary for the Court to be satisfied that a lesser sentence was warranted and should have been passed before intervention would be justified: s 6(3) Criminal Appeal Act 1912 (NSW). In my view, no lesser sentence could be contemplated. 10An additional problem for the applicant is that the judge, rather unusually, forecast the terms of the sentence he proposed to impose and invited submissions as to whether "it falls into appealable error either way or is too much or too little or whatever you wish". (POS 17.20) 11After a period of confusion about the mathematical calculation of the sentences, in terms of starting points before reduction for the pleas of guilty, the degree of partial accumulation, and the ratio of parole and non-parole periods, the judge finally announced what he proposed to impose. The legal representative then appearing for the applicant took the opportunity of conferring with his client and announced, "Your honour, my client understands that and I don't have any submissions". 12The proposed appeal is completely lacking in merit. 13I propose the following order: Leave to appeal refused.