SHERIDAN, Geoffrey Gordon v R [2008] NSWCCA 14

New South Wales Court of Criminal Appeal

CITATION: SHERIDAN, Geoffrey Gordon v R [2008] NSWCCA 14

HEARING DATE(S): 5 February 2008

JUDGMENT DATE: 5 February 2008

JUDGMENT OF: Beazley JA at [44], [46]; James J at [1]; Kirby J at [45]

EX TEMPORE JUDGMENT DATE: 5 February 2008

DECISION: Grant leave to appeal against sentence but appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - Sentencing - no question of principle

LEGISLATION CITED: Crimes Act Crimes (Sentencing Procedure) Act

R v Henry (1999) 46 NSWLR 346 CASES CITED : R v Morgan (1993) 70 A Crim R 368 The Queen v De Simoni (1980-1981) 147 CLR 383 Veen v The Queen (No 2) (1987-1988) 164 CLR 465

PARTIES: SHERIDAN, Geoffrey Gordon v R

FILE NUMBER(S): CCA 2007/2775

COUNSEL: M P Dennis (Appellant) D U Arnott SC / L K Wells (Crown)

SOLICITORS: S O'Connor (Solicitor for Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3170

LOWER COURT JUDICIAL OFFICER: Mahoney DCJ

LOWER COURT DATE OF DECISION: 22 January 2007

IN THE COURT OF CRIMINAL APPEAL 2007/2775

BEAZLEY JA JAMES J KIRBY J

TUESDAY 5 FEBRUARY 2008 SHERIDAN, Geoffrey Gordon v R Judgment 1 JAMES J: Geoffrey Gordon Sheridan applied for leave to appeal against the sentence imposed on him in the District Court on 22 January 2007 by his Honour Mahoney ADCJ for an offence of armed robbery, that is robbery whilst armed with an offensive weapon, committed on 14 September 2005, to which he had pleaded guilty.

2 Robbery whilst armed with an offensive weapon is an offence under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for twenty years. There is no standard non-parole period for the offence.

3 In sentencing the applicant for the offence of armed robbery his Honour took into account an offence of goods in custody. Goods in custody is an offence under s 527C of the Crimes Act, for which the maximum penalty is imprisonment for six months.

4 The sentence imposed by the sentencing judge for the offence of armed robbery was a head sentence of eight years with a non-parole period of six years.

5 The applicant had been arrested on 26 September 2005 and had been continuously in custody from that date up until the date of sentencing. However, he had committed the offence of armed robbery whilst at liberty on parole under a sentence imposed on him in April 2003. After the applicant committed the offence of armed robbery, the State Parole Authority revoked his parole under the sentence imposed in April 2003 and ordered that the applicant serve a balance of parole from 26 September 2005 to 12 March 2006. His Honour made the sentence he imposed commence from 12 March 2006, the date from which the applicant's custody had been solely referable to the offence of armed robbery. The facts of the offence of armed robbery and of the offence of goods in custody were stated by his Honour in his remarks on sentence in a way which was not the subject of any complaint on the hearing of this application. This statement was derived by his Honour from an agreed statement of facts which had been admitted into evidence in the proceedings on sentence. In his remarks on sentence his Honour said: ""The undisputed facts in the crown case are that at about 6.30am on 14 September 2005, the prisoner drove a motor vehicle and parked it outside the Glenfield Newsagency. He then ran into the newsagency where the proprietor was working behind the counter. At the time he was clad in a black balaclava, white jacket, dark tracksuit pants, white running shoes and white gloves. He was carrying what appeared to be a shortened firearm and a black backpack. From the customers' side of the counter he pointed the weapon at the proprietor and threw the backpack over the counter. The proprietor threw the bag back to him and some money, which fell at his feet. The prisoner threw the bag back and insisted on more money being placed into it. While this demand was being met by the proprietor, the prisoner gathered the money, which had landed near his feet. The proprietor then threw the bag with more money back to him and the prisoner ran from the shop and drove away in the motor vehicle. A total of approximately $800 in cash was stolen from the victim. An alert bystander was able to describe for the police the make and colour of the vehicle and a distinctive mark on its boot. On 26 September 2005 police officers staked out the premises where the prisoner was known to be living at Macquarie Fields. At about 6.30am they saw the prisoner driving a motor vehicle matching the bystander's description into the driveway of those premises. Shortly afterward he was arrested inside the premises and taken into custody. At about 11.50am a search warrant was executed at those premises and the stolen number plate was located under the mattress in the main bedroom. The running shoes and backpack were located in the child's bedroom. Enquiries revealed that the number plate in question had been stolen on 15 September 2005 from a vehicle parked at Macquarie Fields Railway Station, i.e. on the day after the newsagency had been robbed.""

6 His Honour found in favour of the applicant that he could not be satisfied to the requisite standard that the applicant had had an accomplice in the commission of the offence of armed robbery, that there was no evidence upon which his Honour could make a finding about whether what had appeared to be a weapon was really a weapon, that the victim of the robbery had not been manhandled or physically injured by the applicant and that the applicant had not uttered any threatening words to the victim.

7 On the other hand, his Honour found that the applicant had engaged in a significant amount of planning for the offence. The applicant had travelled to the newsagency in a vehicle, he had worn a balaclava to disguise himself and gloves to prevent the leaving of fingerprints and he was carrying a back-pack and an object which appeared to the victim to be a shortened firearm.

8 His Honour accepted, and took into account, what the victim of the robbery had said in a victim impact statement about the impact of the robbery on him. The victim had suffered significant psychological trauma as a result of the commission of the offence, he had been obliged to sell the newsagency business and had become unemployed. His Honour found: ""Severe sequelae have impacted on him and his wife, both financially and in their matrimonial relationship.""

9 His Honour concluded that the offence fell: ""In the middle range of seriousness for s 97(1) offences but towards the upper end of that range.""

10 In his remarks on sentence his Honour made some comments about the offence of goods in custody which had been taken into account in the sentencing of the applicant, to which it will be necessary to return later in this judgment.

11 In his remarks on sentence his Honour referred to subjective features of the applicant.

12 The applicant was born in June 1970, so that he was 35 years old at the time of committing the offence.

13 The applicant had an extensive criminal history. Among numerous offences in his criminal history the sentencing judge noted the following:- In April 1992 he had been sentenced to concurrent terms of imprisonment of three and a half years for two offences of robbery. In April 1996 he had been sentenced for offences of armed robbery, attempted armed robbery and assault whilst armed with intent to rob, receiving a sentence of a minimum term of five years and an additional term of two years for the offence of armed robbery. In April 2003 he had been sentenced, for an offence of being armed with intent to commit an indictable offence, to a sentence consisting of a non-parole period of two years three months and a parole period of one year three months, the sentence commencing on 29 August 2002.

14 The applicant was released on parole on 28 November 2004 on the expiration of the minimum term of this last sentence and he was on parole under this sentence when he committed the offence of armed robbery on 14 September 2005.

15 The applicant did not give evidence in the proceedings on sentence. However evidence was given by the applicant's elder sister who the sentencing judge found to be an impressive witness and whose evidence his Honour accepted.

16 The applicant's sister and the applicant had been deserted by their father when the applicant was eight years old and by their mother when the applicant was eleven years old. The sister, although herself only a teenager, had struggled to provide for herself and the other children. Eventually the children had been evicted from their Housing Commission accommodation and had been split up, the applicant going to live with his father, who had in the meantime acquired a new family.

17 The applicant's sister was aware of the applicant's criminal record, which she attributed to him always returning to the same environment where he was exposed to a drug culture and lapsed into drug usage and criminal conduct.

18 In a report by a Department of Correctional Services Alcohol and Other Drugs worker, the worker recorded that the applicant had admitted to poly-drug addiction from childhood.

19 I have already noted that the applicant did not give evidence in the proceedings on sentence. A short letter from the applicant expressing contrition for the offence was admitted into evidence in the proceedings on sentence. However, his Honour said in his remarks that the applicant had not given evidence before him and held that the letter expressing contrition should not receive any weight.

20 His Honour found that the applicant's prospects of rehabilitation were "next to non-existent". His Honour based this conclusion on the applicant's previous criminal history, the facts of the offence, the fact that the offence was committed while the applicant was on parole, and the further offence of goods in custody.

21 His Honour allowed the applicant a discount of 25 per cent for the utilitarian value of his plea of guilty, which his Honour found to have been an early plea of guilty.

22 His Honour declined to find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act.

23 His Honour considered that circumstances of aggravation or other factors requiring a heavier sentence included the applicant's previous criminal history, the degree of planning for the offence, that the offence had been committed while the applicant was on conditional liberty, that the victim had been vulnerable and the serious impact of the offence on the victim.

24 There was only one ground of appeal against sentence; that the sentence, was manifestly excessive. 25 In support of this general contention that the sentence was manifestly excessive three submissions were made on behalf of the applicant. 1. That the sentencing judge had erred by giving undue weight to the offence of goods in custody which was to be taken into account in the sentencing of the applicant. 2. That the sentence could be seen to be manifestly excessive by comparing it with statistics kept by the Judicial Commission of sentences for armed robbery after the guideline judgment in R v Henry (1999) 46 NSWLR 346. 3. That the sentence could be seen to be manifestly excessive by comparing it with the sentences imposed in eight other cases of armed robbery, short particulars of which were given in the applicant's written submissions.

26 Before considering these submissions it is convenient to consider the sentence by itself.

27 In his remarks on sentence the sentencing judge noted a concession made by the applicant's legal representative in the proceedings on sentence that a more severe sentence should be imposed than the head sentence of four to five years said by the Chief Justice in par 165 of his judgment in Henry to be generally appropriate for an offence of armed robbery falling within the category of case described in paragraph 162 of the Chief Justice's judgment. This concession by the applicant's legal representative was properly made and was adhered to by counsel for the applicant on this application.

28 As compared with the category of case described in par 162 of the Chief Justice's judgment in Henry, the applicant was not a young offender, he was not a person with no or little criminal history, there was more than only a limited degree of planning for the offence, and the amount of money stolen was more than a small amount.

29 It is true that the sentencing judge was unable to make a finding about whether the purported weapon was a real weapon, although it had appeared to the victim of the offence to be a shortened firearm. It is also true that the category of case in Henry includes a late plea of guilty, whereas Judge Mahoney gave the applicant a 25 per cent discount for what his Honour found to be an early plea of guilty. However, even when these qualifications are taken into account, the concession made by the applicant's legal representatives both in the proceedings on sentence and in this Court remains a proper concession. Accordingly, the imposition of a head sentence of more than four to five years was well warranted.

30 Matters warranting the imposition of a head sentence substantially greater than four to five years included the degree of planning in which the applicant engaged; the applicant's previous criminal history, including convictions and sentences for armed robbery or similar offences, which, in accordance with the decision of the High Court in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 477, indicated that considerations of retribution, deterrence and the protection of society warranted the imposition of a more severe penalty; the important circumstance of aggravation that the offence had been committed while the applicant was on parole; and the serious impact of the offence on the victim of the offence.

31 Even without taking into account the further offence of goods in custody, I would not regard the head sentence of eight years imposed by his Honour as falling above the upper limit of the range of sentences within his Honour's sentencing discretion.

32 I will now turn to the particular submissions made by counsel for the applicant. 1. That the sentencing judge erred in giving undue weight to the offence of goods in custody. ""…after he committed this armed robbery he was found to be in possession of a stolen vehicle number plate. Apart from its replacement cost, that registration plate carried no intrinsic value. That it was important to him, however, is evident from the fact that it had been hidden under the mattress in the main bedroom. He would only have stolen it and secreted it for some later purpose. Acquaintance with the criminal jurisdiction enables the drawing of the inevitable conclusion that he was intending to fix it to a motor vehicle under circumstances in which he did not want to be identified or traced. At the very least, this could have been with a view to avoiding once more being convicted of a driving offence. Realistically, however, I am satisfied that its possession by this prisoner had much more sinister connotations.""

33 Later in his remarks on sentence at p 14 his Honour said that the possession of the stolen motor vehicle number-plate, which had been stolen the day after the offence of armed robbery was committed, was one of the reasons why he found the applicant's prospects of rehabilitation to be "next to non-existent".

34 As regards the passage at p 7 of his Honour's remarks which I have quoted, it was not disputed that it had been open to his Honour to draw the inferences he had drawn, apart from the last of those inferences. It was, however, submitted that it had not been open to his Honour to be satisfied beyond reasonable doubt of a fact, which would be adverse to the applicant, that his possession of the stolen motor vehicle number plate was for a purpose more sinister than simply to avoid being convicted of a driving offence. Notwithstanding a submission by the Crown to the contrary, I do consider that on a fair reading of his Honour's remarks on sentence his Honour did draw that final inference. However, in my opinion, having regard to the criminal history of the applicant for offences other than driving offences and the secreting of the stolen number-plate under the mattress in the bedroom, the inference which the sentencing judge drew was an inference which it was open to his Honour to draw.

35 I do not consider, as was submitted by counsel for the applicant, that there was any contravention of the principle in The Queen v De Simoni (1980-1981) 147 CLR 383. In any event, I am not persuaded that his Honour gave undue weight to the offence of goods in custody or that any reliance by his Honour on that offence led to his Honour imposing a sentence which was manifestly excessive for the offence of armed robbery.

36 In my opinion, his Honour was quite entitled to regard the applicant's possession of the number plate of a vehicle which had been stolen the day after the offence of armed robbery was committed as one of a combination of matters which justified the conclusion that the applicant had little prospect of being rehabilitated. 2. Statistics of sentences for armed robbery imposed since the decision in Henry show the sentence to have been manifestly excessive.

37 These statistics show that for sentences passed between April 2002 and March 2007 for offences of armed robbery, out of a large number of cases of a single offence of armed robbery or robbery in company, a head sentence of more than eight years was imposed in only fourteen cases, a head sentence of eight years being imposed in thirteen cases, and a non-parole period of more than six years was imposed in only eight cases, a non-parole period of six years being imposed in eleven cases.

38 This Court has commented many times on the limited utility of statistical evidence of sentences. In the present case the statistics show only that the sentence imposed by his Honour was towards the top of the sentences which have been imposed. Such a sentence was well within his Honour's sentencing discretion in the present case. 3. Allegedly comparative sentences show that the sentence imposed by his Honour was manifestly excessive.

39 In written submissions counsel for the applicant sought to rely on eight cases out of the literally hundreds of cases of sentences for armed robbery. In the proceedings on sentence the applicant's then representative had sought to rely on four other cases as allegedly comparable cases. In his remarks on sentence his Honour pointed out that three of those four cases sought to be relied upon were Crown appeals against sentence. 40 This submission was virtually abandoned by counsel for the applicant on the hearing of the appeal. Counsel for the applicant accepted that the well-known passage in the judgment of Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371 was relevant. Despite its familiarity, I propose to repeat the passage:- ""It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe (1984) 154 CLR 606 at 612; 12 A Crim R 408 at 411: "The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty."""

41 The Crown in his written submissions drew attention to what it submitted were differences between the present case and the cases sought to be relied upon by counsel for the applicant. However, I do not consider that any useful purpose would be served by undertaking a comparison of the present case with the few other cases selected by counsel for the applicant.

42 In accordance with the statement of principle by Hunt CJ at CL in Morgan I have found that the challenged sentence was within the range appropriate to the objective gravity of the offence and the subjective circumstances of the offender and it is not material whether the sentence imposed was more severe than some other sentences which have been imposed on other offenders for other offences of armed robbery or robbery in company.

43 I would grant leave to appeal against sentence, but I would dismiss the appeal against sentence.

44 BEAZLEY JA: I agree.

45 KIRBY J: I also agree.

46 BEAZLEY JA: The order of the Court will be as outlined by Justice James.

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