R v Fonseka [2002] NSWCCA 324

New South Wales Court of Criminal Appeal

CITATION : R v Fonseka [2002] NSWCCA 324 FILE NUMBER(S) : CCA 60093/02 HEARING DATE(S) : 30 July 2002 JUDGMENT DATE : 30 July 2002

PARTIES : Regina Nishad Fonseka JUDGMENT OF : Sperling J at 1, 20; Greg James J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/1083 LOWER COURT JUDICIAL Downs ADCJ OFFICER :

COUNSEL : Mr P G Ingram for the Crown Mr C B Craigie SC for the Applicant SOLICITORS : Mr S E O'Connor for the Director of Public Prosecutions Mr D J Humphreys for the Applicant CATCHWORDS : Criminal Law - application for leave to appeal against sentence LEGISLATION CITED : Criminal Appeal Act 1912, s6 Henry (1999) 46 NSWLR 346 CASES CITED: Murchie (1999) 108 A Crim R 482 Thomson and Houlton (2000) 49 NSWLR 383 DECISION : Application for leave to appeal granted; Appeal dismissed.

- 5 -IN THE COURT OF CRIMINAL APPEAL 60093/02

Sperling J Greg James J

Tuesday, 30 July 2002 Regina v Nishad Fonseka Judgment 1 Sperling J: The applicant seeks leave to appeal against a sentence imposed by Downs ADCJ, sitting in the District Court Sydney on 22 February 2002. 2 On 14 January 2002 the applicant had appeared for trial in relation to one count of aggravated robbery in company. However, the indictment presented on that date consisted of one count of robbery in company. The applicant pleaded guilty to that count. He should be taken to have pleaded guilty at the earliest opportunity in these circumstances. 3 The maximum penalty for the offence charged is twenty years' imprisonment. 4 The sentence was for four years. His Honour found special circumstances on the basis that there were good prospects for rehabilitation and that the applicant required an extensive period under supervision on parole for this purpose. A non-parole period of two years was fixed. 5 The facts of the offence were shortly as follows. A woman was sitting in a parked vehicle at Surry Hills. She was holding a mobile phone. Two persons, including the applicant, approached the car. The second man - not the applicant - took hold of the woman's hand and wrenched the mobile phone from her. The applicant stood next to the other man while this was done. The two men then fled. 6 In the guideline judgment of Henry (1999) 46 NSWLR 346 it was held, as a guideline, that the sentence for armed robbery should fall within the range of four to five years' imprisonment. That was for a category of case with the following features:

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

(ii) weapon like a knife 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 shopkeeper or taxi driver;

(vi) small amount taken;

(vii) plea of guilty, the significance of which is limited by a strong Crown case. 7 In Thomson and Houlton (2000) 49 NSWLR 383 at [161], it was stated that the guideline in Henry relating to a plea of guilty should be understood as relating to a late plea of guilty. 8 In Murchie (1999) 108 A Crim R 482 it was held by a two judge bench, Simpson J and Smart AJ, that the Henry guideline applied equally to robbery in company for which the same maximum penalty was prescribed. We should apply that decision. (In Murchie, a sentence of substantially less than the guideline range was substituted but that was an exceptional case where the offender was suffering from a significant mental disturbance.) 9 A significant feature of the present case is the applicant's criminal history. The applicant was born on 14 August 1982. He was nineteen years of age at the time of the offence which is the subject of these proceedings. Prior to the present offence he was dealt with in the Children's Court on three occasions for offences which included stealing, driving a conveyance taken without consent and aggravated robbery. In respect of the last of those offences a community service order was made with which he failed to comply. Accordingly, subsequent to the offence on 2 July 2001, a control order of three months was imposed. Then followed a sentence for a fixed term of six months' imprisonment for a group of offences, committed after 2 July 2001, which included assault occasioning actual bodily harm, custody of a knife in a public place, larceny, obtaining money by deception on three occasions, and possessing a prohibited drug. (The sentence of six months was dated to commence concurrently with the control order of three months.) 10 In certain respects the present case is worse than the category of case specified in Henry. There are other considerations which go the other way. The first of these considerations is the applicant's criminal history prior to the offence on 2 July 2001. As I have mentioned, a feature of the category of case specified in Henry is an offender with no or little criminal history. That is not this case. 11 The second consideration is the applicant's subsequent criminal history, prior to sentence, which reflects poorly on the prospect of rehabilitation, calling for particular attention to specific deterrence. 12 The considerations which go the other way are as follows. First, the category of case in Henry includes a weapon like a knife capable of killing or inflicting serious injury. And the category of case includes limited, if any, actual violence but a real threat of violence. Assuming for the present purpose that being in company equates with being armed with a weapon, there was no threat of violence in this case of the same order as a threat of violence with a weapon like a knife capable of killing or inflicting serious injury. 13 Secondly, the applicant is to be taken to have pleaded guilty at the earliest possible time, whereas the guideline in Henry applies to a category of case where the plea of guilty comes late. The applicant was entitled to a discount in the order of twenty per cent for the early plea of guilty. The guideline in Henry is predicated upon a lesser discount than that. 14 Next it has been argued that special consideration should be accorded to the applicant by reason of his youth. The applicant was almost nineteen years of age at the time of these offences. He is really on the borderline for such a consideration. However, in the light of the criminal history to which I have referred and the kind of behaviour which would not ordinarily be engaged in by young persons, there is limited scope for the application of the well-understood principles applicable in the case of a young offender. 15 There is little scope in this case for the youth of the applicant operating to throw the emphasis away from general deterrence and onto the prospect of rehabilitation, in view of the criminal history which indicates such a flagrant disregard for social responsibility. 16 A further consideration is that this applicant has the benefit of what I would regard as a generous finding on the part of the sentencing judge that more than two years is reasonably required under supervision on parole in order to facilitate rehabilitation, with consequent reduction of the non-parole period from what would have been three years under the statutory formula to two years. 17 The Henry guideline promulgates a four to five year term of imprisonment as a starting point in the category of case specified. A sentence of four years with a non-parole period of three years, absent special circumstances, would lie at the bottom of that range. Informed by the guideline judgment, as one must be, there are then to be recognised, in the present case, as I have indicated, considerations which make the present case worse than the Henry category, and other considerations which tend the other way. 18 Taking those other considerations into account I am not satisfied, in terms of s 6(3) of the Criminal Appeal Act 1912, that a less severe sentence than that imposed is warranted in law and should have been passed. Accordingly, I would grant the application for leave to appeal but dismiss the appeal. 19 Greg James J: I agree. 20 Sperling J: The orders of the court will, accordingly, be as follows. The application for leave to appeal is granted. The appeal is dismissed. -oOo-

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