R v Lambert No. Scgrg-98-197 Judgment No. S6869

R V LAMBERT

[1998] SASC 6869

Court of Criminal Appeal: Prior, Lander and Wicks JJ

LANDER J

This is an appeal against sentence. The appellant was charged with five offences all of which occurred on 5 October 1997. Those offences were: Robbery with violence, contrary to s158 of the Criminal Law Consolidation Act; false imprisonment, a common law offence; illegal use, contrary to s86A of the Criminal Law Consolidation Act; and two counts of false pretences contrary to s195 of the Criminal Law Consolidation Act.
The appellant pleaded not guilty to all counts and was subsequently tried before a judge and jury of the District Court.
He was found guilty on all five counts and on 16 July 1998, a District Court Judge imposed a single sentence in accordance with s18A of the Criminal Law (Sentencing) Act of nine years with a non-parole period of six years. Additionally on count three he was disqualified from holding a driver’s licence for twelve months.
The sole ground of appeal is that the sentence was manifestly excessive.
The victim in this matter was Trevor Ziepes, who was an elderly man and who was unwell having suffered from a heart attack in 1997. He also suffers from asthma. The appellant knew the victim well and knew him to be unwell. In the early hours of the morning, the appellant gained entry into the home of Mr Ziepes in Port Pirie. He bound and gagged the victim and then stole $180 from the victim's wallet and $100 from a suitcase. The appellant took Mr Ziepes' credit union card, and demanded that Mr Ziepes tell him his personal identification number. Mr Ziepes told the appellant that he did not have a personal identification number. The appellant untied Mr Ziepes and drove the victim in Mr Ziepes' car to Adelaide. He threatened Mr Ziepes if Mr Ziepes attempted to escape.
In Adelaide Mr Lambert went to two chemists which were agencies for the victim's credit union and withdrew $500 each from the victim's accounts by forging the victim's signature.
Mr Ziepes was not aware of these withdrawals until two days after he reported the incident to the police.
Whilst still holding the victim captive, the appellant drove around the suburbs of Adelaide. At one stage when the vehicle was stopped, Mr Ziepes tried to escape and flagged down a passing motorist. The appellant then forced Mr Ziepes back into the car. He also threatened the other motorist.
Eventually after the victim told the appellant that he needed the medication for a heart condition, the appellant left the victim with his vehicle, his credit card and $60 for petrol.
He told Mr Ziepes to drive back to Port Pirie, withdraw $300 from his account and told him not to report what had happened. The victim by that time had been the appellant's prisoner for several hours.
The appellant was born on 8 September 1969. His parents were divorced when he was eleven. He left school after year eleven and then worked full-time behind the bar in the family's hotel until early 1993 when the family sold the hotel. He has been out of work since early 1993.
In 1995/1996, the appellant undertook and completed a six month work skills course, but has been unable to obtain employment.
The appellant has a long list of previous convictions including building breaking and entering, assault occasioning actual bodily harm, disorderly behaviour, unlawfully on premises, illegal use of a motor vehicle, various motor vehicle offences, numerous possessing cannabis and equipment offences, offences for property damage, and offences for failing to comply with restraining orders and other minor offences. The list dates back to November 1981 and includes more than seventy offences.
On 20 March 1998, Mr Lambert was convicted of demanding with menaces and being unlawfully on premises in respect of offences committed on 19 December 1997 and was sentenced to twelve months imprisonment to be served from 24 December 1997.
A non-parole period was set at five months.
He was released on parole on 23 May 1998 and his parole was due to expire on 23 December 1998.
The appellant cannot be sentenced twice for that offence, but the commission of that subsequent offence shows that the appellant has few prospects for rehabilitation.
Prior to that sentence of imprisonment, and the sentence of imprisonment imposed in respect of this offence, the appellant had been sentenced to imprisonment on four occasions, but never for longer than six months when he received two sentences of three months imprisonment cumulative.
The appellant has a gambling addiction which has caused financial problems. This addiction was confirmed in a letter from a bookmaker who has observed the appellant's gambling habits for some ten years.
It was submitted to the learned sentencing judge that Lambert was seeking to reform his life and had expressed interest in participating in programs offered by the Christian New Life Centre. The learned sentencing judge said that he was a little sceptical about the appellant's born again approach. In my opinion, the learned sentencing judge was right to be sceptical having regard to the appellant's offending after the commission of these offences.
The appellant lived in a de facto relationship between 1992 and 1994 and a child was born of the relationship, a daughter aged five. The relationship broke down as a result of Mr Lambert's gambling and drinking. The daughter is in the custody of the mother. However, the appellant continued to see his daughter from time to time and maintained a close relationship with her until he was taken into custody in December 1997.
After the breakdown of the relationship with his de facto partner, there were a number of incidents involving his former partner which resulted in her calling the police and obtaining a restraining order against the appellant, an order which subsequently the appellant breached on numerous occasions.
The learned Sentencing Judge said:
“The offences with which I have to deal were extremely serious. You invaded the home of a vulnerable and a defenceless elderly man to imprison, rob and defraud him, doubtless hoping that he would be too frightened and intimidated to report you to the police. You have failed to learn the lessons of numerous convictions and penalties in the past.”
The learned Sentencing Judge made no allowance for contrition or remorse, the appellant's pleas and the conduct of his defence in which he falsely claimed the victim sexually assaulted him, disentitled the appellant to any reduction for contrition or remorse.
Mr Mead, on the hearing of this appeal, said that his instructions were to apologise to the victim and to the court. His client's instruction were to apologise to the victim and to the court for the commission of these offences.
Whilst noting that apology, the apology cannot affect the sentence already passed, nor would it be appropriate to have regard to that apology in a reconsideration of the sentence.
The learned judge was right, in my opinion, to sentence in accordance with s18A. These offences were part of a series of offences committed on the same day. His Honour was also right, in my opinion, to treat these offences as very serious. They were committed on an elderly sickly man in genuine and considerable fear and anxiety.
Having regard to the appellant's antecedents, and the gravity of these particular offences, a head sentence of nine years and a non-parole period of six years was not, in my opinion, manifestly excessive. The sentence was severe, but not so severe that it could be called manifestly excessive.
Another judge, even perhaps members of this court, might have imposed a lesser sentence, but it is not possible, in my opinion, for this court to say that the sentence imposed was manifestly excessive.
In my opinion, it would be appropriate simply to dismiss the appeal.
PRIOR J: I agree.

WICKS J: I agree.

PRIOR J: The order of the court is appeal dismissed.

[1998] SASC 6869

22 September 1998