John Raymond Black v R No. SCCRM 92/824 Judgment No. 4008 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4008

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - particular offences offences against property - Conspiracy to commit armed robbery - appeal against sentence of seven years - two co-accused given effective sentences of six years - appeal on ground of disparity - all three men had appalling records for serious crimes - no relevant basis for differentiation in culpability or likelihood of reform - sentence reduced to six years.

HRNG ADELAIDE, 17 June 1993 #DATE 17:6:1993
Counsel for appellant:     Mr D H Peek
Solicitors for appellant:    Legal Services Commission
Counsel for respondent:     Ms W J Abraham
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal allowed.

JUDGE1 COX J This is an appeal by a man who was convicted by a jury of conspiracy to commit armed robbery. 2. In a word, the offence, which was almost brought to fruition on 6 October 1990, was hatched by three men - the accused and his companions, Gebert and Haley - and it involved stealing a car and then going with firearms and disguises to commit an armed robbery; precisely where did not in the nature of things emerge. The reason for that is that, by good fortune really, the crime was nipped in the bud. One of the men, not the present appellant, had duly stolen the car from a service station on West Terrace and then driven it to a carpark in the city where the men had left a second vehicle containing the guns and the disguises. 3. Unfortunately for them, two mechanics from the service station had seen what they were doing, and they followed the stolen car to the carpark, saw the transfer to the stationary car taking place, radioed back to the service station and thereby secured the timely attendance of the police. The three men were arrested as they left the carpark in the second vehicle. 4. They contested the conspiracy charge in the criminal court, but all three were convicted. The other two men, Gebert and Haley, were given effectively sentences of six years' imprisonment. I use that expression because adjustments had to be made in the case of one of them for time spent in custody awaiting trial. This appellant was given an effective sentence of seven years. The main ground of appeal fastens on that discrimination between his sentence and the sentences passed on his companions. 5. It was accepted by the Crown, both in the trial court and also before us, that no relevant distinction could be made between the three offenders so far as their involvement in the conspiracy and its attempted execution was concerned. 6. Mr Peek, for the appellant, did suggest to us that one of the others could properly be regarded as more seriously involved because he stole the car from the service station. To my mind that particular distribution of functions between the three conspirators cannot possibly found an argument of relevant differentiation so far as the seriousness of the particular offending is concerned. 7. All three men have appalling criminal records. Black, for example, has on his record dual convictions for attempted murder in 1977, a conviction for aggravated assault in 1984 and another for threatening life in 1989. 8. Gebert has more than two pages of convictions, a large number of them for dishonesty but, strikingly, a conviction for armed robbery in 1991 for a crime committed, we were told, only a short time before 6 October 1990 when the present offence was detected. 9. Haley's record is a little shorter but it includes, in addition to sundry breaking offences, robbery with violence - indeed, three counts of robbery with violence - in 1970, kidnapping and rape on the same occasion, and armed robbery in 1972. 10. All are men of mature age, at least in the sense that they can no longer appeal to their youth as any sort of ground for leniency. The same, obviously, must be said as far as their criminal records are concerned. 11. Submissions were made on behalf of each offender to the sentencing judge. For one of the other men it was urged that there was some glimmer of hope, perhaps, to be found in his taking certain educational courses, apparently with success, while in prison, and the other man called evidence from OARS in which the witness expressed some guarded optimism for the future. Given the records of all three, however, it would be impossible not to be sceptical about the future of these offenders and very difficult indeed to differentiate between them on that account. One might think, therefore, that the sentences to be passed on all three men would be the same. 12. It does not appear clearly from the learned judge's sentencing remarks why he imposed a heavier sentence on the appellant. After describing the crimes and noting that each had forfeited the benefit that would have followed a plea of guilty, his Honour said - 'You all have criminal records, some worse than others, but all of considerable seriousness. I won't dwell on them. It's inevitable now that I must sentence you to terms of imprisonment'. He had no particular comment to make, favourable to either Gebert or Haley, when he passed sentence upon them. He described the present appellant's record as the most serious of all, and he observed that the appellant was at that time awaiting sentence on further charges in this court. He then proceeded to sentence the appellant to 6 years and 10 months imprisonment, which allowed for 6 weeks he had spent in custody before being granted bail. At the request of the appellant himself, he did not fix a non-parole period. 13. Ms Abraham, for the Crown, as I said, has not attempted to differentiate between the culpability of the appellant and the others so far as the crime itself is concerned and it seems to me to be idle, really, to try and discern any relevant distinction between their criminal records. Of course, those records are different. However, they all included serious crimes of violence, and I say `relevant distinction' because the significance of a criminal record is its lessening of the convicted person's opportunity to claim a reduction in the sentence that might otherwise be indicated by reason of his favourable past. As soon as he starts to accumulate convictions, he will progressively forfeit the benefit that such a plea might be expected to secure and there will come a time when the accumulated serious crimes will mean that no benefit at all can be gained from his antecedents. As a general rule, that is the only relevance a man's criminal record may have. However, it is always to be borne in mind that a defendant is not to be punished again for what he has done on previous occasions. 14. I think it clear beyond argument that all three men had long passed the stage at which they could sensibly appeal for leniency by reason of their past. No doubt, arguments could be fashioned that could seek to exploit differences in kind between the respective convictions of these three offenders, but to my mind that would be a fruitless exercise. In my opinion, so far as their records were concerned, they must properly be treated equally. 15. That leaves the question of any realistic hope for the future that might be entertained with respect to any of them. It would not, I think, be merely cynical to observe that the kind of pleas that were advanced on behalf of Gebert and Haley on this occasion must have been put by them to the courts many times before. Were the learned judge using some hope of reform as a ground for differentiation, then I think he would have said so. But the sentencing remarks are silent on that particular point. I am forced to the conclusion, then, that the reason why his Honour gave a heavier sentence to the appellant was because he regarded his record as more serious than the others. For reasons I have given, I do not think that that differentiation could relevantly be made. In my opinion, it would be understandable if the appellant were to have a sense of grievance about the sentence that he has received - while perhaps justified in itself - when compared with the lesser sentences passed on his companions. 16. In any revision of the appellant's sentence, allowance must be made for the 6 weeks that he spent in custody before being released on bail. Indeed, the learned judge made such an allowance. 17. Mr Peek has drawn our attention to the sentence that was passed with respect to the charge upon which the appellant was awaiting sentence in this Court when he received the conspiracy sentence last December. The appellant appealed against that other conviction, but without success. We are told that he has filed an application for special leave to the High Court which has yet to be heard. The matter has some relevance to the present appeal because it appears that, by a misunderstanding, the learned judge in the other matter believed that he was taking into account the 6 weeks which the appellant had spent in custody, but without realising that it lay outside the period that was relevant to that second sentence. Strictly speaking, that is not a matter that arises on this appeal and, in all the circumstances, I would not be disposed to adjust the present sentence because of it. 18. For the reasons that I have given, I would allow the appeal and substitute for the sentence passed in the trial court a sentence of imprisonment for 5 years and 10 months. The sentence should run from 8 December 1992. In accordance with the appellant's own request, I would not fix a non-parole period.

JUDGE2 DUGGAN J I agree with the orders proposed by the presiding judge and I agree with the reasons which he has advanced in support of his conclusions.

JUDGE3 DEBELLE J I agree also.