R v Neiufi

[2001] QCA 513

[2001] QCA 513

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
CHESTERMAN J

CA No 280 of 2001

THE QUEEN

v.

JAMIE WILLIAM NEIUFI                   Applicant

BRISBANE

..DATE 16/11/2001

JUDGMENT

MACKENZIE J:  The applicant pleaded guilty in the Bundaberg District Court to a count of armed robbery in company with actual violence and while armed with an offensive instrument, committed at a Westpac Branch in Bundaberg.  He also pleaded guilty to a separate count of dishonestly causing pecuniary loss to his employer, a tobacco wholesaler.

For the armed robbery he was sentenced to four years' imprisonment with a parole recommendation after 15 months.  For the other offence he received 12 months' imprisonment to be served concurrently.  His submission that the sentence is manifestly excessive focuses on the sentence of four years.

The applicant was 24 at the time of the robbery.  He was employed as a distribution agent for the tobacco company although he had been absent from work for a couple of weeks before the robbery.  Being concerned for his welfare the company made enquiries and found that a little under $4,000 of company funds were unaccounted for.  That is the subject of the count of dishonestly causing pecuniary loss.

In submissions to the sentencing Judge the applicant's counsel said that the applicant was a problem gambler and had incurred other financial commitments including a Child Support Agency debt and credit card debts to the extent of at least $30,000. Because of his financial state he considered committing the robbery. 

It is not entirely clear how the other two participants in the robbery, Krause and Ryan, became involved but when they were dealt with about six months before the applicant was sentenced, because he had absconded, they were sentenced on the basis that the applicant was probably the principal offender but that they had also participated in the planning to varying degrees.

Krause was 21 years of age with one previous conviction for possession of a dangerous drug and utensils.  Ryan was only 17 years of age.  He had been convicted on two occasions of drug offences by the time of the sentence.  The first was six months prior to the robbery and the second was for possession of utensils on the day of the robbery.  He had also committed a shoplifting offence two months after the robbery before he was dealt with for it.  Krause and Ryan were each sentenced to two years' imprisonment suspended after six months for an operational period of three years.

The applicant had several prior convictions for minor offences of dishonesty and one for possession of cannabis. It is clear enough that a factor in his decision to commit the robbery was the defalcation in respect of his employer's money.  The factual context differentiates his case from that of the other offenders making arguments based on parity of less force than they might otherwise be.

The robbery involved some preparation since a toy gun was painted to make it look more realistic and masks were obtained and worn, along with gloves, during the robbery.

The applicant had the gun at all times and used it to threaten and intimidate staff and customers in the bank.  The bank staff remembered him as the one who was yelling orders and threats at them.

Although a customer in later middle age challenged the authenticity of the gun the applicant persisted in asserting by words and conduct that it was a real weapon.  Victim impact statements from people in the bank show that they were terrified by what happened and that they have suffered residual psychological problems because of it.

The applicant and the accomplices left the bank with at least $8,550.  In his haste to escape Ryan ran headlong into a utility pole, was rendered senseless and was apprehended by the police.  $5,000 was recovered nearby.  $3,540 was found in the applicant's car later that day when he and Krause were apprehended on information given by Ryan.

Counsel at sentencing conceded that he could not "raise a strong submission" that the applicant should be treated as leniently as the other two due to the additional aspect of the fraud and because of his more mature age.  However, it was submitted that he should not be sentenced in a totally disparate way from the others. 

The learned sentencing Judge took into account a number of factors.  These included that he had not cooperated with the police whereas the others had;  their relative ages;  his slightly more serious criminal history - although it was said not to be very bad; the fact that he was the most actively involved participant in intimidating the people in the bank with what he represented as a real firearm; and that he was the principal cause of the emotional trauma to them.

The learned sentencing Judge noted favourable aspects in the applicant's background, his plea of guilty and the fact that he appeared to have some prospects of rehabilitation.  There is no error in principle in the learned sentencing Judge's approach.

In his submissions, the applicant took issue with a number of matters.  First, he said it was incorrect that he had not cooperated with the police since he had given a statement making full admissions to New South Wales police while he was there in which he implicated a fourth person.  This assertion was unsupported by any evidence before us except what the applicant told us and was not in any event before the learned sentencing Judge. 

The applicant said that the fourth person's involvement had not been revealed by Krause or Ryan.  According to the dates of the sentence of Krause and Ryan the making of the statement was subsequent to the sentence of the other two offenders. 

In any event, the learned sentencing Judge was as much referring to the fact that the other two offenders confessed immediately upon being apprehended whereas the applicant initially refused to speak to the police.  This aspect was not raised before the learned sentencing Judge and there is no cogent reason established for interfering with the sentence on the basis of anything that we have been told about it.

The applicant also complains that it was stated that he had an additional charge of fraud and that it was stated that others did not.  There is no reference in the record to an additional charge of fraud over and above that charged in the indictment.  There are other references to his having committed offences of dishonesty.  The fact that Ryan had committed the offence of shoplifting was before the learned sentencing Judge.  The sentencing remarks of Judge O'Sullivan in relation to Ryan were in evidence and clearly exposed this fact.

The applicant also took issue that he was the principal offender because he had the toy gun and was swearing and throwing his weight around.  He says that Ryan jumped the counter and manhandled one of the staff and it was his recollection that they all used offensive language.  There was no challenge to the statement of facts before the learned sentencing Judge in this regard.  It is not now open to do so.

The applicant also referred to the allegation that the firearm was not real was made quickly by one of the customers.  The submission is to the effect that moments after hearing that, they fled the scene and were chased by the customer.  The notion that the offence was less terrifying to the staff and customers because the gun was not real is not supported by the unchallenged statement of facts at the sentencing hearing. 

The applicant also says that the police bail and charge sheet was misleading and confusing.  Analysis of it shows that he had previous offences of dishonesty.  There is nothing to suggest that the learned sentencing Judge was under any misapprehension about the extent of his record.

The applicant also relied on a number of examples of sentences imposed for armed robbery which he appended to his written submissions and developed in oral submissions.  Most of the sentences were imposed in the District Court and relate to their own particular facts.  One involved a cumulative sentence and is therefore of little assistance.  Some involve young offenders.  In some cases the robbery was more impulsive than the present case or was committed while the offender was heavily under the influence of alcohol or drugs.  Of the two Court of Appeal decisions to which he referred, Maslen involved a 17 year old with no previous convictions.  It provides no clear guidance in the present case.  Nor does Bird which turned on lack of parity between offenders.

The applicant submitted that a comparable sentence to that given to Krause and Ryan would have had sufficient deterrent effect and given him a chance to rehabilitate.  He said that he had lost his career in sales and marketing, which is no doubt the case, and had resolved most of his outstanding debts.  He said also in his written submission that he had re-established contact with his children and his girlfriend.

He submitted that a suspended sentence would be sufficient to deter him from committing another crime.  For this kind of offence a suspended sentence is in my view a very, very unlikely outcome and would almost certainly have led to an appeal on the part of the Attorney General.

The question ultimately is whether the sentence actually imposed was manifestly excessive.  It was a case where the applicant had over a comparatively lengthy period of time misappropriated money belonging to his employer.  The offence of robbery was seen as a way of relieving the applicant's financial difficulties.  It was carried out with premeditation and preparation.  It was not an impulsive act.
It was carried out in a way that was calculated to cause great alarm and distress to those who were in the bank when it was committed.

For the reasons previously stated the question of parity with his co-offenders does not play a significant role in this case since the relationship between the fraud and the robbery does not exist in their cases. 

When all the circumstances are taken into consideration I am satisfied that the sentence imposed upon the applicant was clearly within the permissible range and is not manifestly excessive.  I would therefore refuse the application.

McPHERSON JA:  I agree.

CHESTERMAN J:  I agree.

McPHERSON JA:  The application for leave to appeal against sentence is refused.

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