Castagna v The Queen
[2001] WASCA 142
•4 MAY 2001
CASTAGNA -v- THE QUEEN [2001] WASCA 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 142 | |
| COURT OF CRIMINAL APPEAL | 04/05/2001 | ||
| Case No: | CCA:278/2000 | 11 APRIL 2001 | |
| Coram: | MALCOLM CJ MURRAY J ANDERSON J | 11/04/01 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | ALEXANDER ROBERT CASTAGNA THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Armed robbery in company and stealing a motor vehicle Offenders armed with replica pistol and a machete Hammer used to break into jewellery display cabinets to steal jewellery worth $300,000 Staff and public terrified Offenders caught red-handed by police while leaving the premises Sentence of 6 years for armed robbery plus 6 months cumulative for stealing motor vehicle Whether sentence manifestly excessive |
Legislation: | Nil |
Case References: | Miles v The Queen (1997) 17 WAR 518 R v Peterson [1984] WAR 329 R v Shaharuddin [1999] WASCA 229 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Trescuri v The Queen [1999] WASCA 172 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : CASTAGNA -v- THE QUEEN [2001] WASCA 142 CORAM : MALCOLM CJ
- MURRAY J
ANDERSON J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Armed robbery in company and stealing a motor vehicle - Offenders armed with replica pistol and a machete - Hammer used to break into jewellery display cabinets to steal jewellery worth $300,000 - Staff and public terrified - Offenders caught red-handed by police while leaving the premises - Sentence of 6 years for armed robbery plus 6 months cumulative for stealing motor vehicle - Whether sentence manifestly excessive
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Legislation:
Nil
Result:
Leave to appeal refused
Representation:
Counsel:
Applicant : Mr S D Hall
Respondent : Ms J A Girdham
Solicitors:
Applicant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Miles v The Queen (1997) 17 WAR 518
R v Peterson [1984] WAR 329
R v Shaharuddin [1999] WASCA 229
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Trescuri v The Queen [1999] WASCA 172
Case(s) also cited:
Nil
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1 MALCOLM CJ: This was an application for leave to appeal against sentence. At the conclusion of the argument on behalf of the applicant on 11 April 2001, the Court did not call upon counsel for the respondent. The Court then ordered that the application for leave to appeal be refused. It was then indicated that the reasons for making that order would be published later. These are my reasons for joining in the making of the order.
2 The applicant had pleaded guilty under the fast-track system to two counts in an indictment, namely that:
(1) On or about 5 September 2000 the applicant and one Steven Siljanovski stole a motor vehicle the property of one Stampfli; and
(2) On 5 September 2000 at Subiaco the applicant and Siljanovski stole from Dina Sala with actual violence, jewellery, the property of Hanneby Pty Ltd trading as Smales Subiaco; that at the time the applicant and Siljanovksi pretended to be armed with a dangerous weapon, namely a replica pistol; that they were armed with offensive weapons, namely a machete and a hammer; and that at the time they were in company with each other.
3 The maximum penalty for stealing a motor vehicle is 7 years under s 378 of the Criminal Code. The maximum penalty for armed robbery is life imprisonment. In relation to the armed robbery, the sentence imposed by the learned sentencing Judge was imprisonment for 6 years. The learned sentencing Judge also imposed a sentence in respect of the stealing of the motor vehicle of 6 months to be served cumulatively, so that the total sentence imposed was imprisonment for 6 and a half years.
4 The applicant sought leave to appeal on the ground that the sentence imposed was manifestly excessive for the following reasons:
"1.1 That the learned sentencing [Judge] placed too much emphasis on the question of general deterrence when sentencing the applicant.
1.2 That the learned sentencing [Judge] placed too much emphasis on the question of specific deterrence.
1.3 That the learned sentencing [Judge] did not place enough emphasis on mitigatory factors relevant to the applicant, namely:-
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- 1.3.1 The issue of rehabilitation relevant to the applicant.
1.3.2 The applicant's personal circumstances.
- 1.4 That the learned sentencing [Judge] did not sufficiently discount the sentence in view of the fact that the applicant pleaded guilty at the first available opportunity and in fact made full admissions in his record of interview in relation to both his and the co-accused's involvement in the offences."
5 The account given by the learned sentencing Judge of the facts in this case was not disputed. Some days prior to 5 September 2000 the applicant and Siljanovski arrived in Perth from Sydney, where they both lived, for a holiday and for some activities connected with boxing. They were due to leave Perth for Sydney on 6 September 2000, the day after the commission of the armed robbery. As stated by the learned Judge, the relevant facts related to the commission of the offences were:
"Some time between 5 pm on 4 September and 1 am on 5 September a Subaru station wagon was stolen from Princess Margaret Hospital carpark in Subiaco. On Tuesday, 5 September, at about 11 am the two of you were observed in this vehicle. Although you, Castagna, said that you did not actually steal the vehicle from the Princess Margaret Hospital carpark but came across it in a street near the railway station which I surmised to be somewhere in Northbridge, it is obvious that the two of you then used the vehicle, first parking it near the university and then retrieving it for the purpose of this robbery.
Whichever one looks at it, you are each guilty of the offence of stealing a motor vehicle under s 371A of the CriminalCode because you have either used it or driven it or assumed control of it without the consent of the owner. In fact it seems obvious to me that you stole the vehicle for the purpose of carrying out the robbery on 5 September 2000 because that robbery occurred at about 11.20 am on the 5th when you went to Smales Subiaco. Smales is a jewellery shop in Rokeby Road, Subiaco.
You parked the stolen vehicle in the carpark at the rear of Smales jewellery store which indicates that you knew where you were going. You, Castagna, later told police you picked
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- Smales at random for the purpose of the robbery. I find as a fact that you intended to carry out the robbery at Smales at Subiaco and carefully prepared for it.
On your own admission, Castagna, you said you acquired various items for the purpose of the robbery including a replica pistol which was described by a witness as looking very real, a machete and a hammer. The robbery was therefore premeditated.
Having parked your vehicle you went to the store of Smales in Subiaco where you walked in. You, Castagna, produced the replica pistol and you, Siljanovski, took from a bag a machete and a hammer. You told the occupants of the store, of whom there were approximately eight, to get on the floor whilst you brandished these weapons.
Staff and public all got onto the floor as demanded by you and you thereupon began to smash display cabinets, you, Siljanovski, removing a number of items of jewellery. They included 103 rings, three bracelets, three bangles and a pair or [sic] earrings and they were worth $300,000. You put these items in a bag whilst Castagna brandished the replica pistol at the people who were on the floor. They were not to know it was a replica.
The two of you then ran from the store to the carpark where your vehicle was parked but fortunately the tactical response group and the major crime squad were there. Mrs Smales had had the presence of mind to ring 000 as soon as she saw you enter the store. You were thus caught red-handed and arrested. Later you, Castagna, made a full admission but you, Siljanovski, refused to cooperate in any way, although that of course was your right."
6 Siljanovski was 21 years of age at the time of the commission of the offence and the applicant was a year younger. Both lived in Sydney. Siljanovski had been unemployed for some periods before committing the subject offences. He said that he had been involved in the abuse of drugs, including the use of amphetamines, cocaine and heroin. He claimed that he only had a hazy recollection of the robbery because of the taking of amphetamines and cocaine. He claimed that he intended to sell the stolen items to purchase amphetamines and cocaine. According to a
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- pre-sentence report, Siljanovski acknowledged the seriousness of his offending and appeared to have been considerably frightened by the prospect of imprisonment. He had a record of minor convictions in New South Wales, including larceny and possession of an implement for stealing a motor vehicle. He had not previously been in prison. A psychological report revealed that Siljanovski had a low IQ and a drug problem, but no psychological disorders.
7 The applicant was a year younger than Siljanovksi and was a restauranteur by occupation, working in a restaurant owned and operated by his parents. He did not have any prior convictions apart from minor offences of possession of goods suspected of being stolen and one drug offence. He was educated to age 18 at high school in New South Wales and had achieved considerable sporting success in rugby and boxing. He had been employed in the security industry and in various other odd jobs. More recently, he had been employed in the family restaurant business. In the course of his sentencing remarks with respect to the applicant, the learned sentencing Judge said:
"I have character references that speak favourably of you and I take full account of what your mother has said from the witness box today. The psychological report gives me considerable information about you. It suggests you are at a low risk of reoffending. You have no psychological disorder, however, and you should benefit from supervision. You claim, as I said earlier, that the robbery was carried out to impress a girlfriend, but I do find that incredible. $300,000 worth of jewellery stolen in the circumstances of this offence do not seem to fit with that proposition and in any event it conflicts with your co-accused's statements. In the end perhaps it does not affect the outcome. The robbery was a particularly serious one, irrespective of the ultimate motive. Given the execution of it, whatever the reason for it was, it was at the higher level of armed robberies.
In taking into account the sentence to impose in this case, I have regard to the gravity of the offence of armed robbery. As I say it was extremely serious. People were terrified by your behaviour. The use of the replica pistol, machete and hammer was sufficient to cause people great alarm. They were not to know that the pistol was a replica and the value of the goods stolen underlies the very serious aspect of the robbery. I take into account the effect on the victims. I have no actual victim
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- statements, but witnesses' statements I have read indicate they were terrified by what occurred."
8 The learned Judge made it clear that he took into account the personal factors relevant to the applicant and his co-offender. His Honour referred to their relatively young ages, relative lack of prior convictions and the support of their families. Following their pleas of guilty in the Court of Petty Sessions, they were released on bail and had been permitted to return to New South Wales. It was accepted that both of the offenders were remorseful and had pleaded guilty on the fast-track system. His Honour noted, however:
"That is very important and is a primary mitigating factor in each of your cases. It is true that you were caught red-handed and so a plea of guilty was probably inevitable, but nevertheless, it has avoided the necessity for a trial and has brought you before the court at the very earliest opportunity."
9 His Honour went on to say that:
"… it is extremely important that there should be just punishment for offences such as these. People were terrified by your conduct in the jewellery store on the day in question. I take into account deterrence. People must be deterred from armed robberies of the type you committed, particularly when people's wellbeing is put at risk.
I take into account prevalence of the offence of armed robbery. It is a particularly prevalent offence, as is the offence of stealing a motor vehicle. The Court of Criminal Appeal of this State has said that in ordinary circumstances, a sentence of 6 to 9 years' imprisonment will be imposed for the type of armed robbery you committed. Only in exceptional circumstances will there be a disposition other than imprisonment. I take into account your prospects for rehabilitation and I accept that each of you has good prospects for rehabilitation in the long term.
I have regard to your antecedents. To those I have already referred. You have support from your families. A sentence of imprisonment would mean dislocation from your families and in the case of you, Castagna, problems in the family business. All of these aspects of the matter have been carefully considered by me."
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10 His Honour went on to find that the two offenders were equally culpable and went on to say:
"The sentences I would have imposed in the absence of any mitigating circumstances would have been 8 years for the [armed] robbery and 1 year for stealing the motor vehicle and cumulative which would have been 9 years. However, having regard to your pleas of guilty, relative lack of prior convictions, all the other factors that have been put to me, I am prepared to reduce the effective sentence to 6 and a half years' imprisonment which will be structured: count 1, 6 months; count 2, 6 years, cumulative. There is no question of suspending the sentences. There is no doubt whatever that [the] seriousness of these offences, more particularly the armed robbery, is such that no consideration can be given to suspending either sentence."
11 Both of the offenders were made eligible for parole in respect of the sentences imposed.
12 This was a particularly serious offence of armed robbery and one which bore more similarity to a bank robbery than the more typical offence of armed robbery frequently committed by persons seeking to obtain money to buy drugs who commit the offence on such "soft" targets as pharmacies, newsagents and service stations, often at night. This offence bore more similarity to a bank robbery, having regard to the numbers of staff and members of the public who were in the store at the relevant time, as well as the fact that the value of the property stolen was in the vicinity of $300,000. No doubt the combination of the replica pistol and the machete, as well as the violent breaking of the glass jewellery display cabinets terrorised all of those present. Fortunately, the manageress of the store was able to telephone 000 so that the police were waiting for the two offenders as they left the store with the stolen property and were about to get into their vehicle parked at the rear. The result was that they were caught red-handed. In this context, the pleas of guilty under the fast-track system were a recognition of the inevitable, although it was to the credit of both of the offenders that they pleaded guilty under the fast-track system.
13 The application for leave to appeal was expressed to be an application made against "the sentence of 6 and a half years' imprisonment on the ground that the sentence imposed was manifestly
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- excessive". There were, of course, two sentences imposed which were made cumulative.
14 In April 1997 the Court of Criminal Appeal determined that a single offence of armed robbery would normally attract a term of imprisonment in the range of 6 to 9 years: Miles v The Queen (1997) 17 WAR 518 at 521 per Malcolm CJ; and R v Shaharuddin [1999] WASCA 229 at [9] per Malcolm CJ. In accordance with the approach adopted in R v Peterson [1984] WAR 329 by Burt CJ, in Miles, this Court firmed up the sentences generally imposed for armed robbery from a range of 5 to 7 years to a range of 6 to 9 years and also by giving greater weight to deterrence and less weight to the antecedents and other matters personal to the offender. Subject to any particularly significant mitigating factor, the main emphasis in the last few years has been on taking offenders out of circulation and expressing community disapproval by imposing a sentence of imprisonment, unless it could be clearly demonstrated that some other disposition would be in the best interests of the community: cf Shaharuddin, supra, at [11] - [12] per Malcolm CJ.
15 In my opinion, the learned Judge was right to characterise this as a very serious example of an armed robbery. The stealing of the motor vehicle and the acquisition of the replica pistol, machete and the hammer was indicative of premeditation. The staff and customers in the store were terrified. As has been said on many previous occasions, the fact that a replica pistol was used did not constitute a mitigating factor. Those present in the store were not to know that the pistol was a replica.
16 A sentence below the range commonly imposed may be justified by specific mitigating factors, such as an early plea of guilty, the youth of the offender or other mitigating circumstances. At the same time, however, the firming up of sentences involves in part giving less weight to mitigating factors than might otherwise be the case, save in exceptional circumstances: Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 at 11 and 14 per Malcolm CJ. In the result, the learned Judge discounted the sentence he would otherwise have imposed by approximately 28 per cent on account of all the mitigating factors which were mentioned. There were no exceptional circumstances in the present case to suggest that more weight should have been given to these factors than would normally be given in the context of a serious robbery offence. The learned Judge also took into account the additional hardship which may be suffered by the applicant as a result of having to serve his sentence in Western Australia when his family is located in Sydney. It may well be possible for this circumstance to be ameliorated
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- by arrangements being made for him to serve at least a very significant part of his sentence in New South Wales.
17 By s 5(1) of the Prisoners (Interstate Transfer) Act 1983 (WA):
"(1) Where the Minister -
(a) receives a written request made by a State prisoner serving a sentence of imprisonment in Western Australia for the transfer of the prisoner to a participating State or to a Territory; and
(b) is of the opinion that the prisoner to whom the request relates should be transferred to the participating State or the Territory in the interests of the welfare of the prisoner,
the Minister shall -
(c) where the request is for the transfer of the prisoner to a participating State - give to the corresponding Minister of the participating State a written request asking that Minister to accept the transfer of the prisoner to the participating State; …
(2) Where the Minister -
(a) has -
(i) in respect of a request made by a State prisoner for a transfer to a participating State, given to the corresponding Minister of the participating State a written request under subsection (1)(c); and
(ii) received from that Minister written notice of consent to the transfer of the prisoner to the participating State; …
the Minister may issue an order for the transfer of the prisoner to the participating State or the Territory, as the case may be."
18 In my opinion, given that the applicant has no family support available to him in Western Australia, but such support is available to him in New South Wales, it would be highly desirable in the interests of his welfare and rehabilitation if arrangements could be made, as soon as
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- possible, for the applicant to make an application to the Attorney General in his capacity as Minister for Justice for transfer to New South Wales.
19 In my opinion, the sentence imposed did not place too much emphasis on the question of general or specific deterrence. In my view, given the context, the learned Judge gave due consideration to the issue of rehabilitation and the applicant's personal circumstances. It follows that particulars 1.1, 1.2 and 1.3 of the grounds of appeal were not made out. Given the seriousness of the offence which took it into the category of a high level of seriousness in the context of armed robbery, the matters personal to the applicant were entitled to little weight by way of mitigation. There were no exceptional circumstances to suggest that any more weight should have been given to them.
20 The final contention on behalf of the applicant was that insufficient credit was given for the plea of guilty at the first available opportunity. I accept that the applicant pleaded guilty at the first opportunity and had made full admissions in his video record of interview in relation to both his and his co-accused's involvement in the offences. In this case, the learned Judge discounted the sentence he would otherwise have imposed by approximately 28 per cent on account of all of the matters in mitigation including the early plea of guilty. In the circumstances, of course, the plea of guilty was merely a recognition of the inevitable as the offenders were caught red-handed at the scene. The discount or credit which is given for a plea of guilty is a discretionary matter but sentencing discounts for a plea of guilty under the fast-track system are commonly in the vicinity of 25 to 30 per cent under s 8(2) of the Sentencing Act 1995; see Trescuri v The Queen [1999] WASCA 172 at [25] - [26] per Anderson J. In the circumstances of this case, the plea of guilty was, as I have already said, a recognition of the inevitable. In the circumstances, a discount of approximately 28 per cent on account of all of the circumstances of mitigation which I have mentioned was entirely appropriate if not generous.
21 MURRAY J: I agree with the reasons published by Malcolm CJ, to which I have nothing to add.
22 ANDERSON J: I have had the advantage of reading in draft form the reasons of the Chief Justice for ordering at the conclusion of argument that this application for leave to appeal should be refused. My reasons for joining in that decision are fully expressed in the Chief Justice's reasons for judgment. There is nothing I can usefully add.
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