Rios v Regina [2012] NSWCCA 8 (13 February 2012)

Last Updated: 29 February 2012

JUDGMENT

1. BATHURST CJ : I agree with Adamson J
   
   
2. SIMPSON J : I agree with Adamson J.
   
   
3. ADAMSON J :

The proceedings

4. This is an application for leave to appeal the sentence imposed upon Jose Lues Rios, the applicant, by his Honour Judge Colefax SC in the District Court of New South Wales. The applicant was convicted of three offences of stealing from person, contrary to s 94 of the Crimes Act 1900 (NSW), for which the maximum penalty is 14 years.
   
   
5. The applicant was sentenced jointly with a co-offender Martha Isabel Ruano. The applicant and the co-offender pleaded guilty in the Local Court and were given a 25 per cent discount.
   
   
6. The applicant was sentenced to a total sentence of imprisonment for 4 years, 3 months and 16 days, consisting of an effective non-parole period of 3 years, 5 months and 12 days.
   
   
7. The co-offender was sentenced to a total term of imprisonment of 3 years 11 months with a non-parole period of 2 years, 10 months and 12 days.
   
   
8. The sentences for both were structured as follows, with each of the individual sentences being accumulated by 6 months.
   
   

9. In the instant case, the sentences for each of the 3 offences carry a non-parole period of about 75 per cent of the total. However, for the aggregate sentence the proportion is in the order of 80 per cent.
   
   
10. On 16 August 2011, the applicant applied for leave to appeal against the sentence on the basis that the sentencing judge had failed properly to consider the issue of special circumstances in the context of partially accumulating sentences.
    
    

Facts

11. The sentencing judge recorded the following facts in respect of the three offences.
    
    

The first offence: 5 June 2008

12. The first offence was committed on 5 June 2008. On that day the victim, who was 79 years old, withdrew $3,500 in cash from his account at the Commonwealth Bank at the Bankstown Shopping Centre. The purpose of the withdrawal was to assist his son in Lebanon with medical expenses.
    
    
13. After withdrawing the money the victim put it in one of his trouser pockets and left the bank to walk to his car which was nearby. Before he had left the shopping centre he felt a bump and someone touching his right side. He felt in his pocket. The money was gone.
    
    
14. When police attended, they obtained access to CCTV footage which showed the offenders present in that part of the shopping centre where the victim had been robbed. The footage showed the applicant stepping in front of the victim causing him to stop and Ms Ruano then moving in and stealing the money. A third person (a male) named Carlos was seen to be helping her. A fourth person (Mr Augustine Bolanos who at one point was in the shopping centre with the others) was waiting outside the shopping centre in his motor vehicle and drove the three offenders from the scene.
    
    

The second offence: 28 May 2009

15. The second offence was committed on 28 May 2009. On that day the victim went to the St George Bank in Haymarket, with the intention of making a deposit of $1,600. She sat on a seat in the public waiting area inside the bank and counted the money she intended to deposit. When she finished, she placed the money in an A4 envelope which she placed in a small personal shopping cart. While the applicant watched the victim counting her money, he made a mobile phone call to Ms Ruano who shortly thereafter entered the bank and had a conversation with the applicant. A third unknown person, a male, who was an associate of the applicant and Ms Ruano, also entered the branch the same time as Ms Ruano.
    
    
16. The applicant and Ms Ruano then approached the victim. Ms Ruano took up a seat directly opposite her and the applicant took a seat directly behind her. The applicant then engaged her in conversation. Whilst the victim had turned to face the applicant, Ms Ruano reached into her trolley and removed the envelope. The applicant, Ms Ruano and the unknown male then swiftly left the premises. Almost immediately the victim realised what had happened. This incident was also recorded by CCTV in the bank.
    
    

The third offence: 10 August 2009

17. The third offence occurred on 10 August 2009. On that day the victim went to the Westpac Bank in Haymarket where she withdrew $21,296 in cash on behalf of her employer. The teller placed the money in a hessian bag which bore the Westpac Logo and gave it to the victim. She then placed the hessian bag in her handbag and went to the ANZ Bank at Haymarket in order to deposit the money into another account of her employer. She collected a ticket from the automated ticketing machine, sat in the public area of the bank and waited for the number on that ticket to be called. While she was waiting the victim removed the hessian bag from her handbag and the cash from the hessian bag and began to count it. The applicant was already in the ANZ Bank at the time the victim entered. When he saw the victim count the money he made a mobile phone call and shortly thereafter Ms Ruano entered the bank with the same unknown man who was involved in the second offence, together with a fourth unknown man.
    
    
18. All four offenders took up positions in the public waiting areas of the bank. The applicant approached the victim and asked her to get up while he searched under her seat, saying that he had lost his credit card. The victim placed the money back into the hessian bag which she put in her handbag and moved to another seat. The applicant then stood himself behind the victim and smeared a quantity of wasabi on her back. The victim felt something touch her and got up from her seat to move away. When she got up the two unknown males approached her and said: "There is a lot of Wasabi on your back and the chair." The two men then pretended to offer assistance to the victim.
    
    
19. Whilst the victim was distracted by this activity, Ms Ruano sat beside her. The unknown males continued to distract the victim, while Ms Ruano reached into her bag and removed the hessian Westpac bag. After covering that bag with a scarf Ms Ruano, followed swiftly by the applicant and the other unknown males, left the bank. The whole of the third offence was recorded on CCTV.
    
    
20. The applicant was arrested with co-offender, Ms Ruano, on 14 August 2009.
    
    
21. Ms Ruano appealed her sentence and was successful on the ground that "the sentencing judge erred in failing to structure the sentences imposed so far as to (i) give proper effect to s 44 Crimes (Sentencing Procedure) Act 1999 (NSW) ( the Act ), and (ii) to vary the statutory ratio having expressly stated his intention to do so": Ruano v R [2011] NSWCCA 149 at [18]. The Court confirmed the sentences for the offences on 5 June 2008 and 28 May 2009. The sentence for the offence on 10 August 2009 was quashed, and in lieu thereof, a non-parole period of 1 year and 8 months commencing on 14 July 2010 and expiring on 13 March 2012, with a balance of term of 1 year and 4 months commencing on 14 March 2012 was imposed.
    
    

Applicant's submissions on sentence before the sentencing judge

22. The applicant submitted to the sentencing judge that there were special circumstances within the meaning of s 44(2) of the Act such as would warrant the balance of the term of the sentence exceeding one-third of the non-parole period.
    
    
23. At the time the sentencing judge imposed the sentence, section 44(1)-(3) of the Act provided:

"(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(3) The failure of a court to comply with subsection (2) does not invalidate the sentence."

24. The applicant submitted to the sentencing judge that a finding of special circumstances was warranted, by reason of the following four circumstances:
    
    

(1) The applicant's age of 51;

(2) His early plea of guilty;

(3) His potential for rehabilitation;

(4) His need and suitability for supervision.

25. The applicant's counsel accepted that there ought be some accumulation, namely that it was not appropriate that all the sentences be served concurrently.
    
    

Remarks on sentence

26. In the remarks on sentence, the sentencing judge referred to the following aggravating factors common to both offenders:
    
    

(1) The offences were committed in company;

(2) Each of the offences, and in particular the third, required significant planning and organisation;

(3) The amount in the third offence was substantial;

(4) The victim of the first offence was an old man.

27. The sentencing judge then referred to an additional aggravating factor in the case of the applicant: namely, that all three offences were committed when he was on bail. On 21 February 2008 he was charged with possession of a prohibited drug and on 7 March 2008 he was charged with stealing. Warrants for his arrest were issued when he failed to appear in court on 30 June 2008. The second and third offences were committed after the warrants were issued.
    
    
28. The sentencing judge recorded, in a way that has not been the subject of complaint, the subjective case of the applicant.
    
    
29. The sentencing judge's reasons for not finding special circumstances appear from the following passage from the remarks on sentence:

"It has not been submitted on behalf of the offender that the sentences should be served concurrently. It is accepted that there should be partial accumulation, but not such that the total sentence is excessive.

Given that the offender has already served earlier periods of imprisonment and that I do not regard his prospects for rehabilitation as good, I decline to find special circumstances."

Evidence adduced on appeal in the event of resentence

30. The applicant relies on an affidavit sworn on 6 December 2011 in which he deposes to his location in various prisons, his classification and the work he has performed since he was taken into custody in respect of these offences in August 2009.
    
    

The ground of appeal

31. The applicant relies on a single ground of appeal: namely that the sentencing judge failed properly to consider the issue of special circumstances in the context of partially accumulating the sentences.
    
    
32. The applicant submitted to this Court that the accumulation of sentences is conventionally considered to provide the basis for a finding of special circumstances in respect of the last of a number of sentences imposed, in order to achieve an appropriate relationship between the effective non-parole period and the overall term. It was agreed that this principle applies even though there is no restriction on structuring a sentence in such a way that the non-parole period exceeds three quarters of the total sentence, that corresponds to the restriction that the non-parole period not exceed one third of the total sentences unless there are special circumstances, as provided for by s 44(2) of the Act.
    
    
33. The applicant submitted that in the absence of express reasons for imposing a non-parole period significantly in excess of the statutory portion, it might be inferred that the sentencing judge overlooked the effect of partial accumulation. He pointed to the decisions of this Court to that effect in R v Nightingal e [2005] NSWCCA 147 at [39]- [46], Dunn v R [2007] NSWCCA 312 at [40]- [41], Wakefield v R [2010] NSWCCA 12 at [26]- [28] and Barrett v R [2011] NSWCCA 213 at [29].
    
    
34. The applicant submitted that the error could be corrected by varying the existing non-parole period such that it expires on 30 October 2012. This can be effected by reducing the non-parole period for the third count to 2 years 3 months and 17 days. The Crown agreed that if the Court was minded to accept the applicant's submissions, this variation was correct as a matter of mathematics.
    
    
35. The Crown did not take issue with the applicable principles. Rather, it contended that the question of special circumstances was raised and adequately considered by the sentencing judge and there was no error in the circumstance that the proportion of the non-parole period bears to the total sentence is in excess of 75 per cent.
    
    
36. Although the Crown conceded in oral submissions that the sentencing judge had simply overlooked the structure of the sentence in terms of s 44, this was nonetheless an appropriate case for the non-parole period to exceed 75 per cent of the total sentence. In support of this submission, the Crown pointed to the applicant's extensive criminal record, his complete lack of remorse, the low prospects of rehabilitation and the appropriateness of the non-parole period determined by the sentencing judge which would make it inappropriate to reduce it any further.
    
    
37. Furthermore, the Crown submitted that if the balance of the term were reduced so as to preserve the ratio of 75 per cent between the non-parole period and the total sentence, this would result in a deduction of 3 months which was insufficient to warrant the intervention of this Court.
    
    
38. I consider that although the sentencing judge's reasons were adequate to explain why his Honour did not find "special circumstances" within the meaning of s 44(2) of the Act, they were insufficient to explain why the proportion between the non-parole period and the total sentence was in excess of 75 per cent, thereby leaving open the inference that the sentencing judge overlooked the effect of partial accumulation. Although a period of three months would ordinarily not attract the intervention of this Court, it is of some significance in the instant appeal, since it constitutes the difference between an appropriate sentence where there are no special circumstances found, and one which requires reasons to displace an inference of arithmetical error.
    
    
39. For these reasons, the applicant is entitled to succeed on this ground.
    
    

Resentence

40. I consider that the only error that infected the sentencing judge's discretion was the one identified by the applicant, namely that relating to the proportion between the non-parole period and the total sentence. It is appropriate, in my view, to correct the error so as to adjust that proportion such that it reflects a ratio of 75 per cent between the non-parole period and the total sentence.
    
    
41. Accordingly, I propose to reduce the non-parole period for the third count from two years, six months and 11 days to 2 years 3 months and 17 days, such that it expires on 30 October 2012. This reduction will be reflected in the orders of the Court set out below.
    
    

Additional observations about the desirability of sentencing in rounded terms

42. In the course of the hearing of the appeal, the Court raised with counsel the prudence or otherwise of expressing a sentence in terms of years, months and days, as opposed to years and months. The applicant's counsel accepted that it was preferable that sentences not descend into numbers of days but submitted that any adjustment by rounding should operate to the benefit of the applicant. Mr Gartelmann referred to Grove J's observation in Ruano v R [2011] NSWCCA 149 at [20]:

"... the somewhat unrounded terms of specification of non parole periods in particular make exact analysis awkward ..."

43. The Court accepts that such specificity ought be discouraged because it adds an unnecessary complication in the sentencing process. However, since the parties have agreed on the appropriate date for the expiry of the non-parole period so as to reduce to 75 per cent the proportion it bears to the total sentence, I do not consider this to be an appropriate case to round the number of days down to a number of months.
    
    

Orders

(1) Leave to appeal granted.

(2) Appeal upheld.

(3) The non-parole period fixed by Colefax DCJ in respect of the offence of stealing on 10 August 2009 be varied to fix a non-parole period of two years, three months and 17 days, which commenced on 14 July 2010 and will expire on 30 October 2012.

(4) The sentences imposed by Colefax DCJ be otherwise confirmed.

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