Pieri v The Queen
[2001] WASCA 357
•14 NOVEMBER 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: PIERI -v- THE QUEEN [2001] WASCA 357
CORAM: WALLWORK J
ROBERTS-SMITH J
EINFELD AJ
HEARD: 11 SEPTEMBER 2001
DELIVERED : 14 NOVEMBER 2001
FILE NO/S: CCA 267 of 2000
BETWEEN: MARIO GUISEPPE PIERI
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Armed robbery - Attempted armed robbery - Breach of recognisance - Possession of heroin - The range of sentences commonly imposed - The extent of a discount for a guilty plea - Concurrent or cumulative sentences - One transaction rule - Totality principle - Set aside sentences, impose sentences in lieu thereof - Confirm commencement date of sentence and eligibility for parole
Legislation:
Sentencing Act 1995 (WA), s8(2)
Result:
Leave to appeal granted
Appeal allowed
Category: D
Representation:
Counsel:
Applicant: Ms K J Farley
Respondent: Mr S E Stone
Solicitors:
Applicant: Unrepresented Criminal Appellants' Scheme
Respondent: Director of Public Prosecutions
Case(s) referred to in judgment(s):
Atholwood v The Queen (1999) 109 A Crim R 465
Attorney-General (SA) v Tichy (1982) 30 SASR 84
Brown (1982) 5 A Crim R 404
Carey (1975) 11 SASR 575
Cork v The Queen, unreported; CCA SCt of WA; Library No 970664; 2 December 1997
Coyne v The Queen, unreported; SCt of WA; No 2325 of 1978
Esteban v Wolpers, unreported; SCt of WA; 7376 of 1988; 16 November 1988
Haslam (unreported) 24.11.72, 4151/B/72
Jarvis v The Queen (1993) 20 WAR 201
Lewis (unreported) 3.7.72, 3119/B/73
Little v The Queen [2001] WASCA 87
McKeagg v The Queen [2001] WASCA 99
Miles v The Queen (1997) 17 WAR 518
Morgan (1971) 56 Cr App R 181
Norman v The Queen, unreported; CCA SCt of WA; Library No 9489; 1 February 1989
R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998
R v Ruane [1979] 1 A Crim R 284
Radebe v The Queen [2001] WASCA 254
Shaw (1989) 39 A Crim R 343
Smith [1972] Crim L R 124
Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
Ugle v Wells (1999) 106 A Crim R 452
Young [1973] CLR 585
Case(s) also cited:
Lowndes v The Queen (1999) 195 CLR 665
Pearce v The Queen (1998) 194 CLR 610
R v Peterson [1984] WAR 329
WALLWORK J: I agree with the reasons of Einfeld AJ and to the orders proposed by his Honour. There is nothing I wish to add.
ROBERTS-SMITH J: I have had the benefit of reading in draft the judgment of Einfeld AJ and I gratefully adopt his Honour's recitation of the facts of this matter and his outline of the proceedings before the learned sentencing Judge.
It is now well established that in the absence of some particular circumstance militating otherwise, an early plea of guilty should attract a substantial discount in sentence. In Atholwood v The Queen (1999) 109 A Crim R 465, Ipp J said (at [9]) that a bare plea of guilty, even at a late stage, is a mitigating factor.
Section 8(2) of the Sentencing Act 1995 (WA) stipulates that:
"(2)A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation."
In Little v The Queen [2001] WASCA 87 this Court said (at [13]):
"… It is well‑established that, for reasons which are so well‑known as not to require restatement, offenders must be rewarded, and really rewarded, for fast track pleas of guilty. The discounts usually fall between 25 per cent and 35 per cent, depending on the circumstances. The discount may be somewhat lower or somewhat higher in particular cases. In this case, we can see no reason why this applicant should not have been rewarded by a 25 per cent discount for his fast track pleas of guilty."
In response to a submission by the Crown that to allow the appeal and reduce the 10 year sentence by 1 year would be "tinkering" and so contrary to principle, the Court said (at [16] ‑ [17]):
"16 It is true that courts of criminal appeal do not tinker with sentences. There are basic reasons for this. They were explained recently in Morley v The Queen [2001] WASCA 49 at par 8. A court of criminal appeal must fully recognise the discretionary character of the sentencing function and must accord to sentencing judges
a wide measure of latitude. The discretion which the law commits to sentencing judges is of vital importance: Lowndes v The Queen (1999) 195 CLR 665 at 672; Postiglione v The Queen (1997) 189 CLR 295 at 336.
17In light of these principles, it would be a very rare case in which a court of criminal appeal determined that a sentence of 10 years was manifestly excessive and on that ground reduced it by only 1 year. However, that is not the exercise which is involved in this case. What this Court is concerned to do is to correct a failure to properly implement an important policy in the administration of criminal justice; namely, to encourage pleas of guilty by properly rewarding them when they are made. The applicant should have been given a 25 per cent discount for his fast track plea of guilty and it is no answer to say that to give it to him now will involve a relatively small reduction of the sentence."
For the reasons Einfeld AJ points out, there are sound public policy grounds why an early plea of guilty should earn a substantial discount on the sentence that would otherwise be imposed. I agree, with respect, with the observation of McKechnie J (with whom Malcolm CJ and Anderson J agreed) in Radebe v The Queen [2001] WASCA 254 at [18] that:
"… an early plea of guilty should always be rewarded, not because of any virtue in the individual, but as an acknowledgment that the early plea of guilty has a beneficial effect in an overcrowded criminal justice system."
I accept the appropriate discount will ordinarily be in the range of 25 per cent to 35 per cent: (see also Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995; Little v The Queen, supra; McKeagg v The Queen [2001] WASCA 99).
I agree that it is difficult to see here what allowance the learned sentencing Judge actually made for the pleas of guilty, however it can be tested in the following way.
The sentences of 7 years imprisonment for the two armed robbery offences cannot, in my view, be said to be outside the range of a proper exercise of the sentencing discretion (although at the high end given the circumstances) and nor was that of 3 years imprisonment for the attempted armed robbery. I would not interfere with these sentences on that account.
Had his Honour then reduced each of them by 25 per cent for the "fast track" pleas of guilty, the result would have been two sentences of 5 years 3 months and one of 2 years 3 months (a total of 12 years 9 months). An order that the sentences for the two armed robberies be served concurrently (to take account of the pleas of guilty and the principle of totality) and the sentence of 2 years 3 months be cumulative, would produce an aggregate sentence of 7 years 6 months.
Bearing in mind that his Honour ordered the two armed robbery sentences to be concurrent so as to accommodate both the applicant's pleas of guilty and the totality principle, it is apparent that his allowance for the guilty pleas was necessarily substantially less than 25 per cent. He identified no particular reason why that should be so and there was nothing in the material before his Honour which would have afforded such a reason. The conclusion must be, I think, that his Honour erred in that he failed to make an adequate reduction in the applicant's sentences for his "fast track" pleas of guilty.
On the question whether all the sentences should have been concurrent, I do not, with respect, share the view of Einfeld AJ.
Where a number of offences arise out of the same transaction the sentences imposed should usually be made concurrent (Ruane v The Queen (1979) 1 A Crim R 284). However, the fact that a number of offences are committed soon after one another in time does not make them part of the one transaction in the sense in which that expression is used in this context (Coyne v The Queen, unreported; SCt of WA; No 2325 of 1978), although there is a practice of often treating a succession of crimes, each being the commission of the same or closely related offences, committed within a short space of time, as appropriate for concurrent sentences (Esteban v Wolpers, unreported; SCt of WA; 7376 of 1988; 16 November 1988).
A number of authorities were usefully collected by White J in Ugle v Wells (1999) 106 A Crim R 452. That included Esteban, in which Nicholson J referred to Brown (1982) 5 A Crim R 404, 407 and Attorney-General (SA) v Tichy (1982) 30 SASR 84 in which Wells J pointed out (at 92 ‑ 93) that sometimes a number of acts by an offender can be technically identifiable as specific separate offences but yet comprise a single multi‑faceted course of criminal conduct; conversely those separate acts may comprise two or more courses of criminal conduct that may properly be characterised as separate invasions of the community's right to peace and order. In the former situation concurrent sentences will usually be just and convenient; in the latter situation cumulative sentences will generally be appropriate.
In Ugle v Wells, White J also set out the following passage from R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998 at 21 ‑ 23:
"As to when it is proper to make an order for cumulative service of a sentence, courts in this jurisdiction have always been guided by the general rule which is sometimes referred to as the "one transaction" principle. The nature of the rule was clearly stated by Wallace J in Ruane v R (1979) 1 A Crim R 284 at 286 where his Honour said:
'Whilst it is true that where several offences are tried together and arise out of what one may call the same transaction, it is a good working rule that the sentences imposed for those offences should be made concurrent, the reason therefore is that if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question. That is only an ordinary working rule; ...'
His Honour relied upon the decision of the English Court of Appeal in Kastercum v R (1972) 56 Cr App R 298. The judgments of Jones and Brinsden JJ in Ruane were to the same effect.
In Shaw (1989) 39 A Crim R 343, the judgments of Brinsden and Rowland JJ, with whom Malcolm CJ agreed, refer to the general principle and Ruane was followed. At 347, referring to the text by Thomas, Principles of Sentencing (1st ed, 1970), Brinsden J said that:
'... the fact that two offences occur close together in time does not necessarily mean they will be treated as part of the one incident, 'if they are essentially different in character and involved different subject matter'. At p53 by the same author, it is stated 'where two or more offences are committed in the course of a single transaction, all sentences
in respect of these offences should be concurrent rather than consecutive'. That is because the offences, when taken together, constitute a single invasion of the same legally protected interest. But the fact that offences are committed simultaneously, or close together in time, does not necessarily mean they amount to a single transaction'."
In the present case the three offences admittedly occurred over the short space of just over a week and were commonly rooted in the applicant's desperate personal and financial circumstances, but they were perpetrated on separate victims in different banks. They were, to use the language of Wells J in Attorney‑General (SA) v Tichy, "separate invasions of the community's right to peace and order", thus calling for cumulative sentences to reflect that fact. It cannot be said that the learned sentencing Judge erred in taking that view. His order that the sentences for the two armed robbery offences be served concurrently was appropriate to avoid an aggregate sentence which would otherwise have been crushing for the applicant and disproportionate to the overall criminality of this series of offences regarded as a whole.
Given my conclusion that the exercise of his Honour's discretion miscarried, it would fall to this Court to resentence the applicant for the two armed robbery and one attempted armed robbery offences.
Approaching that task anew, I would consider 7 years to be too high for the armed robbery offences having regard to the circumstances as they have been set out by Einfeld AJ. In my view the appropriate sentence would be 6 years imprisonment which I would then discount by 25 per cent (ie 1 year 6 months) for the plea of guilty in each instance giving a sentence of 4 years 6 months. I would consider 3 years imprisonment for the attempted armed robbery appropriate, to be discounted similarly (by 9 months) to 2 years 3 months, and I would order the sentence for the second armed robbery to be concurrent with that for the first and that the sentence of the attempted armed robbery be served cumulatively. That would produce an overall sentence of 6 years 9 months imprisonment which I would consider to be an appropriate reflection of the overall criminality involved in these offences. I would confirm his Honour's order that the sentences (other than for the attempted armed robbery) date from 4 September 2000 and that the applicant be eligible for parole.
EINFELD AJ: On 24 August 2000 the applicant entered the East Victoria Park branch of the Challenge Bank and handed a female teller a
handwritten paper stating that he was armed and requiring her to place money into a bag and give it to him. The teller put $2,205 into a bag and gave it to the applicant who then left the bank in a taxi.
On 31 August, the applicant entered the Bentley branch of the National Australia Bank and went through the same procedure. The applicant became agitated at the time being taken by the teller, asked for the note back and left without any money.
On 1 September, he undertook the same operation at the East Victoria Park branch of the National Australia Bank. This time the teller handed him $7,060 in a calico bag into which she had placed, without the applicant's knowledge, a dye bomb. Shortly after, the bomb exploded but the applicant decamped in a car taking the bag and the money with him.
On 4 September, police apprehended the applicant in a flat at St James where they located the calico bag of the National Australia Bank and a quantity of money and other items stained with the pink dye from the dye bomb. He was taken into custody and later interviewed by police when he admitted the two armed robberies and the single attempt at armed robbery. Some $4,015 of the stolen money was recovered. He was subsequently charged with the three offences.
He pleaded guilty to an indictment for the offences on 5 December 2000 before the Supreme Court and was convicted. He also asked the Court to take into account on sentence, pursuant to a s 32 notice, a failure to attend a Court of Petty Sessions about four months earlier in breach of a condition of bail granted for an alleged burglary/attempted fraud and possession of a small quantity of heroin for personal use. The court sentenced him to 7 years for each of the two armed robberies to be served concurrently and to 3 years for the attempted armed robbery cumulative on the first sentence of 7 years. As to the two s 32 matters, although Crown counsel stated in opening to the learned sentencing Judge that fines were appropriate for both, the applicant was sentenced to 4 months' imprisonment for the breach of his recognisance and to 6 months for possession of heroin, both to be served concurrently with the other sentences. The total sentence was thus 10 years to date from 4 September 2000 and the applicant was declared eligible for parole.
On 10 December 2000, the applicant gave handwritten personal notice of an application for leave to appeal against this sentence which he described as "crushing" and unjustified by either the circumstances of the offence, his subsequent conduct, his past criminal record, or his personal situation. Subsequently on 4 September 2001, the Unrepresented Criminal Appellants' Scheme (UCAS), on behalf of the applicant, filed amended grounds of the application. In deference to the able argument by Ms Farley of UCAS on each of these grounds, I shall deal with them individually.
The overall argument was that the sentence was manifestly excessive. It was said that insufficient allowance was given for the early or "fast track" plea of guilty, for the remorse demonstrated, for the applicant's problematic and difficult personal circumstances, and for the lack of any previous history of violence despite a fairly long record of past offences. The applicant also argued that the order for a cumulative sentence in the case of the attempted robbery was unjustified in itself as it was part of the same criminality as the two actual robberies. He contended that the effect of cumulation was to make the final sentence disproportionate to the totality of criminal conduct involved in these offences which should have been treated as one course or undertaking because they were so closely related in time, type and location.
The following facts were not challenged or were admitted or found. At the time of the offences, the applicant was not in fact armed. He was 32 years of age and had a de facto wife of some 10 years who was then in prison for driving while suspended. They were both heroin addicts and had a baby daughter of about 10 months. When his wife went to prison, the baby was collected from the East Perth lockup by her parents who then took care of her. The applicant and his family had earlier lost the place where they had been living because the actual tenant who had sublet to them was evicted. Centrelink then stopped the benefits it had been providing because the family could not provide a permanent or stable address.
The burglary with which the applicant had been charged was said to have taken place in mid‑April 2000. The pawning of some of the allegedly stolen property led to the charge of attempted fraud. He had pleaded not guilty to those charges and had been bailed. His failure to answer to his bail occurred because he lost the bail papers.
Just prior to these events and after the applicant and his family had become homeless, he had not eaten for three days. He telephoned his mother for help but she had been seriously ill for several years and could not assist at the time as she had sometimes been able to do in the past. She was in and out of hospital several times and at about the time of the first armed robbery she was admitted to Royal Perth Hospital in intensive care. The applicant was seriously stressed by his mother's serious illness and hospitalisation, his wife's imprisonment, the loss of his daughter, the effects of his drug dependence and, of course, his impoverished situation. He had numerous bills to pay including drug debts for which he had been threatened. He spent the proceeds of the first robbery on:
(a)the taxi that took him away from the scene;
(b)three days' accommodation in a cheap hotel;
(c)some drug debts.
It left him with only about $130. He realised that he would need some more money. At the second bank, he became scared and left without any money. Of the proceeds of the second robbery from the third bank, he spent some on heroin and some on accommodation. The $4,015 recovered was, by order of his Honour, returned to the bank. Although some driving offences took place earlier, the applicant's extensive criminal record commenced in 1985. While most of the offences committed were traffic‑related and relevantly minor, he has in fact served various terms of imprisonment, the largest being 12 (or 15) months for two counts of burglary in 1996 and 12 months for driving without a licence and whilst under suspension in 1998. In a letter provided to his Honour at the time of his sentencing, the applicant explained that he obtained the idea of these crimes from a fellow prisoner and that his problems and hunger at the time they were committed befuddled his mind.
The applicant is a qualified panel beater and has frequently been in employment over the 10 years prior to these offences. He was previously married but has been divorced for 10 years. His ex‑wife has not let him see the two children of that union. In his letter to his Honour, he committed himself to doing his best to rid himself of his drug addiction and to restore his family situation as soon as he could. He asked for a non‑custodial sentence or a lenient term of imprisonment to enable him to commence that difficult task.
Good public policy such as encouraging the confession of guilt, saving court time and expense, and alleviating the consequences of crime to victims has made it now well settled that an early plea of guilty will normally earn a substantial discount for the sentence that would otherwise be imposed. And recent decisions have indicated that the reduction should be of the order of 25 per cent to 35 per cent: Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995; Little v The Queen [2001] WASCA 87; McKeagg v The Queen [2001] WASCA 99. Although the learned sentencing Judge said that he was making "substantial" allowance for the early pleas of guilty, it is difficult to see how much allowance he actually made as he did not reveal his reasoning process or calculations. On the other hand, the maximum penalty for armed robbery is life imprisonment and for attempts is 14 years. The applicant submitted that the allowance was only in the concurrency order as demonstrated by the remark made on sentence that:
" ... as part of the process of affording credit for the pleas of guilty and to avoid a sentence which is in its totality too great, the order of this Court is that [the] sentence [on the second armed robbery conviction] will be served concurrently."
In Norman v The Queen, unreported; CCA SCt of WA; Library No 9489; 1 February 1989, it was said that armed robbery of a bank without exceptional elements should attract a term of 5‑7 years' imprisonment. However, by the time of Miles v The Queen (1997) 17 WAR 518 and Cork v The Queen, unreported; CCA SCt of WA; Library No 970664; 2 December 1997, it was said that because the incidence of this crime had grown substantially in recent years, a further deterrence was necessary such as to raise the applicable range to between 6 and 9 years' imprisonment. 7 years is within that range but does not manifest a discount or allowance for the early pleas that the authorities direct is appropriate. In my respectful opinion, the learned sentencing Judge erred in not providing for any or any adequate discount for the early pleas of guilty
In addition to dismissing the applicant's assertions of remorse, his Honour also seems to have given little or no weight to his extraordinarily desolate personal situation. The learned Judge's decision to provide for cumulation of the attempted robbery was not explained. Although they were made concurrent and are therefore of no concern to this application, neither was his Honour's decision to provide terms of imprisonment for the two additional offences on the s 32 notice, despite the Crown's suggestion of the appropriateness of fines. His Honour regarded the applicant's prior criminal record as indicating his danger to the community if he was not heavily punished even though most entries on his record were victimless offences.
It is well settled that sentencing is very much a matter of discretion for the trial Judge and authorities in relation to sentences in other matters and other circumstances, while often helpful, are not binding in the same sense as are decisions on the substantive law:
Ugle v Wells (1999) 106 A Crim R 452 per White J at 456. The power of the Court to order sentences to run consecutively is subject to two major limiting principles, usually called the "one transaction rule" and the "totality principle".
The one transaction rule
In "Principles of Sentencing" 2nd Ed 1979, p53, D A Thomas says that:
"Where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive."
Again, in Brown (1982) 5 A Crim R 404 at 407 Forster CJ said:
"When a number of offences arise from substantially the same act or same circumstances or a closely related series of occurrences, cumulative penalties should not be imposed."
The question is whether the offences arise "out of the same facts" so that they should be concurrent or whether they are "entirely distinct" so that they should be cumulative: Carey (1975) 11 SASR 575 at 577.
In R v Ruane [1979] 1 A Crim R 284 at 286, Wallace J said:
"Whilst it is true that where several offences are tried together and arise out of what one may call the same transaction, it is a good working rule that the sentences imposed for those offences should be made concurrent, the reason therefor is that if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question."
His Honour quoted from Archbold 38th ed at par 637:
"Ordinarily two consecutive sentences should not be passed for two offences which arise from one and the same act."
The essence of the one transaction rule thus appears to be that consecutive or cumulative sentences are inappropriate when all the offences taken together constitute a single invasion of the same legally protected interest. On the other hand, the court has also said that consecutive sentences should normally be imposed where robbery is committed by persons in possession of firearms and where one offence is committed while the offender is on bail in the course of proceedings for another offence: Young [1973] CLR 585.
Difference in character of offences
This principle certainly applies where two or more offences arise from the same set of facts: Thomas, ibid. But it also operates when the criminal escapade is one and the same undertaking. In Shaw (1989) 39 A Crim R 343 at 347, Brinsden J quoted from Thomas, page 50:
"The fact that two offences occur close together in time does not necessarily mean that they will be treated as part of one incident, if they are essentially different in character and involve different subject matter."
Similarly in Ruane, Wallace J said that offences occurring close together in time are not necessarily part of one incident, and might call for the imposition of consecutive sentences. The matter was conveniently summarised by Wells J in A-G (SA) v Tichy (1982) 30 SASR 84 at 93:
"What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient."
Moreover, the concept of a single transaction may be held to cover a sequence of offences involving a repetition of the same behaviour towards the same victim provided the offences are committed within a relatively short space of time: Lewis (unreported) 3.7.72, 3119/B/73 (as referred to by D A Thomas in "Principles of Sentencing" 2nd ed, 1979 at 54).
The totality principle
In Haslam (unreported) 24.11.72, 4151/B/72 (as referred to by D A Thomas in "Principles of Sentencing" 2nd ed, 1979 at 56), it was held in enticingly practical terms:
"When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong."
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate": Smith [1972] Crim L R 124. Put simply, the totality principle requires that the aggregate sentence be proportionate to the degree of criminality involved: Jarvis v The Queen (1993) 20 WAR 201 at 205 and 212. Ugle says at 457:
"It is necessary to look at the total of the sentences and to determine whether it is excessive for the criminality of the conduct involved."
By contrast, Thomas says at pp57‑8 that a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.
The first limb of the principle can thus be seen as an extension of the central principle of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation. In other words, the aggregate sentence should not be longer than the upper limit of the normal bracket of sentences for the category of cases in which the most serious offence committed by the offender would be placed, while a sentencer imposing a series of consecutive sentences must consider the mitigating factors such as the offender's youth, remorse or record in relation to the totality of the sentence, even though they have already been considered in relation to the individual component parts. An example of a court exercising the principle of mitigation would be to give an offender the benefit of his youth and reduce his sentence: Morgan (1971) 56 Cr App R 181.
These principles throw up some difficult issues for this case. The authorities do not seem to address expressly the possibility of making some sentences partly cumulative and partly consecutive yet such a concept is clearly possible at least as part of the exercise of discretion and the application of the totality principle. Whichever way it is supported, it is my view that a version of this concept is appropriate here. In my opinion, the learned sentencing Judge erred in not treating the attempted robbery as at least part of the same general course of conduct as the actual robberies such as to require at least a meshing of sentences. All the offences took place in the one week, they were all committed in nearby suburban banks, and they were all driven by the applicant's stressed and impoverished situation.
I would grant leave to appeal the sentences imposed. In the absence of any victim impact statements suggesting that these offences caused lasting damaging consequences for the bank tellers involved, I agree that his Honour's fixing of 7 years for the two armed robberies to be served concurrently was fair and appropriate punishment for the criminality involved. However, I would make a 25 per cent allowance for the early pleas of guilty resulting in a reduction in the sentences of 1 year and 9 months to 5 years and 3 months.
Again, the sentence of 3 years for the attempt appears to me to evince no error in itself but it too should be reduced by 25 per cent for the guilty plea to 2 years 3 months. For the reasons given, including the totality principle and the fact that there were three different offences committed in different places on different days, I believe that the circumstances called for a partially concurrent sentence. I therefore propose that the sentences imposed for the two armed robbery convictions be set aside and that in lieu thereof the applicant be sentenced to two terms of 5 years and 3 months to be served concurrently. I would set aside the order that the sentence for the attempted armed robbery be served cumulatively on the other sentences and in lieu thereof order that 1 year be served concurrently with them and 1 years 3 months cumulatively. I would confirm his Honour's order that all sentences date from 4 September 2000 and that the applicant be declared eligible for parole. The result is that the applicant's maximum sentence will be 6 and a half years from 4 September 2000 which will expire on 3 March 2007.
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