Mansfield v The Queen
[2011] VSCA 290
•19 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0937
| WILLIAM MANSFIELD | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO JA and WHELAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 August 2011 |
| DATE OF JUDGMENT | 19 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 290 |
| JUDGMENT APPEALED FROM | R v Mansfield (Unreported, County Court of Victoria, Judge Mullaly, 4 December 2009) |
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CRIMINAL LAW – Appeal against sentence – Armed Robbery and being a prohibited person in possession of a firearm – Five prior convictions for armed robbery – Total effective sentence of fourteen years three months imposed with a non-parole period of eleven years – Not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr G Hughan | Robert Stary & Associates |
For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
On 27 November 2009, the appellant pleaded guilty before Judge Mullaly in the County Court at Shepparton to one count of armed robbery (count 1) and one count of being a prohibited person carrying an unregistered firearm (count 2). On 4 December 2009, he was sentenced, together with a co‑offender, Peter Sinclair, as follows:
Count
Sentence
Cumulation
Count 1
14 years’ imprisonment
Base sentence
Count 2
2 years’ imprisonment
3 months
Total effective sentence
14 years and 3 months’ imprisonment
Non-parole period
11 years
The Court made ancillary orders relating to the retention of a forensic sample provided by the appellant, disposal of property under the Confiscation Act 1997 and restitution.
On 10 September 2010, Ashley JA granted the appellant leave to appeal against his sentence on the ground of manifest excess. Leave was refused in respect of the two other grounds of appeal advanced being that the sentencing judge placed too much weight on the appellant’s prior criminal history and that the partial cumulation of the sentence imposed on count 2 meant that the appellant was subject to double punishment. The appellant now pursues the ground of manifest excess and seeks leave to appeal in respect both of the refused double punishment ground and a ground in the following terms:
The sentencing judge erred as to the maximum penalty for armed robbery at the time of the Appellant’s previous convictions for armed robbery (1983 & 1985).
The Crown did not file a response to the appellant’s written case in this instance.
The appellant formed a relationship via the internet with a woman he believed was in Russia called Tatyana Shaganova. It is unclear if she in fact existed. He wanted to arrange for her to come to Australia and decided to commit an armed robbery to obtain funds for this purpose.
He obtained a sawn‑off shotgun from an associate. He was a ‘prohibited person’ as defined in s 3 of the Firearms Act 1996 because of his then most recent prior conviction and sentence. The appellant also obtained ammunition and test‑fired the shotgun ‘in the bush’. He acknowledged that the sound of the shotgun firing was ‘a scary thing’, saying ‘if someone sees a shotgun and they you know, hear the shot go off in the roof, they’re gonna freak out’. He told police that the shotgun was loaded during the commission of the armed robbery because:
If worst comes to worse I’d probably let one go in the air. We’d probably have no qualms about letting one go in the air.
The appellant conducted internet research on the methods used by others to commit armed robberies despite the fact that his record was not unimpressive. He obtained stolen number plates which were to be placed on the getaway car. He grew a beard and dyed his hair with a view to disguising his appearance.
During August 2008, the appellant conducted surveillance on several possible target sites in Shepparton, including the eventual location of the armed robbery, the Goulburn Murray Credit Union in Fryers Street. He drove the proposed getaway route and timed the traffic light sequence.
On the night before the offences, he met Sinclair at Sinclair’s home in Shepparton and engaged him as the getaway driver.
On 1 September 2008, at about 9 am, Sinclair placed the stolen number plates onto his car. Sinclair drove with the appellant as passenger to the ANZ bank in Wyndham Street. On arrival, the appellant decided that there were too many people in the area so they travelled to the Goulburn Murray Credit Union. Sinclair drove the vehicle to a car park at the rear of the premises.
The appellant alighted from the car, walked down a lane way and entered the Credit Union via the front door. Two members of the public and about 11 staff members were in the Credit Union at the time. The appellant removed the shotgun, which was loaded, from a bag he was carrying and told everyone.
This is a hold up. I’m not mucking around. Everybody on the ground. Get on the ground.
He held the shotgun at waist height and brandished it at various tellers as he demanded that they fill plastic shopping bags which he had placed on the counter with the money from the tills. The appellant demanded that the staff and customers not look at him and threatened to shoot them if they did. He made this threat in particular to a male customer who he thought might cause trouble for him. He was also heard to say ‘I don’t want to harm anyone’ and ‘everything will be fine as long as you do what I tell you’. Photographs taken by security cameras inside the Credit Union show staff hiding under their desks, emerging with their hands in the air to place cash in the bags.
The staff placed $14,275 in cash in the bags. The appellant collected the bags, left the Credit Union and walked to the car. From there, he and Sinclair returned to Sinclair’s house where they split the money. The appellant received $8,575 and Sinclair $5,700. The appellant shaved his hair and beard and the two men split up in order to avoid detection.
On 3 September 2008, the appellant went to the Bairnsdale post office and attempted to transfer $6,685 to Ms Shaganova but was unsuccessful as he spelt her first name incorrectly. This money was ultimately recovered by police. By this stage, police were looking for the appellant. They arrested him a short time later in Bruthen. They executed a search warrant at an address in Bruthen and located items including an additional $1,820 in cash, some notes the appellant had written in relation to committing armed robberies, the shotgun and ammunition.
The appellant was immediately cooperative. He confessed to planning and committing the armed robbery and provided the investigating police with information concerning his activities of which they were unaware. He declined to identify his co‑offender.
Sinclair was arrested on 8 September 2008. When interviewed the following day, he made partial admissions and was released. Later that day, he took police to where he had concealed the stolen number plates and was re‑interviewed, making full admissions.
Five victim impact statements were provided to the Court, extracts of which were read by the prosecutor. The statements show the victims had been terrified by the armed robbery and it had, as the sentencing judge found, a ‘profound effect’ upon them. Several of the victims attended the plea hearing.
The appellant was born on 24 February 1962. He was thus 46 at the time of the offences. At the date of sentence, he was 47. The appellant admitted 21 prior convictions from seven court appearances including three prior convictions for armed robbery in Victoria and two for ‘robbery whilst armed’ in New South Wales. There was a break in the appellant’s offending between his release from custody in 1999 and the time of the present offences. For much of this period, he lived with his sister. He also became engaged with a church and football umpiring. In 2005, he obtained full-time employment but left in 2008 and, after some part‑time work, became unemployed. Around this time, he became involved in the internet relationship.
The appellant is an aboriginal man whose father was murdered when the appellant was aged 10. He had a disadvantaged background and lacked a stable family environment. His mother was unable to care for him and he became a ward of the state. For many years, he was mainly in institutions: homes, juvenile detention and then adult gaol.
The clinical psychologist, Mr Bernard Healey, assessed the appellant as having a low IQ (full scale IQ of 77) and as suffering from depression. Mr Healey reported that it was clear from the appellant’s description of events that in the lead‑up to his offending he had become quite depressed. He said there was no evidence, however, that the appellant was labouring under any psychosis.
On the plea, the Crown contended that the offence was a serious example of armed robbery. Features of the offending that indicated its seriousness included the degree of planning involved, the graphic threats made by the appellant inside the Credit Union, the brandishing of the firearm, which was loaded and had been test‑fired at an earlier date and the appellant’s preparedness to use the firearm by discharging it into the air if necessary. The Crown also noted that the appellant had five previous convictions for armed robbery. It submitted that there should be moderate partial cumulation of the sentence imposed in respect of count 2. The prosecutor provided a range of between 14 and 17 years’ imprisonment for the head sentence and between 10 and 13 years for the non-parole period.
On the plea evidence was called on behalf of the appellant from a friend and former supervisor, Peter Cartamoni, who spoke well of him. The defence produced a sentencing snapshot indicating sentencing trends for armed robbery and conceded that a sentence in the top part of the existing sentencing range would be appropriate. It was pointed out that the appellant had been in protective custody since 24 April 2009, the consequences of which was said to be an inability to associate with other prisoners in the general prison population and reduced access to educational programs and employment opportunities with the prison. The appellant was said to be likely to serve the duration of his sentence in protection. The defence also submitted that protection of the community and rehabilitation would be achieved by the imposition of a minimum term towards the lower end of the range, allowing for a longer period on parole than may otherwise have been the case. It was submitted that the appellant was affected by depression and that he does not have the same emotional resources to cope with the hardships of prison as an unaffected person might. It was also submitted that as the firearm the subject of count 2 was obtained for and used in the commission of the armed robbery, there should not be any cumulation of the sentence impose in respect of count 2.
The sentencing judge’s remarks on imposing sentence were full and appropriately informative of his reasons for selecting the sentences which he did. His Honour acknowledged the appellant’s personal circumstances, including his unfortunate and deprived childhood, and the disadvantage that he faced as a result of those circumstances. He also acknowledged and took into account the fact that although the appellant had five prior convictions for armed robbery, he had stayed out of trouble for eight years immediately before this offending, probably due in part to the good influence of the witness Peter Cardamone.
His Honour concluded that the appellant’s offending was in the worst category of armed robbery, if only just.
In this Court, counsel for the appellant argued that the sentence imposed was too high both as to the total effective sentence and the non‑parole period. He referred to sentencing statistics, whilst acknowledging their limitations, and submitted that a proper disposition in this case ought to have been a sentence in ‘single figures’. He pointed to an error in the sentencing judge’s reasons where his Honour incorrectly suggested that the maximum sentence for armed robbery at the time of some of the appellant’s earlier offending was considerably lower than it now is. He sought to have this Court infer that because the sentences imposed on the appellant for his earlier offending were close to what the sentencing judge erroneously thought was the then maximum sentence, his Honour must have concluded that that offending was more serious than it was, and so have been materially misled in fixing this sentence.
I am unable to accept this conclusion. Read in context, his Honour’s remarks as to the maximum sentence for armed robbery at the earlier time were merely emphasising to the offender the gravity of armed robbery as an offence.
Having regard to all the circumstances of the case, it cannot be said that the sentencing judge’s imposition of a 14-year sentence for this armed robbery was outside the exercise of a reasonable sentencing discretion.
Although the firearm offence was laid as carrying the firearm on the day of the robbery, both technically and actually, the offender carried it before he committed the robbery. The sentencing judge was entitled to cumulate the short period he did on the sentence for the armed robbery count.
The appellant should be refused leave to add the proposed ground concerning judge’s error as to the maximum sentence for armed robbery and refused leave in respect of the firearm sentence. The appeal itself should be dismissed.
WHELAN AJA:
I agree.
BONGIORNO JA:
The order of the Court is that:
1. Leave to add the proposed grounds of appeal referred to as grounds 2 and 3 in the written case for the appellant dated 20 May 2011 is refused.
2. The appeal is wholly dismissed.
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