McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd

[1980] FCA 159

Re: THE QUEEN
And: ANTONY VALENTINI and GORDON JAMES GARVIE (1980) 48 FLR 416
Nos. NTG 15-16 of 1980
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Muirhead(1) and Evatt(1) JJ.

CATCHWORDS

Criminal Law - Sentences - Whether too lenient - Whether suspended sentences appropriate - Interference with discretion of trial judge.

The Criminal Law Consolidation Act and Ordinance, s.28;

Criminal Law and Procedure Ordinance 1978, s.7; Criminal Law

(Conditional Release of Offenders) Ordinance, s.6.

Criminal Law - Sentencing - Crown appeal - Matters trial judge should take into account - Whether appellate court should interfere with discretion of trial judge - Criminal Law Consolidation Act and Ordinance 1876 (N.T.), s. 28 - Criminal Law and Procedure Ordinance 1978 (N.T.), s. 7 - Criminal Law (Conditional Release of Offenders ) Ordinance 1971 (N.T.), s. 6.

HEADNOTE

Held, that the sentencing judge was invested with a discretion which entailed the balancing of competing alternatives of sentencing. To provide protection for society which is the dominant theme of sentencing, the sentencing judge must balance retribution, deterrence and rehabilitation. Further, the judge must ensure that he imposes the minimum term consistent with the attainment of the relevant purpose of sentencing taking care that he punishes only for the crime or crimes before him. Channon v. The Queen (1978), 33 F.L.R. 433; R. v. Geddes (1936), 36 S.R. (N.S.W.) 554; R. v. Goodrich (1952), 70 W.N. (N.S.W.) 42; R. v. Cuthbert (1967), 86 W.N. (Pt 1) (N.S.W.) 272, applied.

HEARING

Sydney, 1980, August 27; November 13. #DATE 13:11:1980

APPEALS.

Crown appeals on sentence from the Supreme Court of the Northern Territory (Gallop J.).

F. Gaffey, for the appellant.

M. Ward, for the respondents.

Cur. adv. vult.

Solicitor for the appellant: G. R. Nicholson, Crown Solicitor for the Northern Territory.

Solicitors for the respondents: Loftus & Cameron.

R. W. DAVIS

ORDER

THE COURT ORDERS THAT the appeals be dismissed.

Appeals dismissed.

JUDGE1

These are two appeals by the Crown pursuant to para.24(1) (b) and sub-s.28(5) of the Federal Court of Australia Act 1976 against sentences imposed by a judge of the Supreme Court of the Northern Territory on 4 July 1980. It was agreed the appeals should be heard together. The respondents pleaded guilty to charges of armed robbery and shooting with intent under s.163 of The Criminal Law Consolidation Act and Ordinance and s.28 of that Act in conjunction with s.7 of the Criminal Law and Procedure Ordinance 1978. The learned trial Judge sentenced each respondent to two years imprisonment with hard labour on each charge, such sentences to be served concurrently. No non-parole period was fixed but execution of the sentences was suspended upon each respondent entering into his own recognizance in the sum of $5,000 to be of good behaviour for a period of two years. His Honour added the further conditions that the respondents submit to the supervision of the Director of Correctional Services or some other officer nominated by him either in the Northern Territory or South Australia and that they obey that officer's directions about where they were to live and work and with whom they were to associate.

The grounds of the Crown's appeal are as follows:

That the trial Judge erred in:

(a) imposing a manifestly inadequate sentence upon the respondents;

(b) failing to give proper consideration to the retributive aspect of sentencing;

(c) failing to give proper consideration to the deterrent aspect of sentencing.

Prior to the enactment of the Federal Court of Australia Act 1976 no appeal against sentence by the Crown lay in respect of a sentence imposed by the Supreme Court of an Australian Territory. In R. v. Tait and Bartley (1979) 24 A.L.R. 473 at pp.475-476 the Court considered that the principles limiting the exercise of an appellate court's jurisdiction with respect to a discretionary sentence were the same whether the Crown or the convicted person was appealing. The principles the Court took to be applicable were those expressed in Cranssen v. R. (1936) 55 C.L.R. 509 and Harris v. R. (1954) 90 C.L.R. 652, followed by the Federal Court in Kovac v. R. (1977) 15 A.L.R. 637. In Cranssen v. R. (supra) at pp.519-520, it was stated by the Court:
"The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in due and proper exercise of the court's authority."

In Griffiths v. R. (1976-1977) 137 C.L.R. 293 at p.310 Barwick C.J. reiterated this approach in relation to the New South Wales Court of Criminal Appeal, a court like the Federal Court, invested with a general power on appeal. He said (at p.310):
"Inadequacy of sentence, an expression not found in the Criminal Appeal Act but which is the form in which the ground of the Attorney-General's appeal is expressed, is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such an inadequacy in the sentence as is indicative of error or departure from principle."

There is an additional factor in an appeal by the Crown. As was stressed in R. v. Tait and Bartley (supra) a Crown appeal against sentence puts the offender in a "double jeopardy" situation - his "freedom" is put in jeopardy before the trial judge and on appeal. Their Honours there said (at p.477):
"Although the existence of error is the common ground which entitles the appellate court to intervene in appeals by the Crown and by the defendant . . . , there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him."

We turn now to the facts. On Friday 18 April 1980 at approximately 8.45 p.m. the respondents bought ladies panty hose and rubber gloves at the Casuarina Shopping Centre. In his record of interview Antony Valentini (the first respondent) said that he and Gordon Garvie (the second respondent) had gone to Casuarina Beach at about 8.00 p.m. to drink and talk. It appears that they hatched a somewhat indefinite plan early in the night which matured in their minds after the above purchases and before midnight.

At about that time the respondents returned to the flat they shared to collect a replica Colt .45, a 12 guage shotgun and a knife. The Colt was incapable of being fired but looked the genuine article, the shotgun was in working order and the first respondent took two of the appropriate shells to arm it.

The pair had decided that their object that night was to be Booby's take-away food bar attached to a service station in Bagot Road, Darwin. Although this road is a main one, Booby's is situated at the northern end, is relatively isolated and adjacent to a large area of scrub. The respondents drove past Booby's then parked their car in Coconut Grove, a street parallel to Bagot Road and walked back to the scrub area behind the premises. They proceeded through the scrub, around the back of Booby's, jumped the back fence and hid behind a front-end loader parked there. They waited for approximately two hours for the take-away to close. During this time they noticed the proprietor's car and a child going to it, who listened to the car radio for a time and then returned to the premises, leaving the keys in the car.

When the shop had apparently closed the respondents proceeded around the back of the toilets and in the back door. In the record of interview of the second respondent he said he had hesitated at the door but when the first respondent went forward he went with him. They burst into the establishment wearing stocking face masks, rubber gloves and carrying their arms. Garvie had the knife and Colt and Valentini the shotgun which was loaded a few minutes before with the two size four shot Browning shells. The shotgun was on "safety" and it was apparently not pointed directly at anyone though Garvie pointed the Colt at two women, the occupants of the take-away at the time. The women called for the man of the house who came out of the kitchen. Valentini gave him a plastic bag and told him to fill it with money. The proprietor handed over a total of about $160.00 apparently mostly in change.

During this time the proprietor's daughter, who had been in another room, noticed what was happening and contacted the security guard at the premises next door. The respondents fled hearing cars starting up outside. They used the proprietor's car and it was damaged in the process of escaping from the security guard who had blocked their passage. Garvie drove the escape car and the security guard gave chase. During the pursuit, Valentini leaned out of the passenger's window and fired two shots from the shotgun in the direction of the security guard's car. Although in Valentini's record of interview he said the vehicle was two hundred yards behind, it was struck by some of the pellets.

The respondents left the escape car at the corner of Coconut Grove, separately diving into the bush and making their way to their own vehicle. The Colt, knife and stockings were left in the escape car and the shotgun and the money were dumped by Valentini in the bush. The respondents drove their own car home, cleaned up and went to Casuarina Police Station to report the theft from their flat of the shotgun, revolver and knife. Not long after they were charged.

From these facts it should be noted that the respondents had planned a robbery from at least the time they purchased the gloves and panty hose at 8.45 p.m. approximately five and a quarter hours before the hold up. Some two hours was spent behind the front-end loader outside Booby's observing and noting a convenient get-away vehicle. The evidence shows that the respondents had contemplated the effect of carrying weapons and although the shotgun was not loaded until just before entering Booby's, the shells had been collected with the shotgun a couple of hours beforehand. The pair made use of the proprietor's vehicle in escaping and although it was claimed there was no intention at any time to hurt or maim anyone, the first respondent was prepared to discharge the shotgun in the direction of the vehicle pursuing them.

A motive for the above escapade appears to be a mixture of shortage of funds and bravado. Valentini in his record of interview said: "I'm an adventurer, I like thrills, and I wasn't quite sober.". Garvie, when asked "Can you tell me your reason for going to the shop, Booby's I mean", replied "I need of money" (sic). The pair had apparently chosen Booby's "because it was open", and they expected, according to Garvie, to get four or five hundred dollars.

We do not believe that the learned trial Judge was mistaken as to any of the above facts or the enormity of the crime committed. He said "The facts of the offences warrant gaol, and substantial gaol.". However, there was much more than simply the facts of the offences before him and it is only by examining the personal facts relating to the individual accused that any judge can arrive at a sentence.

The task of a sentencing judge is not an easy one. He is invested with a discretion which entails the balancing of the often competing alternatives of sentencing. It has been said many times that the dominant theme in sentencing is to provide protection to society. To achieve this, the sentencing judge must balance retribution - in the sense of the infliction of a just punishment to express the moral outrage of the community: deterrence - of the particular offender and others in the community who may consider similar action: and rehabilitation - ensuring that the sentence imposed is consistent, if possible, with the offender's returning to society as a contributing member. This delicate process is often complicated by the need to have regard for a uniform and national approach to sentencing, "a consistent correlation", while looking to society - with whose moral outrage and protection the judge is immediately concerned and the individual offender himself. The judge must ensure that he imposes the minimum term consistent with the attainment of the relevant purposes of sentencing taking care that he punishes only for the crime or crimes before him.

We would refer to the judgment of Brennan J. in Channon v. R. (1978) 20 A.L.R. 1 at p.5 where his Honour cited R. v. Geddes (1936) 36 S.R. (N.S.W.) 554, R. v. Goodrich (1952) 70 W.N. (N.S.W.) 42 and R. v. Cuthbert (1967) 86 W.N.(N.S.W.)(Pt.1) 272. There are many other cases attempting to analyse the task involved and debate has ranged constantly over the field of sentencing aims; whether punishment deters, whether "retribution" is a legitimate aim, whether rehabilitation should be the primary concern. But it is the interaction of the facts with the perception of societary circumstances that in each case provides the sentence which the judge considers will best protect and reassure society.

To state the matter in a summary way, it was submitted for the Crown that the trial Judge had failed properly to direct himself to the question of deterrence and retribution and wrongly allowed the question of rehabilitation to overweigh other considerations, that he had not paid sufficient regard to the seriousness of the offences which were committed with a degree of deliberation and premeditation, and that two years to be served concurrently for each of the offences charged was grossly inadequate as a head sentence even if it had been imposed to be served. It was also submitted that his Honour had failed to take into account the motive of the offenders, which it was said was to get money.

Dealing with the last point, we do not consider his Honour overlooked any point on motive. The fact that having regard to the circumstances he found difficulty in accepting the need for money as an adequate explanation of what occurred, does not indicate error to us.

Turning to the sentences imposed, we are not persuaded that his Honour, who is a judge of great experience in criminal matters, failed to take properly into account the questions of deterrence or retribution. We agree that the head sentences appear to be lenient, but we do not consider that in the circumstances disclosed they were so disproportionate as to afford convincing evidence that in some way his Honour's exercise of his discretion was unsound.

The robbery was premeditated, it involved the threat of violence, a car chase and the discharge of a firearm. The offences were very serious and potentially very dangerous. The sentences at first sight seem hardly to cater for the aim of general deterrence and to express society's disapproval through a just punishment. On the other hand, the trial Judge was confronted with a large volume of character evidence on behalf of each respondent.

The respondents had known each other for many years and both were brought up in small towns in South Australia. His Honour was confronted with many character references from family friends of both respondents all adverting to their loving and respectable family backgrounds and their consequent good characters. Pre-sentence reports of the respondents underlined the family backgrounds and likely future support from family and friends, recommending that imprisonment would be detrimental and stating that neither respondent would be likely to offend again. There is no doubt that both showed genuine remorse for their actions and assisted the Police in every way. Neither has a previous offence and both are young, Valentini being 22 and Garvie 21 at the time of the offence.

His Honour was obviously heavily influenced by the character evidence. Though he appreciated the respondents' shortage of funds and acknowledged Valentini's propensity for thrill seeking, he expressed bewilderment given the family backgrounds that those factors were explanations of motive.

They had already spent ten weeks in gaol awaiting sentencing, showing contrition and providing assistance in every way. The trial Judge had a distinct advantage over this Court, seeing the offenders, speaking to them and assessing their demeanour and attitude to their crime. We do not think that the learned trial Judge made an error of principle in that regard. We have no doubt that he rightly considered that prison would only have a detrimental effect on these young men's lives. To recall them at this stage to gaol in the Northern Territory from freedom in South Australia would certainly operate adversely to the aim of rehabilitation. We would be reluctant to interfere with the suspension of sentence. As to protecting the community, both respondents proposed to return to their respective families in South Australia. His Honour may have thought that by imposing sentences designed to get these young men back to their homes, back to family supervision, he might best protect society from what might be the result of their spending a long time in prison.

On the question of general deterrence and retribution, the sentences imposed were sentences of imprisonment although they were suspended. Such a sentence carries the usual consequences for the respondent's record and future (see Elliott v. Harris (1976) 70 L.S.J.S. 227). If a respondent commits a breach of his recognizance at any time during its currency he may be brought back and sentenced under the Criminal Law (Conditional Release of Offenders) Ordinance s.6 to a term not exceeding the head sentences imposed upon him. The fact that the nature of such a sentence is some times publicly misunderstood and, at times underrated, does not seem to be a proper ground for increasing it.

So far as the local community, where the offence occurred is concerned, it was not suggested the offence of armed robbery was prevalent. The figure given was that there had been three such offences in ten years, including the offence before the Court.

In the result, while as we have said, we regard the sentences as lenient, we do not consider that in accordance with the principles we follow in considering such appeals, we should interfere.

We are of opinion the appeals should be dismissed.