R v Prendergast & Edwards
[2000] VSCA 109
•5 June 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 322 of 1998
No. 337 of 1998
| THE QUEEN |
| v. |
| MALCOLM ANDREW PRENDERGAST and |
| KEVIN ROY EDWARDS |
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JUDGES: | WINNEKE, P., BROOKING and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 June 2000 | |
DATE OF JUDGMENT: | 5 June 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 109 | |
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Criminal law – Sentence – Armed robbery and other offences.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. P. Coghlan Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicants | In person |
WINNEKE, P.:
I will invite Mr Justice Brooking to give the first judgment on this application.
BROOKING, J.A.:
These applications arise from two series of offences committed on 3 September 1997. The first series comprised the theft of a car which was used in an armed robbery, the armed robbery itself and a threat to inflict serious injury on the occupier of a house which the robbers visited in the course of their flight. The second series of offences comprised offences against the person and property committed later the same day in the course of the flight.
The applicants stole a Holden Commodore and used it for the purposes of an armed robbery at a post office in the shopping centre at Dallas, when, armed with two long knives and wearing disguises, they terrorized a considerable number of staff members and customers and made their escape with about $4,000, driving a short distance to Coolaroo, where they abandoned the stolen car and entered the house of Debra Joy Emond, who was known to both of them. Emond became aware that many police officers had come together in the immediate vicinity of her house and ordered both men out. Edwards pushed her to the floor and asked her whether she wanted to die and told her to shut up or he would cut her throat.
These events led to the charges of car theft and armed robbery against both men and a charge of threatening the infliction of serious injury against Edwards alone.
Both offenders got away from the house and ultimately took refuge in a motel room in Fawkner which one of them had taken under an assumed name. There they wilfully damaged a good deal of property, which led to their being charged with that offence. Prendergast went on to commit several more offences before the day was out. By 7.30 p.m. he was drunk. Later that night he took a taxi from the motel. He became extremely aggressive towards the taxi driver and ultimately, after the taxi had stopped at a McDonalds restaurant, drove off in the taxi, this leading to a charge of stealing it. The taxi driver tried to prevent its being driven off by jumping into the moving car. Prendergast accelerated and the taxi driver was pulled along a considerable distance with his feet in mid-air. He then fell and rolled and bounced across two lanes of the busy Hume Highway, narrowly avoiding being hit by oncoming traffic as he dragged himself on to the median strip. He suffered a broken hip. Prendergast sped off.
In due course he was charged with recklessly causing serious injury to the taxi driver. The car continued to speed along and reached the suburban streets of Coolaroo, striking a speed hump and becoming airborne, crashing into the rear of another car and finally colliding with a safety barrier at an intersection. Prendergast left the taxi. Police were maintaining surveillance in the area, which was where the stolen Commodore had been abandoned. He was apprehended, but not before he had assaulted two police officers, which led to his being charged with two counts of assaulting police in the execution of their duty. The two men pleaded not guilty in the County Court to an 11 count presentment charging all the offences I have mentioned.
An application for severance was successfully made and the first series of offences became the subject of a trial which led to a conviction on all counts. Not long after this, Edwards pleaded guilty to the single severed count which concerned him, and a little later Prendergast pleaded guilty to all the severed counts.
After receiving victim impact statements and hearing pleas, the judge, on 15 December, sentenced the applicants to terms of imprisonment as follows. Edwards: Theft of the Commodore, two years; armed robbery, eight years, cumulative upon the sentence passed on count 3; threat to inflict serious injury, 18 months; damaging property, six months. The total effective sentence was thus nine and a half years, a non-parole period of seven and a half years being fixed. Prendergast was sentenced as follows: Theft of the Commodore, two years; armed robbery, seven years; damaging property, 12 months; theft of the taxi, two years; causing serious injury recklessly, three years; assaulting police, 12 months; assaulting police, 12 months. Two years of the sentence for causing injury recklessly and six months of one sentence for assaulting police were made cumulative upon the sentence for armed robbery, giving a total effective sentence of nine and a half years. A non-parole period of seven and a half years was fixed.
There were four applications for leave to appeal against conviction and sentence. Both conviction applications were abandoned this morning. The grounds of the sentence applications were, in the case of Prendergast, manifest excess; and in the case of Edwards, that the sentence was crushing, with insufficient allowance being made for the prospect of rehabilitation.
In making submissions to us, the applicant Prendergast referred us to a number of other sentences passed where the prisoner had convictions for armed robbery and Edwards submitted that, having regard to his personal circumstances and the circumstances of the offences, the sentence imposed on him was crushing.
Prendergast was 30 at the date of the offences. He had 33 previous convictions from 13 court appearances between 1983 and 1994. His convictions included convictions for assault by kicking; hindering and assaulting a State Transport Authority officer; defacing property; intentionally causing injury (two charges); causing serious injury recklessly; causing serious injury intentionally; possession of a pistol; armed robbery (four charges); attempted armed robbery; robbery; eight further theft related offences; and three drug related offences. He had been sentenced to imprisonment on nine occasions. On one of those he had received a total effective sentence of seven years.
Edwards was aged 34 at the date of the offences. He had 67 prior convictions from 15 court appearances between 1979 and 1996. These included convictions for armed robbery (two counts); conspiracy to commit armed robbery; armed robbery (a further two counts); attempted armed robbery; false imprisonment (five counts); wilful damage; criminal damage; assault police (four counts); resist police (three counts); escape (three charges); and 41 further offences of dishonesty. He had been sentenced to imprisonment on 12 occasions and had received one total effective sentence of eight and a half years and another of nine years.
There were a number of victim impact statements before the judge, including statements from the post office staff, speaking of the fear which they felt, and one from the taxi driver, whose injury was a very serious one, leading to a hip replacement.
In view of the circumstances of the present offences and the nature and number of the prior convictions, I think it is impossible to say that these sentences in the case of either applicant are beyond range. In my opinion, they were moderate, and I would dismiss both applications.
WINNEKE, P.:
I agree. The applicants have abandoned their appeals against conviction and have appealed against the sentences imposed only. As we have told the applicants, this Court does not have the luxury of re-sentencing them according to the circumstances as we see them. We can only interfere if it can be demonstrated that there has been some error in the discretion of the sentencing judge. Each applicant has referred us to the impact which he believes the sentence will have upon his family and submits that for that reason these sentences ought to be seen by us as crushing. Whilst the history of each man suggests a lack of adequate opportunity in life for which natural sympathy is invoked, it is not possible, in the light of the criminal histories of each, to conclude that any relevant error has been made in the exercise of the Judge's sentencing discretion. The applications must therefore be dismissed.
CHERNOV, J.A.:
I agree that both applications should be dismissed for the reasons given by the honourable members of the Court.
WINNEKE, P.:
The formal order of the court is that the application for leave to appeal against sentence by each applicant is dismissed.
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