R v Mawby No. Sccrm-01-301

R V MAWBY
[2002] SASC 173
Court of Criminal Appeal: Chief Justice, Perry and Lander JJ

DOYLE CJ. I would dismiss the appeal. I agree with the reasons given by Lander J.
PERRY J. In my opinion, this appeal should be dismissed. The circumstances are set out in the reasons for judgment of Lander J, with which I agree.
I add the following comments.
The Court of Criminal Appeal in Place was at pains to point out that an armed robbery constituted by a one-on-one street offence in which a purse or wallet is taken, is within the six to eight year standard.
This suggests that the learned trial judge in this case erred in taking six years as a starting point for his calculation of the penalty in this case. At best, from the point of view of the appellant, the starting point should have been the top of the bracket, that is, eight years, or arguably, something more.
Indeed, that the case should be regarded as falling beyond the bracket of six to eight years would appear to follow from the remarks of Doyle CJ, Prior, Lander and Martin JJ in their joint judgment in Place:[1]
“We would add only that we disagree with the suggestion in Newton that the circumstances to which the standard of six to eight years is appropriate includes the large-scale well planned hold-up of a bank or other business. Much will depend upon the manner in which an armed hold-up is carried out. Generally speaking, however, in our view a well planned and large scale armed hold-up would involve circumstances more serious than those contemplated by the broad description of the type of offences to which the standard of six to eight years applies.”
[1] (Unreported) Court of Criminal Appeal judgment No [2002] SASC 101 at para 108.
The offences now in question would appear to be “well planned and large scale” armed hold ups within the meaning of the description in the last sentence in that passage. The appellant and the co-offender were disguised with balaclavas; they were armed with a gun; they entered business premises (post offices) where a number of customers and staff were put in fear; and they made off with several thousand dollars.
That there were two robberies a week apart on premises of a similar kind, , namely post offices, indicates a degree of design or planning, a view which is fortified by the circumstances in which the count of possession of the shotgun was committed a few days later.
It follows that the sentence under review must be regarded as very moderate indeed. Indeed, it should not be regarded as indicating an appropriate level of punishment for crimes committed in similar circumstances.
LANDER J. This is an appeal against sentence. The appellant pleaded guilty to two counts of armed robbery, the first committed on 17 April 2000 and the second on 27 April 2000 and one count of possessing a firearm with intent to commit an offence on 1 May 2000. In relation to the third count it was asserted that the firearm was in the appellant’s possession for the purpose of committing a further armed robbery.
The appellant was charged jointly with Rocco Iulianella who also pleaded guilty to all three offences.
In respect of each one sentence was imposed. Both were sentenced to ten years imprisonment and a non-parole period of six years and six months was set in respect to both.
The appellant has appealed against that sentence upon the grounds that the sentence imposed was manifestly excessive; the learned sentencing judge erred in failing to differentiate between the sentences imposed upon the appellant and Mr Iulianella; and the sentencing judge erred in failing to give adequate weight to the appellant’s future prospects of rehabilitation and to any difficulties he might experience while serving his sentence.
At 11:20am on Monday 17 April 2000 the appellant and Mr Iulianella robbed the Australia Post Post Office at Goodwood Road, Goodwood. They ran into the post office through the front door wearing balaclavas. Mr Iulianella had the gun, the subject of count four, in his hand. The gun was a sawn-off shotgun. One of them yelled at a customer to stay where she was. The appellant jumped onto the front counter and held out a small plastic bag and demanded money from the drawer. The proprietor of the post office filled the bag as requested. The appellant and Mr Iulianella then ran from the store taking $2,090.
On Thursday, 27 April 2000 the appellant and Mr Iulianella robbed the Brooklyn Park Post Office. Again they were both wearing balaclavas and Mr Iulianella was holding the gun. They entered the store and told people not to move. The appellant demanded money from a person at the counter. He then demanded more money but was told there was no more. They left the store taking $1,717.
Both robberies were described by the sentencing judge as being a violent and frightening experience for the victims.
These were both well planned hold-ups. Both participants were disguised and a sawn-off shotgun was used. The post office’s staff were intimidated and put in fear. None of the stolen money was recovered as it was used to support the offenders’ heroin addiction.
The police suspected the appellant and Mr Iulianella of committing the offences and set up a surveillance operation which resulted in the arrest of the appellant, Mr Iulianella and a third person.
The appellant was born in Burnie, Tasmania on 4 September 1968. His parents separated when he was aged five. His father died when he was fourteen. His father was an alcoholic and had been violent and abusive towards his mother. The appellant claims that he was sexually abused by his father when he was aged between 12 and 13. The appellant’s mother is still alive and has remarried. The appellant has four siblings and he is closest to a 34 year old sister.
He has four children. Two apparently reside in welfare homes in Ballarat. He has two other children, from a later relationship, which broke down when the appellant was told that he was not the father of the second child.
The appellant has had a diverse range of jobs. He was last employed in his own business in May 2000.
The appellant commenced drinking alcohol at the age of 11 but ceased drinking in 1997 because he abused alcohol. He now has an occasional social drink. He has substituted a heroin addiction for alcohol and occasionally uses amphetamines and has previously used marijuana.
His heroin addiction has cost him in the order of $100 per day. He commenced a methadone programme in April 2001. The crimes were committed to obtain money to support a heroin addiction from which both men suffer. That, however, is not an excuse but merely an explanation.
The appellant has a significant criminal history. He was first imprisoned in 1986 for burglary. He has also been in prison for property damage, breach of bail and motor vehicle theft. He has a number of convictions both as a juvenile and as an adult. He has, however, not been convicted of a serious crime since 1987.
This Court was asked to compare his criminal record with that of Mr Iulianella who has been convicted and sentenced to imprisonment regularly since he became an adult. He has been convicted of a number of burglaries, robberies and motor vehicle thefts. He has continued to offend over the last ten years or so. There is no doubt that Mr Iulianella has a worse criminal record than the appellant.
The sentencing judge said that he would start with a notional penalty of 15 years which he reduced to 10 years to reflect the pleas and the principle of totality. There were three separate and distinct offences involved. Thus the sentencing judge should have proceeded, as he did, by treating the individual sentences which made up the whole cumulatively.
A commencement point of 15 years in the sentencing process for these offences was sympathetic to the offenders. In my opinion, the sentencing judge could have commenced with a significantly higher sentence.
True it is that both men pleaded guilty and co-operated with the police and both men have shown some contrition and remorse. Those matters were taken into account by the sentencing judge who indicated that but for the plea and the principle of totality he would have imposed a head sentence of 15 years.
In my opinion, both the starting point and the end point in relation to the head sentence were not inappropriate.
In my opinion, a sentence of ten years imprisonment for these offences cannot be said to be manifestly excessive. These were very serious crimes which must have been frightening for the victims.
In the case of both men the sentencing judge set a non-parole period of six and a half years.
The appellant has not only claimed that the head sentence was manifestly excessive but that having regard to the respective antecedents of the two men the sentence imposed upon him indicates disparity.
He supported that submission by pointing to the non-parole period which in each case was set at six years and six months.
The sentencing judge said:
“In the end, I can see no reason to distinguish between you and Mr Iulianella. I would impose the same sentence on each of you. To some extent, Mr Iulianella will benefit from that.”
In my opinion, it would have been better if the appellant’s less serious criminal record had been recognised in the non-parole period which was set by the sentencing judge. It might be said that the appellant’s prospects of rehabilitation are somewhat better than Mr Iulianella’s. The sentencing judge could have recognised that Mr Iulianella had less prospects of rehabilitation than the appellant by making Mr Iulianella’s non-parole period longer than six years and six months. I think that the non-parole period set for Mr Iulianella is lower than might have been appropriate. However, I am not persuaded that the non-parole period which the sentencing judge set for the appellant is manifestly excessive. In my opinion, that non-parole period, having regard to his antecedents, is appropriate. The sentencing judge had to make allowance for aspects of deterrence both personal and general.
In my opinion the disparity which the appellant claims is not marked, excessive or significant: R v Postiglione (1997) 189 CLR 295; Lowe v R (1984) 154 CLR 606.
In R v Kite (1971) 2 SASR 94 at 96 the Court of Criminal Appeal said:
“It has often been said, and we repeat it, that the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heaviest sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence on Beattie. That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.”
That is, in my opinion, the case here. The appellant has no grounds for complaining about the sentence imposed upon him.
I would dismiss the appeal

[2002] SASC 173

13 June 2002