Citation: Michael Lawrence Waugh (aka Willoughby) v R [2010] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 11 February 2010
Judge(s): McClellan CJ at CL, Simpson J, Hidden J (Hidden J delivered the principal judgment; the others agreed)
Background
The applicant pleaded guilty in the District Court to armed robbery and asked the sentencing judge to take into account, on a Form 1, an earlier attempted motor vehicle theft. The armed robbery involved entering a service station, presenting a knife to a female console operator, and demanding cash. The applicant took $102 and left by taxi. Despite his verbal reassurance that he did not intend to hurt the victim, she feared she would be stabbed and was visibly distressed after he left.
The applicant was 32 at the time of the offence. He had a troubled upbringing, including time in boys' homes where he suffered physical and sexual abuse, a longstanding heroin addiction beginning in his early teens, and an extensive criminal history. The robbery was committed while he was subject to a suspended sentence bond under s 12 of the Crimes (Sentencing Procedure) Act 1999.
The sentencing judge in the District Court imposed five years' imprisonment, with a non-parole period of three years and a balance of term of two years. The applicant, unrepresented, sought leave to appeal against that sentence on several grounds.
Legal Issues
- Whether the sentencing judge gave adequate weight to the applicant's mental condition arising from his use of the drug Stilnox at the time of the offence
- Whether the sentencing judge adequately considered the applicant's troubled background and childhood
- Whether the sentencing judge erred in finding that the offence involved a degree of planning
- Whether the applicant's verbal reassurance to the victim reduced the seriousness of the threat
- Whether the effect of the applicant's imprisonment on his family warranted a reduction in sentence
- Whether insufficient access to drug rehabilitation in custody was a relevant sentencing consideration
Decision
Stilnox use and mental condition: The sentencing judge had accepted evidence that Stilnox could produce psychotic symptoms and amnesia, and applied the principles in R v Hemsley governing offenders with a mental abnormality. He found the condition contributed materially to the offence and reduced the weight given to denunciation, punishment, and general deterrence accordingly. The Court of Criminal Appeal found no error in the judge's characterisation of the resulting moderation as "modest," applying R v Wright, in the circumstances of the case.
Troubled background: The applicant argued this factor had been ignored, but the Court found the sentencing judge had comprehensively reviewed the applicant's subjective case, including the ward-of-state history, abuse, heroin use, and psychological issues. The background was plainly considered and given appropriate weight.
Degree of planning and victim reassurance: The finding of limited planning, based on the applicant carrying a knife to the service station with intent to use it, was consistent with the guideline judgment in R v Henry and well open on the facts. As for the verbal reassurance, the Court endorsed the observation from R v Speeding that such words do not alleviate the seriousness of a knife-point robbery or its potentially traumatic effect on the victim.
Family hardship and rehabilitation: The Court acknowledged the genuine hardship the applicant's imprisonment caused to his partner and her son, but found it was not of an exceptional nature warranting a reduction. Drawing on R v Edwards, the Court noted that imprisonment routinely causes hardship to third parties and that only exceptional circumstances can affect the sentence on this basis. The unavailability of drug rehabilitation programmes in custody did not outweigh the need for retribution and deterrence, particularly given the applicant's history of non-custodial dispositions and his commission of this offence on conditional liberty.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that where a mental condition arising from drug use contributes materially to an offence, the resulting moderation of sentence for denunciation and general deterrence may properly be characterised as "modest" depending on the circumstances, consistent with R v Wright.
- Verbal reassurances made to a victim during a knife-point robbery do not reduce the objective seriousness of the offence; the Court applied R v Speeding to reject this argument squarely.
- Family hardship caused by an offender's imprisonment must be exceptional in nature before it will justify a reduction in sentence; ordinary or even significant hardship to dependants is an unavoidable feature of custodial sentences and does not, of itself, warrant leniency.
- In dismissing the appeal, the Court affirmed that a finding of "limited planning" in armed robbery requires nothing more than evidence of deliberate preparation, such as carrying a weapon to the scene with intent to use it.
- Prospects of rehabilitation remain relevant in sentencing, but they do not override the need for substantial full-time custody where objective gravity, criminal antecedents, and commission of the offence while on conditional liberty all point strongly toward imprisonment.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Cases:
- R v Hemsley [2004] NSWCCA 228
- R v Wright (1997) 93 A Crim R 48
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Speeding [2001] NSWCCA 105; 121 A Crim R 246
- R v Edwards (1996) 90 A Crim R 510