R v Ross Aaron Robinson

[2001] NSWCCA 180

CITATION:	R v Ross Aaron Robinson [2001] NSWCCA 180
FILE NUMBER(S):	CCA 60621/98
HEARING DATE(S):	08/03/01
JUDGMENT DATE:	8 March 2001
PARTIES :	Regina v Ross Aaron Robinson
JUDGMENT OF:	Meagher JA at 1; Hulme J at 19; Smart AJ at 23

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	70215/96
LOWER COURT JUDICIAL OFFICER :	Hidden J

COUNSEL :	A: P Byrne SC R: G E Smith
SOLICITORS:	A: Mark Klees & Associates R: S E O'Connor
CATCHWORDS:	Criminal Law - application for leave to appeal against sentence - murder - guilty plea - felony murder - intent to kill - objective criminality. Special circumstances - appeal dismissed.
CASES CITED:	R v Mills (unreported, NSW CCA, 03/04/95)
DECISION:	Appeal dismissed.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60621/98

MEAGHER JA

HULME J

SMART AJ

Thursday 8 March 2001

REGINA v ROSS AARON ROBINSON

JUDGMENT

1   MEAGHER JA: This is an application by Mr Robinson for leave to appeal against the sentence imposed on him by Hidden J on 15 October 1998. His sentence was twenty years penal servitude, comprising a minimum term of fifteen years and an additional term of five years. The offence immediately involved was murder and, if I may say so, murder of a particularly nasty kind.

2   In addition to the murder, there were also, as part of the initial proceedings, no less than ten charges of armed robbery.

3   The victim of the enterprise was a gentleman called Mr Cusumano, who was the manager of The Gamesmen computer store in Forest Road, Penshurst. Mr Robinson and two accomplices had planned for some time to rob this store. They arrived there late on late shopping night a few days before Christmas.

4   Mr Robinson was armed with a silver revolver, which he had gained possession of through an armed robbery about a week before. His two accomplices and he travelled on motor bikes, which were somewhat disguised from their normal kind and from which the registration plates had been removed. The faces of the three gentlemen had also been disguised. The robbery, from any point of view, must be considered to have been very carefully planned and intended.

5   When they arrived they ordered the staff and customers to lie on the floor. Mr Robinson's brother, Mr Seldon Robinson, menaced one of the staff with a shotgun and demanded that she open the till. He took money from the till and put it into a bag which he was carrying. He then ordered her to take him to the store's safe, which was in an office at the rear. Mr Aaron Robinson also went to the rear of the store where he confronted the unfortunate Mr Angelo Cusumano. He ordered him and some of his staff to lie on the floor. He demanded portable computers. Mr Cusumano, ostensibly in compliance with that demand, led him down some stairs to the basement. In that area apparently stock was kept and computers were assembled.

6   There were members of the staff in the basement and Mr Robinson ordered them also to lie on the floor. He repeated his demand for computers and Mr Cusumano invited him to follow him upstairs again. At the side of the stairs were two heavy metal grates which could be placed across the stairwell to seal it off. When Mr Cusumano reached the top of the stairs he dropped one of those grates into place and it struck Mr Robinson, who was about halfway up the stairs at the time. Mr Robinson then stumbled down the stairs and it seemed that Mr Cusumano jumped from the grate back on to the stairs and followed him. When Mr Robinson regained his footing, Mr Cusumano was about a metre away. At that point he shot Mr Cusumano twice, one bullet penetrating his body from back to front just above the waist and the other entering the top of his head and lodging in his neck. By the time assistance arrived he was dead.

7   The three men then escaped from the store according to a pre-ordained plan. They took the trouble to divide all stolen property equally between the three of them.

8   The grounds of appeal are, first, that the sentence imposed by his Honour did not give to the applicant sufficient benefit for his plea of guilty.

9   I find this an unattractive submission, for various reasons. One is because the plea of guilty was not the result of any initial contrition. The division of the proceeds of the robbery is inconsistent with any real contrition otherwise the money concerned would have been returned to the victims. It is also unattractive because the plea of guilty arose at a point where a confession made by Mr Robinson was tendered and its admissibility disputed. It was only when the Court decided that the confession was admissible that Mr Robinson bowed to the necessity of confessing his guilt. If the judicial conclusion as to the admissibility of the document were otherwise, no doubt no plea of guilty would have been obtained.

10   In those circumstances, I do not see how any moral responsibility is attached to the plea of guilty. It is a simple case of bowing to the inevitable.

11   The next ground is that the sentence imposed on Mr Robinson is excessive, having regard to the specific finding made by the Judge that there was no intent to kill the victim.

12   Assuming that to be his Honour's finding - and it is not quite his Honour's finding - again it does not seem to me to matter very much. This Court decided in April 1995 in R v Mills (unreported, NSW CCA, 03/04/95) that one must look at the objective criminality of an individual rather than speculate about the intention in his or her mind. In particular, that one must not draw a distinction between felony murder and murder with a pre-ordained intention.

13   In the present case, I find it difficult to see why Mr Robinson should be treated any more favourably than if he had intended from the beginning to murder Mr Cusumano. If he had thought about the matter at all, he would have realised that the only point of taking an armed revolver into the store was to use it if it were necessary to do so. If he did not think about it before then, he was reckless to a degree that is hard to imagine.

14   In those circumstances, it seems to me that in this case also the fact that the Judge found that there was a limited intention to kill simply does not matter.

15   The third ground, which goes to penalty only, is that the minimum term specified by his Honour is excessive because of special circumstances. This I found equally unattractive.

16   In the first place, as the submissions of the Crown put it, special circumstances are considered not for the purpose of determining whether a lesser minimum term is justified, but considered only for the purpose of determining whether there is any justification for an additional term that exceeds one-third of the minimum term. That necessarily involves a discretion in the learned sentencing judge. In the present case there was such a discretion in his Honour and his Honour exercised it in a way which is obvious from the sentence he has imposed.

17   There can not be a suggestion that his Honour overlooked some point which he should have taken into account or gave improper effect to some point which he did take into account.

18   In those circumstances, I am of the view the appeal should be dismissed.

19   HULME J: In my view also the appeal should be dismissed. I would add, however, some reasons of my own.

20   Firstly, the applicant's sentence was imposed not only for his offence of murder but also some nine offences of armed robbery committed at the same time and also for a quite separate offence of armed robbery committed one week earlier which, in itself, merited some years of imprisonment, even having regard to and once allowance is made for the principle of totality. It is quite wrong to compare, as counsel for the applicant sought to do, the sentence imposed with statistics for cases of murder.

21   The answer to the second ground of appeal is provided by what the Court said in Mills, where the proposition that a case of felony murder involved a lower level of culpability than cases of murder involving an intention to kill was rejected.

22   So far as the third ground is concerned, the existence of special circumstances purely enlivens the discretion to adjust the usual relativity between the minimum and additional terms. There were no grounds in this case why that relativity needed adjustment.

23   SMART AJ: I agree that the appeal should be dismissed. The extent of the criminality revealed by the facts in this case compelled the sentences that were imposed.

24   MEAGHER JA: The appeal is, therefore, dismissed.

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