McKeagg v The Queen
[2001] WASCA 99
•28 MARCH 2001
MCKEAGG -v- THE QUEEN [2001] WASCA 99
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 99 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:141/2000 | 15 FEBRUARY 2001 | |
| Coram: | MALCOLM CJ KENNEDY J STEYTLER J | 28/03/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal granted, appeal allowed and total sentence reduced to 10 years and six months | ||
| PDF Version |
| Parties: | WILLIAM MURRAY MCKEAGG THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Appellant convicted on two counts of robbery, one count of robbery while pretending to be armed, one count of robbery in company while pretending to be armed and one count of attempted robbery while pretending to be armed Total sentence of 14 years reduced to 12 years on account of plea of guilty Discount inadequate Total sentence reduced by 25 per cent from 14 years to 10 years and six months |
Legislation: | Criminal Code s 391, s 393 |
Case References: | Cork v The Queen, unreported; CCA SCt of WA; Library No 970664; 2 December 1997 Eldridge v The Queen [2000] WASCA 41 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 Pearce v The Queen (1998) 194 CLR 610 Robertson v The Queen, unreported; CCA SCt of WA; Library No 990130; 19 March 1999 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 Veen v The Queen (No 2) (1988) 164 CLR 465 Walsh v The Queen, unreported; CCA SCt of WA; Library No 960471; 26 August 1996 Wheeler v The Queen, unreported; CCA SCt of WA; Library No 920398; 22 July 1992 Norman v The Queen, unreported; CCA SCt of WA; Library No 9489; 1 February 1989 Smedley v The Queen, unreported; CCA SCt of WA; Library No 8077; 20 February 1990 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MCKEAGG -v- THE QUEEN [2001] WASCA 99 CORAM : MALCOLM CJ
- KENNEDY J
STEYTLER J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Appellant convicted on two counts of robbery, one count of robbery while pretending to be armed, one count of robbery in company while pretending to be armed and one count of attempted robbery while pretending to be armed - Total sentence of 14 years reduced to 12 years on account of plea of guilty - Discount inadequate - Total sentence reduced by 25 per cent from 14 years to 10 years and six months
Legislation:
Criminal Code s 391, s 393
(Page 2)
Result:
Application for leave to appeal granted, appeal allowed and total sentence reduced to 10 years and six months
Representation:
Counsel:
Appellant : Ms K A Vernon
Respondent : Mr S E Stone
Solicitors:
Appellant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cork v The Queen, unreported; CCA SCt of WA; Library No 970664; 2 December 1997
Eldridge v The Queen [2000] WASCA 41
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Pearce v The Queen (1998) 194 CLR 610
Robertson v The Queen, unreported; CCA SCt of WA; Library No 990130; 19 March 1999
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Veen v The Queen (No 2) (1988) 164 CLR 465
Walsh v The Queen, unreported; CCA SCt of WA; Library No 960471; 26 August 1996
Wheeler v The Queen, unreported; CCA SCt of WA; Library No 920398; 22 July 1992
Case(s) also cited:
Norman v The Queen, unreported; CCA SCt of WA; Library No 9489; 1 February 1989
(Page 3)
Smedley v The Queen, unreported; CCA SCt of WA; Library No 8077; 20 February 1990
(Page 4)
1 MALCOLM CJ: This was an application for leave to appeal against sentence. The appellant was originally unrepresented, but has been represented by the Supervising Solicitor of the Unrepresented Criminal Appellants' Scheme, who briefed counsel who appeared for the appellant at the hearing.
2 On 31 January 2000 the appellant was convicted on his plea of guilty to two counts of robbery, one count of robbery while pretending to be armed, one count of robbery in company while pretending to be armed, and one count of attempted robbery while pretending to be armed.
3 The offence the subject of count 1 was that on 17 May 1999 at Northbridge the appellant stole from one Meyes with threats of actual violence $4,775 cash the property of the Commonwealth Bank while pretending to be armed with a dangerous weapon. At approximately 9.00 am on that day, the appellant entered the bank premises in Northbridge with the intention of committing a robbery. He passed a note to a teller together with a plastic shopping bag. The note contained a demand to put money in the bag incorporating an explanation that he was a desperate junkie. The teller placed a bundle of notes in the bag and handed it to the offender together with the note. The amount stolen was $4,775. None of this was recovered. The appellant said he used it to purchase heroin, to which he was heavily addicted.
4 Count 2 was that on 24 May 1999 at Northbridge the appellant stole from the complainant with threats of actual violence $2,310 cash the property of Westpac Banking Corporation trading as Challenge Bank and that at the time he pretended to be armed with a dangerous weapon. At approximately 10.00 am on the day of the offence he approached a 42 year old female teller and again handed over a plastic shopping bag together with a note. The note contained words to the effect that this was a hold-up. The teller placed money in the bag, and returned it to the appellant who then left. Again, he took the note with him and destroyed it. On this occasion he stole $2,310 which was not recovered, as the appellant had used it to purchase heroin to feed his addiction.
5 Count 3 was that on 28 May 1999 at Mt Lawley the appellant stole from the complainant with threats of actual violence $2,680 cash the property of Westpac Banking Corporation trading as Challenge Bank and that at the time he pretended to be armed with a dangerous weapon and was in company with another. The appellant again approached a female teller with a bag and a note stating that this was a hold-up. Upon reading the note, the teller proceeded to fill the bag with money which she then
(Page 5)
- handed to the appellant who took it and the note and left the bank. On this occasion the offence was committed in company with a co-offender who was yet to be dealt with and who also entered the bank performing the role of a lookout. The amount stolen was $2,680, of which half was given to the co-offender and the remainder spent by the appellant on feeding his heroin habit.
6 Count 4 was that on 1 June 1999 at Tuart Hill the appellant attempted to steal from the complainant with threats of actual violence cash the property of the Commonwealth Bank of Australia Pty Ltd trading as Commonwealth Bank and that at the time the appellant pretended to be armed with a dangerous weapon. At approximately 11.30 am on that day the appellant entered the bank in Tuart Hill with the intention of committing a robbery. Upon entering the bank he approached a female teller, handing her a note to the effect that this was a hold-up and saying, "Don't panic. Fill the bags with cash quickly and no-one will get hurt. For everyone's safety, don't raise any alarms". He also passed the teller a plastic bag. During the process of filling the bag, the teller activated a security screen which prevented the offender from obtaining the money and at that point he left the bank.
7 Count 5 was that on the same date as in count 4 at Innaloo, the appellant stole from the complainant with threats of actual violence $2,700 cash the property of the Australia and New Zealand Banking Group Ltd and that at the time he pretended to be armed with a dangerous weapon. Immediately after the attempted robbery at Tuart Hill, the appellant went to the ANZ Bank on Scarborough Beach Road in Innaloo with the intention of carrying out a robbery. He handed a female teller a shopping bag and a note and on this occasion the note stated that, "This is a hold-up. Put money in the bag. You've got half a minute to do that or things will start getting messy". The teller placed money in the bag as demanded and returned it to the appellant, who then left. On this occasion the proceeds were $2,700.
8 On the evening of the same day the appellant was apprehended at a house in Girrawheen and later that evening participated in a video-recorded interview during which he made admissions with regard to the offences. He was found in possession of $340 which he claimed was his unemployment benefit.
9 The appellant came before the learned Judge as a 30 year old man with a significant record of offending as a juvenile, having committed a number of different offences, including a significant number of burglary
(Page 6)
- offences as an adult. In addition to a number of traffic convictions he had a number of offences relating to drugs. In December 1997 he was placed upon an Intensive Supervision Order for 12 months and required to perform 140 hours of community work for two offences of aggravated burglary and one offence of breach of bail. On 12 May 1998 he was sentenced to a total of 19 months' imprisonment for breach of the Intensive Supervision Order. On 31 August 1998 he was convicted of escaping from legal custody for which he was sentenced to imprisonment for three months cumulative and for further terms for forgery and uttering and possessing a prohibited drug. He was released on parole on 4 January 1999 and was on parole at the time the present offences were committed between 17 May and 1 June 1999. He was in custody in respect of these matters from 1 to 16 June 1999. His parole was then cancelled and, as at 31 July 2000, when he was sentenced, he was serving time in custody for breach of parole in respect of which his earliest release date was 21 July 2000.
10 In sentencing the appellant the learned Judge referred to his pleas of guilty and recounted the facts to which I have already referred. It was agreed at the time of sentencing that any sentence imposed should be taken to have commenced on 23 January 2000. The learned Judge then commented upon the appellant's background as follows:
"You are 30 years old. Your court history shows that you began appearing in court when you were 13 shortly after you came to this State from New Zealand via New South Wales. Since then you have committed many offences of dishonesty and other offences, but as your counsel has pointed out, it seems that none of them involved the use of violence on your part. In May 1991 when you were 21 years old you were convicted of possessing LSD with intent to sell or supply it. Several convictions for drug offences followed. Before your 18th birthday you had been committed to institutions on at least two occasions and in May 1998 in the District Court at Perth you were sentenced in [sic to] 18 months' imprisonment for burglary and other offences.
You and the young woman whom I have mentioned already had been living in the same house for about a month prior to your arrest. She, like you, is a drug addict. Neither of you were working and you committed these offences to obtain money for heroin and also because you were under pressure from your dealer to pay what you owed. As you said on the videotape in
(Page 7)
- the course of your interview, when you committed these offences you were very ill. When they arrested you the police officers recovered only a small proportion of what you had stolen.
All of the offences are very serious and only one of your five attempts to obtain a large amount of money was unsuccessful. A long term of imprisonment is required. If I were to impose a sentence for the total of the terms appropriate for each offence it would amount to up to 30 years. Such an offence [sic a sentence] would be crushing and unrealistic. Bearing in mind the totality principle, as it is known, and taking into account that all of the five offences were committed within a fortnight, I shall make some of the terms concurrent with each other.
As your conviction in each case was inevitable your pleas of guilty are not convincing evidence that they were made because you were remorseful. They are the result rather of a realistic appreciation of the strength of the case against you. That does not mean to say that you are not remorseful. Anyone watching the videotape of the interview could not help be impressed by the desperation of your state and also by the fact that although it was of little comfort to the tellers whom you confronted, you tried to explain to each of them that you didn't want to do what you were doing."
11 The learned Judge then proceeded to sentence the appellant as follows:
"At least your pleas have saved the community the expense of a trial and they have relieved witnesses and others of the inconvenience and the stress associated with such a trial. For those and similar reasons I shall give you credit of 2 years for your plea of guilty. In respect of each of the two counts of robbery which you committed on 17 and 24 May 1999 respectively you are sentenced to imprisonment for 5 years, those terms to take effect concurrently with each other. In respect of each of the two counts of robbery while pretending to be armed, one of which was committed in company, those two offences having been committed on 28 May and 1 June respectively, you are sentenced to imprisonment for 7 years.
(Page 8)
- In respect of the offence of attempted robbery while pretending to be armed which you committed on 1 June you are sentenced to imprisonment for 3 and a half years. I direct that the terms imposed for the last three offences shall take effect concurrently with each other but cumulatively on the first two terms. It is, in effect, a sentence of imprisonment for 12 years. I order that the sentence is to be taken to have begun on 23 January 2000.
Bearing in mind the possibility of your becoming free from your drug addiction and returning to the community with a mature sense of responsibility towards yourself and others, I order that you be eligible for release on parole in respect of each of the terms which I have imposed."
12 The application for leave to appeal was prepared by the appellant personally and originally limited to the sentences imposed in respect of the offences of armed robbery while pretending to be armed. The appellant was sentenced on 31 January 2000. The time for making an application for leave to appeal expired on 21 February 2000. The application was dated 8 April 2000, some seven weeks out of time. The appellant was unrepresented and subsequently made an application for an extension of time dated 14 June 2000. The explanation for the delay was that the appellant was unrepresented and was uncertain "how the legal system worked" and that he was awaiting a response to an application for legal aid. In the result, the appellant was eventually assisted by the Unrepresented Criminal Appellants Scheme. In the circumstances there was no opposition to the grant of an extension of time to enable the application to proceed. As a result of the assistance he received from the Scheme, further and better particulars of his grounds of appeal were filed on 16 October 2000 containing two grounds of appeal, namely:
"1. The Learned Sentencing Judge erred in advising the applicant that he was intending to give credit of 2 years for an early plea of guilty and then failing to do so in passing sentence.
2. In the alternative, if in fact the Learned Sentencing Judge gave credit to the applicant, the effective head sentence of 14 years was manifestly excessive given the plea of guilty, the remorse shown by the applicant and his antecedents."
(Page 9)
13 It was submitted on behalf of the appellant that the learned sentencing Judge erred in informing the appellant that he was intending to give a credit of two years for the early plea of guilty, but failed to do so in passing sentence. I find it extremely difficult to accept that such an experienced Judge as the learned sentencing Judge, having specifically indicated the credit he proposed to give, did not in fact give it. On that basis, it was submitted in the alternative that, if his Honour did give the credit to the appellant, this meant that the effective head sentence of a total of 14 years' imprisonment was manifestly excessive given the appellant's pleas of guilty, his remorse and his antecedents. It was submitted that the appellant was driven to commit the offences by his addiction and demonstrated genuine remorse and contrition during the video-recorded interview. Further, it was submitted that the appellant experienced extreme anguish as a result of his heroin addiction and that the offences were unwillingly committed to settle a debt with the appellant's heroin dealer and to feed his addiction. His early plea of guilty had saved the time and expense of a trial.
14 In Walsh v The Queen, unreported; CCA SCt of WA; Library No 960471; 26 August 1996, the applicant, who was aged 19 with no relevant prior convictions and who was addicted to drugs, was sentenced to an effective total of 10 years' imprisonment for seven armed robberies, one offence of stealing a motor vehicle, one offence of robbery while pretending to be armed, and a further offence of attempted armed robbery. On appeal, the total sentence was reduced to an effective sentence of imprisonment of eight years. While the targets in that case were fast food outlets, rather than banks, and the total amount involved was considerably less than in the present case, Wallwork J (with whom Rowland and Heenan JJ agreed) said at 9:
"In my opinion it could not be said that, in a case like this, a 10 year sentence for a mature adult of about 30 years would be too severe. If anything, perhaps, such a sentence could be said to be fairly lenient."
15 Later, in Miles v The Queen (1997) 17 WAR 518 it was accepted that the range of sentences commonly imposed in relation to a single offence of armed robbery, depending upon the circumstances, should be imprisonment for six to nine years, subject to any particular mitigating or aggravating factors. In Cork v The Queen, unreported; CCA SCt of WA; Library No 970664; 2 December 1997 at 6, Ipp J (with whom Pidgeon and Wallwork JJ agreed) said:
(Page 10)
- "In Miles v The Queen, White J observed that although, according to Norman v The Queen, unreported; CCA SCt of WA; Library No 9489; 1 February 1989, the tariff for a conventional armed robbery of a bank or similar premises was imprisonment for a period between five to seven years, 'the incidence of armed robbery has grown substantially and sentences have been firmed up, so that the present "tariff" for armed robbery seems to be in the range of six to nine years' imprisonment for a single offence depending upon the circumstances'. In particularly serious cases sentences of more than nine years have been imposed: see for example Smedley v The Queen, unreported; CCA SCt of WA; Library No 8077; 20 February 1990."
16 In Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 a total term of imprisonment for eight years for four offences of armed robbery committed at pharmacies by a 20 year old offender armed with a blood-filled syringe was upheld. In that case, I said at 18-19:
"The learned Judge made it clear that he proposed to allow a discount of 30 per cent on account of the applicant's early pleas of guilty. It follows that, absent the early pleas of guilty, the total sentence imposed would have been of the order of 12 years. Given the absence of any relevant prior record and the fact that he was aged 20 at the time the offences were committed, combined with extremely favourable references, including one from his former employer, his youth and other mitigating circumstances, would justify a further reduction in the applicant's sentence. On this basis, it would seem to me that the initial starting point adopted by the learned Judge must have been of the order of about 14 years. In the context of this case this was a very fair starting point. An alternative approach would have been to adopt a starting point of six or seven years for each offence and discount each of the sentences on account of the early plea of guilty and make a further reduction on account of the applicant's youth and all other mitigating factors. The resulting sentence would then need to be looked at in the light of the totality principle. On this basis I consider that a similar result would have been arrived at. In my opinion, taking into account all of the circumstances to which I have referred, including the use of the apparently blood-filled syringe and the prospects of rehabilitation, the total sentence of eight years was
(Page 11)
- not manifestly excessive. It was a sentence which was within an appropriate range and one which took account of all mitigating factors. It did not offend the totality principle, given that the total of the sentences for four armed robberies was no more than a sentence in the middle of the range for a single offence, subject to reduction on account of mitigating factors."
17 In the present case, although the appellant does not have youth and the absence of a prior record on his side, he has not previously committed offences of such seriousness.
18 In Eldridge v The Queen [2000] WASCA 41 the offender was sentenced to a total of 12 years' imprisonment for seven counts of armed robbery and two counts of armed robbery in company. In that case the targets of the offences were pharmacies. In the case of six of the offences the offender was armed with a machete. In two others he was armed with a replica pistol and, in the remaining offence, was armed with a knife. The offender was aged 22 and was sentenced to a total of 12 years' imprisonment taking into account the totality principle. The amounts of money involved in that case were considerably less than those involved in the present case. In that case Kennedy J (with whom Steytler and Wheeler JJ agreed) said:
"In my opinion, an overall effective sentence of 12 years' imprisonment clearly falls within the permissible range. It is undoubtedly a deterrent sentence; but a deterrent sentence was called for having regard to the number and nature of the offences of violence committed by the applicant."
19 At the time of committing the offences the offender was living with a woman in a de facto relationship which had been terminated. He had two young sons, aged approximately one year and two years from that relationship, and a five year old daughter from a previous relationship. He had only a small number of convictions for driving offences, for disorderly conduct and for resisting arrest. In addition, he had two convictions for more serious offences, namely of burglary, in respect of which he was fined the sum of $2,000 and an armed robbery in company in respect of which he was sentenced to imprisonment for a period of 18 months. In that armed robbery he had been an accomplice, with the role of keeping a lookout for his co-offender. In that case also, it was accepted that the offences had been committed principally to feed a severe heroin habit, although the offender was at the same time also using other
(Page 12)
- drugs. Again, the target of his crimes had been pharmacies, supplying a vital service to the community.
20 In Robertson v The Queen, unreported; CCA SCt of WA; Library No 990130; 19 March 1999 this Court upheld sentences of imprisonment for a total of 14 years with eligibility for parole in respect of a series of similar offences to those with which we are presently concerned. In Robertson the applicant was sentenced to imprisonment for a total of 12 offences comprising one offence of shoplifting, eight offences of robbery while pretending to be armed and three offences of attempted robbery while pretending to be armed. During November 1997 the offender had robbed four banks and attempted to rob a fifth. He was sentenced to imprisonment for five years in respect of each of the armed robberies, four years in respect of the attempted robbery while pretending to be armed and three months for the shoplifting offence, all of which were directed to be served concurrently with each other.
21 The remaining offences, being four offences of robbery and two of attempted robbery, all while pretending to be armed, attracted sentences of imprisonment each of five years for the offences of robbery, and the two attempts attracted sentences of four years. Five of those terms were directed to be served concurrently with each other, but cumulatively upon the first six terms. The remaining term of four years for an attempt was directed to be served cumulatively upon the other terms, producing a total sentence of imprisonment for 14 years. The offender was made eligible for parole in respect of each of the sentences imposed.
22 Robertson was aged 40 at the time of the commission of the offences. He had first appeared in court 10 days before his 14th birthday charged with stealing and receiving. Less than four years later he was sentenced to imprisonment for breaking and entering offences. During the next 20 years he appeared in courts of petty sessions charged with stealing and other offences of dishonesty. He was released on probation and was given the benefit of other non-custodial options but did not perform well. Until he committed the offences which came before the Court of Criminal Appeal, his longest sentence had been a term of imprisonment for 12 months which had been imposed upon him in May 1995. While this Court granted leave to appeal, the appeal was dismissed. In that case, Heenan J (with whom Pidgeon and Anderson JJ agreed) said:
"As his Honour pointed out, such offences are prevalent and the impact on the direct victims - the tellers and other employees of the institutions - can be devastating. When confronted by a
(Page 13)
- robber pretending to be armed one cannot judge whether the other truly represents a serious danger.
Five years imprisonment for the offences committed in November 1997 and for the earlier, shoplifting, offence and an additional five years for all but one of the six offences committed on 2 June 1998 is far from an excessive penalty. By any standards, imprisonment for 10 years is a lenient penalty for eight robberies, two attempted robberies and one shoplifting. However, the increase of that penalty by four years in respect of one attempted robbery produces a 'jump effect' which, at least at first glance, is surprising. But then one must appreciate that the prime object of the sentencer when dealing with a series of offences is to achieve a total penalty which is just and appropriate. The method by which that result is achieved is secondary. In this case, the same result could have been achieved by increasing the terms for each robbery to seven years and directing that the terms imposed in respect of each of the offences committed on 2 June 1998 take effect concurrently with each other. In that way the 'jump effect' would have been eliminated.
As I am not satisfied that the overall sentence is excessive, I would grant leave to appeal but would dismiss the appeal."
23 In my opinion, the totality of the offences by the present appellant was less serious than was the case in Robertson.
24 It needs to be borne in mind that this Court may not substitute its own opinion for that of the sentencing Judge merely because it would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice: Lowndes v The Queen (1999) 195 CLR 665 at [15].
25 In the present case, the learned Judge took the view that the appellant's pleas of guilty were not convincing evidence that he was remorseful, but were rather the result of a realistic appreciation of the strength of the case against him. At the same time, the learned sentencing Judge took into account the desperation of the appellant by reason of his addiction and the fact that he attempted to explain to his victims that he did not want to do what he was doing. At the same time, however, his
(Page 14)
- previous history indicated a continuing attitude of disobedience to the law which would justify placing some emphasis on punishment, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ.
26 Robberies committed under circumstances where a weapon is pretended to be used are to be regarded as very serious offences notwithstanding that an actual weapon was not used. It must not be lost sight of that the bank tellers involved, who are endeavouring to provide a service to the public, are put in a state of fear, notwithstanding the appellant's attempts to explain his circumstances; cf Wheeler v The Queen, unreported; CCA SCt of WA; Library No 920398; 22 July 1992 at 5 per Walsh J; and Robertson v The Queen, supra.
27 In my opinion, the two questions which arise in this case are whether the discount for the appellant's pleas of guilty was adequate and whether the overall sentence imposed offended against the totality principle.
28 A discount of two years on a total sentence of 14 years represents a discount of something over 14 per cent. While the pleas of guilty were not made at the earliest opportunity, counsel for the appellant explained to the learned Judge that he was originally charged with armed robbery in respect of each of the offences, on the basis that he had pretended to be armed. It was submitted that, in the circumstances, when the indictment was amended to reflect the true position, the appellant should nonetheless be given full credit for an early plea of guilty. During the course of argument the learned sentencing Judge said:
"He has saved time and expense of a trial and he has saved the stress and inconvenience to the witnesses of having given evidence. So it seems to me that it's hardly to the point really to consider whether it was made at the earliest opportunity or later."
29 In the result, however, the discount for the plea of guilty was less than 15 per cent, when discounts in the order of 20 to 30 per cent or even more are commonly given for an early plea. In the result, I consider that the overall sentence imposed was manifestly excessive and was a crushing sentence which did not give sufficient weight to the totality principle.
30 In my opinion, a reduction of something over 14 per cent for the plea of guilty in this case was manifestly inadequate and an appropriate discount would have been of the order of 25 per cent, or three years and six months, rather than the two years which was allowed. The application
(Page 15)
- of such a discount would reduce the overall sentence to one of 10 years and six months, which I would structure as follows. In respect of each of the two counts of robbery on 17 and 24 May 1999, I would impose a sentence of imprisonment of three years in each case. In respect of each of the two counts of robbery while pretending to be armed, being the offences committed on 28 May and 1 June respectively, one of which was committed in company, I would impose a sentence of five years in each case and for the offence of attempted robbery while pretending to be armed, I would impose a sentence of two years and six months. The sentences of three years should be concurrent with each other, as should the sentences of five years be concurrent with each other, but cumulative upon the sentences of three years. The sentence of two years and six months would be cumulative upon the other sentences, making a total of 10 years and six months. I appreciate that the way in which I have expressed the result does not, on the face of it, strictly accord with the process by which the totality principle is ordinarily taken into account when sentencing at first instance, as stipulated by the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623 - 624 per McHugh, Hayne and Callinan JJ. However, I would regard the individual sentences imposed by the learned Judge as representing an appropriate starting point from which I have discounted as I have indicated.
31 For these reasons, I would grant leave to appeal, allow the appeal and substitute the sentences which I have indicated. The order for eligibility for parole in respect of each of the sentences imposed would remain.
32 KENNEDY J: I have had the benefit of reading in draft the reasons published by the Chief Justice. I am in agreement with those reasons and with the orders proposed by his Honour.
33 STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be delivered by the Chief Justice. I agree with them and with his Honour's conclusions. I have nothing to add.
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