R v Mawby No. Sccrm-01-301 - [2002] SASC 173

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] SASC 173
Decision Date: 13 June 2002

CaseChat Overview and Summary

This case involved an appeal against sentence by the appellant, who was convicted of two counts of armed robbery and one count of possessing a firearm with intent to commit an offence. The appeal was dismissed by the Court of Criminal Appeal. The appellant and his co-offender, Rocco Iulianella, were both sentenced to ten years imprisonment with a non-parole period of six years and six months. The appellant argued that the sentence was manifestly excessive, that the sentencing judge failed to differentiate between the sentences imposed on the appellant and Mr Iulianella, and that the sentencing judge did not give adequate weight to the appellant's future prospects of rehabilitation and any difficulties he might experience while serving his sentence.

The legal issues the court had to decide were whether the sentence imposed was manifestly excessive, whether there was a disparity between the sentences imposed on the appellant and Mr Iulianella, and whether the sentencing judge failed to give adequate weight to the appellant's future prospects of rehabilitation.

The court found that the sentence imposed was not manifestly excessive and that the sentencing judge did not err in failing to differentiate between the sentences imposed on the appellant and Mr Iulianella. The court also found that the sentencing judge gave adequate weight to the appellant's future prospects of rehabilitation. The court held that the starting point for the sentence should have been the top of the bracket, that is, eight years, or arguably, something more, as the crimes were well planned and large scale armed hold ups. However, the court found that the sentence imposed was appropriate, having regard to the appellant's antecedents, and that the non-parole period set for the appellant was also appropriate.

In conclusion, the Court of Criminal Appeal dismissed the appeal against sentence. The court found that the sentence imposed was not manifestly excessive and that the sentencing judge did not err in failing to differentiate between the sentences imposed on the appellant and Mr Iulianella. The court also found that the sentencing judge gave adequate weight to the appellant's future prospects of rehabilitation. The final orders were that the appeal be dismissed.

Orders