Mannix v The Queen - [2002] WASCA 244

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MANNIX -v- THE QUEEN [2002] WASCA 244

CORAM: MALCOLM CJ
WALLWORK J
STEYTLER J

HEARD: 22 JULY 2002

DELIVERED : 4 SEPTEMBER 2002

FILE NO/S: CCA 184 of 2001

BETWEEN: DAVID PATRICK MANNIX
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Armed robbery - Staff of bottleshop threatened by offender armed with a replica pistol at night - Offender made off with cash but was apprehended by staff - Sentence of imprisonment for 5 years with eligibility for parole not manifestly excessive

Legislation:

Criminal Code (WA), s 293

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: Ms V Amidzic
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Amidzic & Co
Respondent: State Director of Public Prosecutions

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

Castagna v The Queen [2001] WASCA 142
Ginn v The Queen[2000] WASCA 95
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
R v Shaharuddin [1999] WASCA 229
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for leave to appeal against sentence. On 6 November 2001 the applicant was convicted on his plea of guilty to one count of armed robbery whilst pretending to be armed. On 30 November 2001 he was sentenced by Miller J to imprisonment for 5 years with eligibility for parole. The maximum penalty for armed robbery is imprisonment for life. The grounds upon which the application is made are that:
"1.The learned sentencing Judge failed to have sufficient regard to the mitigating circumstances operating upon the applicant at the time of the offence and the circumstances of mitigation generally.
2.The learned sentencing Judge sentenced the applicant on the basis of misapprehension as to the facts relied upon by way of mitigation."
During the course of the hearing the Director of Public Prosecutions referred to statements made by the complainant Mr Matheson and two other employees at the Tavern, namely Messrs Corica and Bagios. Unfortunately, these had not been included in the papers before the Court on the hearing of the application. There was also a victim impact statement by Mr Matheson. At the conclusion of the hearing the Court directed that the Director file at the Court and serve on the applicant's solicitors copies of the relevant statements and any further submissions in relation to them, and granted leave to counsel for the applicant to file further submissions within two days of the service.
At about 9.20pm on 4 July 2001 the applicant drove his motor vehicle to the Kardinya Tavern Bottleshop in South Street, Kardinya intending to commit an armed robbery. He disguised himself with a black balaclava, gloves and dark clothing. He was armed with a black replica pistol. On arrival at the bottleshop he approached staff pointing the replica pistol at them and demanded money. He opened the cash register and removed a total of $1343.75 in cash. He then left the bottleshop and ran away from the area. He was chased on foot by staff. He was apprehended a short distance away and held by staff until the Police arrived. Detectives duly attended the scene, arrested the applicant and the stolen cash was recovered. When the applicant was arrested he was also found to be in a possession of a knife.
Both the complainant and the applicant suffered injury in the incident. The applicant was taken to the Murdoch Police Station where he was asked to participate in a video‑recorded interview. While he agreed to participate in the interview, he declined to make any comment in relation to the matter. When he appeared before the learned Judge on 6 November 2001 he had been in custody since 4 July 2001.
At the time the offence was committed the applicant had been on bail in relation to a charge of assault occasioning bodily harm. Subsequently, he pleaded guilty to the lesser offence of common assault in the District Court at Geraldton on 27 August 2001. In respect of that offence he was fined the sum of $1000.
In addition to minor convictions in the Children's Court in 1986 for possession of a quantity of cannabis and a traffic offence, the applicant had a relatively minor record from November 1989 as an adult for possession of cannabis and a number of traffic offences. One relatively serious offence of which he had been convicted was assault occasioning bodily harm, of which he was convicted in the Court of Petty Sessions at Paraburdoo on 18 May 1993. He was convicted of two counts of assault occasioning bodily harm, for one of which he was fined $2000 and on the other $500.
The complainant, Mr Matheson, an employee of the bottleshop at the time of the incident, was working with two fellow employees, Frank Corica and George Peter Bagios. According to Mr Matheson the applicant was hostile and aggressive in his language and demeanour during the robbery. He insisted that the hold‑up was real and that it was not a joke. Mr Matheson agreed to open the till for the applicant but, because of the stress, he had difficulty opening the till. The applicant warned Mr Matheson against "being a hero". Another employee, a Mr Hookey, approached the till unaware of the robbery. Mr Matheson unsuccessfully tried to warn Mr Hookey against approaching the area. As he did so the applicant pointed the gun approximately 10 cm from Mr Hookey's face, demanded money, then took $1343.75 cash from the till.
The learned Judge commented that:
"This was a very serious offence. It involved the use of a replica handgun in circumstances where you were disguised and the staff had every reason to fear for their safety. I have a victim impact statement from Mr R R Matheson who was the primary victim of the robbery. He was successful in tackling you after the robbery and he suffered injuries, including pain and soft tissue injuries to his left shoulder, grazing to his elbow and injuries to his right wrist. He has said in his victim impact statement that he suffers stress and anxiety as a result of the robbery and has been compromised in relation to his capacity to work part‑time at night in liquor outlets.
Your counsel challenged the weight of the victim impact statement and urged that Mr Matheson had clearly been involved in numerous scrapes in other occupations and essentially this armed robbery could not have had the effect on him that he contends. On the other hand, you had to take your victim as you found him and if it was the case that he had any predisposition to injury or anxiety, that does not minimise the consequences to him.
The victim impact statement is only one aspect of the sentencing process and I do not give it any weight greater than that the victim was injured and has suffered some after‑effects of the injury. I take note of the fact that you have written a letter of apology to the management of Kardinya Tavern apologising for the robbery."
The applicant was born on 3 November 1968. At the time of sentencing he was 33 years of age. He had lived in Western Australia for most of his life. He was educated at Karratha High School and had a number of trade qualifications including that of welder, crane operator and operator of other machinery. The learned Judge noted that the applicant had experienced stresses in his life occasioned by the breakdown of a relationship with the mother of his two children. According to a report by Dr Ismail he had suffered from severe depression and suicidal tendencies, internalised anger and agitation in respect of which he had been on prescribed medication.
The learned Judge noted that the applicant had previous convictions for a number of cannabis‑related offences, traffic offences, and more importantly for an assault occasioning bodily harm in May 1993. There was also a conviction for assault in the District Court at Geraldton on 27 August 2001. Nevertheless, the applicant had not been in prison for any previous offence. In passing sentence the learned Judge accepted that the applicant was remorseful and had apologised to the Kardinya Tavern as well as pleading guilty to the offence at the earliest opportunity. His Honour went on to say:
"In imposing sentence, however, just punishment, deterrence and the prevalence of this offence are all very important factors. Your antecedents and prospects of rehabilitation must of course be weighed in the balance. Your counsel submitted that the penalty should be at the lower end of the scale for the offence of armed robbery. Counsel for the Crown, however, submitted that there was a high level of seriousness in relation to this armed robbery and the penalty should be anything but low.
I accept the submissions of the Crown Prosecutor that this was a very serious armed robbery and in the higher level rather than at the bottom end of the scale of seriousness. In my view, the only way the matter can be disposed of is by way of a sentence of imprisonment. That is because the seriousness of the offence is such that no other disposition is open, but it is necessary to consider whether that sentence can be suspended and this I have done. I have taken into account all relevant factors in that regard including those set out by Steytler J in the case of Liddington [R v Liddington (1997) 18 WAR 394]. I do not, however, consider it appropriate to suspend the sentence in this case.
In my view, the appropriate sentence of imprisonment in this case is one of 5 years' imprisonment. The starting point I took was 7 years and I reduced it by approximately 30 per cent to allow for the factors to which I have referred. You will be eligible for parole and the sentence will date from 4 July 2001."
In support of ground 1 it was submitted that the starting point of 7 years was too high because the offence was not properly characterised as a "single offence of armed robbery in ordinary circumstances" for which a sentence of 6 – 9 years had been accepted as appropriate. This was said to be so for a number of reasons. First, it was said that the applicant's conduct involved little in the way of calculated planning or premeditation beyond the wearing of a balaclava and the production of a scuffed replica pistol. In my opinion, the degree of calculated planning or premeditation is of less significance than the impact of the commission of the offence on persons such as the employees of the Tavern. Secondly, it was said that the applicant's conduct was not driven by the objectively rational motive of obtaining money, as the applicant had no pressing need for money at the time of the offence which would explain the desperate nature of his conduct, so that the offence was committed by the applicant without any rational purpose. Once again, the relevant consideration in sentencing in such cases is to act as a deterrent and impose a punishment reflecting society's disapproval of such conduct and the need to protect those who are exposed to the risks of such conduct while providing services to the public. The explanation by the applicant was at best a neutral consideration and at worst a negative consideration as it suggests that the armed robbery was committed "just for the thrill of it". The applicant announced to Mr Matheson that it was a "hold‑up" and removed a significant sum of money from the cash register. In this respect the offence was a typical example of a prevalent form of armed robbery.
It was also submitted that there was little, if any, prospect of the applicant successfully evading apprehension after committing the offence, given the presence of more than one person in the vicinity and the nature of a "drive‑through" bottle shop, which was said to be a thoroughfare for both vehicles and persons. While it may well be that the applicant, once confronted by more than one person, panicked and attempted to flee the scene and was captured, the experience clearly had a substantial effect on Mr Matheson as is apparent from the latter's victim impact statement.
In further submissions dated 30 July 2002 filed pursuant to the grant of leave, counsel for the applicant accepted that the language and demeanour of the applicant, viewed objectively, was hostile and aggressive, but only to the extent that the applicant declared the incident "a hold‑up" and asked that the till be opened. This declaration, of course, was made by a person who was apparently armed with a pistol. There is no suggestion that those present thought that the weapon was other than real. Mr Matheson was able to describe the weapon in some detail. Mr Matheson had difficulty opening the till because he was afraid. It was said that the applicant stood with his back to Mr Matheson whilst taking money from the till and shoving it into his pockets. It was submitted that this showed ineptitude on his part. The failure of Mr Matheson to intervene at this point can be explained by the fact that the applicant was apparently armed with a real rather than a replica weapon. His later statement to Mr Corica that the pistol was a fake was consistent with a later realisation on his part. It was in these circumstances that he took the gun from the applicant while Mr Corica had him in a headlock.
Mr Corica refused to assist the applicant, although he was standing close to the till. The demand for money, however, appears to have been addressed to Mr Matheson. Mr Bagios ignored the applicant's statement that this was an "armed hold‑up", believing it to be a joke. It was Mr Bagios, however, who left the scene to call the police. He watched the remainder of the incident on a video camera. He described the weapon as a "small, girlie type pistol".
It was against this background that it was submitted on behalf of the applicant that the circumstances of this offence were sufficiently dissimilar from those typically present in such a case that the need for deterrence could be given significantly less weight than would normally be given.
Finally, in support of ground 1, it was contended that but for the applicant's mental, physical and emotional state at the time of the offence and during the few days preceding it, the offence was unlikely to have been committed at all by the applicant. This point is more relevant to ground 2, the misapprehension relied upon being the stillbirth of the applicant and his partner's baby on 3 August 2001.
In support of ground 2, it was contended that the fact that the offence was committed in circumstances where there was little, if any, prospect of the applicant successfully evading apprehension, having regard to his mental, physical and emotional state at the time of the offence. In addition, it was submitted that the learned Judge sentenced the applicant on the basis that the stillbirth of his and his partner's 20‑week‑old child occurred on 3 August 2001, after the robbery, rather than 2 July 2001, two days prior to the offence. There is no doubt that his Honour was in error in this respect. It was submitted that, given the applicant's emotional state as a result of the stillbirth, this case was an inappropriate one for giving considerations of general deterrence their full weight for three reasons. First, it was said that not only was the offence out of character for the applicant, but the personal difficulties that beset him at the time were a "one‑off" set of circumstances unlikely to be repeated. Secondly, in committing the offence, the applicant was affected by medication, alcohol, an illicit drug, grief and an underlying depressive condition. Thirdly, it was submitted that the medication, grief and the underlying depressive condition were not factors which had been self‑inflicted. Fourthly, it was said that the learned sentencing Judge expressly reduced the starting point of imprisonment for 7 years "by approximately 30 per cent to allow for the factors" referred to by way of mitigation.
For these reasons it was submitted that a starting point of imprisonment for 7 years was excessive and that, in any event, the reduction in sentence for the mitigating circumstances was insufficient as the mistake regarding the date of the date of the stillbirth meant that a significant and material factor bearing upon the level of the applicant's culpability was excluded from consideration.
The principles on which an appellate court may interfere with a discretionary judgment by a sentencing Judge are well established. The Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen (1999) 195 CLR 665 at [15] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
The increasing prevalence of armed robbery offences in recent years has led to a firming up of sentences, giving greater weight to the requirements of deterrence and less weight to the antecedents and other matters personal to the offender. Subject to any particularly significant mitigating factor, the main emphasis is on taking offenders out of circulation and expressing community disapproval by the imposition of a sentence of imprisonment, unless it can be clearly demonstrated that some other disposition would be in the best interests of the community: Miles v The Queen (1997) 17 WAR 518 at 521 per Malcolm CJ; and at 523 – 524 per White J (with both of whom Pidgeon J agreed); and Castagna v The Queen [2001] WASCA 142 at [14] per Malcolm CJ.
The misunderstanding by the learned sentencing Judge regarding the date of the stillbirth no doubt arose from the error in the letter from the applicant's partner's doctor, which counsel provided to the learned sentencing Judge but did not point out the error in the letter.
It is well established that intoxication is not generally a mitigating factor in the context of sentencing. Where the offence involves a crime of violence, the court is entitled to treat the fact that the offender was under the influence of drugs as a serious factor. The learned sentencing Judge gave due consideration to the applicant's drug and alcohol abuse on the day of the robbery. His Honour also acknowledged a submission that the substance abuse was said to be the cause of the applicant's irrational behaviour: cf R v Shaharuddin [1999] WASCA 229 at [53] per White J.
The learned sentencing Judge also acknowledged that the applicant pleaded guilty at the earliest opportunity and made it clear that this was taken into account in the applicant's favour. His Honour also twice mentioned the letter of apology written to the Tavern management and accepted that the applicant was remorseful for the offence. His Honour also took the view that in the circumstances of the offence an appropriate sentence would be one of imprisonment for 7 years. This was discounted to a sentence of imprisonment for 5 years taking into account the applicant's early plea of guilty, personal circumstances and his evidence of remorse. The total reduction on account of these factors was 30 per cent which was toward the upper end of the range of discounts ordinarily given for pleas of guilty: Miles v The Queen, supra, at 521 per Malcolm CJ.
In Miles v The Queen the Court of Criminal Appeal noted that the sentences imposed for armed robbery had been "firmed up" in recent years and now, depending upon the circumstances, a single offence would attract a sentence of imprisonment for 6 – 9 years for a single offence. It was also noted that a blood‑filled syringe should attract an additional sentence of at least 1 year above the sentence which would have been imposed if some other weapon had been used. It was further noted in Miles that the discount for a plea of guilty under the fast‑track system had ranged between 20 – 25 per cent up to 30 – 35 per cent, depending on the circumstances: see per Malcolm CJ at 521; and per White J at 523 – 524, with both of whom Pidgeon J agreed. See also Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998. In that case it was made clear that a sentence below the range commonly imposed may well be justified by specific mitigating factors, such as an early plea of guilty, the youth of the offender, or other mitigating circumstances: Taylor v The Queen, supra, per Malcolm CJ at 11 – 12; and per Ipp J at 4. Pidgeon J agreed with both Malcolm CJ and Ipp J.

This was a serious offence given the fact that the applicant was intoxicated at the time and was disguised by means of a black balaclava, gloves and dark clothing and had armed himself with a replica automatic pistol. The offence was carried out in a threatening manner during which the replica pistol was pointed at bottleshop staff, the money demanded and taken from the till before the applicant attempted to flee the premises on foot. It is also relevant that the offence took place at 9.30 pm at a bottleshop. This Court has consistently acknowledged the need to protect persons working in service industries at night who are particularly vulnerable to the commission of offences such as armed robbery: cf R v Shaharuddin, supra, at [17] per Malcolm CJ. The applicant's disguise, the use of the replica firearm and his aggressive behaviour reinforced the impression given to staff that they were being confronted by a dangerous offender and that there was a very real risk of serious harm being inflicted: cf Ginn v The Queen[2000] WASCA 95 at [4] per Kennedy J.

In all the circumstances, I am of the opinion that the sentence of imprisonment for 5 years which was imposed by the learned sentencing Judge was not manifestly excessive. There was no error in the sentencing process and the sentence imposed was within the range of a sound discretionary judgment.
For these reasons I would refuse leave to appeal.
WALLWORK J: I agree with the reasons and conclusions of Malcolm CJ. There is nothing I wish to add.
STEYTLER J: I have had the advantage of reading the reasons for decision to be published by the Chief Justice. I agree with them and with the conclusion that leave to appeal should be refused. There is nothing I wish to add.