R v Gregory

[2001] VSCA 32

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 103 of 2000

THE QUEEN

v.

STEVEN ANDREW GREGORY

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JUDGES:	PHILLIPS and BATT, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2001
DATE OF JUDGMENT:	20 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 32

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CRIMINAL LAW - Sentencing - Armed robbery - On bank sub-branch in newsagency - Plea of guilty, gun not loaded, no prior convictions - Eight years' imprisonment manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.G. Hicks, S.C.	Solicitor for Public Prosecutions
For the Applicant	Mrs. D. New	Stella Stuthbridge

PHILLIPS, J.A.:

1. I will ask Batt, J.A. to deliver the first judgment.

BATT, J.A.:

1. At about 2.15 p.m. on Friday 7 January 2000 the applicant committed an armed robbery on a bank sub-branch situated within a Bendigo newsagency.

1. The applicant had entered the newsagency dressed in black pants and a chequered jacket, a beanie and wraparound sunglasses.  He was also wearing articles of disguise in the form of bandages covering his face and a sling made from material for his left arm.  He was armed with a sawn-off single-barrelled shotgun hidden on his person.  There was no evidence that the gun was loaded.  He had browsed through magazines in the newsagency section for up to an hour before approaching the customer service counter and writing on the front of a withdrawal slip a demand note reading "Bank robber, all of it, be very quiet".  The applicant then approached the teller area for the bank, which was situated at the rear of the store, and presented the demand note.  At that time he produced the sawn-off shotgun to two female bank officers, swinging it towards them.  Saying that he did not want to hurt them, he demanded "the money".  The bank officers commenced taking money out of one till.  When they hesitated the applicant said:  "Come on, there's more," and pointed his gun to the other's till.  They removed money from that till and handed it to the applicant.  The applicant took the money and departed on foot through the front door.

1. The amount stolen was $10,310.  On 8 January 2000 the applicant left a cheque for $6,000 with his former landlord's wife in payment of outstanding rent.  The cheque had been written by the applicant's father after he had been put in funds by the applicant from the proceeds of the armed robbery.  Ultimately the amount of $5,375 was recovered. 

1. The applicant was arrested on 13 January 2000 at his home.  A search of the premises was then conducted with his consent.  During the search investigators found, amongst other things, the shotgun and 85.3 grams of cannabis, but no ammunition.  The applicant was conveyed to the office of the Bendigo Criminal Investigation Unit, where he was interviewed.  He was co-operative and made full admissions, giving information as to the disposal of the clothing and disguise worn during the commission of the armed robbery.  The applicant told the police that the landlord had demanded the outstanding rent and threatened to get "a bit ... nasty", and that he had been thinking about the robbery for a couple of weeks before he carried it out.  The applicant had other debts.

1. Victim impact statements showed that since the armed robbery both bank officers were suffering fear, anxiety and feelings of insecurity. 

1. On 10 April 2000 the applicant pleaded guilty on arraignment in the County Court at Bendigo to one count of armed robbery and one count of possessing cannabis.  The maximum penalty for armed robbery is imprisonment for 25 years.  In the circumstances I need not trouble with the maximum penalty for the other offence.  The applicant admitted two prior findings of guilt, one for possessing cannabis and the other for using it. 

1. His Honour heard a plea in mitigation of penalty during which the applicant's girlfriend and her mother gave evidence.  At the time of offending the applicant was aged 27, having been born on 10 December 1972.  The applicant was described as unremarkable and as quiet and placid.  His Honour accepted that the applicant had suffered two severe back injuries and had battled to overcome drug abuse but had returned to using heroin shortly before the offending.  Counsel told his Honour that the applicant had become drug-free while in prison on remand.  His Honour accepted that in the days leading up to the armed robbery the applicant was being severely pressed for the payment of debts, in particular that due to his landlord.  The applicant had the support of his girlfriend and her parents. 

1. On 28 April 2000 his Honour sentenced the applicant on the armed robbery count to a term of imprisonment for eight years and fixed a non-parole period of four-and-a-half years.  On the charge of possessing cannabis he convicted and discharged the applicant.  His Honour directed that the period of 107 days be taken as a period of imprisonment already served under the sentence.  According to the endorsement on the presentment, although the transcript is silent on the point, his Honour also made an order for restitution in favour of the bank in the sum of $4,935. 

1. His Honour accepted that the applicant was still a comparatively young man, had no relevant prior convictions, had been frank and very co-operative with police and had pleaded guilty at the first opportunity and before him.  He acknowledged that the gun was apparently not loaded.  His Honour then considered aspects of the offence and its consequences.  The following summary scarcely does justice to his Honour's observations.  His Honour pointed out that the symptoms suffered by the bank officers were severe and typical of symptoms of victims of armed robberies.  Although he had to impose a lesser sentence because the gun was apparently not loaded, that did not lessen the fear and trauma of those who had had such a weapon pointed at them. Bank officials must be protected by the law.  The maximum penalty for armed robbery indicated what a severe view Parliament took of it.  Courts must pass stern sentences to deter not only offenders like the applicant but also others.  The applicant's offence was certainly amateurish but it was not unpremeditated.  He was disguised and carried a weapon calculated to cause great fear, as it did.  General deterrence must rank highly in the sentence and the sentence must also deter the applicant specifically.  Profits to offenders might seem high and tempting but the penalty must be concerned to deter those tempted.  That applied even to first offenders.  His Honour then pronounced the sentence I have stated earlier.

1. The applicant seeks leave to appeal on the grounds that the sentence was manifestly excessive and that the sentencing judge failed to take account of the applicant's early plea of guilty, his remorse, his previous good character and his subsequent efforts at rehabilitation.  Although we have not heard counsel for the applicant elaborate the second of those grounds, I would not at the moment accept that his Honour failed to take account of the matters enumerated, since even those not mentioned in so many words by his Honour were covered, in my present view, by general remarks of his Honour.  Nor, I wish to make it clear, but subject to the qualification I made, do I accept at the moment, in the case of an offence such as this, some of the submissions put in writing under the headings of grounds 2, 3, 4 and 5.

1. I would, however, uphold the first ground.  Indeed the respondent put no argument to the contrary, while stressing that armed robberies, especially on banks, merit reasonably substantial sentences.  I agree with every one of his Honour's observations about the offence and its consequences, but I have come to the conclusion that the term of imprisonment ultimately imposed, eight years, was, in the circumstances of this offence and this offender, outside the range of sentences reasonably open to his Honour in the exercise of a sound discretionary judgment.  Whether a sentence is manifestly excessive does not admit of much argument, as has been said many, many times.  Undoubtedly the sentence here is stern, as the very helpful written submissions for the respondent acknowledge.  My essential reason for concluding that it is manifestly excessive is that it would not be appropriate to the present case unless there were also some other feature or features, such as a loaded gun, robbers in company, considerable violence accompanying the robbery, considerable professionalism and a previous conviction or convictions for armed robbery or serious similar offences.  I agree with the respondent's description of this offence as a premeditated armed robbery of a bank by use of a sawn-off shotgun which placed people in great fear and deserved substantial imprisonment.  But, as the respondent fairly acknowledged, no such severely aggravating feature as I have enumerated was present. 

1. Whilst too great reliance must not be placed on sentences imposed in other cases, the analysis in the respondent's written submissions of cases of armed robberies upon banks and similar institutions considered by this Court over the last five years supports the conclusion at which I have arrived.  I record that, according

to the respondent, sentences in the range of three to five years are usual for armed robberies on "targets" such as milk bars, service stations, video shops and the like, whilst armed robberies on banks usually attract higher sentences.

1. If, as I consider, the head sentence is manifestly excessive, the whole sentencing discretion falls to be re-exercised.  Having regard to the circumstances of this offence and of this offender which I have identified earlier, I propose that the applicant be re-sentenced on count 1 to be imprisoned for five years and that a non-parole period of three years be fixed.

PHILLIPS, J.A.:

1. I agree.

COLDREY, A.J.A.:

1. I also agree.

PHILLIPS, J.A.:

1. The orders of the Court are as follows:

Leave to appeal is granted.  The appeal is treated as instituted and heard instanter and is allowed.  The sentences imposed in the County Court on 28 April 2000 are set aside and in lieu it is ordered as follows:  on count 1 the applicant is sentenced to five years' imprisonment and on count 2 the applicant is convicted and discharged.  The total effective sentence is thus five years' imprisonment and of that the applicant must serve three years before becoming eligible for parole.

The Court declares under s.18 of the Sentencing Act 1991 that as at this date, 20 March 2001, 433 days shall be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be noted in the records of the Court.

The order for the taking of a sample under s.464ZF(2) of the Crimes Act 1958 and the orders for restitution and confiscation made in the County Court on 28 April 2000 are confirmed.

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