R v Olson [2003] NSWCCA 349 (18 November 2003)

Last Updated: 2 December 2003

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Olson [2003] NSWCCA 349

FILE NUMBER(S):

60263/03

HEARING DATE(S): 18 November 2003

JUDGMENT DATE: 18/11/2003

PARTIES:

Regina

Raymond Patrick Olson

JUDGMENT OF: Tobias JA Hidden J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 02/11/0836

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL:

A: L. Flannery

C: F. Guy

SOLICITORS:

A: S. O'Connor

C: C. K. Smith

CATCHWORDS:

CRIMINAL LAW - appeal against sentence for armed robbery - whether trial judge should have given a further discount due to assistance given by accused to authorities in relation to co-offender

ND

LEGISLATION CITED:

Crimes Act 1900, s442B, s97(1)

Sentencing Act, s 21A

Crimes (Sentencing Procedure) Act 1999, s 23

DECISION:

(a) Leave to appeal granted and appeal allowed

(b) The sentence imposed by Judge Shadbolt on 22 November 2002 be set aside and in lieu thereof the applicant be sentenced to four years three months imprisonment commencing on 7 July 2002 and expiring on 6 October 2006, with a non-parole period of three years two months commencing on 7 July 2002 and expiring on 6 September 2005.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60263/03

DC 02/11/0836

TOBIAS JA

HIDDEN J

GREG JAMES J

Tuesday 18 November 2003

REGINA v RAYMOND PATRICK OLSON

Judgment

1 TOBIAS JA: On 28 October 2002, Raymond Patrick Olson (the applicant) pleaded guilty before Judge Shadbolt of the District Court to one count of armed robbery. The charge was brought under s 97(1) of the Crimes Act 1900, which provides for a maximum penalty of 20 years imprisonment.

2 On 22 November 2002, Judge Shadbolt sentenced the applicant to five years imprisonment commencing 7 July 2002 and expiring 6 July 2007, with a non-parole period of three years and nine months commencing 7 July 2002 and expiring 6 April 2005. The applicant originally appealed against his conviction and sought leave to appeal against the sentence imposed by the trial judge. On 13 November 2003, he filed a Notice of Abandonment with respect to his appeal against conviction. Accordingly, this Court is concerned only with the application for leave to appeal against sentence.

3 The circumstances of the offence are clearly set out in the trial judge's remarks on sentence. They are essentially as follows. At 6.40 pm on 15 December 2001, the applicant and his co-offender drove to Richmond Avenue, North Manly, and parked on the northern kerb facing east, with the passenger door open. The co-offender left the vehicle and walked to the eastern car park of the Dee Why RSL (the club). He followed the victim as she left the club and headed towards her motor vehicle. As the victim got into her vehicle she became aware that the co-offender was following her. She attempted to pull her door closed but the co-offender reached in and stopped the door from closing. He then grabbed the victim's handbag and pulled at it. With his right hand he swung a knife at the victim's legs. She attempted to hold on to her bag whilst kicking with her legs at the co-offender. She eventually lost her grip on the bag and the co-offender ran off. The co-offender then returned to the vehicle where the applicant was waiting, got into the passenger seat and they then sped off in an easterly direction.

4 A witness then followed the vehicle to Sturdee Parade, Dee Why (opposite the Dee Why Hotel (the hotel)) where the co-offender jumped out of the vehicle. The applicant then left the vehicle and threw the victim's handbag away. He kept the victim's wallet and took the knife used by the co-offender.

5 The applicant and the co-offender entered the hotel together - they then parted company. The applicant then went through the victim's wallet and removed $79.20, which he placed in his pants pocket together with the victim's cigarettes. He then placed the victim's wallet containing credit cards and personal papers in his carry bag.

6 Police saw the applicant looking suspiciously out of the western door of the hotel. Since he matched the description of the one of offenders as described by witnesses of the robbery, police stopped him. The applicant was then searched by the police who found a brown leather ladies' wallet smeared with blood in his carry bag. The cigarettes and knife were found in his pants pocket. He was arrested, interviewed and charged.

7 After the applicant's arrest on 15 December 2001 and during the course of his interview, the applicant told of meeting his co-offender at the local methadone clinic after which they returned to the co-offender's place of residence. The applicant maintained during the course of his interview that although he was the driver of the vehicle, it was his co-offender who committed the robbery and that he was unaware of the co-offender's intentions. He was unable to name his co-offender when asked, although he provided a description of him.

8 On 18 December 2001, the applicant provided a written statement to the police in which he identified his co-offender as Dean Kingsbeer. He also provided a description of the co-offender and his place of residence which was sufficient to enable the police to apprehend and arrest him on 24 December 2001. Kingsbeer was charged with one count of armed robbery: he pleaded not guilty. During the course of his trial which commenced on 28 October 2002, Senior Constable Mitchell John Bosworth gave evidence that on 18 December 2002, the co-offender had attended Dee Why Police Station and provided police with a seven page statement identifying Kingsbeer and his part in the armed robbery offence at the club. Senior Constable Bosworth agreed with the Crown Prosecutor that it was not until the receipt of that statement that the police were in a position to identify Kingsbeer as the other offender in the robbery.

9 The applicant gave evidence for the prosecution at Kingsbeer's trial. However, the jury could not agree and he was discharged. He stood trial again and was convicted. The applicant was not requested to give evidence at this second trial which took place after Judge Shadbolt sentenced the applicant for his part in the robbery.

10 In his remarks on sentence, the trial judge referred to the seriousness of the occurrence as well as the other matters he was required to take into consideration under s 21A of the Sentencing Act. He placed particular weight upon the applicant's lengthy criminal record which he described as "appalling" and one which "would not permit this Court to extend to the prisoner any leniency whatsoever". He described the applicant's background and the problems that he had experienced with alcohol and other drugs including the fact that he was suffering from depression. He referred to the questions of particular and general deterrence and expressed the view that had he stood trial and been convicted by a jury, a sentence of seven and a half years would have been appropriate. However, as he had pleaded guilty, the trial judge considered that there should be a 13% discount for his plea.

11 On the question of the assistance which the applicant had provided to the authorities and which forms the sole basis of the applicant's submission that the trial judge's sentencing discretion miscarried, his Honour noted that it was the Crown's understanding that the applicant would continue to give evidence against the co-offender, Kingsbeer, in relation to his retrial. He repeated this later in his remarks when he said this:

"The offender has shown some contrition for his offence, firstly, by his plea which I take as an indication of his contrition and, secondly, by his volunteering to give evidence against his co-accused"

12 Having indicated that a sentence of seven and a half years would have been appropriate had he pleaded not guilty and been convicted by a jury, his Honour noted that "he pleaded guilty and he has given assistance". He relevantly then said this:

"For this he will receive a discount, 20% for the assistance, 13% for the plea......that in all is a discount of 33% or one third which reduces the 7½ year sentence to 5 years. However, despite his willingness to give evidence, he has a serious criminal history and it was a serious crime. "

13 The trial judge then considered that there were no special circumstances and, accordingly, imposed a sentence of imprisonment of five years with a non-parole period of three years nine months.

14 The applicant submits that the trial judge's discretion miscarried in that he failed to give an appropriate discount in respect of the assistance provided by him to the authorities. In particular, it was submitted that although his Honour had recognised that he (the applicant) had given evidence at Kingsbeer's trial, and would if required give evidence at his retrial, he had not referred to the significant fact that but for his identification of Kingsbeer as his co-offender, the latter would never have been apprehended.

15 Reference was made to a passage in the judgment of Spigelman CJ (with whom McInerney and Sperling JJ agreed) in R v Chu, Court of Criminal Appeal 16 October 1998 (unreported) where his Honour observed that the Court of Criminal Appeal has often emphasised that there is no fixed tariff for the provision of assistance to the authorities and that customarily in New South Wales, discounts range from 20%-50%. In the present case, as already observed, the trial judge applied a 20% discount.

16 Further reference was made to what Hulme J (with whom Dowd J agreed) said in R v "R" [2000] NSWCCA 163 (also a case of armed robbery in which the accused described and named her co-offenders) (at [16]):

"Section 442B of the Crimes Act requires that the court, in determining a sentence to be passed, have regard to the degree to which the person has assisted law enforcement authorities in the detection or investigation of the offence or other offences. In my view, the naming of a co-offender or co-offenders, particularly when the names or identity of those persons are not otherwise known to the authorities, cannot but be described as assistance to law enforcement authorities in the detection or investigation of offences. Thus what the applicant did in that regard was required to be taken into account. His Honour, as has been indicated, clearly did take it into account, but I am not satisfied that he gave it adequate weight. Given that it led to the arrest and charging of one offender and to admissions by that offender which were regarded by the police as justifying the charging, it seems to me, that the applicant's assistance was wrongly described by his Honour as assistance which entitled the applicant to a discount falling at the bottom of the range."

17 Section 442B of the Crimes Act is now found in s 23 of the Crimes (Sentencing Procedure) Act 1999. That section is in the following terms:

"23. Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:

(a) the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims,

(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender's assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender's family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) the likelihood that the offender will commit further offences after release.

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence."

18 In its submissions, the Crown relied upon the following passage from the judgment of Hodgson JA (with whom Simpson and Greg James JJ agreed on this point) in R v NP [2003] NSWCCA 195 where his Honour cited and adopted the following passage from the judgment of Barr J in R v Dib [2003] NSWCCA 117:

"The value to be attributed to a particular feature of a case cannot be assessed without having in mind all the other features in the case, favourable and unfavourable. Sometimes a preponderance of favourable features will result in any one of them receiving less weight than it might have received in the absence of the other favourable features. An example is the credit that must be given to an offender who has provided or undertaken to provide assistance to the authorities. The legislation provides as the common law before it provided, that there is a limit to the value that may be given to such a combination of features. The resulting penalty may not be disproportionate to the nature and circumstances of the offence: Crimes (Sentencing Procedure) Act s 23(3); R v Cartwright (1989) 17 NSWLR 243.

.......

Even though a sentencing judge is encouraged to quantify the discount allowed for the utilitarian value of a plea of guilty, the features identified by Gleeson CJ remain and sentencing remains an intuitive process, with the result that there may be an element of arbitrariness in a sentencing judge's quantification of the discount allocated to that feature and/or in the impact that that feature has on the result. It follows that if on appeal an offender demonstrates that a sentencing judge has made an error of a few percentage points in a stated discount the Court may not regard its power to re-sentence as enlivened. The answer to that question may depend on whether a just result has been achieved overall in the sentence appealed from."

19 The Crown accepts that on 18 December 2001, the applicant provided the police with the name of Kingsbeer as his co-offender. It does not deny the applicant's submission that had the applicant not co-operated with the police and identified Kingsbeer, there were no other witnesses who could have identified him with the consequence that Kingsbeer would not have been apprehended. However, the Crown submits that the assistance given by the applicant at Kingsbeer's first trial was neither convincing nor reliable. As I have observed, the jury in Kingsbeer's trial could not agree and he was discharged. After the trial judge had sentenced the applicant, Kingsbeer stood trial again and was convicted but on this occasion the Crown chose not to call the applicant to give evidence. Accordingly, the Crown submits that the value of the applicant's assistance to the authorities was qualified and, therefore, the 20% discount adopted by the trial judge was within, albeit at the bottom of, the permissible range of the relevant discount.

20 In my opinion, the trial judge's sentencing discretion miscarried when he failed to take into account the applicant's assistance to the police in naming Kingsbeer as his co-offender, thus enabling him to be apprehended. It is true that at the sentencing hearing on 22 November 2002, the applicant's trial counsel made no reference to this aspect of the applicant's assistance but only referred to his initiative in offering to give evidence against his co-accused. Counsel specifically requested the trial judge to take into account his "client's continuing volunteering to give evidence against his co-accused". This submission was directly reflected in the trial judge's finding in his remarks on sentence that the applicant had shown some contrition for his offence by "his volunteering to give evidence against his co-accused", assistance in respect of which his Honour applied a 20% discount.

21 Notwithstanding the failure of the applicant's trial counsel to press upon his Honour what I would regard in the circumstances as a far more significant aspect of the appellant's assistance to the authorities, the applicant was nonetheless entitled to have that aspect of his assistance taken into consideration. The trial judge failed to do this. In these circumstances, I am of the opinion that his sentencing discretion miscarried.

22 Furthermore, I consider that his Honour's error involved more than "a few percentage points in" the relevant discount which might otherwise not enliven this Court's power to re-sentence. Accordingly, it is necessary to reconsider this issue and to impose an appropriate sentence.

23 I have already referred to the factors which the trial judge took into account in sentencing the applicant. Apart from his plea of guilty and the assistance to the authorities, there is no doubt that his Honour was correct in finding that the Court should not extend to the applicant any leniency whatsoever. I am also conscious of the requirement of s 23(3) of the Crimes (Sentencing Procedure) Act, that any penalty resulting from a re-sentencing of the applicant must not be disproportionate to the nature and circumstances of the offence. In this respect, I consider that any non-parole period resulting from the re-sentencing process should not be less than three years. Anything less would be disproportionate to the nature and circumstances of the offence as found by the trial judge and in respect of which there is no challenge.

24 In my opinion, 30% was the appropriate discount for the assistance which the applicant has provided to the authorities. The effect of that discount, when added to the 13% for the plea of guilty, is that the unaffected sentenced suggested by the trial judge, and with which I agree, of seven and a half years, should be discounted by 43% to four years three months with a non-parole period of three years two months. Such a sentence would be proportionate to the nature and circumstances of the offence.

25 I would add two further observations. The first is that I am conscious of the guideline decision in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at 380-381 and the submissions based on those guidelines made by the Crown. It seems to me however, that the trial judge took the matters there referred to into account in his sentencing remarks and that the sentence of five years imposed by him was based on the factors on which the Crown relied.

26 The second concerns the matters deposed to in the affidavits of the applicant sworn 25 September 2003 and Alexandra Grant sworn the same date insofar as they provide some evidence of a desire on the part of the applicant to rehabilitate himself. However, notwithstanding that evidence and given the terms of s 23(3), I do not consider that a sentence less than that which I have proposed should be imposed.

27 I would therefore propose the following orders:

(a) Leave to appeal granted and appeal allowed.

(b) The sentence imposed by Judge Shadbolt on 22 November 2002 be set aside and in lieu thereof the applicant be sentenced to four years three months imprisonment commencing on 7 July 2002 and expiring on 6 October 2006, with a non-parole period of three years two months commencing on 7 July 2002 and expiring on 6 September 2005.

28 HIDDEN J: I agree.

29 GREG JAMES J: I agree also

30 TOBIAS J: The order of the Court will be as I have indicated.

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LAST UPDATED: 01/12/2003