Achetraritei, Mircea v the Queen

[1984] FCA 80

Re: MIRCEA ACHETRARITEI
And: THE QUEEN
No. ACT G91 of 1982
53 ALR 85
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Blackburn J.
Kelly J.
Neaves J.

CATCHWORDS

Criminal Law - Armed Robbery - Appeal against severity of sentence - Matters to be taken into account - Acute personal stress - Prevalence of crime of armed robbery in the A.C.T. - Degree of participation of appellant in crime - Need to deter - Plea of guilty - Assistance to police by appellant - Whether a recommendation for deportation is a "sentence" from which an appeal lies to the Federal Court.

Federal Court of Australia Act 1976, ss.4 and 24(1)(b).

HEARING

CANBERRA

#DATE 2:4:1984

ORDER

The Court orders that the appeal be dismissed.

JUDGE1

An indictment presented against the appellant in the Supreme Court of the Australian Capital Territory on 24 October 1983 charged that on 17 June 1981 he, being then in the company of two others and armed with offensive weapons, a rifle and a knife, assaulted Sergio Vidotto and robbed him of $14,040, the property of Transfield Pty. Ltd. (Transfield). He pleaded guilty to the charge, was duly convicted and sentenced to imprisonment with hard labour for five years, a non-parole period of two years being specified. He appeals against the severity of the sentence.

For some three months prior to June 1981 the accused had been employed by Transfield as a rigger. In the first half of that month he was dismissed because, he says, he failed to produce a medical certificate in respect of a day's sick leave he had taken.

Upon his dismissal he went to Melbourne and there met two fellow Romanians who became his accomplices in the crime. They began to question him about Transfield's system of payment of wages. The appellant told them that the next day, a Wednesday, was the day wages were paid in cash, that the pay clerk was on his own in the office after the payroll came until employees knocked off work and came to be paid and that although he did not know how much money there was in the payroll there would be a fair bit since Transfield employed about 50 people. He agreed, when asked, to go to Canberra where it was planned to carry out the robbery.

One of his accomplices drove his own car while the second drove the appellant's car with the appellant as passenger. They left Melbourne at about midnight and arrived in Canberra at about 6 or 7 o'clock in the morning. Later that day he drove the other car with the other two as passengers to Transfield's office to show them where the pay would be. He pointed out the office. As he did so he saw the armoured car in which the payroll had been transported.

One of the others took a small calibre rifle from the back seat of the car. The appellant had first seen it when he left his own car in a carpark in Queanbeyan apparently some hours before, "Sometime in the morning", as he said in evidence. He told investigating detectives that when he saw it he said to his accomplices, "Don't use the gun to kill him or to hurt him to get the money". He also told them that he did not know whether or not they might have used the gun to get the payroll if the pay clerk had resisted.

The accused remained in the car when, at about 2.30 p.m., the other two men, masked and armed with the rifle and a knife, held up the pay clerk and robbed him of the $14,040. Subsequently the pay clerk was struck on the back of the head and knocked to the ground. He does not appear to have been seriously injured. Having cut the telephone wires, the two returned to the car and were driven off by the appellant.

The proceeds of the robbery were counted and the appellant was given $4,000. He used $2,000 to buy another car, repaid a loan of $1,000 of which he had earlier sent $500 to his wife in Romania for her support and spent the rest on a tenancy bond and for living expenses. In his interview with the detectives he said that he had sent $500 of the proceeds of the robbery to his wife and his Honour accepted this but in evidence he swore that the proceeds were used as just indicated and that the $500 was sent to his wife before the robbery.

He was arrested in Melbourne on 22 October 1982. He was extradited to Canberra and was in custody for three days until his committal, being thereafter released on cash bail provided by a friend who gave evidence on his behalf.

The appellant was born in Romania on 5 October 1955. He fled that country in 1980 and was given permission to enter Australia as a political refugee. He arrived on 1 July 1980. He left his wife and child behind and sought approval for them to join him. The Romanian Government refused it. His wife was subsequently imprisoned for attempting to leave Romania without permission.

In October 1980 the appellant and others staged a hunger strike in Sydney. The hunger strike was an attempt to draw attention to the fact that the Romanian Government was refusing to permit families to be reunited in Australia. The appellant had to be admitted to hospital and eventually abandoned the hunger strike. He then obtained employment with Transfield.

After the robbery he returned to Melbourne and obtained other employment. His trade qualifications from Romania were recognized. In January 1982, in Melbourne, he staged another hunger strike which he ended on medical advice. In April 1982 his wife and child arrived in Australia. In June his wife was employed by his employer and according to the antecedents report furnished the Supreme Court they were earning a joint gross income of $528.00 per week.

The learned sentencing Judge accepted that the appellant was undergoing acute personal stress when he agreed to participate in the crime. His Honour also accepted that he had no other convictions, that since his arrival in Australia the appellant has committed no other offences and that he now appears to be a well-respected member of the Romanian Baptist Church, Richmond, Victoria. In sentencing the appellant his Honour said:-

"The prevalence of the offence of armed robbery in the A.C.T. in recent years is both alarming and appalling. Such offences are an affront to society and all the more so when firearms are used. I have said before the community at large, and especially those persons and institutions which render themselves vulnerable to armed robbery because they handle quantities of cash, are entitled to expect that this court will deal with persons who commit those crimes, especially at gunpoint in a strong punitive way. The most effective way is to impose duly deterrent sentences and that factor of strong punitive measure must take dominance over the subjective factors such as rehabilitation of the offenders.

Those who are tempted to commit armed robbery in this Territory and those who resort to this Territory for that purpose from places outside the Territory, as this accused and his accomplices did on this occasion, would be wise to bear in mind that they face gaol sentences if they are caught. The crime of armed robbery leaves little scope for leniency even when mitigating factors are present."

There was ample material before his Honour to enable him to say that the offence of armed robbery was prevalent in the Australian Capital Territory. It was not disputed that in the period 1 July 1982 to 30 June 1983 56 offences of robbery involving property totalling $32,674 were reported. Only 20 of those crimes had been solved and only $4,096 recovered as at 24 October 1983.

The view which his Honour expressed concerning sentencing in cases of armed robbery is not an isolated one. See R. v. Knight (1981) 26 S.A.S.R. 573 at pp.574-5. See also R. v. Williscroft and others (1975) V.R. 292 at p.302, per Adam and Crockett JJ.

In R. v. Tait & Bartley (1979) 24 A.L.R. 473, a Full Court of this Court (Brennan, Deane and Gallop JJ) said at p.476:-

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v. R. (1913) 16 C.L.R. 336 at 339-40; R. v. Withers (1925) 25 S.R. (N.S.W.) 382 at 394; Whittaker v. R. (1928) 41 C.L.R. 230 at 249; Griffiths v. R. (1977) 15 A.L.R. 1 at 15-17)."

The amended grounds of appeal are:-

1. "That His Honour erred in failing to attach any, or any sufficient, weight to evidence of the subjective factors which motivated the Appellant to commit the offence for which he was sentenced."

2. "That His Honour erred in finding that the degree of complicity of the Appellant in the offence for which he was sentenced was equal to that of the other participants in that offence."

3. "That His Honour erred in taking into account in the imposition of sentence the fact that the Appellant committed the offence for which he was sentenced within a short period after his arrival in Australia as a political refugee."

4. "That His Honour erred in according too much significance to the aspect of general deterrence in the imposition of sentence and too little weight to the subjective circumstances generally of the Appellant."

5. "That His Honour erred in failing to attach any or any sufficient weight to evidence that the Appellant would and could make restitution for the money stolen in the offence for which he was sentenced."

6. "That His Honour erred in failing to attach any or any sufficient weight to the evidence of the Appellant's confession and subsequent plea of guilty as evidence of the Appellant's remorse."

7. "That His Honour erred in failing to attach any or any sufficient weight to the evidence of the assistance rendered by the Appellant to the police in identifying his co-offenders."

8. "That His Honour erred in failing to attach any or any sufficient weight to the evidence that the Appellant had only limited opportunity to resile from participation in the offence for which he was sentenced."

9. "That the sentence imposed by His Honour was and is manifestly excessive."

10. "That His Honour failed properly to exercise his discretion in the imposition of the said sentence."

11. "That the sentence imposed by His Honour was and is against the evidence and the weight of evidence."

12. "That the recommendation that the Appellant be deported was made without the Appellant or his legal representative having been given notice of His Honour's intention to make such a recommendation and without the Appellant or his legal representative having been given an opportunity to be heard on the question."

When the appellant gave evidence before the Supreme Court he made vague reference to the possibility that a sum of money varying between $4,000 and $5,000 might have been spent to effect his wife's release from prison and escape from Romania. He swore that when told he would be given a share of the stolen money he "thought maybe I can help my family with this somehow". He was then asked, "Was that your reason for going on with this plan?" He replied, "Yes, I think so". He said that after receipt of the $4,000 he spoke with his parents in Romania who told him that it was too late to spend the money to obtain his wife's release and that if he had it he should save it. The appellant advanced no other specific reason for his part in the robbery. We accept, of course, the finding of the learned sentencing Judge that the appellant was suffering acute personal stress when he agreed to take part in the crime but even if it be accepted that that stress motivated his participation (and his evidence is silent as to that) it could hardly be a mitigating factor of such magnitude as to compel a lesser sentence. The first ground fails.

The second ground fails also. The learned sentencing Judge took a perfectly correct view of the part played by the appellant. At law he was a principal in the first degree. He must have appreciated the risk that despite his admonition against the use of the rifle one or other of his accomplices whom he had just met and of whose proclivities he was ignorant might be tempted to use it in execution of the common purpose. His was the information on which the robbery was planned. He disclosed Transfield's pay routine, the fact that the pay clerk would be alone for much of the afternoon, that it would all be worthwhile and that the most suitable day for the robbery was the very next day, Wednesday. He made his car available for the long journey to Canberra. Action followed hard upon the heels of decision. His was an integral part in the robbery, that of the driver of the getaway car and lookout. It is inappropriate to attempt to assign percentages of blame in circumstances such as these and we are satisfied that the learned sentencing Judge was perfectly entitled to treat the appellant's part as equal to that played by either of the others.

The third ground was not pressed.

As to the fourth ground it is appropriate to repeat what was said in R. v. Knight in the passage to which we have referred above:

"We are in complete agreement with the remarks that fell from Cox J at first instance, and from King CJ in the Full Court on appeal in the case of R. v. Spiero ((1979) 22 S.A.S.R. 543). In passing sentence on the prisoner, Cox J spoke of the sharp increase in the number of armed robberies involving firearms and went on to say:

'It appears to be an area in which the deterrent aspect must predominate in sentencing, even at the expense of considerations personal to the offender. Those who are tempted to commit armed robberies in this State would be wise if they were to bear this in mind.' (at p.548).

The remarks of Cox J had the full approbation of King CJ, who said:

'It must be made clear beyond misunderstanding that when a person engages in robbery, while armed with a weapon, he can expect, when apprehended and convicted, a long sentence of imprisonment. Armed robbery is a crime which leaves little scope for leniency even when mitigating factors are present.' (at pp.548-9)"

Clearly that passage was in the mind of the learned sentencing Judge when he made his remarks which we have quoted. The passage does not, as we understand it, attempt to express a view which would fetter the proper exercise by a sentencing court of its discretion. It serves to emphasise what seems to us to be a matter of commonsense, that armed robbery with its attendant risks of injury and death to the person or persons robbed is a crime of great gravity to be dealt with on conviction in such a way as to show the community's abhorrence of it and in accordance with the Court's duty to protect that community. Nevertheless, in the proper exercise of its discretion, a sentencing Court may in appropriate circumstances consider it right not to impose a custodial sentence. Each case is to be dealt with on its own facts. We are unable to say that the learned sentencing Judge attached too much significance to general deterrence and too little weight to the subjective circumstances of the appellant. We are impressed by the fact that the appellant spent his share of the proceeds in much the same way as any other robber might.

The fifth ground has no substance. The appellant's obligation to make restitution has always existed. In October 1982, he admitted his part in the robbery. Between October 1982 and the date of his plea he and his wife were earning a joint income which would have enabled some contribution towards restitution to be made. None was. In any event the learned sentencing Judge was entitled to give greater weight to deterrence and to punishment than to the possible mitigating factor of a vague promise of restitution.

As to the sixth ground his Honour did take into account the plea of guilty and it is not possible to say of the sentence imposed that it manifests a failure to take appropriate account of the plea. Although the appellant, when interviewed by the detectives, did confess to the crime he did not plead guilty at the committal proceedings and indicated that he proposed to plead guilty to the indictment only at a late stage. The ground fails.

As to the next ground the fact that the learned sentencing Judge made no reference to the assistance rendered the investigating detectives by the appellant does not mean that he failed to take it into account. It is not to be assumed that because a Judge at first instance makes no reference to a particular factor in his remarks on sentencing he has failed to take it into account. Only if the sentence imposed is so wrong as to indicate that the lack of reference to the factor indicates an oversight which must have had a vitiating effect should an appellate court interfere. The sentence imposed does not manifest that.

We agree with the learned sentencing Judge that the appellant had plenty of time to resile from participation in the offence. It must have been obvious to him at a very early stage that his accomplices were planning a crime in which they sought to involve him. A careful perusal of the record of interview indicates that he was engaged as a fully participating partner. There could be no suggestion of any kind of duress. Alcohol was not a factor in his conduct and there can be no suggestion that his condition, apart from the question of acute stress, was that of a man unable to control his action except after long reflection on his proposed course. The eighth ground fails.

The ninth, tenth and eleventh grounds merely restate in general terms grounds with which we have earlier dealt. They fail also.

The twelfth ground of appeal cannot be against sentence unless an extended meaning can be given that word. This appeal lies because jurisdiction is given the Court to hear appeals from a judgment (which includes a sentence) of the Supreme Court of the Australian Capital Territory. Ss.4 & 24(1)(b) of the Federal Court of Australia Act 1976. No further definition of the word "sentence" is given in the Act. Generally the word "sentence" connotes a judicial judgment or pronouncement fixing a term of imprisonment. Winsor v. Boaden (1953) 90 C.L.R. 345 at p.347. By some statutes the word "sentence" is defined to include any recommendation for deportation in the case of a person convicted. See, for example, the Criminal Appeal Act, 1912 (N.S.W.) s.2 and the Criminal Appeal Act 1968 (U.K.) s.50. However, in the absence of such an extended definition, the word "sentence" is not to be taken to include a recommendation for deportation. See R. v. Aitken (1966) 2 A11 E.R. 453 and R.v. Hayden (1975) 2 A11 E.R. 558.

Counsel for the appellant directed our attention to R. v. Karaiskakis (1956) 74 W.N. (N.S.W.) 457 and to R. V. Castiglione (1963) 63 S.R. (N.S.W.) 393, decisions of the Court of Criminal Appeal in the State of New South Wales. In each of those cases the Court refused to consider an appeal against a recommendation for deportation. It is unnecessary to speculate as to whether the attention of the Court was directed to the definition of "sentence" appearing in s.2 of the Criminal Appeal Act, 1912. The cases strengthen our view that the recommendation for deportation made in this case cannot be regarded as a sentence from which an appeal lies to this Court.

Counsel for the appellant, alive to the possibility that the Court might take the view just expressed, sought that an indication should be given by this Court that the course adopted by the learned sentencing Judge when he made the recommendation for deportation was inappropriate. We do not think we should. If anything comes of the recommendation the appellant will no doubt be in a position to challenge any order for his deportation before the Administrative Appeals Tribunal. During that challenge all the circumstances of any such order including the learned sentencing Judge's recommendation for deportation will no doubt fall to be considered at length.

The appeal is dismissed.