R v Alvarez, Alvarez and McCulloch

[2002] NSWCCA 283

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:           Regina v Alvarez, Alvarez and McCulloch [2002]  NSWCCA 283

FILE NUMBER(S):
60523/2001
60524/2001
60557/2001

HEARING DATE(S):          27 June, 2002

JUDGMENT DATE:            19/07/2002

PARTIES:
Regina
Jamie Paul Alvarez
Phillip Steven Alvarez
John Anthony McCulloch

JUDGMENT OF:   Smart AJ Blanch AJ    

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):              00/11/0552
00/11/0552, 00/11/0550, 00/11/0551

LOWER COURT JUDICIAL OFFICER:          Tupman DCJ

COUNSEL:
L M B Lamprati (Crown)
P G Berman SC (J Alvarez)
P Winch (P Alvarez)
H L A Cox (McCulloch)

SOLICITORS:
S E O'Connor (Crown)
D J Humphreys (J Alvarez)
Jeffreys & Associates (P Alvarez)
Mark Klees & Associates (McCulloch)

CATCHWORDS:
Criminal law
armed robbery
multiple offences
special circumstances
parity of sentence

LEGISLATION CITED:
Crimes Act, s97

DECISION:
Jamie Alvarez - Grant application for leave to appeal but appeal dismissed.
Phillip Alvarez - Grant leave to appeal but appeal dismissed.
John McCulloch - Grant leave to appeal but appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60523/2001
60524/2001
60557/2001

SMART AJ
BLANCH AJ

19 July, 2002

REGINA v Jamie Paul ALVAREZ
REGINA v Phillip Steven ALVAREZ
REGINA v John Anthony McCULLOCH

Judgment

1. BLANCH AJ:  These are three appeals against sentences imposed at Parramatta District Court on 17 July, 2001.  The applicant, Jamie Paul Alvarez, is appealing against an effective sentence of ten years, with a non-parole period of six and a half years from 26 December, 1999. Those sentences were passed in respect of a charge of assault with intent to rob being armed on 3 August, 1995, contrary to s97 Crimes Act which carries a maximum penalty of twenty years and a second charge of assault with intent to rob being armed under the same section on 12 April, 1996.  On the first offence, he was sentenced to a fixed term of three years and on the second offence, taking two matters into account on a Form 1, to seven years with a non-parole period of three and a half years to date from the end of the first sentence.

1. Phillip Steven Alvarez is appealing against an effective sentence of twenty years from 20 June, 1999 with an effective non-parole period of fifteen years.  These sentences were made up as follows:

2. Armed robbery on 19 February, 1997, taking into account 31 matters on a Form 1 – fixed term of four years from 20 June, 1999;

3. Aggravated robbery being armed on 18 March, 1998 – fixed term of four years from 20 June, 2003;

4. Carried in a conveyance without consent – fixed term of twelve months from 20 June, 2003;

5. Conspiracy to commit armed robbery between 1 May, 1998 and 18 June, 1998 – fixed term of three years from 20 June, 2007;

6. Maliciously shoot at with intent to prevent lawful apprehension on 17 June, 1998 – fixed term four years from 20 June, 2007;

7. Drive conveyance without consent on 17 June, 1998 – fixed term twelve months from 20 June, 2007;

8. Armed robbery on 18 August, 1998 – head sentence eight years from 20 June, 2011, non-parole period of three years to expire 19 June, 2014;

9. Drive conveyance without consent on 17 June, 1998 – fixed term twelve months from 20 June, 2011.

10. John Anthony McCulloch – On the same day he was sentenced to an effective sentence of sixteen years, with a non-parole period of twelve years.  He was sentenced as follows:

1.  On a charge of armed robbery on 19 February, 1997, he was sentenced to a fixed term of six years from 18 February, 1999, taking into account seventeen matters on a Form 1 consisting largely of robbery related offences and car stealing related offences;
2.  Conspiracy to commit armed robbery between 1 May, 1998 and 18 June, 1998 – fixed term of four years to commence 18 February, 2005;
3.  Maliciously shoot at with intent to prevent lawful apprehension – ten years from 18 February, 2005 with a non-parole period of six years to expire on 17 February, 2011;
4.  Carried in conveyance without consent on 17 June, 1998 – twelve months fixed term from 18 February, 2005.

1. There were six main events which were the subject matter of the sentences and they were as follows:

1.  On 18 March, 1998 Phillip Alvarez and another man forced their way into the Commonwealth Bank at Warrawong at 9.30 a.m.  Each of the men was carrying a handgun and Phillip Alvarez had a Walther P38 which was loaded.  They jumped over the counter brandishing the handguns and ordered the tellers to give them money.  They obtained $30,000.  During the robbery the doors of the bank had been locked and Phillip Alvarez demanded they be opened.  A bank employee did that and as he was leaving, Alvarez discharged his gun, the projectile striking a pane of glass alongside the front door and a piece of the glass cut the arm of the nearby bank employee.  The offenders escaped in a stolen van.  There were a large number of members of the public present at the bank on the day because it was pension day.

2. There was a conspiracy between Phillip Alvarez and John McCulloch to commit an armed robbery on the Commonwealth Bank at Condell Park in June, 1998.  The plan was to commit this robbery on pension day and to take the money from the security van which was delivering the money to the bank that day before it got into the bank.  Two weeks before 17 June, their plan was thwarted by the vigilance of security guards, but they arranged to try again on 17 June using a stolen car, disguises and loaded firearms.  On 17 June, 1998 Phillip Alvarez and McCulloch again went to the vicinity of the Commonwealth Bank at Condell Park but Constable Pedersen pulled up their vehicle because one of the males was not wearing a seat belt.  Alvarez gave a false name and could not produce a drivers’ licence.  The police officer went back to his vehicle to make a check and it was realised he would discover the vehicle the offenders were in was stolen.  Alvarez and McCulloch got out of the car and approached the police vehicle.  McCulloch was carrying a loaded handgun.  Constable Pedersen saw McCulloch and that he was carrying a gun.  McCulloch raised the gun and pointed it at Constable Pedersen who jumped out of his vehicle and ran across the nature strip.  He heard a gunshot from behind him. He turned and pointed his own gun at the two men.  He saw McCulloch turn and fire the gun in his direction.  Alvarez got in the car to drive away and McCulloch fired a further shot before he got into the car which sped off.  The sentencing judge accepted from the jury’s verdict that just before they approached the police car, Phillip Alvarez had said to McCulloch that he was going to have to shoot the police officer because otherwise they would be identified by him.

3.  On 18 August, 1998 Phillip Alvarez stole a motor car and with some friends went to a home in Katoomba Avenue, San Remo, occupied by Tiffany Gardiner and Barry Jones.  It was expected they would find a large quantity of drugs, jewellery and money there.  Three offenders forced entry into the premises and threatened the occupants with pistols.  Phillip Alvarez threatened Jones and hit him over the head with a pistol.  There was further terrorising of both the victims and the house was ransacked.  A small amount of cash was stolen and the offenders left.  Jones ran outside after them and Phillip Alvarez fired three shots at Jones.

4. On 19 February, 1997 the Commonwealth Bank at Warrawong was robbed by Phillip Alvarez and John McCulloch.  The two offenders with another man travelled from Sydney to the Port Kembla area and using a stolen car, they drove to the bank.  They had parked near a white van which was stolen and it was to be used in their escape.  Alvarez and McCulloch changed into dark clothing and loaded two handguns, put on gloves and entered the bank.  Alvarez was carrying a loaded Walther P38 handgun and McCulloch was carrying a loaded revolver.  They jumped over the counter and ordered staff and customers to the floor.  They moved from teller to teller demanding money, threatening the staff.  They obtained $104,150 and ran from the bank.  They drove off in one stolen vehicle and they changed into another stolen vehicle to escape.  Again it was pension day and there were many customers at the bank.

5. Phillip Alvarez, McCulloch and Jamie Alvarez were all involved in an attempt to rob the Bleakely Fine Chemicals factory at Silverwater on 3 August, 1995.  Just before 7.00 p.m. all three entered the premises armed with handguns and in balaclavas and wearing gloves.  The only person on the premises was the cleaner who was about to leave.  She was threatened in order to obtain information about the whereabouts of chemicals.  The offenders expected to find there a large quantity of pseudoephedrine which they anticipated they could sell for $180,000.  The drug, however, had been moved.  The sentencing judge accepted that Jamie Alvarez’s part in this robbery was only as an assistant to his brother and that he took no real part in the planning.

6. On 12 April, 1996 Phillip Alvarez and Jamie Alvarez were involved in a robbery at the Commonwealth Bank at Punchbowl.  They loaded two handguns and prepared disguises and went in the car driven by the mother of another offender in a stolen car to near the bank.  They watched a Brambles truck deliver $710,000 to the bank.  The Alvarez brothers entered the bank and Jamie Alvarez jumped over the counter.  Anti-bandit screens were activated but Jamie Alvarez ran to the bank manager and shouted to him to get the money out and opened the door to allow his brother access.  The two offenders then forced the manager and assistant manager to go to the strong-room and Jamie Alvarez told the manager the gun he was carrying was real and discharged a shot into the floor.  Jamie demanded the money and threatened to kill both the manager and the assistant manager.  They were told the vault was on a time delay lock and the manager then set the time delay lock.  Jamie threatened that he would kill the manager and moved his hand on the trigger of his gun.  The manager and assistant manager moved in opposite directions and Jamie Alvarez discharged the gun, the bullet passing near where the staff had been standing.  The offenders did not wait for the time delay lock and fled from the bank.  Nothing was taken.

1. Phillip Alvarez and McCulloch were jointly tried on a number of these offences in a trial which lasted from 23 January to 5 March, 2001.  They were convicted of some of these offences and they have pleaded to others or had them taken into account on a Form 1.  Phillip Alvarez went to trial from 16 March in relation to the San Remo offences and was convicted.  Jamie Alvarez was convicted following a jury trial of the assault with intent to rob at the Silverwater chemicals factory.  He pleaded guilty to the Punchbowl bank robbery and had one other robbery taken into account on a Form 1.

1. Phillip Alvarez was identified by the sentencing judge as the ring leader in the offences.  He was 29 at the time of the offences.  He had some prior criminal history.  However, there were no offences of violence.  In 1994 he was dealt with in the Local Court and given community service in respect of driving offences and illegal use of a vehicle.  He was also placed on a bond to be of good behaviour for two years.  A number of these offences were committed whilst he was on that bond.  On 31 October, 1997 he was given periodic detention for nine months for possessing an unlicensed firearm.  That sentence was to commence on 14 November, 1997.  In March, 1998 he was involved in the second bank robbery at Warrawong.  No reports were tendered as to his background but it is apparent from the pre-sentence report tendered in the case of Jamie Alvarez that their father and mother separated and in 1982 their father committed suicide while overseas on a business trip.  Their mother gravitated towards partners who shared with her in alcohol abuse and these two boys escaped their home by living in youth refuges.  The pre-sentence report says “The legacy of those years is the devotion and loyalty the Alvarez siblings have toward one another.”  A number of references were tendered on his behalf.  A family priest indicated he regarded these offences as totally out of character to the person he knew.  The Official Visitor from the gaol indicated both brothers had seen the error of their ways and belonged to a close-knit family.  Other references for the applicant, Jamie Alvarez, attested to the same matters.  One of his referees describes him as a hard worker and he has been offered work on his release from prison.

1. In the case of McCulloch, no material was tendered before the sentencing judge.  He is considerably older than the co-offenders, being now 52 years of age.  He has a significant criminal history.  He was sentenced in 1972 to fifteen years with an eight year non-parole period (reduced on appeal to six years) for armed robberies and in 1979 he was sentenced to twelve years with a nine year non-parole period for armed robberies and other offences.  In 1994 he was placed on a three year bond for take and drive a conveyance and he has committed offences in breach of that bond.

1. Jamie Alvarez is now 28 years of age, although in 1995 when the first of his offences was committed, he was 21.  He has a minor criminal history dating back to 1994.  He was given a two year bond for possessing implements to enter a conveyance and possessing a prohibited drug on 15 January, 1996, which was only three months before the offence on 16 April, 1996 committed against the Commonwealth Bank at Punchbowl.  I have referred to the pre-sentence report in his case and it is a matter of some importance in his case to assess the overall criminality, particularly in the context of the fact that both the offences being dealt with on indictment are offences committed with his brother.  The pre-sentence report concluded that he “demonstrated a good vocabulary and outlined personal and professional goals that required a focussed, creative and energetic mind.”  In his case a report from Duffy, Barrier and Robilliard, psychologists, was tendered.  That report expressed the clinical opinion that the tests “described an unstable personality construct that would be evidenced in grandiose and impulsive thinking and behaviour …”.  The conclusion was that he “… is still very loosely integrated in his thinking and his behaviour.  He did not demonstrate any clear signs of psychosis during our meeting however his thought processes were flighty, tangential and quite illogical at times.”  This report also noted the emotional bond between this applicant and his older brother.  I note the sentencing judge said he had been assessed by professionals over the years as suffering from various conditions including Attention Deficit Disorder, Obsessive Compulsive Disorder, Schizophrenia and Bipolar manic Disorder.  The only basis for that appears to be that the applicant told that to the interviewing psychologist, Ms. Robilliard.

1. On behalf of Phillip Alvarez, it is put that he had not previously been sentenced to full-time imprisonment and the submission is made that too little weight was given to the subjective material in his case.  It is true there was material which had to be taken into account on behalf of Phillip Alvarez but, of course, that had to be weighed against the objective seriousness of the very significant number of offences for which he was to be sentenced.  It is also pointed out that although there was material to indicate the applicant had children with whom he would lose contact once sentenced, the judge did not mention this as one of the difficulties he would experience in custody.  On the other hand, it is not incumbent upon a judge to mention every single matter of difficulty involved in being in gaol.

1. A further criticism advanced is that the judge found special circumstances but the overall sentence, in fact, reflects the statutory ratio.  As to this, the sentencing judge made it clear she found special circumstances only because she was accumulating sentences and there was no error in the way she did this.  Finally, it is submitted on this applicant’s behalf that the sentence is manifestly excessive.  That submission is made based on the suggestion that the top of the range for head sentences for aggravated armed robbery is twelve years.  That submission overlooks the significant number of offences involved in this case and it also overlooks the other criminality, particularly in the charge of maliciously shoot at with intent to prevent lawful apprehension.

1. At the end of the day, this applicant was being sentenced for 13 robbery related offences, 13 offences related to stealing cars, a charge of maliciously shoot at with intent to prevent lawful apprehension plus other serious offences.  In my view, no criticism can be made of the sentence imposed by the sentencing judge and accordingly, I would grant leave to appeal but dismiss the appeal.

1. On behalf of the applicant, John McCulloch, the argument advanced is based on parity and it is submitted that Phillip Alvarez was the applicant’s co-offender on all counts in the indictment and that Phillip Alvarez had even more offences.  It is pointed out that the sentencing judge accepted that although McCulloch was older, it was Phillip Alvarez who organised the episodes of criminality engaged in by these two offenders.  It is noted that this applicant had a significant criminal history for committing armed robberies.

1. The question at issue is whether the sentence passed on this applicant when compared to the sentence passed on Phillip Alvarez could give rise to a justifiable sense of grievance – see Postiglione v The Queen (1995-1996) 189 CLR 295 and Lowe v The Queen (1984) 154 CLR 607. This applicant was being sentenced for four counts on an indictment and 17 counts on a Form 1. The 17 counts on the Form 1 included seven robbery related offences and, of course, it must be remembered that in the very serious incident of shooting at the police officer, it was this applicant who did the shooting.

1. On the charge of shoot at with intent to avoid lawful apprehension, this applicant was sentenced to ten years commencing on 17 February, 2015 with a non-parole period of six years.  That is contrasted with the fixed term of four years given to Phillip Alvarez for the same offence.  It is pointed out that although McCulloch was the one who fired the gun, he was encouraged to do so by Phillip Alvarez and the judge assessed the criminality of Phillip Alvarez as almost the same.  On this basis, it is said a justifiable sense of grievance exists.  On the other hand, what has to be compared is the four year term with the six year non-parole period.  It must also be remembered that the sentences for each of these applicants was part of an overall sentence and affected by considerations of totality and the need to fix an appropriate non-parole period.  The same comment can be made in respect of the other sentences.  It is not possible to deconstruct and compare the component sentences of these two applicants.  What has to be compared is the final sentence, bearing in mind the total criminality of each and recognizing that in a case such as this, parity cannot be measured with mathematical precision.  The actual impact on McCulloch is that he is to serve twelve years in gaol before being eligible for release.  Phillip Alvarez will serve fifteen years before being eligible for release.

1. In my view, bearing in mind the criminal record of this applicant for committing robberies (which includes fourteen years he has actually served in custody for such offences) the number of robberies he was being sentenced for on this occasion and his criminality involved in the charge of maliciously shoot at with intent to prevent lawful apprehension, there is no possible basis on which he could harbour a justifiable sense of grievance when comparing his sentence with that of Phillip Alvarez, who will serve at least three years longer in circumstances where he has never been to gaol before.

1. It is further submitted that although the sentencing judge found special circumstances because the sentences were to be accumulated and because there was a need for additional supervision, there should have been a greater disturbance of the statutory ratio.  It is pointed out that the non-parole period which has been fixed does, in fact, reflect the statutory ratio in relation to the total sentence.  In my view, the fact the sentencing judge found two bases for disturbing the statutory ratio did not necessitate any greater reduction in the non-parole period.  In fact, all the sentencing judge found in this case was “He will also require a period of supervision in the community to ensure his rehabilitation.”  No reason was given for this finding and there are no special considerations in this case, apart from the fact that the applicant will be in his mid-sixties when he is eligible for parole and he will be released after having spent a very long time in custody.

1. In my view the sentence imposed and the non-parole periods fixed are quite appropriate, bearing in mind the offences for which this applicant was being sentenced and what subjective material was available.

1. I would therefore grant leave to appeal but dismiss the appeal.

1. On behalf of Jamie Alvarez, it is submitted that the sentence is manifestly excessive.  In particular, it is submitted that the sentence ultimately imposed on this applicant is higher than sentences ordinarily imposed for offences at the time these offences were committed.  In that regard, this Court was referred to the decision of the Court of Criminal Appeal in R v MJR [2002] NSWCCA 129. The Court has been referred to a number of cases where it is said significantly lower sentences than sentences in the order of ten years were imposed for similar sorts of offences in the period from 1992 to 1996. The submission suggests that after the decision of this Court in R v Henry (1999) 46 NSWLR 346 sentences for armed robbery significantly increased. I note that submission is at odds with a submission made by Counsel on behalf of Phillip Alvarez that the Judicial Commission statistics reveal “… the top of the range of head sentences is 12 years and for non-parole periods 9 years for the 65 cases decided before the judgment of R v Henry. For the 79 cases decided after Henry, the top of the range of head sentences is also 12 years and for non-parole periods 8 years.”

1. It is important to note that the decision in R v MJR was a decision dealing with sentencing for stale crime.  In that case, the period of delay between offence and sentence was 15 to 20 years.  I believe it is quite artificial to attempt to construct a different regime of sentencing involving a delay in the order of five years as was relevant in this case.  That point might be demonstrated by looking at the guideline decision in R v Henry.  At paragraph 165 Spigelman CJ said:

   “In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term.  I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges.  I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies.  The proposed range is broadly consistent with this body of prior decisions in this Court.”

2. The Chief Justice went on to quote ten cases from 1992 to 1998 which were consistent with that range, 15 cases between 1991 and 1997 which were above that range and seven cases between 1993 and 1998 which were below that range.  It is quite clear that the guideline judgment in Henry was, in fact, based upon sentences which had been imposed from 1991 to 1998. Of course, the Chief Justice went on to say at paragraph 167:

   “Aggravating and mitigating factors will justify a sentence below or above the range, as this Court’s prior decisions indicate.  The narrow range is a starting point.”

3. At the end of the day, the decision in R v Henry has very little to do with this case.  Neither that guideline judgment nor any other decision of the Court would suggest that a sentence of five years was appropriate for this applicant.  The major offence he has been sentenced for is a well-planned attempted armed robbery on a bank with significant violence in the execution of the offence.  There are some cases where guidelines and sentencing statistics are of little value and this is one of them.  Fortunately, there are not enough crimes with this level of planning and violence to provide meaningful statistics, complicated as this case is by the number of offences and the fact that the attempted robbery at Punchbowl was shortly after the applicant was placed on a bond.

1. The further submission is made on this applicant’s behalf that his personality problems and dependence on his older brother were overlooked.  As I have pointed out, there was no evidence of a personality disorder in this case other than what the psychologist’s report said and the findings of the psychologist were very limited.  It was found he had no signs of psychosis and it was advised that he have “instruction in the behavioural management of stress and development in coping mechanisms…”.  It was said that a psychiatric assessment “may also be appropriate.”  That was not done.  I do not believe any of these matters were overlooked by the sentencing judge.

1. The case of this applicant nonetheless calls for anxious consideration. The Silverwater chemicals factory attempted robbery was on 3 August, 1995, the Punchbowl bank robbery was on 16 April, 1996 and there was a robbery at Waterloo on 15 February, 1996.  This offence was committed with his brother.  They waited for a woman to return to a business with the payroll and together robbed her of $6,669.50 and other personal property.  There were no other offences until his arrest on 25 December, 1999.

1. There is no doubt this applicant is deserving of greater consideration.  However, he pleaded not guilty to the Silverwater chemicals factory attempted robbery and consequently he was not entitled to a discount for a plea.  He did plead guilty to the Punchbowl bank attempted robbery and acknowledged his guilt on the third robbery.  However, the degree of his criminality in the Punchbowl bank offence was extremely great.  After carefully weighing those matters up, I have come to the conclusion that the sentence imposed by the sentencing judge was within an appropriate sentencing range and accordingly, I would allow the application for leave to appeal but dismiss the appeal.

1. SMART AJ:  I agree with Blanch AJ.

   *****************

LAST UPDATED:               19/07/2002