robbery armed with an offensive weapon (maximum penalty 20 years) and one ... of less than six months and finally a furt
Judgment Summary Supreme Court New South Wales Court of Criminal Appeal Daniel Walker v R [2016] NSWCCA 224 Hoeben CJ at CL, Hall and Davies JJ The Court of Criminal Appeal has allowed an appeal against sentence and resentenced an applicant who pleaded guilty to attempted robbery armed with an offensive weapon and break enter and steal. On 1 August 2013 at around 00h37 Daniel Walker attended the BP petrol station in Seven Hills and spoke to the night operator (the victim) through the pay window about buying a mobile phone. He left and returned at around 02h30. He broke into the building through a window and demanded the victim give him money. Mr Walker was armed with a 10cm long serrated hunting knife. The victim shielded himself from Mr Walker by closing a door between them. Mr Walker took a number of mobile phones and left. CCTV recorded some of the incident. On 7 August police attended a residence in Seven Hills and executed a search warrant. Mr Walker was the sole occupant. The police found a receipt for a knife, one of the stolen phones and a Taser. Mr Walker could not explain how he came to possess the phone. In February 2014 Mr Walker pleaded guilty in the local court to one count of attempted robbery armed with an offensive weapon (maximum penalty 20 years) and one count of possession of a prohibited weapon (maximum penalty 14 years). An offence of break, enter and steal (maximum penalty 14 years) was dealt with on a Form 1. In distilling a sentence the Sentencing Judge considered Mr Walker’s subjective circumstances. He was 30 years old at the time of the sentencing. He had gone to a total of 16 schools and struggled with learning difficulties. His parents divorced when he was 13 years old. He started living on the streets and using cannabis at that time. He completed three years of an electrical apprenticeship at TAFE from 2002–5. He began using amphetamines in 2010 and ice in 2013. After his arrest he stopped using drugs and undertook residential rehabilitation. The Sentencing Judge considered that 75% of the 152 days spent in residential rehabilitation should be counted in any period of custody to which Mr Walker was sentenced. Mr Walker had served 84 days in custody before being admitted to bail. The sentence was backdated by 236 days. The Sentencing Judge accorded a 25% discount for the early plea. The Sentencing Judge made no finding of objective seriousness but found that the actual threat of violence and the use of a weapon were aggravating factors. In July 2014 Mr Walker was sentenced to two years nine months imprisonment with a nonparole period of ten months. He was granted bail to appeal. While on bail he was convicted of two drug possession offences. As at the date of the appeal Mr Walker had 67 days remaining on his non-parole period. This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
On appeal Mr Walker submitted that the Sentencing Judge erred by taking into account the threat of violence and the use of a weapon as aggravating factors when they were elements of the armed robbery offence. The Crown conceded that error was demonstrated in that regard. It was necessary for the Court to re-sentence Mr Walker. The issue for the Court was whether any lesser sentence was warranted. Mr Walker submitted that the Sentencing Judge placed too much weight on general deterrence in light of his rehabilitation, that 34% of offenders receive a non-custodial sentence for like offending and that he should not be returned to custody for 67 days after having served 236 days and being successfully rehabilitated. The Crown submitted that the sentence imposed was lenient and that his conduct was more serious than the matters considered in the guideline judgment (R v Henry (1999) 46 NSWLR 346). The Court identified three aspects of leniency; first, the head sentence was lower than the range set out in the guideline judgment; secondly, the Sentencing Judge varied the ratio of the non-parole period to 30% of the head sentence; and thirdly, it was generous of the Sentencing Judge to accord 75% of the time Mr Walker spent in custody. The Court found that the leniency was no longer justified by Mr Walker’s rehabilitation because he had been convicted of the two subsequent drug offences. Mr Walker submitted that it would be plainly unjust, unreasonable and likely to impede his ongoing rehabilitation if he were returned to custody especially after having been granted bail. The Court found that it was Mr Walker who had sought bail to appeal knowing that if the appeal failed he would be returned to custody, that the appeal was not vigorously pursued as it took more than 18 months for the Notice of Appeal to be filed, there was no satisfactory reason for delay and that while on bail he had committed the two further offences. The Court found that a lesser sentence was warranted because first it would be pointless or almost pointless to return Mr Walker to custody for 67 days, which would neither adequately punish him nor fulfil the sentencing purposes (Crimes (Sentencing Procedure) Act 1999 s 3A), secondly it would not be appropriate to impose a penalty of imprisonment for a period of less than six months and finally a further 67 days in custody plus a parole period is less likely to achieve the purposes of sentencing than an Intensive Correction Order (ICO) which would be more restrictive but facilitate his rehabilitation. The Court ordered Mr Walker be assessed for an ICO for a period of 16 months.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
