R v Mark Phillip Drumgoon No. SCCRM 95/352 Judgment No. 5382 Number of Pages 8 Criminal Law and Procedure

[1995] SASC 5382

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL COX(2), PERRY(1) AND WILLIAMS(3) JJ

CWDS
Criminal law and procedure - armed robbery - sentence - The appellant, a young man of 24 years, appealed agalnst a sentence of six years imprisonment imposed on an admitted offence of armed robbery - armed with a replica pistol, he robbed a cashier at a Credit Union branch of over $4,000 in cash - he was apprehended soon afterwards fleeing the scene in a taxi - held that although the sentence was not manifestly excessive, the sentencing Judge had first sentenced the appellant before hearing submissions by his counsel in mitigation, and also had misconceived the relevant provisions of the CriminalLaw (Sentencing) Act 1988 as to accumulation of sentences - sentence reconsidered - five year term substituted for the sentence of six years but otherwise sentence confirmed - observations as to tariff for armed robbery. Criminal Law (Sentencing) Act 1988s31(2) and s58(4)(c), referred to. DPP v Fermaner (1994) 61 SASR 447; R v Hooper Court of Criminal Appeal, 21 April 1995, Judgment No 5048 (1995) 64 SASR 480; Appleton v R (unreported) Court of Criminal Appeal, 22 September 1995, Judgment No 5265, considered.

HRNG ADELAIDE, 20 November 1995 #DATE 13:12:1995 #ADD 15:1:1996

Counsel for appellant:     Mr A Barrett

Solicitors for appellant:    Susan Abbott

Counsel for respondent:     Ms T Kelly

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 PERRY J The appellant appeals pursuant to leave granted by a single Judge of the Court against sentences imposed upon him in the District Court on admitted charges of armed robbery, aiding and abetting the commission by another of false pretences, attempted false pretences, and receiving money obtained by false pretences.

2. The armed robbery charge involved an offence which occurred on 12 December 1994 when the appellant, while armed with a replica pistol, robbed a cashier at the Elizabeth City Centre branch of the Savings and Loans Credit Union of $4,180 in cash.

3. The false pretences and receiving charges were committed on 15 October 1994. Shortly before that date the appellant found a credit card in a shopping centre at Gilles Plains. He gave it to a young woman friend who used it to obtain $200 cash from a building society. She was apprehended when attempting to repeat the offence elsewhere. The three offences relating to that incident, namely, aiding and abetting the false pretences and the attempted false pretences and receiving the $200 being the fruits of the completed offence of false pretences, were the subject of a complaint in the Magistrates Court which was referred to the District Court to be dealt with in association with the armed robbery charge.

4. The offences in question constituted a breach of a bond upon which a sentence of two months imprisonment imposed upon the appellant in the Magistrates Court sitting at Berri on an admitted charge of driving whilst under disqualification had been suspended. That bond, which was for a period of twelve months, was imposed on 17 January 1994. The bond required the performance of 40 hours of community service which was performed by the appellant before the offending now in question.

5. In recognition of the performance of the community service, when the learned sentencing Judge imposed sentence on 20 June 1995, he directed that the appellant serve only one month of the activated term of two months imprisonment. In fact, he reduced it further to three weeks, in recognition of the week which had elapsed between that date and 13 June when the matter had first been listed before him and the appellant had pleaded guilty to the breach of bond. On the same date, on the three credit card offences, he imposed, pursuant to s18A of the Criminal Law (Sentencing) Act 1988, one penalty of four months imprisonment to be served cumulatively upon the other penalty.

6. On the armed robbery charge, the learned sentencing Judge imposed a term of six years imprisonment to be served cumulatively upon the expiration of the other terms. As to the overall head sentence of six years, four months and three weeks, he fixed a non-parole period of three years and six months commencing from 20 June 1995.

7. The imposition of those penalties on that date was a product of misunderstanding on the part of the learned sentencing Judge. The appellant had appeared before him on 13 June 1995 when the circumstances of the credit card offences were outlined by his counsel, Mr McDonough. The appellant was then remanded for sentence to 20 June 1995 to enable counsel for the Director of Public Prosecutions to obtain instructions as to the Magistrates Court matters. At that stage no submissions for leniency had been developed by Mr McDonough, although a victim impact statement and the report of Mr Fugler, a psychologist, together with certain medical reports concerning a back condition suffered by the appellant, were before the learned sentencing Judge.

8. Mr McDonough appeared again for the appellant before the learned sentencing Judge on 20 June 1995 when the matter came on for further hearing. After counsel had answered a question from the learned sentencing Judge as to the circumstances of the credit card offences, His Honour then proceeded to deliver sentencing remarks, during the course of which he imposed the sentences to which I have referred.

9. It is conceded by both counsel before this Court that in doing so he had overlooked that he had not heard submissions from either counsel generally, and more particularly as to the armed robbery offence. I must say I am surprised that the matter developed in that way, given the presence of Mr McDonough before him.

10. Be that as it may, His Honour brought the matter on again for hearing on 27 June 1995 when he confessed to having been labouring under a misapprehension that the submissions had been completed when he proceeded to sentence the appellant. In effect, he recalled the previous sentence and proceeded to receive further submissions from Mr McDonough and from counsel for the Crown. At the conclusion of those submissions, he indicated that he was not disposed to revise his view as to the appropriate penalty, and he re-imposed the same sentences, to commence from the same date, that is, 20 June 1995.

11. The principal grounds of appeal advanced by the appellant are that the sentences were manifestly excessive, and further that there was a miscarriage of justice having regard to the action of the learned sentencing Judge in sentencing the appellant before hearing submissions in mitigation, even though the submissions were heard before the sentence was confirmed.

12. The appellant is a young man who was aged 24 years, almost 25 years, when the armed robbery was committed. He was born in the United Kingdom and migrated to Australia with his parents. In 1987 he joined the RAAF as a General Hand. He later worked as an air photo plotter. In 1991 he resigned from the RAAF. By then he had a wife and child, but he separated from his wife in 1992 and has lived alone since. Later in 1992, after the separation, he was convicted of unlawful wounding arising out of an altercation between him and a man then associating with his wife.

13. He had injured his back while in the RAAF and began to suffer chronic pain in the spine. In February 1994, he underwent a spinal fusion. He became depressed and sought refuge in drugs and alcohol. At the time of the subject offences he owed a large sum of money to drug dealers. He had no settled home address and moved between the homes of various acquaintances.

14. On the day of the armed robbery, he sat outside observing the Credit Union branch office. He wrote out several threatening notes while he did so, and eventually entered the premises and produced one of the notes which read: "I have a pistol. Give me all your money. Large notes first."

15. He gave it to the cashier. He did not produce the pistol, which was a replica, and which remained tucked into his trousers under his belt. The cashier, a young woman, gave him all of the money in her drawers. On leaving the premises, he entered a taxi parked nearby and asked the driver to take him to the city. The police, who by then had been alerted of the robbery, parked a police car a little further down the road, stopped the taxi and arrested him. He offered no resistance to the arrest and owned up to the offence. He could hardly do otherwise as he had virtually been caught red handed.

16. On the hearing of the appeal, Mr Barrett of counsel for the appellant, contended that remarks made by the learned sentencing Judge when he called the matter on again to hear the submissions effectively cast an onus upon the appellant to displace the sentence which he had earlier imposed. The learned sentencing Judge is reported as saying that he would: "... listen to submissions from both Mr McDonough ... and from the Crown prosecutor to see whether there is reason for me to review the decision to which I had earlier come."

17. I do not regard those remarks as indicating a reversal of the onus. Having erroneously sentenced the appellant before hearing the submissions, there was little he could do but consider the submissions with a view to determining whether the sentence which he had previously imposed ought to be confirmed.

18. Mr Barrett next argued that the learned sentencing Judge failed to give proper weight to various mitigating factors which were said to be the lack of premeditation, the fact that a replica pistol only was used and was not produced, and the lack of sophistication involved in the robbery. He drew attention also to the appellant's unfortunate personal history.

19. 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. In that sense, I suppose that it is right to say that the fact that it was a replica pistol puts the offence into a category which is less serious than otherwise might have been the case.

20. It is true that the appellant went about the robbery in an amateurish fashion, but I do not think it right to say that it was not premeditated. As I have said, he sat outside the premises for some time before entering them with the threatening note which he had spent some time preparing.

21. Mr Barrett next argued that the learned sentencing Judge erred by being guided by the tariff for armed robbery offences applying before the truth in sentencing legislation. During the course of his original sentencing remarks, the learned sentencing Judge said:
    "As you are well aware now, the law has established, by a
    series of authorities, which bind the general discretion in
    sentencing, is controlled, to a very large extent, by the
    need for the courts to set a standard penalty for offences
    of this type, which are prevalent. Your offence is typical
    in many ways.

I have looked at the head sentence which I am obliged to
    impose and it would ordinarily be in the order of something
    like eight years. I say that, however, bearing in mind your
    previous record, which was not an extensive one, but does
    include three convictions which cause me some concern. One
    is of unlawful wounding, of which you were convicted in
    1992, in the Berri Magistrates Court. You were sentenced to
    imprisonment on that and you were sentenced on each of the
    carrying offensive weapon charges on 25 February 1994 and
    8 June 1994, at Waikerie, and Adelaide respectively. You
    were fined in respect of each of those. Therefore, I assume
    that they probably weren't of the most serious nature.
    Apart from that, you don't have any convictions which could
    be considered relevant to the present one.

In view of your co-operation with the police and your pleas,
    which were made at the earliest opportunity, I think you are
    entitled to have your sentence reduced to a period of six
    years, in respect of the armed robbery."

22. Before the truth in sentencing legislation, the "tariff" for armed robbery was eight to twelve years imprisonment (see, for example, DPP v Fermaner (1994) 61 SASR 447 per Matheson J at 449). It follows that after the truth in sentencing legislation the "tariff" should be regarded as the order of six to eight years. I do not read the sentencing remarks to which I have referred as indicating that the learned sentencing Judge had in mind the tariff as it existed before the truth in sentencing legislation. He was simply saying that ordinarily, were it not for the co-operation with the police and the plea of guilty, the sentence which could be expected would be of the order of eight years.

23. No so called tariff should be applied inflexibly: see the remarks of Cox J, with whom Olsson and Mullighan JJ agreed, in R v Hooper Judgment No 5048 (1995) 64 SASR 480, 21 April 1995:
    "It is necessary to say again that a penalty range or tariff
    for a particular crime, established by the practice of
    sentencing judges or by decisions made on appeal, is not
    something rigid and immutable from which no departure,
    certainly no upwards departure, may ever be made. Any
    standard range is intended to accommodate the ordinary run
    of cases, but there will be exceptional cases from time to
    time that fall outside the range. See The Queen v King
(1988) 145 LSJS 278 at 280; The Queen v Prendergast (1988)
147 LSJS 486 at 487-8; Nixon (1993) 60 A Crim R 83 at 88-9.
    The overriding principle is always the need to fix a
    sentence that is proportionate to the gravity of the offence
    - the principle of proportionality, as it has been called.
    Mr Peek, as I understood him, submitted that the sentencing
    court should arrive provisionally at an appropriate sentence
    according to the tariff for the particular offence, the
    offence being looked at objectively, as it were, for this
    purpose. The court may then reduce that sentence because of
    the offender's good record (or for other reasons) but it may
    not properly increase it because of his bad record, for to
    do that would be to punish him a second time for his
    antecedent crimes. That approach, in my opinion, is
    fallacious. It denies to the tariff its proper flexibility
    and it ignores the need on occasions to impose a more severe
    sentence on a particular offender because his record shows
    that the factor of personal deterrence, say, or the need to
    protect the public cannot be properly accommodated in any
    other way."

24. With respect, I agree with those observations. But even so, I think that there is some weight in the argument that in the circumstances of this case, to take eight years as the starting point might have been somewhat higher than the offence deserved.

25. On the other hand, the reduction of one quarter on account of the appellant's co-operation and plea appears generous, given the circumstances in which the appellant was apprehended.

26. After indicating that he would impose the sentence of six years for the armed robbery offence, the learned sentencing Judge said: "By operation of the law, that must commence at the expiry of the two terms of imprisonment which I have imposed earlier this morning, and that is a total, therefore, of six years and five months to commence from the date you admitted the breach of your bond."

27. That observation was erroneous. Not long ago, this Court had occasion to draw attention to the fact that a similarly erroneous observation to the same effect was made in another case: see Appleton v R (unreported) Court of Criminal Appeal, Judgment No S5265, 22 September 1995 per Perry J (with whom Cox and Lander JJ agreed) at p.4.

28. Under s58(4)(c) of the Criminal Law (Sentencing) Act 1988, the Court in circumstances such as this may, if it revokes the suspension of a sentence of imprisonment, direct that the suspended sentence "be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer". That section identifies a discretion. There is no obligation necessarily to direct that the activated sentence be cumulative upon any other sentence. In an appropriate case there is no reason why such a sentence could not be made concurrent with another sentence.

29. I suspect that the learned sentencing Judge mistakenly considered that the position was governed by s31(2) which relates to sentences of imprisonment imposed for offences committed during a period of release on parole.

30. On the other hand, ordinarily, where the defendant has committed an offence whilst on a bond, upon the basis of which a sentence of imprisonment has been suspended, the activated sentence should not be made concurrent with other sentences. To do so would tend to nullify the significance of the suspension, and undermine the importance of observing the conditions of the bond. That is not to say, however, that there will occasionally be cases where the "totality" principle might dictate another course.

31. In the result, it does not seem to me that, considered apart from the procedural errors which appear to have beset the case, the sentences could be considered to be manifestly excessive. But in the unusual circumstances, given the errors to which I have referred, it seems to me that it would be only fair to the appellant for this Court to reconsider the sentences afresh.

32. Armed robberies are, by their very nature, serious offences. In this case, a substantial amount of money was involved, and it appears from the victim impact statement that three months later the cashier was still receiving psychiatric counselling. But the offence did not have the hallmarks of the more serious offending by professional criminals which characterises many other cases.

33. In all the circumstances, I consider that the justice of the case would be met if a sentence of imprisonment for a term of five years on the armed robbery charge was to be imposed. There is no reason to interfere with the other sentences. This would result in a head sentence of five years, four months and three weeks to date from 20 June 1995.

34. As to the non-parole period, the learned sentencing Judge said:
    "You have been in custody since the time of your plea, that
    is, 3 April 1995 and, of course, I must, as I am obliged to
    do, take that into account because, in a sense you were
    serving dead time since 3 April until you came up before me
    and admitted the breach of the bond.

In ordinary circumstances I would set a non-parole period of
    four years. In light of the facts which I have just
    mentioned, I will set a non-parole period of three years and
    six months".

35. The period in custody was two and a half months. That would not appear to justify a reduction of six months on the period which the learned sentencing Judge otherwise had in mind. Be that as it may, approaching the matter afresh, and even allowing for the reduced head sentence, I do not think that it would be right to fix a non-parole period of any less than three years and six months.

36. Since dictating the above reasons, with the consent of counsel for the Crown, Mr Barrett has forwarded to the Court a letter from the appellant addressed to the presiding Judge, together with a copy of sentencing remarks delivered earlier this year in five other armed robbery cases.

37. In his letter the appellant points out the adverse effect which his imprisonment has had on his health and the well being of his family, as well as giving details of steps he has been taking to rehabilitate himself.

38. He refers also to the fact that while in gaol he has met other prisoners convicted of armed robberies whose non-parole periods are shorter than that imposed on him. Presumably the sentencing remarks enclosed with his letter relate to those other prisoners.

39. While imprisonment is undoubtedly causing serious problems for the appellant and his family, the same no doubt is the case with most other people sent to gaol. Insofar as he has problems with his health, there is no reason to think that he will not be offered appropriate treatment during the period of his incarceration.

40. It is inevitable that non-parole periods for any given offence will vary considerably as the fixation of such periods reflects a variety of personal and other factors peculiar to the particular case. Generally speaking, for that reason, comparison of non-parole periods between cases is rarely a fruitful exercise.

41. The letter and enclosures do not cause me to revise the opinion which I had reached as to the disposal of the appeal.

42. For these reasons, I would allow the appeal for the purpose of reducing the head sentence on the charge of armed robbery from six years to five years imprisonment, but I would set the same non-parole period, that is, three years and six months, commencing from the same date. I would not otherwise vary the sentences appealed from.

JUDGE2 COX J In my opinion this appeal should be allowed. The sentence of six years' imprisonment for armed robbery should be quashed and a sentence of five years' imprisonment substituted for it. That sentence will be cumulative upon the other sentences imposed on the appellant in the District Court on 27 June 1995. The other sentences and orders, including the comprehensive non-parole period of three years and six months, are affirmed. That means that the appellant's total head sentence is now five years, four months and three weeks, running from 20 June 1995, with his non-parole period staying at three and a half years.

2. I agree with the reasons of Perry J.

JUDGE3 WILLIAMS J I concur.