R v McAndrew - [1999] WASCA 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- MCANDREW [1999] WASCA 124

CORAM: ANDERSON J
WHITE J
HEENAN J

HEARD: 4 AUGUST 1999

DELIVERED : 17 AUGUST 1999

FILE NO/S: CCA 94 of 1999

BETWEEN: THE QUEEN
Appellant
AND
ROSS STUART MCANDREW
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Crown appeal - Respondent convicted of five armed robberies, five counts of stealing as a servant and other offences - Cumulative or concurrent terms - Sentence of three years imprisonment manifestly inadequate

Legislation:

Nil

Result:

Appeal allowed.

Sentence of five years imprisonment substituted.

Representation:

Counsel:

Appellant: Mr R E Cock QC & Ms E A Benwell
Respondent: Mr W B Harris

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: William B Harris

Case(s) referred to in judgment(s):

Miles v The Queen (1997) 17 WAR 518
R v Martin (1994) 74 A Crim R 252
R v Osenkowski (1982) 5 A Crim R 394
R v Tait (1979) 46 FLR 386
Shaw v The Queen (1989) 39 A Crim R 343
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Case(s) also cited:

Birch v The Queen (1993) 69 A Crim R 181
Dao v The Queen, unreported; CCA SCt of WA; Library No 990014; 22 January 1999
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930391; 14 June 1993
Mill v The Queen (1988) 166 CLR 59
R v Grein [1989] WAR 178
R v Peterson [1984] WAR 329
R v Wilkinson (1996) 85 A Crim R 353
Robinson v The Queen; Riches v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998

JUDGMENT OF THE COURT: On 6 April 1999 in this Court the respondent pleaded guilty to a total of sixteen charges for offences committed during the period of three months from 1 June to 1 September 1998. The charges appear in two indictments. One indictment contains five counts of armed robbery, two in company, and one count of stealing a motor vehicle. The other contains five counts of stealing as a servant and five counts of fraudulently gaining a pecuniary benefit. On 29 April the respondent was sentenced to imprisonment for three years, with eligibility for parole, in respect of those charges. Now the Crown appeals against the sentence, substantially on the ground that it was manifestly inadequate.
The robberies were committed on 1 June, 7 June, 13 June, 22 August and 1 September 1998 respectively, the first two at the Ascot Inn and the third at a fast food place in Belmont. On each of those three occasions the actual crime was carried out by one Matthews, a 20 year old man, who entered the premises while disguised with gloves and balaclava and armed with a knife. Having borrowed his girlfriend's car the respondent drove Matthews to the premises, waited outside in the vehicle and then drove off with him from the scene. A total of more than $2500 was obtained from those three offences. The last two robberies took place at TAB agencies, one at North Fremantle and the other at Inglewood. On those occasions a third man also was involved. On 22 August he and Matthews stole a motor vehicle and drove it to the TAB agency at North Fremantle. One of them, disguised with gloves and balaclava and armed with a machete, entered the agency, threatened a female staff member with the machete and demanded money. He was given $914. The two men then went in the stolen car to a place in North Fremantle where the respondent was waiting in his girlfriend's car. He then drove all three of them away. On 1 September the respondent and the two other men stole a car from the parking area of a block of flats in Maylands. Later that day, after the respondent had parked his girlfriend's car in a convenient place, they went in the stolen motor car to the Inglewood TAB Agency. Then, again disguised with balaclavas and gloves and armed with machetes, the three men entered the premises, threatened a female staff member and a male customer with the machetes and took $700 in cash. After the fourth robbery the respondent received heroin to the value of about $200. From each of the other robberies he received that amount in cash.
The ten charges which were the subject of the other indictment related to offences committed between 26 June and 27 July when the respondent was working as an electrical trades assistant at a business in Belmont. On five occasions he stole an item of equipment from his employer's premises. On each occasion, by pledging the stolen item as security he obtained money from a pawnshop, thereby obtaining a total of about $300 in cash. The stolen items, worth about $2,150 in all, later were returned to their owner.
On 17 September 1998, after conducting an interview with him which was recorded on videotape, detectives arrested the respondent. He has been in custody in respect of the present offences since then.
The respondent was born on 12 February 1980. His parents were divorced when he was 4 years old. His mother remarried about a year later but, when he was about 10 years old, his stepfather left the family. Although he was highly intelligent the respondent did not do well at school. He left at the age of 16 years. Thereafter he was employed mainly as a trades assistant. Towards the end of the year 1997, having used marijuana for some time, he began using heroin. Shortly after his 18th birthday he left home and went to live with his girlfriend. He committed these offences in order to support his heroin habit and while he was desperate for money. On 22 April 1998 in the Children's Court at Perth he had been convicted on two charges of burglary and released on a $200 good behaviour bond for six weeks in relation to each charge. Otherwise he had no prior conviction of relevance.
The learned sentencing Judge was informed that the respondent's co-offender Matthews had been sentenced by this Court to 15 years imprisonment for the robberies in question and for a large number of other offences.
In the course of his remarks to the respondent the learned sentencing Judge said:
"Your tragedy, Mr McAndrew, is that it seems to me, looking at the video, that you are an intelligent young man and I suspect that you have got considerable potential and that is clear from some very favourable references that I have seen as well as, as I say, the impression that I have formed looking at the video of the police interview. It seems to me that you have suffered some emotional traumas in your family life and you have probably lacked the support that an adolescent needs if he is to grow up in a proper manner.
You got into bad company and you started using drugs and in particular you got into the company of this original co-offender. I have looked at the sentencing remarks made by the judge who sentenced him, a very experienced judge, who said that the offences committed by the co-offender were the most serious series of robberies he had seen in something like 20 years.
It is a very common situation, the one in which you have found yourself regrettably, but of course that doesn't excuse your conduct. Armed robbery is very prevalent in the community and the Court of Criminal Appeal has said that sentences should be firmed up in the range of 6 to 9 years' imprisonment. In your case there are aggravating factors because you offended repeatedly and of course in the last and most serious offence when you were directly involved you engaged in threatening behaviour with a frightening weapon and you must realise that brandishing a machete in a TAB or in any public place is likely to have a most terrifying effect on the people who are threatened. They have no idea whether or not you are going to use it."
His Honour went on to refer to mitigating factors which included the youth of the respondent, his full co-operation with the police and his pleas of guilty at the earliest opportunity. Having commented that imprisonment was inevitable because of the very serious nature and number of the offences, his Honour said that the respondent's part in all but the last armed robbery was "a relatively minor one" and that he regarded the respondent's criminality, in respect of the earlier offences, as being at the lower end of the range.
As a preliminary step his Honour identified the term of imprisonment which he regarded as appropriate for each count: four years for each of the first three robberies, five years for the fourth robbery, one year for the theft of the motor car, six years for the fifth robbery and six months for each of the stealing and fraud charges. Because accumulation of all those terms would produce a total of 29 years, his Honour went on to say:
"Now, that is a huge number of years which is obviously totally crushing for a young man of your age and I therefore have regard to the totality principle which says that I shouldn't impose any greater period of imprisonment than is necessary having regard to the various factors that I have already referred to and I propose to discount all these sentences very heavily to take account of your youth, your early plea of guilty, your obvious remorse and your obvious desire to rehabilitate yourself.
I propose to discount each sentence by 50 per cent and I propose that all the sentences will be served concurrently, that is, all at the same time, on the head sentence, which is 6 years' imprisonment. That means that you will be sentenced to a term of imprisonment of 3 years. That will be backdated to 17 September last year when you were first in custody. I will make you eligible for parole, there is no question about that, and I will make a strong recommendation to the Parole Board that you be subject to very close supervision in the community for your own benefit as well as for the protection of the community.
Now, if you behave yourself you will be out of prison this September and I hope that that period of imprisonment will serve as a stern warning to you that if you get into trouble again there will be a lot more of it. Very well, those are the sentences. You may stand down."
The range of sentences commonly imposed for a single instance of armed robbery, depending upon the circumstances, is from 6 to 9 years (see Miles v The Queen (1997) 17 WAR 518). With that in mind, and taking into account that the role of the respondent in the first four robberies was limited to provider and driver of the "getaway car", that he received only a small part of the money stolen and that in each case he was clearly under the influence of at least one slightly older but more experienced criminal, one normally would expect a term of at least five years for each of the first four robberies and of at least seven years for the fifth. Imprisonment for a term of one year or thereabouts is what one normally would expect for the theft of the motor vehicle. If, then, those six terms were to take effect concurrently, the effective sentence of imprisonment for seven years would fit within the range of sentences commonly imposed for a series of such offences (see for example Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998).
In recent years, Courts of Criminal Appeal in Australia have underlined the importance of general deterrence in crimes of theft by persons in a position of trust (see for example R vMartin (1994) 74 A Crim R 252 per Crockett J at 256). The items which the respondent stole from his employer were not of great value and the period over which they were stolen was only one month, but the thefts were of a type for which, depending upon the circumstances and matters personal to the offender, one would expect a sentence of imprisonment for not less than one year. Because this series of offences neither forms part of nor was connected with the other series - and, therefore, would not fall within the "one-transaction rule" (see D A Thomas Principles of Sentencing (1979) 2nd ed 52 - 56 and Shaw v The Queen (1989) 39 A Crim R 343 at 347 per Brinsden J) - one would have expected the custodial penalty of one year to take effect cumulatively upon the penalty imposed for the robberies, making a total effective sentence of at least eight years imprisonment.
When considering whether this is an appropriate case for interference by the Court it is helpful to bear in mind the following passage taken from the judgment of King CJ in R v Osenkowski (1982) 5 A Crim R 394:
"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."
Even after taking into account the respondent's co-operation with the police officers, his pleas of guilty at the earliest opportunity, the other mitigating factors referred to by the learned sentencing Judge and the "totality principle" (again see D A Thomas op cit at 56 et seq), in our opinion an overall sentence of less than six years imprisonment normally could not be justified.
Because it is a Crown appeal special restraints apply. In R v Tait (1979) 46 FLR 386 at 388, Brennan, Deane and Gallop JJ said:
"Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' (per Barwick CJ, Peel v The Queen (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy 'the vested interests that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J, Whittaker v The King (1928) 41 CLR 230 at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."
Those remarks have particular relevance in this case. The respondent was entitled to expect, as the learned sentencing Judge told him, that if he behaved himself he would be out of prison this September. If we were to impose a sentence as severe as that which we should have imposed if he had not already been before the sentencing court, the effect upon him might be so crushing as to generate a degree of grievance and cynicism which would substantially reduce the prospects of his rehabilitation to which his Honour justifiably paid such regard. The result might very well be that, upon his eventual release into society, his attitude would be of such a nature as to make him a real threat to other law abiding members of the community. By reason of that special circumstance we would reduce by a further year the overall sentence which otherwise we should have imposed.
Having decided to allow the appeal and set aside the sentence, we substitute the following. In respect of each of the five counts of robbery the respondent is sentenced to imprisonment for a term of four years. For the offence of stealing the motor vehicle he is sentenced to imprisonment for a term of one year. Those six terms shall take effect concurrently. In respect of each of the five counts of stealing as a servant and the five counts of fraudulently gaining a pecuniary benefit he is sentenced to imprisonment for one year, those ten terms to take effect concurrently with each other but cumulatively upon the terms imposed in respect of the other six offences. Again the sentence will be taken to have begun on 17 September 1998 and the respondent will be eligible for parole in respect of each term.