Hall v The Queen

[1999] WASCA 176

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   HALL -v- R [1999] WASCA 176

CORAM:   IPP J

ANDERSON J
HEENAN J

HEARD:   12 AUGUST 1999

DELIVERED          :   14 SEPTEMBER 1999

FILE NO/S:   CCA 59 of 1999

BETWEEN:   DAVID JOHN HALL

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Bank robbery - Two robberies on one day - Aggregate sentence of 7 years with parole not set aside as excessive

Legislation:

Criminal Code, s 391

Result:

Leave to appeal granted

Appeal dismissed

Representation:

Counsel:

Applicant:     Mr P J M Sullivan

Respondent:     Mr R E Cock QC & Ms V A Prentice

Solicitors:

Applicant:     Paul Sullivan

Respondent:     Acting State Director of Public Prosecutions

Case(s) referred to in judgment(s):

House v The King (1936) 55 CLR 499

Miles v R (1997) 17 WAR 518

R v Peterson [1984] WAR 329

Taylor v R, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Veen v R (No 2) (1988) 62 ALJR 224

Weng Keong Chan (1989) 38 A Crim R 337

Case(s) also cited:

Nil

1. IPP J:  have read the reasons to be published by Anderson J.  I agree with them and his Honour's conclusions.  I have nothing further to add.

2. ANDERSON J:  This is an application for leave to appeal against sentences handed down in this Court on 31 March last, whereby the applicant was sentenced to a total of 7 years' imprisonment in respect of two bank robberies committed on the same day, 12 October 1998.

3. The applicant had been presented on a joint indictment with one Blair.  The indictment contained seven counts.  Five of them related only to Blair, one of them related to the applicant and Blair, and the last count related to the applicant only.

4. The facts are that, at about 11.45 am on the date in question, the applicant and Blair entered the Wembley branch of the National Australia Bank in Cambridge Street with the intention of robbing the bank.  Blair approached the service counter with a bag and handed the teller a note.  When she had difficulty reading it, Blair said:  "This is a hold up.  Give me the money."  The applicant was in the bank keeping watch and ready to come to Blair's assistance if necessary.  There was no weapon, although the teller was under the impression that Blair had a concealed weapon.  The teller activated the alarm button, placed a quantity of money into the bag and, with admirable presence of mind, also put a dye bomb in the bag.  Blair was urging her to put more money in the bag and to hurry up.  He and the applicant then ran out of the bank and made off on foot to a vehicle parked nearby.  There was another person in the vehicle.  The dye bomb exploded in the bag, which Blair then discarded.  All the money - $1,070 - was recovered, but, as counsel informed the Court, "in an unserviceable condition".  Blair and the applicant escaped.

5. At about 3.15 pm on the same date, the applicant entered the Inglewood branch of the Challenge Bank in Beaufort Street with the intention of robbing it.  He approached the service counter and handed the teller a note which said:  "This is a hold up.  No trouble."  The teller activated the security cameras and the bank alarm system, and began to give money to the applicant.  The applicant demanded that she give him $100 notes.  The teller informed the applicant that she did not have any and she placed what money she did have on the counter.  The applicant picked it up and placed it in an envelope which he was carrying and then left the bank.  Once again, there was no weapon, but the teller feared that there was.  The amount of money involved was $1,795, none of which was recovered.  The applicant was followed to a motor vehicle, in which he escaped in the company of another person.

1. Three days later, the applicant surrendered to police.  He participated in a record of interview in which he admitted both offences.  Apparently, the original charges included an allegation that the offences were committed whilst the applicant pretended to be armed.  Although he admitted committing the offences and indicated a willingness to plead guilty at the first opportunity, he denied that he had pretended to be armed and did not wish to plead guilty to a charge containing that allegation.

2. Concerning the National Australia Bank robbery, the charge against the applicant was that he and Blair "stole from [the teller] with threats of actual violence $1,070 in money the property of [the bank] and that at the time [they] were in company with each other".  In respect to the robbery of the Challenge Bank, the charge against the applicant was that he "stole from [the teller] with threats of actual violence $1,795 in money the property of [the bank]".

3. The prosecution case as to the threats of violence was that the threats were implicit in the demeanour of Blair and the applicant and in the demands that they made.  It was not suggested by the Crown Prosecutor to the sentencing court that explicit threats were uttered.

4. The charges were preferred under s 391 of the Code, they being charges of robbery in company and robbery. The maximum penalty for robbery in company is 20 years' imprisonment and the maximum penalty for robbery is 14 years' imprisonment.

5. On behalf of the applicant, it was submitted to the learned sentencing Judge that the applicant "has a heroin problem which he has been unable to deal with, resulting in the crimes for which he stands before you today".  The applicant had spent some four years as a trooper in the Australian Defence Forces.  In June 1997, he had been convicted of several quite serious traffic offences, including an offence of driving under the influence of alcohol and reckless driving.  Fines were imposed and there was a licence disqualification for an aggregate period of six months.  On that date, he was also convicted of breaching bail and of possessing a quantity of cannabis, in respect of which modest fines were imposed.  The only other conviction on his record is one for stealing, in respect of which he was fined in the Court of Petty Sessions the sum of $25.

6. The learned sentencing Judge accepted that the applicant's antecedents were relatively good and noted that the applicant had pleaded guilty "at an early opportunity" and that he had co‑operated with the police.  However, his Honour noted the maximum sentences prescribed by Parliament in respect to the offences.  His Honour considered that the appropriate starting point for the offence of robbery in company was 6 years' imprisonment and the appropriate starting point for the offence of robbery was 5 years' imprisonment.

7. I do not consider that his Honour started too high in either instance.  Whilst it is true that neither of these robberies was a sophisticated undertaking involving detailed planning, it is quite obvious that there was some planning involved in both offences.  In both instances, there was a car waiting some distance away and an unnamed, unidentified accomplice driver and a high speed escape.

8. The principles upon which an appellate court must approach an appeal from a decision in the exercise of sentencing discretion are well established.  It is not sufficient that an appellate court may have taken a different view.  It must be shown that the court at first instance has failed to properly exercise its discretion - Weng Keong Chan (1989) 38 A Crim R 337, per Malcolm CJ at 344; House v The King (1936) 55 CLR 499, per Dixon, Evatt and McTiernan JJ at 504 ‑ 5. It is well established that, in robbery offences, greater weight is to be given to the requirement of deterrence and less weight is to be given to the antecedents and other matters personal to the offender, save in exceptional circumstances - R v Peterson [1984] WAR 329, per Burt CJ at 332; Taylor v R, unreported; CCA SCt of WA; Library No 980152; 6 April 1998, per Malcolm CJ at 11 and 14; Miles v R (1997) 17 WAR 518, per Malcolm CJ at 521. In my opinion, it was within the limits of a sound discretionary judgment to take 6 years and 5 years respectively as starting points.

9. In each case, the learned sentencing Judge allowed substantial discounts for the applicant's early pleas of guilty and his co‑operation with the police.  The sentence in respect of count 6 was reduced from 6 years to 4 years, which is a reduction of 33 per cent, and the sentence in respect of count 7 was reduced from 5 years to 3 years, which was a reduction of 40 per cent.  There can be no possible complaint about these discounts.

10. The main ground of appeal, as it was argued by Mr Sullivan on behalf of the applicant, is that whilst 4 years and 3 years might be considered appropriate if looked at as separate and individual sentences, his Honour erred in making them cumulative, thereby arriving at an aggregate sentence of 7 years.

1. The error is said to lie not so much in accumulation as such, but in failing to properly apply the totality principle.  Although the offences were committed on the same day, they were quite separate and distinct offences against different banks.  It was not, therefore, imperative to impose concurrent sentences.  However, it was argued that, once it was decided that the sentences were to be made cumulative, the sentencing court should have decided that an aggregate term of imprisonment of 7 years was too long, having regard for the criminal conduct viewed as a whole, and should have adjusted downwards to accommodate the totality principle.

2. In my opinion, although the aggregate sentence does arguably lie towards the top end of the discretionary range of sentences for this kind of robbery, the sentence cannot be said to be manifestly excessive.  When all is said and done, the applicant robbed two banks.  Offences of robbery are prevalent in our community.  There is a clear need to emphasise general deterrence and protection of society in the penalties imposed for robbery - Veen v R (No 2) (1988) 62 ALJR 224, at 229. The sentence does not, of itself, imply error. Nothing has been produced to show that his Honour took into account irrelevant material, or failed to take into account relevant material, or otherwise erred in law or principle in imposing that term. I am not persuaded the sentencing discretion miscarried.

3. I would grant leave to appeal, but dismiss the appeal.

4. HEENAN J:  For the reasons expressed by Anderson J I also would grant leave to appeal but would dismiss the appeal.