Her Majesty's Attorney-General v Maynard and Devine

[2001] TASSC 26

[2001] TASSC 26

CITATION:              Her Majesty's Attorney-General v Maynard & Devine [2001] TASSC 26

PARTIES:  HER MAJESTY'S ATTORNEY-GENERAL

FOR THE STATE OF TASMANIA

v
  MAYNARD, Justin Richard

DEVINE, Craig Anthony

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 45/2000
DELIVERED ON:  15 March 2001
DELIVERED AT:  Hobart
HEARING DATES:  7 March 2001
JUDGMENT OF:  Crawford, Slicer and Blow JJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  M P Shirley
           Respondent Maynard:                   R A Browne
           Respondent Devine:  K L Baumeler
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent Maynard:                   Legal Aid Commission
           Respondent Devine:  Legal Aid Commission

Judgment Number:  [2001] TASSC 26
Number of Paragraphs:  16

Serial No 26/2001
File No CCA 45/2000

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
JUSTIN RICHARD MAYNARD and CRAIG ANTHONY DEVINE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
BLOW J
15 March 2001

Order of the Court

Appeal dismissed.

Serial No 26/2001
File No CCA 45/2000

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
JUSTIN RICHARD MAYNARD and CRAIG ANTHONY DEVINE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
BLOW J
15 March 2001

1. On 7 March 2001, the Court dismissed the appeal for reasons to be published later.  These are the reasons. 

1. The respondents were sentenced to a term of imprisonment for periods of 4 and 4½ years' respectively, following their convictions for the crime of aggravated armed robbery.

1. No question of parity arises.  Maynard received the lesser sentence because of a slightly less serious record of prior convictions and the existence of an injury which impacted on the effect of imprisonment, a course permitted in accordance with the principles stated in Smith (1987) 27 A Crim R 315. Had more severe penalties been imposed on each, no criticism could be made of the sentences on the basis that they were manifestly excessive.

1. The crime was serious.  The respondents went armed to commercial premises and waited for the staff manager to disengage the alarm system when they confronted him by brandishing a shotgun and a crow bar.  The manager had the shotgun placed against his face and was forced to lie on the floor with his hands behind his back.  He was then forced to open the safe from which $9,100 was taken.  The manager was bound and a bag placed over his head.  As he began to free his hands, one of the respondents returned and retaped his hands.  As they left, one of the assailants said, "Set the bomb, the bomb's going off in 5 minutes".

1. The effects on the health of the manager have been severe and long lasting and he has been unable to continue with his employment with the company from whom the money was taken.

1. The respondents were arrested shortly after the robbery and a strong case assembled against them.  No benefit arose because of plea, co-operation or remorse.  The crime was planned and performed in a calculated manner.  Apart from the medical condition of Maynard caused by an event occurring subsequent to the robbery, there were few mitigating matters.

1. A sentence of 6 years' imprisonment for Devine with some small allowance made for disparity for Maynard could not be said to be unreasonable.

1. Two matters persuaded us to dismiss the Attorney-General's appeal.  The first is that this was a Crown appeal and the suggested error of principle identified was that of manifest inadequacy.  That principle, as articulated by counsel is that:

… a sentence of imprisonment of 4 or 4½ years, making allowance for disparity, in a case of persons with prior convictions for armed or aggravated armed robbery who re-offend whilst armed in a planned robbery and who cause harm to another is itself manifestly inadequate."

1. The principles governing the disposition of a Crown appeal have been stated by the High Court in Griffiths v R (1977) 137 CLR 392; Everett v R (1994) 181 CLR 295 and applied in this jurisdiction in R v Harland-White 23/1997.

1. The imposition of the sentences by the learned trial judge was a discretionary exercise.  The identification of error is as that stated by Kirby J (with whom Gaudron and Gummow JJ agreed) in Dinsdale v R (2000) 74 ALJR 1538 when he said, at 1549, par59:

"As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried."

1. The range of penalties for the crime of armed robbery has been stated as being up to 6 years (Devine v R (1993) 2 Tas R 458) and although these sentences, whilst at the lower end of the appropriate scale, could have been greater, their length does not necessarily disclose error in the manner stated in Dinsdale.

1. Had the question of disproportionality been the only matter raised by this appeal, it is possible that the Attorney's appeal might have been upheld.  But of greater import are events which have occurred subsequent to sentence, and which bring into consideration the issue of totality.  On three occasions following the sentences imposed in May 2000, Maynard was sentenced to additional and cumulative sentences of imprisonment for crimes of assault and drug trafficking.  On each occasion the sentence imposed was stated as being less than would have been warranted because of the existence of this sentence.

1. In each case, regard was had to the principle of totality.  An increase in this sentence could have an impact on a process already undertaken.  That alone might not have created complexity.  However, in March 2001, the respondents were convicted of a series of violent crimes which included the abduction and terrorising of an innocent person.  They were remanded for sentence until 9 March, two days following the hearing of this appeal.  The sentencing judge was required to pay regard to the sum of existing sentences in any consideration of the relevant sentence insofar as the issue of totality is raised.

1. In Allpass v R (1994) 73 A Crim R 561, the New South Wales Court of Criminal Appeal considered the principles relevant to Crown appeals. In its joint judgment at 562 - 563, the court stated:

"An appellate court has an overriding discretion which may lead it to decline to increase, even if it comes to the conclusion that error has been shown in the original sentencing process."

1. Maynard is aged 28 and Devine 31.  Their records show that rehabilitation is not relevant to any imposition of sentence.  Factors of retribution and removal from the community are significant matters.  In consideration of these matters, the question of totality remains an issue.  That principle of sentencing was considered in the three hearings concerning Maynard and as of the date of dismissal of this appeal required resolution at the sentencing hearing two days later.

1. The sentences imposed were lenient and certainly at the lowest end of the range of penalties appropriate for the circumstances of this crime and these offenders.  However, we remained unpersuaded that the appeal should have been upheld.