R v Dudgeon [2002] NSWCCA 41 (1 February 2002)

Last Updated: 5 March 2002

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Dudgeon [2002] NSWCCA 41

FILE NUMBER(S):

60270/00

HEARING DATE(S): 1/2/2002

JUDGMENT DATE: 01/02/2002

PARTIES:

Regina

Adam Jason Dudgeon

JUDGMENT OF: Ipp AJA Grove J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0208

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

COUNSEL:

Ms DJ Forbes- Applicant

Dr PJP Power- Crown

SOLICITORS:

SE O'Connor- Crown

CATCHWORDS:

Application for Leave to appeal against severity of sentence

Robbery

Sentencing principles

Totality

Special circumstances

LEGISLATION CITED:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

DECISION:

Application dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60270/00

IPP AJA

GROVE J

DOWD J

1 February 2002

R v Adam Jason DUDGEON

Judgment

1 IPP AJA: I will ask Dowd J to deliver the first judgment.

2 DOWD J: The applicant seeks leave to appeal against sentences imposed on him on 23 April 2001 by Coolahan DCJ in Newcastle. The applicant pleaded guilty to four counts of Robbery contrary to ss95, 97 and 114 of the Crimes Act 1900 (`the Act'), and was sentenced to a total cumulative term of seven years imprisonment, commencing from 20 January 2002 to expire on 19 January 2007, with a non-parole period of five years and six months to expire on 19 July 2005.

3 On the first count, the applicant pleaded guilty on 11 August 2000 at Newcastle to a count of aggravated robbery with corporal violence contrary to s95 of the Act, with the Learned Sentencing Judge taking into account two matters of being armed with intent to commit an indictable offence (Larceny) on a Form 1, contrary to s114 of the Act. The applicant was sentenced to six years imprisonment, commencing from 20 January 2000 to expire on 19 January 2006, with a non-parole period of four years and six months to expire on 19 July 2004. That offence carries a maximum penalty of twenty years imprisonment.

4 On the second count, which alleged armed robbery with an offensive weapon contrary to s97 of the Act, the applicant was sentenced to five years imprisonment, to commence on 20 January 2002 and to expire on 19 January 2005. The maximum penalty is twenty years.

5 On the third count of robbery whilst armed with an offensive weapon, contrary to s97 of the Act, the applicant was sentenced to a fixed term of five and a half years imprisonment, to commence on 20 January 2000 and to expire on 19 July 2005.

6 On the fourth count of robbery whilst armed with an offensive weapon contrary to s97 of the Act, the applicant was sentenced to six years imprisonment, to commence on 20 January 2001 and to expire on 19 January 2007, with a non-parole period of four years and six months to expire on 19 January 2005.

7 The facts in relation to the offences are that on 22 December 1999 at about 8:00pm, the applicant, accompanied by Tracey Andrews and her husband, Tony Douglas, and their four children, drove from their Quigley Street residence to the Kentucky Fried Chicken outlet at Mount Hutton. Whilst purchasing chicken via the "drive through", the applicant left the Toyota van in which they were travelling, and entered the store. Andrews drove the van to the car park where Douglas proceeded to fix a broken door on the van.

8 The applicant entered the store via the rear door and walked up to the staff side of the counter where he grabbed hold of Natalie Matthews, a sixteen-year-old attendant at the store, and demanded that she open the till. When the manager of the store, Anthony Zakaraushas came to assist Matthews, he was punched by the applicant on the right cheek. The applicant informed the staff at the store that he had a knife in his pocket, and as a result of this information Zakaraushas opened one of the cash drawers and the applicant took all the money present, totalling $266.00.

9 On leaving the store, the applicant placed his hand on the front door of the store. A fingerprint later taken from that site was identified as belonging to the applicant. The applicant subsequently returned to the van and was later dropped off in some bushland by Andrews. The applicant denied any involvement or knowledge of this crime when interviewed on 20 January 2000.

10 The first matter on the Form 1 involved the applicant entering the Little Jack Horner Bakery armed with a knife and wearing a balaclava. On seeing the applicant, two employees fled from the counter and the applicant took a quantity of cash from the till. The second matter on Form 1 involved the applicant entering the same bakery. On entering the bakery, he acted as though he had dropped some money on the floor and when he came up from the crouch position he raised a hammer in the air and at the same time demanded money. Again, the two employees present backed away from the counter and the applicant took the contents of the till before fleeing from the bakery.

11 As to the second count on 6 January 2000, the applicant requested Andrews drive him to Domino's Pizza at Glendale. Douglas drove the van with the applicant in the front seat and Andrews in the back. The three were aware that the applicant was to rob the store. The van was parked near the store and the applicant entered the store by the front door wearing a balaclava and armed with a knife. The applicant threatened the three employees with the knife before demanding cash from the till.

12 At one stage, the applicant demanded that the safe also be opened. When he was told by one of the employees that they could not open the safe, he shouted at him:

"I'll knife ya in the guts".

13 The applicant obtained $687.00 in cash from the robbery and also the key to the safe. Following the robbery, the applicant went back to the van and was driven back to the Quigley Street residence. The applicant again initially denied any knowledge of this offence when interviewed in relation to the crime on 20 January 2000.

14 The third count occurred on 11 January 2000 shortly before midnight, when the applicant again requested Andrews drive him to Domino's Pizza at Glendale. She and Douglas drove him there and parked nearby while the applicant entered the store wearing a balaclava, and armed with a knife. He approached the three staff and demanded that they open the safe with the key he had stolen in the previous robbery. He was informed by the staff that the lock had been changed and the key would be of no use. The applicant became angry, menaced the three attendants, and wielded the knife at them.

15 One of the staff was forced to open the front of the safe and give the applicant the money in the drawer of the safe, which amounted to $704 and some cents. The attendant, Travis Stevenson, had a knife held to his stomach during this ordeal, and for a time pressed up against his chin, resulting in a slight cut.

16 The applicant fled from the premises with the money and was driven back to the Quigley Street residence. When interviewed on 20 January 2000, the applicant denied any knowledge or involvement in the offence.

17 The fourth and final count occurred on 14 January 2000. Tony Douglas and the applicant discussed carrying out the robbery at the Rathmines Cellars. The applicant rang the Cellars at approximately 7:15pm to ascertain what time the premises closed, but was unable to get through at that time. Ms Andrews called later and found out that it closed at 8:30pm.

18 The applicant, accompanied by Andrews, Douglas and the ten-year-old child of the latter, arrived at the Cellars some time before 8:30pm. Douglas and Andrews entered the shop to purchase some items and on return, informed the applicant that there was a surveillance camera in the shop and two attendants.

19 The applicant entered the store wearing a balaclava and armed with a knife. He demanded that the attendants empty the till and place the contents into a Bank cash bag. He then emptied the contents of the TAB drawer into the bag.

20 The applicant was observed leaving the store by a witness who took down the registration number of the van. The applicant was driven back to the Quigley Street residence by Douglas where the proceeds of the robbery were counted and totalled $3920.00. At the police interview on 20 January 2000, the applicant denied all knowledge of the matter.

21 The applicant was arrested on 20 January 2000 and initially denied all knowledge of the offences.

22 Each of these crimes that I have briefly summarised represent in objective terms a serious breach of the criminal law. Four such offences were committed individually over a period of just over a month. These are crimes that have the added gravity of deliberately instilling fear into the victims, people who have to deal constantly with the public.

23 The Learned Sentencing Judge took a severe view of these offences and said at p7 of his Remarks on Sentence:

"Obviously the facts disclose very severe offences. In each case the victims of the offences have described feelings of fear and anxiety resulting from the offender's actions. These are no more than might be expected in the circumstances. As far as one of the victims is concerned, a Mr Tisdell, a victim's impact statement has been provided and is in evidence. He describes in some detail the effect that the offender's actions has had upon him and so far as he is concerned, together with all the other victims, their expressions of fear and anxiety are no more than what one would expect in the circumstances in which these offences were committed."

24 His Honour Coolahan DCJ addressed the need for a custodial sentence in terms of the objective seriousness of the offences, and took into account the importance of deterrence in the sentencing process, which he considered to be particularly pertinent in the applicant's case.

25 I incorporate His Honour's comments in his Remarks on Sentence as to the subjective matters considered by His Honour, commencing on p8:

"Turning to subjective matters, the offender is now twenty-eight years of age. He was twenty-six when he committed the first offence on the indictment and twenty-seven when he committed the other offences, including the form one offences. He has some matters on his criminal history. There were minor Children's Court matters in 1991; in 1992, however, he was fined at the Maitland Local Court for an offence of assault; in 1993, he was placed on a two-year s558 recognizance for a further offence of assault; in 1994, he was given community service for a break enter and steal; and in 1996, he was given a further community service order in relation to an assault occasioning actual bodily harm.

He subsequently breached the community service order and was sentenced to serve six months by way of periodic detention. He breached that order and, in the result, served a prison term. He had not long been released from that custody when these offences were committed.

When the sentences came on for hearing before me on 19 March 2001 a report was tendered on behalf of the offender from a psychologist, Anna Robilliard; that report is dated 13 March 2001. Ms Robilliard saw the offender at the MRRC at Silverwater on 26 February 2001 and spent about three hours with him. During the course of that time, she obtained a history and administered various psychological tests.

So far as the history is concerned, I do not intend to go into that in great detail. It appears that the offender was born in Newcastle and has one sibling, a fifteen-year-old sister. He apparently grew up in a relatively normal family environment. He attended at Telarah Primary School and then was a student at St Peter's High School at Maitland. He apparently did not get into any significant trouble at school and left early in year eleven, having obtained his school certificate the previous year.

After he left school he began work in the factory of Hunter Valley Confectionary. He spent some months in that employment. An opportunity to do a six-month pre-apprenticeship course in carpentry presented itself and he took it. After that an apprenticeship as a stonemason was advertised. He applied for this position and was taken on and completed his qualification in that trade over four years.

Ms Robilliard noted that unfortunately during that time the offender came into contact with a fellow employee who was in his late twenties and who had a criminal record and a drug habit. It was this person who introduced the offender to drugs which Ms Robilliard noted had been a major problem for him ever since.

The offender met his wife, Bernadette, in 1993 and they married in 1998 when he was twenty-five years old. They had two children, both daughters, born in 1996 and 1997. In 1997 the offender moved, with his wife and family, to Sydney. He had been out of work but on moving to Sydney found employment at Matraville.

During the course of living and Sydney, the home occupied by him and his wife and family was robbed and his wife then became very nervous about staying in the home. As a result the offender decided to move back to Newcastle. It was at this time, however, that he been attending weekend detention and Ms Robilliard says that because of his wife's fears he stopped attending and soon after his arrival back in Newcastle he was arrested because of this and serve the sentence that I have referred to. It appears also at this time that the offender was drinking and using drugs which was having a very negative impact upon his marriage. The couple separated in August 1999 but there had been some sort of reconciliation and the offender was visiting his wife in September 1999 when he was arrested for breach of the periodic detention sentence. The sentence that he subsequently served concluded on 12 December 1999".

26 Each of the sentences correctly reflected the seriousness of the offences, and indeed no submission has been put on behalf of the applicant that each of the sentences was not within an appropriate range.

27 The substance of the first ground of appeal is that His Honour erred in not only increasing each of the sentences to reflect the fact that they followed the offences which proceeded, but that in addition, there was a partial accumulation and partial concurrence in the final sentence imposed.

28 His Honour, in my view, correctly applied the powers provided by the Crimes (Sentencing Procedure) Act 1999, which, by s55, gave to the Court the power to partially accumulate sentences. This is to enable a sentencing judge to comply with the transparency requirement of the High Court in R v Pearce (1998) 194 CLR 610, and at the same time to be able to reflect the principle of totality, which His Honour clearly did. Here, the use of s55, which had no predecessor in this State in similar terms, enabled the Court to reflect totality and to clearly indicate the seriousness of each of the offences.

29 There is, in my view, no failure in His Honour's application of the principle of totality, and in particular I refer to the decision of Sully J in R v Wheeler [2000] NSWCCA 34 at pages 6 and 7:

"The correct application to such a case as the present one of the principles established by the decision in Pearce is not by any means a simple matter. Two things not necessarily reconcilable, if indeed reconcilable at all, have to be held in a fair overall balance.

One of them is the consideration referred to in the Court as the principle of totality. That is to say, the principle that accepts the need, in a case of multiple offences, to adopt an approach which is more discriminating than the approach of simply fixing individual sentences, and then simply aggregating the individual sentences so as to reach a result, which such a process almost inevitably produces, of a truly enormous head sentence.

The countervailing factor, no less legitimate, is the need to ensure public confidence in the administration of criminal justice; and, in particular to ensure that there does not emerge in a community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.

It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour".

30 The Learned Sentencing Judge clearly had in mind the proper sentencing principles in so fixing the accumulated head sentence and the non-parole period, and I therefore would dismiss that ground of appeal.

31 The second ground of appeal put on behalf of the applicant relates to the failure to find special circumstances. Although not so expressed in the written submissions, the applicant concedes that there is no statutory requirement for the non-parole period to be three-quarters of the head sentence. In fact s44 of the Crimes (Sentencing Procedure) Act 1999 prescribes no statutory formula. It merely prescribes that 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.

32 There have been various matters referred to as would be appropriate for the Court to take into account. The essence however, of the duty of the Learned Sentencing Judge, was to fix what was an appropriate period. Nothing has been put before the Court that would derogate from His Honour's application of appropriate sentencing principles in fixing a period of eighteen months.

33 The fact that there has been a partial accumulation has in fact only increased the non-parole period to about seventy-seven per cent of the total sentence. The eighteen month period is, in the circumstances, an appropriate period, and His Honour was not in fact required to give any more than that by any facts and circumstances.

34 The fact that there is some degree of rehabilitation, the fact that this will be a first major sentence, and the fact that there is an accumulation, are all matters which a Court may take into account, but it is important to understand that s44(2) of the Crimes (Sentencing Procedure) Act 1999 says the Court need only decide that the non-parole period be less than the three-quarters if there are special circumstances which oblige the Court to so find.

35 In my view, there is nothing in the facts and circumstances of this case that requires a longer period for which he is eligible for parole than eighteen months. In the circumstances, I do not consider there is any error on the part of His Honour, and I would also dismiss that ground of appeal.

36 IPP AJA: I agree.

37 GROVE J: I also agree.

38 IPP AJA: The application for leave to appeal against sentence is accordingly dismissed.

oOo

LAST UPDATED: 04/03/2002