Orders
Orders of the court
1. The appeal be allowed.
2. The sentences imposed upon the respondent and the orders made by the Supreme Court of the Australian Capital Territory on 20 October 2000 be set aside and in lieu thereof the respondent be sentenced as follows:
Count 1 - 2 years imprisonment
Count 2 - 2 years imprisonment (concurrent with the sentence for count 1)
Count 3 - 5 years imprisonment (to be cumulative upon the sentence for count 1)
Count 4 - 4 years imprisonment (concurrent with the sentence for count 3)
Count 5 - 2 years imprisonment (concurrent with the sentence for count 3)
Count 6 - 4 years imprisonment (to commence 2 years after the commencement of
the sentence for count 3)
Count 7 - 12 months imprisonment (to commence 3 months and 3 years after the
commencement of the sentence for count 6)
Count 8 - 4 years imprisonment (concurrent with the sentence for count 6)
Count 9 - 6 months imprisonment (to commence 9 months after the
commencement of the sentence for count 7)
3. The sentence on the first count is to date from 20 October 2000.
4. A non-parole period of 4 years and 6 months be fixed also to date from 20 October 2000.
5. Execution of the judgment of this Court is remitted to the Supreme Court.
6. For the purposes of s 451 of the Crimes Act 1900 (ACT) the Sheriff or prison authority is to reckon the time spent by the respondent in custody in relation to the above offences prior to 20 October 2000.
Background
Background to the litigation
In relation to one of the armed robbery charges, the respondent asked, pursuant to s 448 of the Crimes Act 1900 (ACT) (“the Act”) that there be taken into account in sentencing him: · two charges of driving in a dangerous manner;· one charge of assault occasioning actual bodily harm; and· seven charges of unlawfully using a motor vehicle.Background It is convenient to summarise the facts, chronologically, from a helpful statement of them, which was placed before the learned sentencing judge:Count 1 – Robbery on 16 March 2000At about noon a woman, six months pregnant, returned to her home unit. The prisoner was standing next to her screen door. As she walked inside the unit, the prisoner said to her “I saw teenagers trying to break in”. The victim then went over to her wall mounted telephone, next to the front door. The prisoner pulled the phone off the wall and pushed her onto a bed in the living room. He said “Get on the floor”. The woman was very frightened. The prisoner took her mobile phone from her hand.The prisoner picked up her wallet and took a $5 note from it. He then said to her “Stay there. Wait ten minutes before you get up. If you ring anybody, I will come back and slice your throat.” A short time later the victim heard a car leave. She got up and saw that a television set was missing. She also noticed that there had been damage to the front screen door and front door. The prisoner’s fingerprints were taken from the telephone and wall unit inside the premises by forensic police. When arrested on 20 April 2000 the prisoner had in his possession the victim’s mobile phone.The victim gave evidence at the prisoner’s committal. Thereafter, the prisoner indicated, on 27 July 2000, that he would plead guilty to this offence after being committed for trial by a magistrate on 12 July 2000.In addition, it was in relation to this count that the prisoner asked that the scheduled offences be taken into account.Count 2 – Robbery on 17 March 2000At about 11.15am a woman was standing behind the serving counter at the Canberra South Motor Park reception area. The prisoner entered, walking quickly. He went directly to a waist high swinging door entry to the space behind the counter. He reached down, unlocked the bolt and opened this door. The victim thought that the prisoner was carrying a large pocket knife. She stepped back and placed her hands up in a surrender position. After the incident a cigarette lighter with a large black case and silver top was found on the floor.The victim reached towards the telephone and the prisoner said “Touch it and I will kill you”. She moved away from the telephone. The prisoner demanded that she open the cash register, and she did so. The prisoner then took about $700 in notes from the cash tray and told her to lift the tray. She did so and the prisoner then left, driving off in a vehicle, the victim took down the registration number.Scheduled Offence 1: Unlawful use of a Motor VehiclePolice enquiries revealed that that vehicle was reported stolen by its owner at 11.25am that day. It was stolen between 9.10am and 11.00am on 17 March from a carpark. It was recovered at about 1.00am on 18 March. Count 3 – Armed Robbery on 23 March 2000At about 3.25pm Mr Brett Morgan was working in the reception area at the Canberra City Motor Inn in Griffith. At that time he saw a red Holden Commodore drive into the driveway of the premises and into the carpark, turn around and then stop just past the reception area. Mr Morgan stood up to investigate and, as he did so, the prisoner entered the reception area.As the prisoner walked towards Mr Morgan he hunched over. Mr Morgan was concerned that the prisoner was going to attack him and stood back. The prisoner said “Open the till … I’m going to stab you”. The prisoner moved his left hand from behind his back and showed Morgan that he had a knife in that hand. Mr Morgan was terrified and started shouting at the prisoner. The prisoner continued to tell Morgan that he would stab him and said “Open it … it’s not worth it … open the till.” After further shouting, Mr Morgan opened the till and handed the prisoner the fifty and one hundred dollar notes, totalling about $1500. The prisoner took this money and placed it into a bag that he had taken from under his clothing. There was a further argument about whether there was any other money under the cash tray. Morgan stepped forward and lifted the tray. The prisoner looked under the tray and then ran outside. He then turned to Morgan, smirked and poked out his tongue before getting in the car and driving off.Scheduled Offence 2: Unlawful use of a Motor VehicleMr Morgan noted the registration of the car as YSN009. Inquiries by police revealed that this motor vehicle, a red Holden Commodore sedan, was stolen from a car park between 6.45am and 4.00pm on 23 March 2000. The vehicle was recovered on 27 March 2000.Count 4 – Armed Robbery on 2 April 2000At about 1.50pm on a Sunday Ms Kristie Simpson was working in the reception area of the Statesman Hotel in Curtin. At that time the prisoner’s co-offender, Tristan Dawe, entered the reception area and approached the front counter. Dawe asked if he could use the toilet. The victim directed him to a toilet in the reception area. Dawe used the toilet and then left the reception area. About five minutes later Dawe re-entered the reception area with the prisoner. Dawe told Ms Simpson that they needed to use the toilet again. Both Dawe and the prisoner then went towards where the toilet was located. A short time later Ms Simpson noticed them walking back towards the reception desk. As they approached the prisoner pulled a balaclava over his face. The prisoner then climbed over the reception counter and told Simpson “Open the till.” She did so and then the prisoner showed her that he was holding a knife in his left hand. Dawe and the prisoner removed the money from the till. The prisoner then told Simpson “Get down on the ground”. Simpson got down on her knees, and saw the prisoner remove the cash till from inside the register. The prisoner then climbed back over the desk. About $4000 was stolen.Scheduled Offence 3: Unlawful use of a Motor VehicleMs Simpson saw the prisoner drive off in a red sedan. Police enquiries revealed that the red Holden Commodore, registration YKH260 was stolen between the hours of 9.00am and 4.00pm on 2 April 2000 from a car park.Count 5 – Conspire to Commit Armed Robbery on 7 April 2000At about 1.00pm Ms Sonja Thorpe was working as the receptionist at the Diplomat Hotel. She observed the prisoner’s co-offender, Tristan Dawe, enter the reception area wearing a black wig. Dawe looked around the reception area, and then walked down the stairs leading to the underground carpark.Ms Thorpe saw, through the front glass doors, a blue sedan parked at the bottom of the front stairs, with the prisoner sitting in the driver’s seat. He then got out of the car and looked up through the reception doors, before getting back into the car and moving it forward so that most of the car was out of view through the reception doors.Ms Thorpe became suspicious and advised the Assistant Manager, Ms Lorrae Kennedy. Ms Kennedy then wrote down the registration number of the car YKK154.Dawe then walked back up the stairs and said “See you later love”. Ms Kennedy then called out to Ms Thorpe to call the police. Dawe left the foyer and got into the blue sedan. The prisoner then drove away.Scheduled Offences 4 and 5: Driving in a manner dangerous: Unlawful use of a Motor VehicleThe police were notified to attend and located a vehicle, registration YKK154, at an intersection in Kingston. Police attempted to prevent the vehicle from driving away, but the prisoner deliberately rammed the police vehicle. The prisoner then opened his door and as police got out of their vehicle he closed his door, reversed the vehicle and drove off. Police lost sight of the vehicle. Police inquiries revealed the Holden Commodore sedan with registration YKK154 had been stolen from a carpark between 10.30am and 12.20pm that day.Counts 6 & 7 – Armed Robbery and Arson on 13 April 2000At about 9.15pm the prisoner and his co-accused, Christopher Hayes, entered the King Ruby restaurant at Hackett. Ms Li Chu Lam was behind the service counter and thought the two men were new customers. She called for her daughter to come and serve them.The prisoner spoke to Ms Li Chu Lam, but she did not understand. He moved closer and leaned against the counter and she saw that he had a knife in his left hand. Ms Lam was very frightened. The prisoner spoke again, and said “Give me the money”.Ms Lam then opened the cash register. The prisoner reached over and took out the cash tray.The two men then ran out of the restaurant, and were observed getting into a gold Holden Commodore sedan. About $600 was stolen.The prisoner with Hayes and another person then drove to Ainslie Village, where the prisoner and Hayes set fire to the car. The remains of a cash tray were located in the car.Scheduled Offence 6: Unlawful use of a Motor VehicleA gold Holden Commodore (registration number YAJ59P) was reported stolen. The car had been taken from a car park between 8.45pm and 10.30pm.Count 8 – Armed Robbery on 15 April 2000At about 8.12pm on 15 April 2000 the prisoner and his co-offender Hayes entered the reception area of the Canberra Lyneham Motor Inn. The prisoner then spoke to Ms Fay Ruskin who was working in the reception area and demanded money. When he did so, Hayes produced a knife. Ms Ruskin opened the till and Hayes gave the prisoner a plastic bag. The prisoner took the cash from the till and put it into the bag. $535 was stolen.Scheduled Offence 7: Unlawful use of a Motor VehicleBoth men then left and drove away in a Holden Commodore sedan, ACT registration YAJ59P. Police inquiries revealed that this vehicle had been reported stolen from Ross Smith Crescent, in Scullin, on Saturday 15 April. The vehicle was recovered.Count 9 – Escape Lawful Custody on 16 July 2000About 5.31pm on Sunday 16 July 2000 Mark Spiteri, a detainee at the Belconnen Remand Centre, kicked a hole in the gyprock wall of a courtyard near the southern wall of the Centre. He then returned to the ‘E’ dormitory. About 5.33pm Spiteri returned with the prisoner and another detainee, Anthony Fitton. Spiteri and the prisoner then climbed through the hole in the wall.A short time later another detainee, Huu Le climbed out of the hole, again in the presence of Fitton. Fitton then covered the hole in an attempt to disguise it and returned to the ‘E’ dormitory.The prisoner was at large until 25 July 2000 when he was arrested at premises in Rivett.Scheduled Offences 8 & 9: Unlawful use of a motor vehicle: Driving in a manner dangerous on 17 April 2000Constable Howes was involved in the pursuit of a car which contained two occupants, the prisoner and his co-offender, Christopher Hayes. The prisoner was driving. He deliberately rammed the pursuing police vehicle on two occasions. The vehicle driven by the prisoner reached speeds in excess of 100km/h in densely populated residential areas. The prisoner escaped by climbing over fences after stopping his vehicle in a suburban driveway.Police inquiries revealed that the car had been stolen the same day from a car park.Scheduled Offence 10: Assault occasioning actual bodily harm on 4 June 2000The prisoner assaulted Todd Brendan Kirby whilst in custody after his re-arrest at the Belconnen Remand Centre. Kirby was in his room when the prisoner and another detainee known to Kirby as Cook entered. The prisoner asked Kirby to accompany him and Cook to the ‘E’ dormitory so that the prisoner could make some phone calls. The prisoner told Kirby that he would not be able to go unless Kirby agreed to go as well. Kirby refused as he said he was sick. The prisoner and Cook left his room, but the prisoner returned again about 10 minutes later, and again asked him to go to ‘E’ dorm. Kirby again refused, and the prisoner became abusive. After asking a third time and being refused again, the prisoner then grabbed Kirby around the neck and punched Kirby in the head several times. Mr Kirby was lying down on his bed at the time. The prisoner also hit him in the face, neck and shoulders before standing on the bed and kicking Kirby in the ribs and back.Kirby later reported the incident. He was seen by the Remand Centre nurse, and then taken to Calvary Hospital for X-rays. According to the nurse’s report, Kirby sustained bruising above the left temporal area and lacerations to the right mandible. He also suffered loss of consciousness.Count 10 – Possess Stolen Property on 25 July 2000After being arrested on 25 July 2000 the prisoner was searched and a white gold ‘Russian Cut’ diamond ring was located under his right foot. The ring had a gold price tag attached; one side of the tag had $1800 written on it and the other side had the word ‘Russian’ and several figures.The ring was seized. On 26 July 2000 police showed the ring to Mrs Helen Tyrrell-Philips, the victim of a robbery at Advanced Jewellers in Southlands Shopping Centre, Mawson on 21 July 2000, who identified the ring as being the one stolen from her store during the robbery.During a taped record of conversation with police on 27 July 2000 the prisoner admitted having the ring in his possession. He further stated that he received the ring from a man known as Phil Norris at the Tuggeranong Homeworld Shopping Centre on 21 July 2000 between 4pm and 5pm, approximately three and a half hours after the robbery. The prisoner stated he was given the ring by Norris to sell. He was to receive money for selling the ring and if successful Norris would give him further jewellery to sell. The prisoner stated he believed the ring was stolen.The prisoner could not provide police with further details about Norris, and police have been unable to locate him.CO-OFFENDERS
Ratio Decidendi
Legal Principle Established
Furthermore, there had been an exchange (set out below) between the sentencing judge and counsel for the prosecution at the sentencing hearing which it was submitted provided a discretionary ground for us not to interfere. Consideration:1. Appellate restraint on interference It is beyond argument that, as the Director very properly puts it, Crown appeals against sentence ought to be sparingly made and rigorously assessed. It is also as counsel for the respondent argued, of fundamental importance that courts of criminal appeal should recognise and respect a wide discretion in a sentencing judge. There are two specific reasons for this. The first is that every case is different from others, if only because it concerns a different human being. No sentencing regime that purports to concern itself with the totality of the circumstances that may tend to mitigate a particular offender’s culpability can deny the sentencer adequate scope for assessment of infinitely various facts and their nuances. The Australian Capital Territory sentencing system enjoins respect for the particular case: s 429 of the Act sets out the six “only purposes” for which a sentence may be imposed. The first purpose is “to punish the offender to an extent and in a way that is just and appropriate in all the circumstances”. Section 429A requires a sentencing court to have regard to a number of the personal characteristics of offenders: see subs (1)(f) to (s), and (u) to (w) inclusive. The price of this, in practice, is that a very considerable degree of departure from the obvious virtues of consistency must be tolerated. Associated with this are the well-recognised facts that sentencing is a complex business and an “inexact science” (per McHugh J in Everett (1994) 181 CLR 295 at 307). In Veen (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ at 476 said:“… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”In Ryan (2001) 75 ALJR 815, Hayne J said (at 838 paras 133 and 136, in the context of a prisoner’s appeal against severity of sentence):“Sentencing an offender is a very difficult task. It requires consideration and balancing of many different and often conflicting matters. The offender’s conduct can excite strong emotional responses: anger, disgust, revulsion, horror. The offender’s personal history, which all too often is a history of deprivation, can excite sympathy. Often enough the sentencer is left wondering whether society has failed to protect and look after those who, it turns out, were most in need or most at risk.…As was said in Pearce v The Queen:‘Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.’It is because sentencing, being discretionary, admits, of no single “correct” answer, that the task of intermediate appellate courts, on an appeal against sentence, is to examine whether the appellant makes good the allegation that the sentencer made an error of principle, not whether they agree with the sentence imposed. In a case of the present kind where, so far as is now relevant, the appellant alleged specific error, rather than error inferred from manifest excess of sentence, the question is not whether the particular factor to which attention is directed might have been taken into account by the sentencer differently.”