R v Aaron Abraham Schulz No. Sccrm-02-381

R v SHULZ
[2003] SASC 9
Court of Criminal Appeal: Perry, Williams and Bleby JJ

PERRY J. (ex tempore) This is an appeal against the sentence imposed in the District Court on a charge of armed robbery.
The appellant was jointly charged with another man, whom I will call F. The particulars alleged in the information were that, on 27 May 2002, at Goodwood, being armed with an offensive weapon, namely a handgun, they robbed Stewart Justin Lovie of $26804.20 contrary to s158a of the Criminal Law Consolidation Act 1935.
F pleaded not guilty and is still awaiting trial.
The appellant pleaded guilty in the Magistrates Court and was committed for sentence in the District Court. The sentencing judge imposed a sentence of imprisonment for five years, against which he fixed a nonparole period of two years and six months. He refused a request by counsel for the appellant to suspend the sentence.
The appellant advances two grounds of appeal:
“1.The learned sentencing judge erred in not suspending the term of imprisonment given:-
(a) the plea of guilty;
(b) the level of co-operation and assistance provided to the authorities.
2.The sentence was manifestly excessive in all the circumstances.”
Turning to the circumstances, it must be said that they were unusual.
The appellant and F were employed by a security company which provided their services as security guards to the Goodwood Park Hotel. The sentencing judge accepted that it was F who first mentioned the possibility of committing a robbery at the hotel. At first, the appellant did not think that F was serious about it, but eventually it was clear that he was serious. The appellant became involved in the planning. Between them, they obtained equipment to be used in the robbery, including binding tape, a balaclava and a replica handgun.
The robbery occurred in the early hours of the morning of 27 May 2002. I will describe the robbery by paraphrasing the description of it given in the course of the sentencing judge’s remarks on sentence.
The appellant and F had been working as security guards at the hotel during the preceding night and remained there while stocktaking was in progress. While the manager was doing the stocktake, the appellant changed his clothes for the purpose of carrying out the robbery. The plan was that the appellant would be the one to actually carry out the robbery, and F was to pose as a victim. Once the manager had been subdued, F would actively participate in taking the money.
The appellant donned the balaclava. He threatened the manager with the replica pistol, speaking menacingly to him, and tied him up and blindfolded him. While the manager was lying down, both the appellant and F kicked him. After the appellant had taken the money, F hit him so that it would appear that he had been assaulted in the course of the robbery. The appellant tied up F to make him look like a victim.
The amount taken was the amount referred to in the charge, that is to say, a little less than $27000.
After the robbery, the appellant and F pretended that they were victims of the robbery. As the judge remarked, the police were suspicious from the start.
Although initially the appellant pleaded his innocence, eventually he confessed to the police as to his role in the robbery. He returned his share in the proceeds.
After his initial pretence, the appellant co-operated with the police and entered an early plea of guilty in the Magistrates Court. He has indicated his willingness to give evidence against F. The circumstances in which he has indicated his willingness to do so, and the extent of his co-operation with the police, appear in a chronology which was before the sentencing judge and which was handed to this Court by the appellant’s counsel on the hearing of the appeal.
The sentencing judge described the case as “towards the top of the scale”. I think that he was right for the reasons which he went on to give, namely, that it was planned, it involved a breach of trust, violence was used, the appellant was armed and endeavoured to conceal identity.
I would add to those reasons that the robbery was committed in company and involved not only concealment of identity, but a pretence that the perpetrators were victims.
The sentencing judge went on to say:
“[T]here are matters which go to your credit, as I have already mentioned, so far as the sentence which I should impose is concerned; your age, previous good record, plea of guilty, assistance to the police, preparedness to give evidence against your co-offender, the unlikelihood that you will offend in this or any other way again, and your sound prospects of rehabilitation. Were it not for these matters I would have had no hesitation in sentencing you to a term of imprisonment for ten years. As it is, I propose to discount your sentence by half, because of the matters I have mentioned.
You asked that I suspend the sentence of imprisonment. I have given a lot of thought to that, but, at the end of the day I am not prepared to do so. Your crime is too serious.”
The appellant is a 26-year-old divorced man. He had no prior convictions. A number of personal references were put before the sentencing judge which attested to his previous good behaviour and that the offence was out of character.
The sentencing judge had the benefit of a report furnished by a psychiatrist, Dr Craig Raeside. He described the appellant as having a “generally unremarkable past history”, although sexual abuse from an older brother for some years leading into his teens caused the appellant to feel “suicidal” during that period and probably led to a degree of abuse of alcohol.
Although Dr Raeside found there was no indication of a formal psychiatric disorder, he was of the view that the appellant was easily led by other more dominant personalities. The description the appellant gave to Dr Raeside of F, and which was repeated by Mr Ey of counsel for the appellant on the hearing of the appeal, was that he was aggressive and overbearing. It was also said that other security guards were afraid of him.
Dr Raeside expressed the view that the appellant’s risk of re-offending is low.
Through Mr Ey, the appellant complains that the starting point of ten years fixed by the sentencing judge was too high. I do not accept that to be so. This Court has continued to affirm a sentencing standard for armed robbery of six to eight years.
However, in R v Place,[1] in their joint judgment Doyle CJ, Prior, Lander and Martin JJ said (para 108):
“We disagree with the suggestion in Newton[2] that the circumstances to which the standard of six to eight years is appropriate includes the large scale, well-planned hold-up of a bank or other business. Much will depend upon the manner in which an armed hold-up is carried out.
Generally speaking, however, in our view, a well-planned and large scale armed hold-up would involve circumstances more serious than those contemplated by the broad description of the type of offences to which the standard of six to eight years applies.”
[1] (2002) 81 SASR 395 at 431.
[2] (2002) 128 A Crim R 185.
The circumstances of the offending in this case undoubtedly merit the description “well-planned and large scale”.
The abuse of the position of trust held by the appellant as a security guard puts the case into a serious category. The public is entitled to expect that security guards may be trusted and will answer to their responsibilities.
Although it may well be, as is said on the appellant’s account of the matter, that F suggested the idea of the robbery in the first place, the fact remains that the appellant made a conscious decision to participate and was an active participant in the planning, which extended over a period of time, and in the execution of the robbery.
The amount of money involved was substantial.
In all the circumstances, a notional starting point of ten years was well within the proper exercise of the sentencing judge’s discretion. The reduction made by the sentencing judge for the appellant’s co-operation with the police and his early plea of guilty was very substantial indeed. While every encouragement should be given to offenders to co-operate with the authorities and admit to their guilt at an early stage, the discount of fifty per cent was generous. The fixation of the non-parole period of one half of the head sentence was appropriate given the appellant’s prior good character and prospects of rehabilitation.
In all the circumstances, the contention that the sentence was manifestly excessive must fail. Indeed, I would go so far as to say that the appellant is fortunate that he was not dealt with more severely.
As for the argument that the sentencing judge should have suspended the sentence, that would be a most unusual course to take for a crime of this order of seriousness. The sentencing judge was right to refuse to suspend the sentence.
I would dismiss the appeal.
WILLIAMS J: I agree.
BLEBY J: I agree.
PERRY J: The order of the court is that the appeal be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (2002) 81 SASR 395 at 431.
2. (2002) 128 A Crim R 185.

[2003] SASC 9

17 January 2003