R v Cain
[2003] VSCA 160
•10 October 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 326 of 2002
| THE QUEEN |
| v. |
| DAMIEN JOHN CAIN |
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JUDGES: | WINNEKE, P., ORMISTON and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 October 2003 | |
DATE OF JUDGMENT: | 10 October 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 160 | |
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Criminal Law – Sentence – Armed robbery of service station with co-offender – Whether principle of parity necessitated lower sentence than co-offender.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr B.J. Bourke | Victoria Legal Aid |
WINNEKE, P.:
I will invite Buchanan, J.A. to give the first judgment in this appeal.
BUCHANAN, J.A.:
On 25 February 2002, the appellant, then aged 30 years, and his friend Travis Saunders, then aged 21 years, decided to drive from Boort, where they lived, to Wedderburn to steal a marijuana crop. The expedition was made at the suggestion of the appellant. The pair took with them a .44 calibre pistol belonging to Saunders’ father and travelled in a car owned by Saunders’ grandfather.
The appellant and Saunders failed to find the marijuana crop and drove on to Bendigo. Saunders said, according to the appellant in his record of interview, that he was not going home empty-handed, and the pair drove around Bendigo looking for a target to rob. They chose a service station at Kangaroo Flat. The service station was one patronized by the appellant. While the appellant waited in the car behind the steering wheel, Saunders entered the shop at the service station wearing a baseball cap and sunglasses with a green towel over his face. The shop attendant was placing pies in a pie warmer. Saunders tapped him on the shoulder. The attendant turned and saw the barrel of a gun pointing at him. Saunders told him to fill a bag with money. The attendant walked over to the cash register, and removed notes from the cash drawer which he placed in a shopping bag. At Saunders’ direction, the attendant also placed packets of cigarettes in a plastic bag. Saunders ripped the telephone cord out of its socket and told the attendant not to call the police for 15 minutes, or he would come back and shoot him. Saunders left the premises with about $400 and packets of cigarettes. He went to the car and was driven away by the appellant. The appellant was given $150 and cigarettes from the proceeds of the robbery, but later returned the money to Saunders.
The robbery was recorded by a security camera and some three days later the police arrested Saunders. The appellant went to the Bendigo police station and surrendered. Both Saunders and the appellant readily admitted their involvement in the robbery. The appellant and Saunders were arraigned and pleaded guilty in the County Court to a presentment containing one count of armed robbery. After a plea both the appellant and Saunders were sentenced to be imprisoned for terms of three-and-a-half years with minimum terms of 18 months' imprisonment.
The thrust of the appellant’s case on appeal was that the sentence imposed upon him breached the principle of parity. The appellant contended that, by reason of his lesser role in the commission of the crime and the fact that he made a statement implicating his co-offender and was prepared to give evidence in accordance with the statement, the sentencing judge was required to impose upon him a lesser sentence than that imposed upon Saunders.
The sentencing judge evidently thought that there was little to choose between the co-offenders’ characters and antecedents. Both had co-operated with the police and pleaded guilty at an early stage. Both had good work records. Both offenders had prior convictions, although the sentencing judge did not treat them as significant. The appellant’s record was longer than that of Saunders, but that difference might be accounted for by the difference in their ages. The appellant gave himself up to the police. Saunders wrote a letter of apology to the victim of the hold-up. Both had strong family and community support. Both had abused drugs of dependence and their prospects of rehabilitation largely depended on their ability to cease using drugs. The sentencing judge concluded that the prospects of rehabilitation of both offenders were reasonable.
The sentencing judge anxiously considered whether there was a basis for distinguishing the role which each of the offenders played in the commission of the crime. He noted that the appellant was much older than Saunders, that it was Saunders who entered the service station premises while the appellant waited in the car, and that the appellant in his record of interview told the police that he was reluctant to commit the robbery and was motivated by loyalty to Saunders. Saunders was physically larger than the appellant and the latter said in his record of interview that he was scared of Saunders.
Despite these points of distinction, the sentencing judge concluded that he could not distinguish between the co-offenders’ roles in the commission of the crime. They had both left Boort with the intention to commit some form of joint criminal enterprise, and both were aware that a gun or imitation firearm would be used in that enterprise. His Honour concluded that the plan to rob the service station was jointly hatched between the offenders and their roles in it should be treated equally.
In my opinion, it has not been demonstrated that the sentencing judge erred. It was clearly open to him to find that the crime was one committed in concert, with each of the co-offenders playing a complementary role. The sentencing judge was not obliged to accept fully the description of the crime given by the appellant to the police. Even if he did, in my opinion, the greater enthusiasm displayed by Saunders and the appellant’s reticence to enter the service station which he patronized and instead take on the role of driving the getaway car were not circumstances which required the imposition of a lesser sentence upon the appellant. Reluctant or not, the appellant participated in a joint undertaking with Saunders.
The statement made by the appellant to the police, which implied that he would give evidence against Saunders in accordance with the statement, was less significant than might be at first supposed. It is apparent from the appellant’s record of interview that a large number of people in Boort knew that the appellant and Saunders had committed the robbery. He said:
“In the next day, yeah Travis was – you know, everyone was blaming me and Travis.”
In my opinion, the fact that the appellant gave the statement to police did not entail that he should be treated more leniently than Saunders.
Notwithstanding Mr Bourke’s beguiling argument, overall I am of the opinion that the sentencing judge was entitled to take the view that the appellant and Saunders merited the same punishment. I would dismiss the appeal.
WINNEKE, P.:
I agree.
ORMISTON, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the appeal is dismissed.
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