R v Black No. Sccrm-99-414

R v BLACK
[2001] SASC 82

Court of Criminal Appeal: Doyle CJ, Nyland and Gray JJ

1................ DOYLE CJ:.... Mr Black has appealed against a sentence imposed by the District Court.

The appellant pleaded guilty in the District Court to a charge of robbery and a charge of armed robbery. The judge imposed separate sentences for each offence. For the offence of robbery, the appellant was sentenced to imprisonment for four years and six months. For the offence of armed robbery, he was sentenced to imprisonment for eight years and two months.
Taking into account the principle of totality, the trial judge ordered that two years of the second sentence be served concurrently with the first sentence, thus sentencing the appellant to imprisonment for a total of ten years and eight months.
The appellant was on parole when he committed these offences. He was therefore liable to serve the balance of the sentence as at the date of the first offence. The balance was one year, four months, 25 days. Thus, the final head sentence was twelve years, 25 days.
The judge fixed a non-parole period of nine years in relation to that total head sentence.
The appellant submits that the sentence is manifestly excessive and, further, that it failed to take into account his prospects of rehabilitation.
At the time of the commission of both offences, the appellant was on parole in respect of a conviction in 1995 for armed robbery. For that offence, he was sentenced to imprisonment for six years with a non-parole period of four years. Within a very short time of being released on parole, the appellant committed the robbery offence.
The appellant has a long criminal record spanning nearly 30 years. There are a number of offences of a very serious nature. In particular, the commission of two armed robberies in 1979, for which the appellant received a nine year sentence of imprisonment.
The appellant has been convicted of numerous other offences relating to property, assault, drugs and dishonesty, for which he also received terms of imprisonment. As I have mentioned, in 1995 he was convicted of another armed robbery, the offence for which he was on parole when the offences in question occurred.
The circumstances of the two current offences are grave. The robbery offence involved the appellant entering the Westpac Bank in Gouger Street, proffering a bag to a teller and threatening her with the fact that he had a gun and would shoot her if she did not fill the bag. The appellant made gestures to suggest he had a gun secreted in his waist. He was not, in fact, carrying a concealed weapon. He escaped with $11 455.
Less than a month later, the appellant arranged with another man to rob a small supermarket. The appellant effected the plan by entering the supermarket, pointing a replica pistol to the proprietor, handing him a bag and telling him to fill it with money. Subsequently he pushed the replica pistol into the back of a customer, telling the proprietor that he would shoot the customer unless the proprietor hurried. He then escaped in a getaway car driven by the other man. The trial judge described the appellant as the principal participant in the robbery, with the other man playing an ancillary role.
Following this armed robbery, the police came to the appellant’s flat. The other man was arrested. The appellant, carrying the bag of money, attempted to evade arrest. Thinking that the appellant had concealed a firearm under a cloth, a police officer told him to put the weapon down. The appellant did not drop the cloth, and, after further confrontation, mistakenly, but reasonably, thinking that the appellant was going to fire his weapon, the police officer fired a shot, striking the appellant in the abdomen. The sentencing judge described the appellant’s behaviour as foolhardy and provocative.
The appellant did not plead guilty to each offence at the initial arraignment. Several days before the trial of each offence was to occur, the plea was changed to guilty.
The issue of whether the appellant had been properly advised of the availability of a discount for an early guilty plea was the subject of some dispute. The Judge heard evidence on this point. The Judge made the finding that had the appellant been given proper advice, it was unlikely he would have availed himself of the opportunity to plead guilty early.
The appellant did receive a small discount for his late guilty plea. For the Westpac robbery, the appellant received a discount of six months. For the supermarket armed robbery, the appellant received a discount for his guilty plea of ten months. The finding of the trial judge, and the appropriateness of the size of the discounts for the pleas of guilty, are not disputed before this Court.
Cases in this Court establish that the tariff for the offence of armed robbery is about six to eight years imprisonment. Nevertheless, it is well-established that the tariff should not be applied inflexibly. A sentence must be fixed in each case proportionate to the gravity of the offence, and taking into account all of the relevant circumstances: R v Hooper (1995) 64 SASR 480.
Allowing for this discount for the guilty plea, and about 14 months in custody awaiting trial and sentence, the judge’s starting point was about six years two months for the Westpac robbery, and nine years for the supermarket robbery. But it must be remembered that on totality grounds the second sentence was made concurrent for two years.
These starting points do not seem excessive to me, bearing in mind the nature of the offences, the appellant’s prior record, and his age of 52 years.
Counsel for the appellant submitted that the court should have regard to sentencing standards in other armed robbery cases, and referred in particular to: R v Kelly [2000] SASC 293; R v Pretty [2000] SASC 181; R v Lumsden [2000] SASC 49 ; R v Wilson [2000] SASC 435; and R v Rooke [2000] SASC 673.
Counsel for the appellant suggested that the appellant’s sentence was excessive. This was said to be so having regard to the fact, in particular, that Kelly had committed five armed robberies, all with actual weapons, and had received a sentence of 15 years imprisonment with a ten year non-parole period. There are, however, a number of significant differences between the present case and Kelly. The foremost of these are Kelly’s youth, his naivety, and his vulnerability. The offences themselves in Kelly were underpinned by the mistaken belief that they would enhance a personal relationship. Further, though Kelly had a previous criminal history, it did not reveal a history of violence, nor was it as bad as the appellant’s criminal history. Further, Kelly admitted to a number of offences in circumstances where, without the admissions, there would have been no prospect of making any connection. Finally, the overall sentence in Kelly was heavily influenced by considerations of totality.
The appellant’s counsel submitted that the fact that the appellant used a replica pistol was a mitigating factor. The submission is to the effect that by using a replica pistol, the appellant was demonstrating an intent not to cause harm to his victims. Perry J discussed this point in his decision in R v Drumgoon (Perry J, 13 December 1995, S5382, unreported), where he said: ‘I doubt whether the fact that a replica pistol is used is a circumstance of mitigation. On the other hand, no doubt if a loaded weapon had been used, that may have been a circumstance of aggravation.’
The submission should be rejected. The argument is tantamount to saying that failure to cause physical harm, or lack of intention to cause physical harm to the victims of armed robbery, should be a mitigating factor. This is to reverse the appropriate approach. The discharge of a firearm, or the use of violence to perpetrate an armed robbery, is an aggravating factor.
It can be said that the use of a replica pistol circumscribes the scope of possible physical harm. This arguably demonstrates that the offender committed the offence without the intent to cause serious physical harm. But all that can reasonably be said is that the offence is less serious than if there were a loaded weapon. The submission ignores the fact that a very significant form of harm consequent on armed robberies is the psychological effect it has on victims. The clear purpose behind the use of a replica pistol is to frighten and intimidate on the misunderstanding that the weapon has the capacity to cause physical harm. The fact that the weapon is a replica is no comfort to the victims who genuinely and reasonably believe it to be a real and loaded firearm. The victim impact statements in this case show that some of the victims have been seriously affected by the experience.
There are a number of reasons why the trial judge may have chosen to select a starting point for the sentence of armed robbery above eight years. Aggravating factors include the fact that the appellant was on parole, and that he was on parole for a like offence, indicating there was a need for a strong personal deterrent. Additionally, beyond the issue of personal deterrence, it was appropriate to emphasise general deterrence. Armed robberies are relatively prevalent offences. The trial judge appropriately pointed to each of these factors in determining the sentence.
Lastly, any difficulty that this Court might have had with the overall sentences for the two offences is ameliorated by the fact that the trial judge effectively reduced the head sentence by a period of two years.
Counsel for the appellant submitted that the court should not only make a reduction in the individual head sentences, but also make a further reduction having regard to totality. This submission is without foundation. Had the judge reduced the individual head sentences, it may not have been appropriate to make any reduction on account of totality.
For these reasons, I do not regard the head sentences as manifestly excessive. Nor do I regard the non-parole period as excessive. The judge was obviously doubtful about the appellant’s prospects of rehabilitation. He is, after all, a man of 52 years of age with a long record. The judge was entitled to form that view, even though the appellant appeared to be making a real effort to shake off his dependance on drugs.
I would also reject the submission that there was an inconsistency in the trial judge’s acceptance of the fact that the appellant had not used heroin since his arrest in January 1999, and the conclusion that the trial judge reached as to the appellant’s limited prospects of rehabilitation. The trial judge appears to have quite reasonably formed the view, despite the appellant’s stated desire to abstain from drugs, and his abstinence from drugs whilst in custody, that the appellant might not change his pattern of behaviour. The trial judge appears to have formed this view after making reference to the appellant’s reversion to drug use after his release from prison in 1979, his past criminal history, and his personality problems.
For this reason, there is no inconsistency in what the trial judge has said, and there cannot be said to be an error in this respect.
For those reasons, I would dismiss the appeal.

31.............. NYLAND J:.... I agree with the reasons of the Chief Justice and I also would dismiss the appeal.

32.............. GRAY J:........................ I agree.

33.............. DOYLE CJ:.... Accordingly, the order of the court is that the appeal be dismissed.

[2001] SASC 82

21 March 2001