Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Allen v R [2015] NSWCCA 113 Hearing dates: 20 May 2015 Decision date: 27 May 2015 Before: Hoeben CJ at CL at [1] R A Hulme J at [42] Beech-Jones J at [43] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – demand money with menaces and assault with intent to rob while armed with an offensive weapon – whether sentencing judge should have found "special circumstances" – discretionary finding of fact – no "House v R" error – appeal dismissed. Legislation Cited: Crimes Act 1900 – s 97(1), s 99 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Caristo v R [2011] NSWCCA 7 House v R [1936] HCA 40; 55 CLR 499 Jayde Farrell v R [2012] NSWCCA 245 Jiang v R [2010] NSWCCA 277 MD v R [2015] NSWCCA 37 PK v R [2012] NSWCCA 263 Power v R [1974] HCA 26; 131 CLR 623 R v Carter [2003] NSWCCA 243 R v Cramp [2004] NSWCCA 264 R v Fidow [2004] NSWCCA 172 R v GWM [2012] NSWCCA 240 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Sellars [2010] NSWCCA 133 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Tuuta [2014] NSWCCA 40 Trad v R [2009] NSWCCA 56; 194 A Crim R 20 Category: Principal judgment Parties: Rhys James Allen – Applicant Regina – Respondent Crown Representation: Counsel: Applicant in person S Dowling SC – Respondent Crown Solicitors: Applicant in person Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2014/16661 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 26 June 2014 Before: Wilson SC DCJ File Number(s): 2014/16661 Judgment 1. HOEBEN CJ at CL: Offences and sentence The applicant pleaded guilty to: Count 1 – Demand money with menaces contrary to s 99 Crimes Act 1900 (maximum penalty imprisonment for 10 years). Count 2 – Assault with intent to rob while armed with an offensive weapon contrary to s 97(1) Crimes Act 1900 (maximum penalty imprisonment for 20 years). 1. On 26 June 2014 Wilson DCJ sentenced the applicant as follows: Count 1 – Imprisonment for a fixed term of 9 months, commencing 17 January 2014 and expiring 16 October 2014. Count 2 – Imprisonment with a non-parole period of 2 years and 8 months commencing 17 April 2014 and expiring 16 December 2016 with a balance of term of 1 year and 1 month expiring 16 January 2018. 1. The total sentence was imprisonment for 4 years with a non-parole period of 2 years and 11 months. Factual background 1. At about 6am on 17 January 2014 the applicant was a passenger in a motor vehicle which drove to the intersection of Market and Boulder Streets in Fingal Bay. The applicant alighted from the vehicle and went towards shops in Market Street with the hood of his jacket over his head and his face concealed by wrapping a green coloured shirt about it and wearing sunglasses. The persons with him remained in the vehicle. 2. The applicant entered the Fingal Bay Café and walked towards the counter. He encountered the milkman, who was delivering milk and pointed a four-inch long silver object, which was described as a blade, at the milkman and told him to "get back". The use of this blade against the milkman did not form any part of the offence. 3. Having caused the milkman to move out of the way, the applicant directed his attention to the owner who was behind the counter The applicant yelled, "Give me the money, give me the money". The owner told the applicant that there was no money. 4. The applicant, not being satisfied with that response, reached over the counter, opened the cash register, and felt inside the till. Because the till did not contain any money, the applicant ran from the store to the car where his associates were waiting. The engine of the car was running, and as soon as the applicant entered it, the car drove away (Count 1). 5. The car containing the applicant and his associates drove to the Shoal Bay shopping area. The applicant alighted from the car and went towards the Shoal Bay Newsagency while his associates remained in the car. 6. As he entered the Shoal Bay Newsagency, the applicant was wearing the same clothing, including the hood and the green coloured shirt wrapped about his face. The applicant walked up to one of two employees and said, "Give me the money", pushing his hand forward in her direction. The employee (Ms Miller) saw that the applicant was armed with a blade which she estimated to be three and a half to four inches long. 7. Ms Miller did not hand over any money because the second of the two employees working in the shop that morning grabbed an umbrella pole which was kept inside the front door of the newsagency. He held the pole above his head and directed the applicant in firm language to get out of the newsagency. The applicant did as he was told and said, "I'm going" and ran from the store to the waiting vehicle. When he got back into the vehicle, he and his associates drove away (Count 2). 8. At the time of this second offence, the police were responding to the earlier offence committed at the Fingal Bay Café. Upon hearing a radio broadcast about the second crime, police diverted to Shoal Bay, obtained some information about the vehicle that was used by the applicant and his associates, and began to search for it. 9. At about 7.15am the applicant was seated in the back seat of the vehicle when it was stopped by the police. Police searched the vehicle and located the clothing which the applicant had worn during the commission of the two offences. The applicant, together with his associates, was arrested and taken to the Raymond Terrace Police Station. The applicant denied any involvement saying that he had briefly blacked out around the time of the offences. Proceedings on sentence 1. The sentencing judge acknowledged the utilitarian value of the early plea of guilty and allowed a discount of 25%. 2. Her Honour regarded both offences as serious. She noted that the offence of demanding money with menaces was committed against the owner of a café and takeaway business, who opened his premises at an early hour, at a time when there would be very few customers and the streets were quiet. Her Honour found that the menace offered on that occasion was in the applicant's presentation, rather than any threat of particular harm. Her Honour noted that small business operators were vulnerable to this sort of crime, particularly when committed at an early hour when streets might be deserted and there might be little prospect of assistance. Nevertheless, her Honour determined that the circumstances of this offence placed it at the lower end of any notional range of objective gravity. Her Honour found that there was little planning involved, other than an attempt by the applicant to disguise his appearance. She noted that the applicant desisted immediately on discovering that there was no money in the cash register. Her Honour took into account that the owner of the café must have been alarmed by what had transpired. 3. Her Honour regarded the s 97(1) offence as more serious. It occurred a very short time after the commission of the offence in Count 1. The applicant again attempted to conceal his face. On entering the newsagency the applicant produced the knife or blade and demanded that Ms Miller give him money. The applicant failed in his attempt, not because he willingly gave it up but because of the opportune intervention of the other newsagency employee who frightened him away. 4. Her Honour noted that as with the earlier offence, the applicant chose to commit his crime against a small business which opened at an early hour at a time when few people were on the streets. Her Honour took into account that Ms Miller, like other employees of newsagencies, petrol stations and the like, was vulnerable to this type of crime. Her Honour took into account that Ms Miller must have been frightened by the applicant and the blade pushed towards her. Her Honour considered that the causing of fear and distress in an offence of this kind went to its gravity. Her Honour did not regard the applicant's failure to obtain any cash or other property as significantly reducing the criminality, since it was only the intervention of the fellow employee that prevented his success. 5. Her Honour took into account the applicant's subjective case. The applicant gave evidence and also relied upon a psychological report by Fleur Taylor. At the time of the offending, he was aged 20. He turned 21 on the day before the sentence proceedings. He had a happy and supportive childhood with parents who encouraged him to pursue his education and who demonstrated proper community values. Unfortunately a number of his peers were involved in drugs and crime and exemplified an attitude of disobedience to the law. He came under their influence. 6. Despite being encouraged by his parents, the applicant found school difficult. The psychologist thought that he may have suffered from an undiagnosed Attention Deficit Hyperactivity Disorder (ADHD). The applicant left school in year 8 and unsuccessfully attempted to obtain employment. He then drifted into an antisocial lifestyle which was fuelled by substance abuse. He had started using cannabis at age 12, alcohol at 13 and methylamphetamine at age 16. Crime supported these addictions. 7. Her Honour found that despite having just turned 21, the applicant already had quite an extensive criminal record. His offending commenced in 2009 and included driving offences, offences of violence and offences of dishonesty. He had only just finished a sentence when the present offences were committed. Her Honour noted that in relation to those sentences, the applicant had failed to take advantage of the opportunities for rehabilitation offered to him by the courts, despite repeated chances being extended to him. 8. Her Honour stated the following in relation to rehabilitation: "The offender acknowledged in his evidence that drug use had blighted his life and rehabilitating himself was the key to changing his life. He referred to some of the older prisoners he had met whilst in custody and told the Court that he did not want to find himself sharing their fate of a lifetime spent in and out of prison. Whilst in custody the offender wishes to undertake whatever drug rehabilitation programs may be available to him in an attempt to solve his problems with drug use. He has worked in carpentry within the prison system and has enjoyed that employment, expressing a wish to take up similar work upon his release. The offender is to be commended for his desire to rehabilitate himself and his ambition for employment, although it is difficult to be confident that those desires will translate into effective action, having regard to his past inability to take advantage of rehabilitative programs offered to him. His prospects for rehabilitation must be very guarded." 1. Her Honour accepted that the applicant had expressed a degree of insight into his crimes. She found that he exhibited a degree of remorse, acknowledging that the victims of his crime would have been frightened and that they should not have been put through such an experience. 2. In relation to special circumstances, her Honour found as follows: "Although the offender has asked the Court to make a finding of special circumstances I am not prepared to make such a finding except in so far as it is necessary to reflect the principle of totality. Setting that aside I do not believe that the circumstances are sufficiently special to justify a variation in the usual sentencing ratio. True it is that the offender will benefit from assistance with rehabilitation from his substance abuse problems, but there is objectively at this stage little evidence upon which to base a conclusion that, if given a longer than usual parole period, the offender will make positive use of it. My understanding of the authorities is that there ought to be some evidence that an offender has the capacity to use a longer than usual period of parole and I do not see that evidence here." 1. Her Honour took into account general deterrence. In that regard she referred to the guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 which stressed the need for courts to impose sentences which properly reflected the criminality involved in a crime which was not just an offence against property, but was committed against individuals. Her Honour concluded that for such crimes, except where there were exceptional circumstances, a full time custodial sentence should be imposed. Her Honour found that there were no exceptional circumstances in relation to this applicant. 2. Her Honour noted that the s 97(1) offence contained a number of the features identified in Henry, although the applicant was entitled to a larger discount because of his early plea of guilty. Because there were two entirely separate and distinct offences, her Honour determined that there should be some degree of accumulation. The degree of accumulation was three months. The appeal 1. The applicant relies upon a single ground of appeal. The sentencing judge erred in determining whether "special circumstances" existed for the purposes of s 44(2) Crimes (Sentencing Procedure) Act. 1. The applicant was originally represented by Mr Odgers SC who prepared written submissions in support of this ground. Two days before the date fixed for the hearing, the Court was advised that the applicant would be representing himself. When the matter came on for hearing, the applicant appeared by audio visual link. He advised the Court that he did not wish to make any submissions beyond the written submissions already filed on his behalf. He did, however, advise the Court of what courses he had completed and generally brought the Court up to date concerning his time in custody. He advised the Court that he understood that this evidence would only be used if the Court decided to re-sentence him. 2. The applicant submitted that it was implicit in her Honour's rejection of a finding of special circumstances that the only basis for such a finding was the fact of accumulation of sentence. She specifically rejected the proposition that the applicant needed a period of extended supervision to assist him in overcoming his drug addiction because there was little evidence that the applicant would make positive use of a longer parole period. The applicant submitted that her Honour's reasoning on this issue was erroneous in that there was no requirement for a sentencing judge to reach a conclusion that a longer period of release on parole "will" advance the rehabilitation of an offender. 3. In support of that proposition, the applicant identified a number of cases to the effect that it will be a "special circumstance" that there is a "need or desirability" for an extended period of release on parole to facilitate rehabilitation (R v Sellars [2010] NSWCCA 133 per McClellan CJ at CL at [22]; R v GWM [2012] NSWCCA 240 per Johnson J at [114] – [115]; Jayde Farrell v R [2012] NSWCCA 245 per Hidden J at [22]; PK v R [2012] NSWCCA 263 at [65]). 4. The applicant submitted that while a mere "possibility" or a mere "pious hope" that an extended period of release on parole will facilitate rehabilitation might not be enough, a conclusion that there was a real chance that it will, would be sufficient to establish special circumstances if it was clear that the chances of rehabilitation will be reduced if there is no such extended period. In support of that proposition, the applicant relied upon R v Tuuta [2014] NSWCCA 40 per Bellew J at [57]; R v Carter [2003] NSWCCA 243 per Dunford J at [20]. 5. The applicant placed particular reliance upon the following observation by Dunford J: "20 Offenders cannot expect to have the non-parole period reduced to facilitate their rehabilitation unless there are significant positive signs which show that, if allowed a longer period on parole, rehabilitation is likely to be successful, and not merely a possibility." 1. By reference to that statement of principle by Dunford J, the applicant referred the Court to a number of cases which had defined the word "likely". In this context, the applicant submitted that the word "likely" should be treated as meaning "a real and not remote chance". It followed, so the applicant submitted, that in this case there was a real and not remote prospect of the applicant being successfully rehabilitated if he were allowed a longer parole period. 2. In support of that proposition, the applicant relied upon the following factual circumstances: The applicant was aged 20 when he committed the offences and had just turned 21 at the time of sentence. The applicant had been introduced to drugs at a very young age. The applicant was disappointed at his inability to complete the Drug Court program and expressed a willingness to engage in rehabilitation. The applicant had gone through drug withdrawal in prison (psychological report). The psychologist had expressed the opinion that without intensive drug and alcohol focused treatment, the applicant's risk of relapse was high. The psychologist opined that to ensure the applicant's sobriety upon release, he should be engaged with a community based drug and alcohol program. The prosecutor in the sentence proceedings had conceded that "certainly there are features that would allow your Honour to make a significant finding of special circumstances". Consideration 1. Whether the ratio of the non-parole period to head sentence should be adjusted to less than the 75% prescribed by s 44(2) Crimes (Sentencing Procedure) Act 1999 involves a "discretionary finding of fact" in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]; Caristo v R [2011] NSWCCA 7 at [27]. The decision to find special circumstances is first one of fact to identify the circumstances and secondly, one of judgment to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [73]. 2. The presence of circumstances which are capable of constituting special circumstances does not compel the Court to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]. The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp [2004] NSWCCA 264 at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33]; MD v R [2015] NSWCCA 37 at [38]. 3. In determining the appropriate non-parole period, the sentencing judge's primary focus should be on assessing the minimum period of actual incarceration necessary to give effect to the multiple purposes of sentencing. In Power v R [1974] HCA 26; 131 CLR 623 the plurality (Barwick CJ, Menzies, Stephen and Mason JJ) said: "6 … The judge, in fixing a non-parole period, must, we believe, have regard not to the time within which the paroling authority must consider the prisoner's case but to the time for which the prisoner must remain in confinement. … 7 It is our opinion that the Act as a whole does not convert a sentence of imprisonment from a punishment into an opportunity for rehabilitation. … In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention. … 10 To read the legislation in the way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence." 1. Similarly, in R v Simpson Spigelman CJ (with whom Mason P, Grove and Sully JJ and Newman AJ agreed) said: "65 In addition to the need to identify and articulate "special circumstances", in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion." 1. The proposition that the fixing of a non-parole period is a matter that is to be determined solely or primarily by reason of considerations of rehabilitation has been long rejected. In Simpson, Spigelman CJ said: "59 The words "special circumstances" appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings. The sentencing context in which they appear in the present legislation must be understood against the background of a long-standing line of decisions in the High Court, commencing with Power, which emphasises that the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought be the minimum period of actual incarceration. The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected." 1. The report of Ms Taylor, the psychologist, when recording the applicant's drug and alcohol history recorded that on each of the three occasions he had the opportunity to participate in residential rehabilitation programs through the Drug Court, he had been discharged before their completion: 31 December 2012 – Discharged after two weeks for non-compliance with program. 24 February 2013 – Discharged after two weeks for using synthetic cannabis. 19 July 2013 – Self discharged after three months. Given the applicant's history, it is not surprising that Ms Taylor recommended the completion of a custodial drug and alcohol program as her first choice of treatment. 1. The applicant's history of non-compliance with rehabilitation programs was taken into account by her Honour and undermined his submission that there was a real chance of him being successfully rehabilitated if he were given an extended parole period. Her Honour's finding that a parole period longer than 25% of the total head sentence would not assist the applicant in his rehabilitation involved a proper exercise of her Honour's discretion and was open on the evidence. It could not be said that a parole period of 13 months was insufficient to meet the applicant's rehabilitation needs if he genuinely wished to undertake same. 2. This ground of appeal has not been made out. 3. The order which I propose is that leave to appeal be granted but that the appeal be dismissed. 4. R A HULME J: I agree with Hoeben CJ at CL. 5. BEECH-JONES 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: 27 May 2015