R v Heaney

[1998] VSCA 115

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 18 of 1998

THE QUEEN

v

DANIEL MARTIN MICHAEL HEANEY

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JUDGES:	BROOKING, PHILLIPS and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 1998
DATE OF JUDGMENT:	18 November 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 115

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CRIMINAL LAW - Sentencing - Armed Robbery - Retail financing outlet - Toy pistol used and knife carried - Previous convictions for armed robbery - Six years' imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. (appearing pro bono)

BROOKING, J.A.:

1. Phillips, J.A. will deliver the first judgment.

   PHILLIPS, J.A.:

2. The applicant, Daniel Martin Michael Heaney, who was born on 29 August 1957, is now 41 years of age. On 15 May 1998 he pleaded guilty in the County Court at Geelong to a presentment alleging one count of armed robbery, for which the maximum penalty is 25 years.

3. The applicant admitted 35 prior convictions from 13 court appearances. One of these was on 9 November 1984, when he was sentenced on nine counts of armed robbery to 13 years' imprisonment with a non-parole period of 10 years. Another was on 11 August 1992, when he was convicted of threatening to kill (two counts) and assaulting a member of the police force in the execution of his duty (two counts), for which he was sentenced to three years' imprisonment with a non-parole period of 18 months. He was required to serve this sentence in full but, having spent 16 months on remand for the offences, he was, I suppose, released in April 1994. The applicant was sentenced in the County Court in April 1996 to 12 months' imprisonment for drug trafficking, with a non-parole period of six months, and counsel told us this morning that in November 1996 he was dealt with for breach of parole or some such. As the sentencing judge observed, it follows that the applicant has spent most of the last 14 years in prison.

4. After a plea in mitigation was heard from counsel on his behalf, on 22 May 1998 the applicant was sentenced to be imprisoned for six years and a non-parole period was fixed of four-and-a-half years. It was declared that 143 days in custody should be reckoned as having already been served under the sentence. The applicant now seeks leave to appeal against the sentence.

5. The circumstances of the offending can be described from the summary of evidence which forms part of the appeal papers. On Wednesday 31 December 1997, at about 1.30 p.m., the applicant left a hotel in Geelong after drinking about ten pots of beer. After spending all of his money and having only $1.70 in his pocket, he decided he needed to find a way of obtaining more money. He then spent two-and- a-half hours walking the streets thinking of a plan to commit a robbery at the Geelong and District Credit Co-operative. The applicant told police that during this time he went to a church and said a prayer. At the time he was wearing a singlet and shorts only. He then obtained a toy or imitation pistol from an unknown source. He went back to his car, which was in a car park in Little Malop Street, and obtained some clothing to put on. This change of clothing was to be used as a disguise. It included a black bandanna to cover his face, a raincoat with attached hood, tracksuit pants, sunglasses, a baseball cap and a pair of gloves. From his car the applicant also obtained a pocket knife, and while at the car he used a disposable razor to shave off his moustache.

6. At approximately 3.55 p.m. the applicant entered the Geelong and District Credit Co-operative. At this time he was wearing a pair of blue tracksuit pants, sunglasses and a baseball cap. He had the hood from the jacket pulled tight around his face and had the bandanna across his face. He was holding the toy or imitation pistol in his hand and had the knife in his pocket. He was carrying a plastic bag in which to put the proceeds of the robbery. When the applicant entered the co- operative there were two female tellers behind the counter. There was an elderly female customer at the front counter and three male customers at the rear, including one Reginald Millan Whitford who was with his two sons aged 16 and 14. As the applicant entered the credit co-operative he pointed the imitation firearm at the female customer at the front counter and told her to move out of the way. He then pointed the firearm at the female tellers and demanded that they give him money. One of the tellers placed on the counter a small amount of cash, which the applicant placed in the bag. He then made a demand for more money, with which she complied. At this time the other teller ducked down behind the counter and raised the alarm.

7. During the armed robbery another customer entered the co-operative. As he opened the door the applicant turned and pointed the toy pistol at him and said, "Stop in here or I'll shoot". The man turned and ran out the door. The applicant then ran to the door to see where he had gone. At this point Mr Whitford and his two sons tackled the applicant from the rear. Mr Whitford grabbed the applicant's arms from behind and pulled them into his stomach, while one of his sons grabbed the applicant in a headlock, and they all fell out of the door on to the pavement. They held the applicant on the ground until the police arrived. It was just after 4 p.m. During this time the younger son removed the firearm and the knife from the applicant.

8. Given the circumstances of his apprehension, it is scarcely surprising that the applicant, when he took part in a tape-recorded interview, made full and frank admissions. Nor is it surprising that he pleaded guilty at an early stage.

9. The only ground raised on this application for leave to appeal is that the sentence imposed was manifestly excessive. But Mr Tehan, Q.C. (who appeared for the applicant) emphasised a number of things in his argument.

10. First, he said, on this occasion the offence was motivated by desperate financial circumstances. The motive for the crime was "sheer desperation", as it was put on the plea below. Prosecuting counsel said then:

    "Indeed, in the interview he [the applicant] later had with them [the police] he displayed some remorse for what he had done and said to them that virtually he felt that he had no other way out of his present predicament. He acknowledged to the police that what he did in the Co-op was likely, and he knew it was likely, to cause terror and fear in the building at the time, but he saw no way out from his own situation. He said his wife had gambling problems. He had debts and he felt his situation was hopeless and so he decided he needed some money."

11. In the course of his interview he said: "Well, I thought, 'I'm gonna get hold of some money, you know. I've

    got a wife sittin' at home, and there's no money to - for this or that, pay the bills, whatever. I'm tryin' to get a job, et cetera, et cetera. I just had enough. So I just made a decision I was gonna go and get some money from somewhere."

    When asked what that decision was, he said:

    "Well, I'm not into breaking into people's houses or any of that crap, so - you know. I have got some moral standards, but - even though people would probably say armed robbery's a horrific crime, I mean, I never went there with the intention to hurt anybody or anything like that. I only went there to get some money."

12. The stress under which the applicant was labouring at the time was described by the sentencing judge in this way:

    "Towards the end of 1997 you were suffering considerable stress resulting from the conjunction of a number of circumstances. Your wife had been charged with murder. You were both on methadone. Your wife was gambling heavily. You were unemployed, and you were having difficulties making ends meet. Both you and your wife had made suicide attempts. As Mr Joblin, consultant psychologist, said in his report dated 4 May 1998, 'There was an inevitability at that time that you would either end up in the gutter or committing an offence.'"

13. The second point emphasised by Mr Tehan was that the robbery was unsuccessful; the applicant was nervous and almost apologetic during its commission. This is how it was put by the Crown at the time of the plea:

    "On entry to the bank he appeared nervous to the staff. He produced the weapon; told them that he needed money; said that he had kids and he, according to the assistant manager ..., he said that in a tone of voice which was somewhat apologetic for what he was doing. None the less, both she [the assistant manager] and another female teller who was present at the counter at the time were terrified with what happened."

    As Mr Tehan said, once disarmed and arrested, the applicant was co-operative and "displayed some remorse" as conceded by prosecution counsel before the sentencing judge.

14. The third point which Mr Tehan sought to stress in his outline of argument was that, despite the impressive list of previous convictions, this offending was "in a markedly different category". Again this was a distinction which was put in argument to the sentencing judge on behalf of the applicant, for counsel said then:

    "Those [meaning the armed robberies for which he was sentenced in 1984] were armed robberies involving real firearms where he was under the influence of drugs and alcohol. He was under the influence of alcohol on this occasion, but they were armed robberies of, for example, hotel payrolls or hotel takings; that type of armed robbery and the motive for those armed robberies, as I understand it, was for gain ... for he was in the business of armed robberies, if you like, and that's what he did."

    This seems to have struck a chord with the sentencing judge, for he said in his sentencing remarks:

    "[Counsel] sought to persuade me that the current offence was not a return to your previous days as a professional armed robber. This may be so. He said that this offence resulted from sheer desperation on your part."

15. Fourthly, Mr Tehan emphasised the opinion expressed by the psychologist, Mr Joblin, in his report of 4 May, that the applicant required a period of supervision. Again the point was explained to the sentencing judge by counsel on the plea:

    "He accepts that he is going to be in custody for some time as a result of this sentence. He is a person who, with respect to what Mr Joblin says, needs very strict supervision and education about how one deals with crises; with what other people take into their stride in the complicated world we live in; he has simply none of those skills and, with respect to what Mr Joblin says, I adopt them. Also in relation to they are skills that they cannot be taught while people are in custody. However, the seriousness of the offence and his prior history calls for a term of incarceration which will, no doubt, attract both a maximum and a minimum sentence. I would urge your Honour to have considerable disparity between those two sentences."

16. To this end, counsel described parole as "a support structure". This morning Mr Tehan took us to the relevant portion of Mr Joblin's report, which is at page 5.

17. With these points made, Mr Tehan then submitted to us that the sentence imposed was in all the circumstances manifestly excessive. He also submitted that there was not sufficient difference between the head term and the minimum term. Too much weight, he said, must have been given by the judge to factors of punishment and general deterrence, and not enough to the applicant's personal circumstances and the nature of the offending. Yet, as I have shown, it cannot be said that any of these factors were not put properly before the sentencing judge; nor can it be said that his Honour failed to take account of any of them. All of them were considered and no specific sentencing error is alleged.

18. It was in the light of all of the circumstances of the offending and of the offender that his Honour imposed the sentence of six years' imprisonment with a non-parole period of four-and-a-half years. The offence in question is armed robbery, and in choosing a retail financial outlet in Geelong the applicant chose what is sometimes called a soft target. It is true that on this occasion the applicant was waving only a toy pistol, but the impact on his victims was no less and he was carrying a knife, albeit that it was concealed in a pocket. No physical injury was inflicted, but the terror was real enough, and seven victim impact statements were before the court. The effect of this experience on those who must continue to work in the industry can be imagined. Even the customer who, with his sons, tackled the offender has since been taught to regard his conduct as having foolishly exposed himself and his sons to risk and he is now being counselled - although I must say that I think that he and his two sons should be commended, very publicly, for their courage and their bravery.

19. Having considered what counsel has said, I am not persuaded that the sentence imposed was manifestly excessive and that there is any justification for our interfering either with the head term which was imposed or the fixing of the non- parole period. Though perhaps the sentence was on the high side given the circumstances that Mr Tehan has emphasised to us and which were put below on behalf of the applicant, none the less that sentence was, I think, within the range of sentences properly available to the sentencing judge on this occasion. As no specific error was suggested, it follows that in my opinion the appeal should be dismissed.

    BROOKING, J.A.:

20. I concur.

    CHARLES, J.A.:

21. I also concur.

    BROOKING, J.A.:

22. The order of the Court is that the application is dismissed.