R v Sotheren [2001] NSWCCA 425 (24 October 2001)

Last Updated: 26 October 2001

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Sotheren [2001] NSWCCA 425

FILE NUMBER(S):

60409/00

HEARING DATE(S): 21 August 2001

JUDGMENT DATE: 24/10/2001

PARTIES:

Regina

Darren Sotheren

JUDGMENT OF: Beazley JA Wood CJ at CL Carruthers AJ

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70044/00

LOWER COURT JUDICIAL OFFICER: Dowd J

COUNSEL:

Crown: R Cogswell SC

Sotheren: D G Dalton

SOLICITORS:

Crown: S E O'Connor

Sotheren: David H Cohen & Co

CATCHWORDS:

Crown Appeal

Sentence

Manslaughter

Aggravated Robbery

LEGISLATION CITED:

Criminal Appeal Act 1912 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

DECISION:

Sentences set aside, convictions confirmed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60409/00

BEAZLEY JA

WOOD CJ at CL

CARRUTHERS AJ

Wednesday, 24 October 2001

R v SOTHEREN

FACTS

This was a Crown appeal against the sentences imposed by Dowd J in respect of six offences involving the assault and robbery of six different victims committed by the respondent over a 24 hour period. One of the victims died three days after the attack on him. All the other victims, including a taxi driver, suffered severe injuries. During the relevant period the respondent had injected himself with a considerable quantity of amphetamines. He had an extended prior criminal history including crimes of violence. The respondent pleaded guilty to one count of manslaughter: s 24 of the Crimes Act 1900 (NSW); two counts of aggravated robbery (inflicting grievous bodily harm): s 96 of the Crimes Act; and three counts of aggravated robbery (maliciously inflicting actual bodily harm): s 95 of the Crimes Act.

Dowd J imposed the following sentences:

· Count 1: manslaughter: 5 years imprisonment to date from 7 September 2002 and conclude on 6 September 2007 with a non-parole period of 2 years and 6 months. Eligible for conditional parole on 6 March 2005.

· Count 2: aggravated robbery inflicting grievous bodily harm: 2 years and 6 months imprisonment to date from 7 September 2000 and to conclude on 6 March 2003.

· Count 3: aggravated robbery inflicting actual bodily harm: 2 years and 6 months imprisonment to date from 7 September 2000 and to conclude on 6 March 2003.

· Count 4: aggravated robbery inflicting grievous bodily harm: 2 years and 6 months imprisonment to date from 7 September 2001 and to conclude on 6 March 2004.

· Count 5: aggravated robbery inflicting actual bodily harm: 2 years and 6 months imprisonment to date from 7 September 2001 and to conclude on 6 March 2004.

· Count 6: aggravated robbery inflicting actual bodily harm: 2 years and 6 months imprisonment to date from 7 September 2002 and to conclude on 6 March 2005.

In effect, an overall sentence of 7 years with a non-parole period of 4 years and 6 months was imposed.

The Crown alleged that his Honour made a number of discrete errors in his reasons for sentence, in that he: (i) mistakenly regarded the maximum available penalty for all five robbery offences as 20 years, whereas the maximum for offences committed under s 96 of the Crimes Act was 25 years; (ii) failed to give sufficient weight to the fact that the offences were committed whilst the respondent was on parole; (iv) failed to impose an adequate sentence in respect of the attack on the taxi driver, a person in special need of protection: see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (v) treated the respondent's state of drug intoxication as a mitigating factor; (vi) gave insufficient weight to the impact on the victims of the crime; (vii) failed to impose a sentence in proportion with the objective gravity of the crimes and subjective features of the respondent.

The respondent submitted that the sentence was within the range, albeit at the low end and should therefore not be disturbed. However, the respondent submitted that if the appeal was successful the Court should exercise its discretion not to re-sentence because of the exceptional progress the respondent had made in his rehabilitation and the likely severe adverse impact an increased sentence would have on his progress and health. Alternatively, the respondent submitted that given the principle of double jeopardy, the Court should impose the least sentence that could properly have been imposed at first instance.

HELD (per Beazley JA, Wood CJ at CL and Carruthers AJ agreeing)

(i) All grounds of the Crown appeal were made out.

(ii) The sentences imposed by his Honour were so manifestly inadequate that it was necessary for the Court to intervene. However, in this case, it was proper for the Court to impose the least sentence that could have been imposed in the first instance: R v Rose (unreported, New South Wales Court of Criminal Appeal, 23 May 1996).

(iii) Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the non-parole period must not be less than three-quarters of the term of the sentence unless the Court determines there are special circumstances for it being less. In this case there were special circumstances, namely the prospects of the respondent for rehabilitation which were not previously apparent, so that a non-parole period which was less than three-quarters of the term of the sentence should be determined.

ORDERS

(i) The sentences are set aside

(ii) The convictions are confirmed.

(iii) On the charge of aggravated robbery (maliciously inflict actual bodily harm) on Joseph Bruni (count 3: Crimes Act s 95) the respondent be sentenced to a term of imprisonment of 3 years to commence on 7 September 2000 and to conclude on 6 September 2003.

(iv) On the charge of aggravated robbery (maliciously inflict actual bodily harm) on Yuming Zheng (count 5: Crimes Act s 95) the respondent be sentenced to a term of imprisonment of 3 years to commence on 7 September 2000 and to conclude on 6 September 2003 to be served concurrently with the sentence imposed in respect of count 3.

(v) On the charge of aggravated robbery (maliciously inflict actual bodily harm) on Daniel Stapleton (count 6: Crimes Act s 95) the respondent be sentenced to a term of imprisonment of 4 years to commence on 7 September 2000 and to conclude on 6 September 2004 to be served concurrently with the sentences imposed in respect of count 3 and 5.

(vi) On the charge of aggravated robbery (inflicting grievous bodily harm) on Francis McLean (count 2: Crimes Act s 96) the respondent be sentenced to a term of imprisonment of 4 years to commence on 7 September 2002 and to conclude on 6 September 2006 to be served partly concurrently with the sentences imposed in respect of counts 3, 5 and 6, and partly consecutively.

(vii) On the charge of aggravated robbery (inflicting grievous bodily harm) on Umesh Sawnani (count 4: Crimes Act s 96) the respondent be sentenced to a term of imprisonment of 4 years to commence on 7 September 2002 and to conclude on 6 September 2006 to be served partly concurrently and partly consecutively with the sentences imposed in respect of counts 3, 5 and 6, and concurrently with the sentence imposed in respect of count 2.

(viii) On the charge of manslaughter of Ho Chung Sham (count 1: Crimes Act s 24) the respondent be sentenced to a term of imprisonment of 10 years to commence on 7 September 2002 and to conclude on 6 September 2012 to be served partly concurrently with the sentences imposed in respect of counts 2 to 6 and partly consecutively with the sentences imposed in respect of counts 2 and 4.

(ix) I would specify a non-parole period of 6 years so that the respondent be eligible for release on 6 September 2008. The release on parole is subject to the conditions imposed by the sentencing judge. Those conditions are that the respondent be subject to the supervision of the Probation and Parole Service, which Service will take such steps as are necessary to ensure continual psychological and psychiatric supervision, including such medication as may be prescribed for the respondent and such techniques by way of counselling or other treatment as may be prescribed for the respondent.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60409/00

BEAZLEY JA

WOOD CJ at CL

CARRUTHERS AJ

Wednesday, 24 October 2001

R v Darren SOTHEREN

JUDGMENT

BEAZLEY JA: Introduction

1 This is a Crown appeal pursuant to s 5(D) of the Criminal Appeal Act 1912 (NSW) against the sentences imposed on 15 June 2001 by Dowd J on the respondent in respect of the following six offences:

Count 1: manslaughter: s 24 of the Crimes Act 1900 (NSW), maximum penalty 25 years imprisonment.

Counts 2 and 4: aggravated robbery inflicting grievous bodily harm: s 96 of the Crimes Act, maximum penalty 25 years imprisonment

Counts 3, 5 and 6: aggravated robbery (maliciously inflict actual bodily harm): s 95 of the Crimes Act maximum penalty 20 years imprisonment.

2 On 2 April 2001 the respondent pleaded guilty to each of the six offences. On 15 June 2001 the respondent was sentenced as follows:

Count 1: 5 years imprisonment to date from 7 September 2002 and to conclude on 6 September 2007 with a non-parole period of 2 years and 6 months. Eligible for release on parole on 6 March 2005. The release on parole is to be subject to a number of conditions.

Counts 2 and 3: Fixed term of 2 years and 6 months imprisonment to date from 7 September 2000 and to conclude on 6 March 2003.

Counts 4 and 5: Fixed term of 2 years and 6 months imprisonment to date from 7 September 2001 and to conclude on 6 March 2004.

Count 6: Fixed term of 2 years and 6 months imprisonment to date from 7 September 2002 and to conclude on 6 March 2005.

The sentence in respect of counts 2 and 3 was dated from 7 September 2000 to take into account the period the respondent had been in custody in respect of the offences subject of the appeal. Because of the combination of concurrent and cumulative sentences, the overall effect of the sentences imposed by his Honour was a total period of 7 years imprisonment with a non-parole period of 4 years and 6 months.

Facts

3 It is necessary to refer, in brief detail, to the offences.

4 The offences themselves were committed over less than a 24 hour period on Sunday 9 May and Monday 10 May 1999. Over this period the respondent had injected himself with a considerable quantity of amphetamines.

5 Count 1, the manslaughter offence, occurred second in point of time at about 10.15pm on 9 May 1999 and about half an hour after the first offence. The respondent had travelled from Liverpool to Granville by train. After leaving Granville Railway Station he walked a short distance where he saw the victim Ho Chung Sham waiting for his wife. Mr Sham was initially attacked about the head. He fell to the roadway and whilst on the ground the respondent stomped on his face. The respondent took Mr Sham's wallet and mobile phone. The wallet was subsequently recovered and about half of its contents of $1,900 were missing. Mr Sham had placed the money in two separate compartments in the wallet. Mr Sham was found unconscious on the street by a passing motorist at about 10.45pm and died three days later having suffered severe brain injury in the attack.

6 The respondent was indicted for murder but a plea of guilty to the offence of manslaughter was accepted. During the course of the sentence proceeding the respondent alleged that he was not responsible for stomping on Mr Sham's head but that that had been done by another person involved in the attack. The respondent accepted responsibility for punching him only. However, not only had the respondent admitted the elements of the offence by his plea of guilty, there were circumstances which pointed to him as being the only perpetrator of the attack. They included the fact that he had been observed on video camera arriving at Granville Railway Station and he was alone. The wallet was found in an alcove adjoining the Cardinal Freeman Refuge, where the respondent had previously stayed. The pattern of the attack was similar to that involved in the other attacks - in particular the victim had sustained a severe beating around the head. In addition, the tread of the respondent's shoes was consistent with the marks to the deceased's head, although the prisoner was wearing shoes of common manufacture.

7 The sentencing judge described the attack on Mr Sham as being a "vicious and violent attack on a defenceless human being in an isolated location". He noted that the respondent "is a big and powerful man, capable of inflicting substantial injuries from striking a blow with his hand or some other object within that hand". It appears that the respondent had injected amphetamines earlier that day, probably before 10am. He described himself as having "had a fair bit of speed". Later in the day he bought further amphetamines with money given to him by his father (having told him he had lost his backpack and presumably therefore his money) and sometime after that committed the first two offences.

8 Count 2, being an offence of aggravated robbery inflicting grievous bodily harm was the offence which occurred first in time, at about 9.45pm, at Liverpool. The victim in that attack, Mr Francis McLean was about 55 years old. At that time he was walking home through Bigge Park where the respondent attacked him from behind, striking him violently about the head and face numerous times. The respondent also took Mr McLean's umbrella and struck him several times with that before stealing his wallet and running towards Liverpool Station. Mr McLean suffered a fractured nose, facial lacerations and bruising. Mr McLean also suffered a laceration which bleed heavily.. Damage was also done to his glass eye which required replacing. Blood from the lacerations (as established by DNA testing) was later found on the respondent's jeans.

9 As I have said, the respondent then travelled from Liverpool to Granville where the attack on Mr Sham occurred.

10 After the attack on Mr Sham, the respondent went to the Parramatta Leagues Club. He appears to have remained there for some time, leaving the club at 2.27am. Whilst at the club, he changed his clothing. He was next seen between 3.00am and 3.30am on 10 May in a walkway in Parramatta. He was observed to be holding a syringe at that time. At 3.30am the respondent approached Joseph Bruni and after a short conversation struck him violently on the head. Mr Bruni fell to the ground and the respondent stole his wallet from his back pocket. Mr Bruni received lacerations and bruising to the face. This attack was the subject of count 3 of the indictment.

11 About an hour later the respondent attacked Mr Umesh Sawnani who was walking home along Station Street East, Harris Park, about 400 metres from where Mr Bruni was robbed. Again, the respondent engaged Mr Sawnani in conversation and then struck him violently on the head with a rock. Mr Sawnani fell to the ground where the respondent continued the attack. He then ripped both pockets off Mr Sawnani's trousers and stole his wallet, which only contained $20 in cash. Mr Sawnani received a fracture to his right cheek, bruising and lacerations. This offence was count 4 in the indictment.

12 The respondent then ran away where he was seen either directly by witnesses or on video cameras in a number of different streets near the Parramatta Railway Station. Eventually, he walked through the pedestrian underpass at the eastern end of Parramatta Railway Station and exited onto Valentine Street, which is directly opposite the Valentine Café.

13 At about 4.45am the respondent spoke to Mr Yuming Zheng, who owns and operates the café. The respondent struck Mr Zheng repeatedly and violently to the head and wrestled with him. He searched Mr Zheng's pockets and removed his jacket, in which there was $800 in cash. Mr Zheng received a fractured palate and bruising to his facial area. This offence was count 5 in the indictment.

14 That leaves count 6. Later in the day, at about 3pm, the respondent and a companion caught a taxi from Liverpool Railway Station. The respondent sat next to the driver, Mr Stapleton and told him to drive to Carramar. When they reached the destination the respondent got out of the car, walked to the driver's side window and punched Mr Stapleton through the open window around the head. He then dragged him out of the door and threw him to the ground, further attacking him about the head. He ripped both of his trouser pockets before stealing his wallet which contained $100 cash and his mobile phone. Mr Stapleton sustained lacerations and swelling to his lip. The respondent and the other man fled from the scene.

15 The respondent eventually pleaded guilty to each of the six charges shortly before trial, but after pre-trial argument in respect of a number of issues, including an application by the respondent for a separate trial in respect of each charge, as well as an application to exclude certain identification evidence. There was also an adjournment while the parties awaited the decision in an unrelated trial in relation to the admissibility of DNA evidence. However, the pleas of guilty were entered before judgment was delivered in that matter.

Issues on the Appeal

16 The Crown submits that the trial judge made a number of discrete errors in his reasons for sentence. It is convenient to deal with each in turn.

Mistake As To Maximum Available Penalty

17 The sentencing judge stated that the aggravated robbery offences (being counts 2 to 6) each carried a maximum penalty of 20 years. This was wrong in respect of counts 2 and 4 which were charges laid under s 96 of the Crimes Act and carried a maximum penalty of 25 years in prison. Counts 3, 5 and 6 were laid under s 95 of the Crimes Act and did carry a maximum penalty of 20 years imprisonment.

18 The respondent concedes this error. However, counsel for the respondent in his written submissions submitted that the Crown failed to raise this at the sentencing hearing and that in any event, given the way in which his Honour imposed the sentences, the error could have little impact. During the course of argument on the appeal, the respondent placed little store on this submission. He accepted that his Honour's error was his own and not caused by any statement made by the Crown in the sentencing proceedings.

19 He submitted, however, that to interfere with the sentences actually imposed would amount to no more than `tinkering' and that his Honour's sentences, although low, were within appropriate sentencing ranges. It will be convenient to deal with the overall effect of the sentences later in these reasons.

Failure to Give Sufficient Weight to the Respondent's Prior Criminal History

Offences Committed Whilst Respondent on Parole

20 It is convenient to deal with these two issues together.

21 The respondent has a serious criminal record dating back to 1987, including a number of stealing charges and a number of assault charges. Of the more recent serious offences, the respondent had been convicted at the District Court in Sydney on 1 November 1993 on five charges, including robbery with striking, armed robbery with wounding, robbery with wounding and steal a conveyance. He was sentenced in respect of the armed robbery with wounding and robbery with wounding charges to a minimum term of 3 years to date from 18 May 1995, with an additional term of 2 years. He had been given slightly lesser sentences for the other charges. Subsequent to the commission of the offences with which this Court is concerned, the respondent was convicted of robbery at the Parramatta District Court On 21 June 2000 and sentenced to a term of imprisonment of 3 years to date from 7 June 1999, with a non-parole period with conditions attached of 15 months.

22 The trial judge referred in general terms to the respondent's criminal history and that it involved offences of robbery and of violence, both in New South Wales and in Queensland. The Crown submits, however, that the trial judge failed to give sufficient weight to the respondent's prior criminal history. This could be seen by comparing the overall effective sentence imposed on the respondent by the sentencing judge with the sentences imposed in 1993. The present sentences, for more serious crimes, was less than the effective sentence imposed in 1993. It was submitted that such a sentence was inconsistent with what the High Court had said in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. There, Mason CJ, Brennan, Dawson and Toohey JJ said at 477-78:

"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. This is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."

23 There is no way in which these offences could be described as falling into the category of "uncharacteristic aberration". On the contrary, serious and violent crime has been the characteristic behaviour of the respondent for over a decade. The significance of this criminal history for the proper sentencing process required in this matter is even more apparent when considered with the next matter raised by the Crown, namely the fact that the subject offences were committed whilst the respondent was on parole during the additional term imposed on 1 November 1993, to which I have referred above.

24 The sentencing judge made no reference to this. The Crown submits that it ought to have been taken into account as a seriously aggravating factor in the respondent's criminal behaviour: see R v A S Jones (unreported, New South Wales Court of Criminal Appeal, 30 June 1994), where Finlay J (Carruthers and Badgery-Parker JJ agreeing) pointed out, at 6, that an offence committed whilst on parole was a matter of major aggravation and that:

"It would ... accord with the moral indignation of the community these days that severe sentences be imposed by the courts upon those offenders who abuse their conditional liberty to which they have been allowed for prior offences."

25 Counsel for the respondent concedes that his Honour erred in not noting that the offences were committed whilst the respondent was on parole and that that was a matter of aggravation. It was submitted however, that the matter was not brought to his Honour's attention at sentence and that had been his Honour could have made the necessary adjustment to the sentence at the time. It was submitted however, that given the partial accumulation structure of the sentence imposed, it is unlikely that his Honour would have imposed any greater sentence in respect of any particular offence than he did. Counsel for the respondent pointed out, in relation to the sentences imposed generally, that his Honour was an experienced trial judge who had referred to all relevant facts (save this one) and the relevant authorities. He submitted that the resultant sentences were within an appropriate range.

26 I cannot agree. The attacks on Mr Sham, Mr McLean and Mr Sawnani were particularly brutal. Even given the method of partially accumulating the sentences as his Honour did, I am of the opinion that had his Honour adequately taken into account the respondent's prior criminal history and expressly paid attention to the seriously aggravating factor of the offences having been committed whilst on parole, the overall sentence structure would have been greater than it was. Nor do I consider that the respondent can take any comfort in the fact that the Crown did not expressly refer to the respondent's prior criminal history. The respondent's criminal antecedents were before his Honour and the fact that the respondent was on parole at the time should have been apparent to his Honour. Having said that, it would have been preferable had this matter been brought to his Honour's attention.

Failure to Impose an Adequate Sentence in Respect of the Attack on the Taxi Driver

27 Count 6 involved the aggravated robbery of a taxi driver. It is well established in this Court that a taxi driver is a person in special need of protection: see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. His Honour referred to this. However, he did not differentiate the sentence which he imposed in respect of count 6 from counts 3 and 5 to take that factor into account. He should have done so. His failure to do so involves appealable error. No basis was put forward, other than the general submissions in relation to the appropriateness of the sentences overall, as to why this Court should not interfere with that particular sentence.

Using Intoxication in Favour of the Respondent

28 The respondent had been a long time user of amphetamines. He said that the effect of the drugs on him when he injected them, which was his usual method of ingestion, made him lose control of himself and be more aggressive than usual. This evidence should be viewed in conjunction with the respondent's physique. He is tall and heavily built. The manner in which he carried out these attacks would indicate that he had considerable physical strength.

29 In dealing with the respondent's state of intoxication at the time of the attacks, and especially in relation to the manslaughter charge, his Honour stated:

"I note that the prisoner was substantially affected by amphetamines, which I take into account, notwithstanding the self-infliction of those drugs as the drug of choice of the prisoner."

30 Then, when dealing with the overall question of sentence his Honour again stated:

"I have taken into account on sentencing the fact that his actions were as a result of him taking a considerable quantity of amphetamines with its consequent mind-altering and psychology altering effect."

31 It is submitted on behalf of the Crown that it is clear that his Honour used these factors favourably to the respondent, rather than treating it as an aggravating factor in the case, or at the very least, a neutral factor.

32 Counsel for the respondent submitted that his Honour had in fact treated this as a neutral factor in the sense that he weighted it both subjectively and objectively. It was submitted that this was clear from his further statement during the course of his sentencing remarks, that:

"The [respondent's] selfish intention was to rob the innocent to satisfy his own addiction, notwithstanding that he had already that evening, deceived his father by taking money from him. A vast amount was spent on amphetamine consumption on these two days."

33 I consider that the overall import of his Honour's remarks in relation to this matter was to view the respondent's addiction as a mitigating factor.

34 It is apparent from lengthy discussions of this issue in the authorities that the question of serious drug addiction can be relevant in a number of ways. In Coleman (1990) 47 A Crim R 306 Hunt J said at 327:

"Only one matter of general principle was debated, and that was the extent to which the appellant was entitled to have his intoxication at the time of this offence taken into account in mitigation. The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character. (I have not intended by those examples to limit the extent to which intoxication may be taken into account: see, generally, Sewell and Walsh (1981) 29 SASR 12 at 14-15 ... Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate."

35 That passage was considered by the Court of Criminal Appeal in Fletcher-Jones (1994) 75 A Crim R 381 at 387. McInerney J, (Hunt CJ at CL and Bruce J agreeing), commented that the accused in that case had been an habitual drinker but had ceased to drink for a period of about 6 months immediately prior to the offence. In those circumstances the Court considered that the matter should be treated neutrally. His Honour went on however and stated:

"It has been pointed out by this Court on many occasions that whilst being affected by alcohol may explain why an offence occurred, it is not a licence to commit crimes ..."

36 In R v Valentini (1989) 46 A Crim R 23 it was said that drug addiction was not to be considered as a factor for the reduction of an appropriate sentence, although it would usually serve to provide an explanation for the commission of the offences. See also R v Ellis (1993) 68 A Crim R 449.

37 The question of drug addiction in relation to sentencing was also considered in the guideline judgment of R v Henry. For the purposes of the guideline judgment, the offences under consideration were s 97 offences: robbery, being armed with an offensive weapon: which carries a maximum penalty of penal servitude for 20 years.

38 Spigelman CJ in dealing with this question noted at 382 that there was a long line of authority in this State to the effect that addiction, is not, of itself a mitigating circumstance. His Honour said at 385:

"...drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary just as it varies for individuals who are not affected by addiction ... [t]here is no warrant ... to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money."

39 And further at 386:

"The sentencing practices of the courts are part of the anti-drug message, which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs. Accepting drug addiction as a mitigating factor for the commission of crimes of violence would significantly attenuate that message. The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of moneys for some other, but legal, purpose, is perverse."

40 Wood CJ at CL set out his view of the relevant principles at 397-398:

"(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:

(i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);

(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c) it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:

(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported);

(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R v Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment of choice was incomplete;

(iii) justify special consideration in the case of offenders judged to be at the `cross roads': R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394."

41 His Honour concluded:

"To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case."

Simpson J at 413 endorsed this approach.

42 In my opinion, Dowd J was wrongly swayed by the effect that the respondent's drug taking had from the effects of the very real violence which the respondent had inflicted upon his victims during the commission of these crimes. In my opinion, his Honour erred in so doing. Although the respondent has had a traumatic and traumatised childhood, the fact is he was 27 years of age when these offences were committed. He had already served several prison sentences. He was on parole at the time. I do not consider that his circumstances are such that his drug addiction ought to be regarded as a mitigating factor.

Insufficient Weight to Impact on the Victims of the Crime

Proportionality

43 The Crown next submitted that his Honour failed to give any or any sufficient weight to the serious impact which the courts regard these crimes as having on their victims. It was also submitted that there was no reasonable proportionality between the objective gravity of the crimes and the subjective features of the respondent. In particular, it was submitted that his Honour fell into error by allowing the subjective features of the respondent's circumstances overwhelm the primary duty of giving appropriate weight to the objective aspects of the crime.

44 Counsel for the respondent submitted these grounds have not been made out. He pointed out that that his Honour had appropriately referred to R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152. In that case, the respondent had pleaded guilty to two counts of robbery whilst armed with an offensive weapon, two counts of robbery in company and three counts of robbery whilst armed with a dangerous weapon. There were also 11 offences in the Form 1 which included six unrelated robberies. Wood CJ at CL (Beazley JA and Greg James J agreeing) referred to the Court's decision in Broxam (unreported, New South Wales Court of Criminal Appeal, 3 April 1986):

"The prevalence of the offence in respect of which the applicant was sentenced is a matter of grave social concern ... It is now well recognised that the victims of such armed robberies or attempted armed robberies may suffer devastating psychological damage consequent upon the trauma necessarily involved with the commission of such offences. In these circumstances sentencing judges will be recreant to the trust which the community places in them were they not to impose sentences consistent with the seriousness and prevalence of such offences."

45 Counsel for the respondent submitted that not only did his Honour refer appropriately to Bavadra, it was apparent he had correctly applied its principles, as he delineated the facts of the offences, including the serious impact that the injuries had had on the victims. His Honour concluded that the respondent had:

"inflicted on each of them very substantial injuries, some of which will be permanent ... [t]he assaults on each of those in the assault charges have resulted in very serious injuries, as demonstrated by the photographs exhibited before me in these sentence proceedings."

46 In my opinion, these last two grounds are also made out. Even though his Honour expressed the principles correctly, the sentences imposed are so manifestly inadequate that he must have given these matters insufficient weight. The sentences imposed in this case might be considered by comparison with the guideline judgment in R v Henry. As I have already pointed out, that case related to the offence of robbery being armed or in company under s 97 of the Crimes Act. However, s 97(1) carried the same maximum penalty (20 years imprisonment) as the s 95 offences involved here in counts 3, 5 and 6. In Henry, the Court specified a sentence of between 4 and 5 years custodial sentence for the full term in circumstances where the common factors were:

(i) a young offender with no or little criminal history;

(ii) use of a weapon capable of killing or inflicting serious injury

(iii) limited degree of planning;

(iv) limited if any actual violence but a real threat thereof;

(v) victim in a vulnerable position such as a shop keeper or taxi driver;

(vi) small amount taken;

(vii) plea of guilty, the significance of which is limited by a strong Crown case.

47 Some of those factors are, of course, not directly applicable here because of the absence of a weapon, although the respondent fashioned his own weapon in counts 2 and 4 - an umbrella and a rock respectively. The latter could quite easily have caused a fatal blow. But, in any event, the circumstances of these offences and the personal circumstances of the respondent, even taking into account the very real subjective personal matters to which his Honour referred, are far more serious than those comprised in the guideline profile. In particular, the offender was not young, in the sense used in Henry, and more significantly, has a serious criminal record involving robbery and violence. However the offences in this case are viewed, and notwithstanding the subjective circumstances which was appropriate for his Honour to take into account, the sentences imposed were overwhelmingly inadequate.

Further Submissions and Evidence: Prospects of Rehabilitation

48 At the conclusion of the oral argument on the appeal, leave was granted to the respondent to file further written submissions in relation to the respondent's prospects of further rehabilitation. Those submissions have been received together with a further report of Dr Daniels, Director of the Aboriginal Medical Service.

49 In his further submissions, counsel for the respondent submitted that if this Court considered the trial judge had fallen into appealable error the Court should exercise its discretion not to re-sentence because of the "exceptional progress" the respondent had made in his rehabilitation and the likely severe adverse impact an increased sentence would have on his progress and his health: see R v Taylor [1998] NSWSC 162. Alternatively, it was submitted that given the principle of double jeopardy the Court should impose the least sentence which could properly have been imposed at first instance: see Mark Anthony Rose (unreported, New South Wales Court of Criminal Appeal, 23 May 1996) per Gleeson CJ at 3.

50 The effect of Dr Daniels evidence is, in short, that the respondent had been significantly positively affected by the sentences imposed by the trial judge and he had become "markedly less paranoid, less emotionally labile and more trusting, particularly of authority". Generally, the respondent's "thought structure and vocabulary had become more sophisticated" and he was "much more focused and purposeful". He considered the effect of the sentence had been "arguably equivalent to several years of counseling (sic)".

51 However, the Crown appeal was served within two weeks of the sentence and had an even more dramatic impact, but of a negative kind. Dr Daniels reported:

"... the negative impact on [the respondent] of the Crown's appeal has been even greater in degree.

Most disturbing has been the recurrence of suicidal ideation."

52 The Crown submitted in its further written submissions that the Court should not decline to re-sentence. I agree. The sentences imposed by the sentencing judge were so manifestly inadequate that this Court could not but interfere, notwithstanding the further evidence of Dr Daniels.

53 The Crown correctly accepts the respondent's alternative submission that it could be proper for the Court to impose the least sentence that could properly have been imposed in the first instance. In determining what that sentence should be, the Crown submits that the short period of the positive effect of the original sentence was such that the Court would not be likely to place great weight on it. However, the Crown accepted that the evidence of the rapid decline in the respondent's mental well being following early signs of rehabilitation was more significant. In this regard, the Crown referred the Court to R v Holder [1983] 3 NSWLR 245 at 256, where Street CJ, citing R v Tliege (unreported, New South Wales Court of Criminal Appeal, 19 November 1982), said:

"In determining what the quantum of sentence should be we have, as not infrequently occurs in the case of Crown appeals, borne in mind that the respondent has been twice in jeopardy in the matter of sentence. It will be distressing in the extreme for him to suffer the sentence passed on him some time ago being increased. This leads us to determine a sentence which is more lenient than would properly be appropriate if the matter were coming forward for sentence for the first time."

54 This is the correct approach for the Court to adopt in the resentencing of the appellant: see also R v Rose (unreported, New South Wales Court of Criminal Appeal, 23 May 1996).

55 Under s 44(1) of the Crimes (Sentencing Procedure) Act 1999, the Court, when sentencing an offender is required first, to set the term of the sentence and then to set a non-parole period. As the longest sentence which ought to be imposed in this matter is in respect of the manslaughter conviction, it will not be necessary to set a non-parole period in respect of the other sentences. Under s 44(2) the non-parole period must not be less than three-quarters of the term of the sentence, unless the Court decides there are special circumstances for it being less.

56 I consider that there are special circumstances in this case. In the sentences which I propose and the manner in which I consider they should be structured, the respondent will be sentenced to a lengthy period of imprisonment. The respondent has significant personal and behavioural problems, including his drug addiction and his aggression, for which he clearly needs treatment. The recent evidence of Dr Daniels indicates that for the first time over a long period, the respondent has gained some insight to his problems and behaviour and that there are now prospects of rehabilitation which were not apparent previously. Those prospects should both be acknowledged and accommodated. That is appropriately done in this case by imposing a sentence of imprisonment which has proper regard for the gravity of the criminal behaviour exhibited by the respondent in the charges for which he has been convicted, but by determining a non-parole period which is less than the three quarters of the term of the sentence and by imposing conditions on his release on parole.

57 Taking all these matters into account, I consider that the orders which should be made and the sentences which should be imposed are as follows:

(i) The sentences are set aside

(ii) The convictions are confirmed.

(iii) On the charge of aggravated robbery (maliciously inflict actual bodily harm) on Joseph Bruni (count 3: Crimes Act s 95) the respondent be sentenced to a term of imprisonment of 3 years to commence on 7 September 2000 and to conclude on 6 September 2003.

(iv) On the charge of aggravated robbery (maliciously inflict actual bodily harm) on Yuming Zheng (count 5: Crimes Act s 95) the respondent be sentenced to a term of imprisonment of 3 years to commence on 7 September 2000 and to conclude on 6 September 2003 to be served concurrently with the sentence imposed in respect of count 3.

(v) On the charge of aggravated robbery (maliciously inflict actual bodily harm) on Daniel Stapleton (count 6: Crimes Act s 95) the respondent be sentenced to a term of imprisonment of 4 years to commence on 7 September 2000 and to conclude on 6 September 2004 to be served concurrently with the sentences imposed in respect of count 3 and 5.

(vi) On the charge of aggravated robbery (inflicting grievous bodily harm) on Francis McLean (count 2: Crimes Act s 96) the respondent be sentenced to a term of imprisonment of 4 years to commence on 7 September 2002 and to conclude on 6 September 2006 to be served partly concurrently with the sentences imposed in respect of counts 3, 5 and 6, and partly consecutively.

(vii) On the charge of aggravated robbery (inflicting grievous bodily harm) on Umesh Sawnani (count 4: Crimes Act s 96) the respondent be sentenced to a term of imprisonment of 4 years to commence on 7 September 2002 and to conclude on 6 September 2006 to be served partly concurrently and partly consecutively with the sentences imposed in respect of counts 3, 5 and 6, and concurrently with the sentence imposed in respect of count 2.

(viii) On the charge of manslaughter of Ho Chung Sham (count 1: Crimes Act s 24) the respondent be sentenced to a term of imprisonment of 10 years to commence on 7 September 2002 and to conclude on 6 September 2012 to be served partly concurrently with the sentences imposed in respect of counts 2 to 6 and partly consecutively with the sentences imposed in respect of counts 2 and 4.

(ix) I would specify a non-parole period of 6 years so that the respondent be eligible for release on 6 September 2008. The release on parole is subject to the conditions imposed by the sentencing judge. Those conditions are that the respondent be subject to the supervision of the Probation and Parole Service, which Service will take such steps as are necessary to ensure continual psychological and psychiatric supervision, including such medication as may be prescribed for the respondent and such techniques by way of counselling or other treatment as may be prescribed for the respondent.

58 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Beazley JA. I agree with her reasons and the orders she proposes.

59 CARRUTHERS AJ: I agree with Beazley JA

LAST UPDATED: 25/10/2001