R v Ucchino & Evans

[1993] QCA 137

IN THE COURT OF APPEAL [1993] QCA 137

SUPREME COURT OF QUEENSLAND

C.A. No. 69 of 1993
C.A. No. 70 of 1993

Brisbane

[Queen v. Ucchino and Evans]

T H E Q U E E N

- and -

PAVOLO UCCHINO and
TRACY MICHELLE EVANS

Respondents

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Mr. Justice Pincus Mr. Justice Davies

Judgment delivered 19/04/1993

JUDGMENT OF THE COURT

RE UCCHINO: APPEAL ALLOWED, THE SENTENCE IMPOSED BELOW SET
ASIDE, RESPONDENT SENTENCED TO FOUR YEARS' IMPRISONMENT, WITH
A RECOMMENDATION THAT HE BE ELIGIBLE FOR PAROLE AFTER EIGHTEEN
MONTHS.

RE EVANS: APPEAL DISMISSED.

CATCHWORDS:	Conspiracy to commit armed robbery - whether sentence inadequate - substantive offence not committed.
Counsel:	J. Costanzo for The Attorney-General
D. Barakin for the Respondent Ucchino
K. Wenck for the Respondent Evans
Solicitors:	Director of Prosecutions for The Attorney- General
Legal Aid Office for the Respondents
Hearing Date(s):	5 April 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 69 of 1993

C.A. No. 70 of 1993

Brisbane
Before Mr. Justice Pincus

Mr. Justice Davies

[Queen v. Ucchino and Evans]

T H E Q U E E N

v.

PAVOLO UCCHINO and
TRACY MICHELLE EVANS

Respondents

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

JUDGMENT - THE COURT

Judgment delivered 19/04/1993

These are appeals by the Attorney-General on the ground of inadequacy of sentence. The respondents were convicted, having pleaded guilty on the third day of their trial in the District Court, of having conspired together to commit armed robbery. The argument for the appellant was, in substance, that the conspiracy was a serious and elaborate one and that the sentences imposed did not properly reflect its gravity. The respondent Ucchino, a man born on 27 July 1967 and aged 23 at the time of commission of the offence, was sentenced to imprisonment for four months, followed by a probation order for three years. The respondent Evans, a woman born on 3 June 1970 and aged 20 at the time of the offence, was not sent to prison, but given 2½ years' probation.

The respondents decided to rob a van as it collected money from a bank and to that end Ucchino procured one Appleton, aged 17, to steal cars. Appleton was caught, twice, in this activity and decided to inform on the respondents. The police evidence consisted in substantial part of conversations to which the respondents were party, recorded on a listening device; there was also equipment, found by the police, which had been acquired with a view to committing the robbery. Nothing was put before us to suggest that the respondents would have been likely to drop the plan had the police not intervened, which they did on the day before the robbery was to take place.

The plan was to contrive, with a man called Smith, to steal money from security guards employed by Brambles as their van took money away from the Commonwealth Bank at Sandgate. The conspirators observed operations at the bank over a period of time and made plans for positioning of getaway cars. It was intended that Ucchino was to seize the money and that Evans, who was not to attend at the scene of the robbery, would be in the vicinity; she was to make telephone calls to the police in order to divert them by causing them to investigate spurious complaints of other offences, and also to pass information on to the robbers by walkie-talkie.

The planning of the robbery was effected in part by use of marked road maps and notes and drawings which were seized by the police and adduced in evidence. The conspirators had made arrangements for concealment of their identity, including the use of a wig and stage make-up. There were, it appears, a number of practice runs by way of reconnaissance. The equipment which had been assembled included shotgun cartridges, a pump action shotgun and a timer which was apparently used in the planning of the robbery.

Ucchino presents the principal problem, being somewhat older than Evans and, more importantly, having previously been sentenced to terms of imprisonment; Evans had no prior convictions.

Ucchino was convicted in August 1989 of having produced a Second Schedule dangerous drug, having trafficked in such a drug, being in possession of a motor vehicle used in connection with a drug offence and other related offences. It appears the offences were regarded as serious because he was sentenced to three years' imprisonment, with a recommendation for parole after 12 months. He was sentenced, a little later, to three months' imprisonment in respect of possession of an unlicensed concealable firearm and receiving. The conspiracy offence occurred in November/December 1990, early in the parole period consequent on the drug offences. It was inevitable, as indeed the learned sentencing judge recognised, that Ucchino should serve a term of imprisonment in respect of the conspiracy. His counsel below told the Court that Ucchino met Smith, who was said, although unindicted, to have been another party to the conspiracy, while he was in prison and became convinced by him that it was virtually impossible for a person released from prison to earn an honest living.

It was said, in effect, that Smith proposed the offence the subject of the conspiracy to Ucchino, who drew Evans in. We have noticed that the explanation for the conspiracy given to a psychiatrist, Dr. W.J. Walsh, put a different emphasis on events. He was told that Ucchino had been:

"... angry at the judicial system. He had become involved in drugs as a way of making quick money. He had purchased a house and his assets were subsequently stripped. He was also concerned because his mother had significant debts and it appeared as if she may lose all of her possessions. When released from prison, therefore, he had decided that he would again get himself a quick start and was therefore easily persuaded to take part in the armed robbery".

It also should be mentioned that Ucchino told the psychiatrist that he had come to accept that -

"The house which he had purchased from the proceeds of the drug sales had really been obtained by inappropriate means".

Dr. Walsh thought that Ucchino was depressed and that he had some brain damage as a result of a motor vehicle accident; it was not suggested that the damage had anything to do with the commission of this offence. The doctor's testing of Ucchino's intellectual function did not reveal any significant deficits. Ucchino appeared to the doctor to be of at least average intelligence.

The thrust of the doctor's opinion was that Ucchino was attempting to turn over a new leaf and much the same was said by Mr. Crosby-Browne, a Community Correctional Officer. It was urged that Ucchino had been accepted as a commerce student at a university, the implication being that a substantial term of imprisonment would unreasonably or unjustly interfere with his present plans.

The charge against the respondents was one of conspiring together to steal a sum of money with actual violence "and that a (sic) the time aforesaid you each would be armed with a dangerous weapon namely a Bentley sawn-off shotgun". The substantive offence is that defined by s.409 of the Code, and with the circumstance of aggravation consisting in being armed with a dangerous weapon, would attract the penalty of imprisonment for life - s.411. The question of the proper penalty for conspiracy was considered in Verrier v DPP [1967] 2 A.C. 195, where the appellant, convicted of conspiracy, was

sentenced to a longer term of imprisonment than that applicable to the substantive offence. That was held to be permissible, but to be justified "only in very exceptional cases" - p.223; the relevant passage was referred to in the judgment of the majority of the High Court in R v Hoar (1981) 148 C.L.R. 32 at 38:

"In exceptional cases the element of concert may justify a more severe penalty for conspiracy than for the substantive offence which the conspirators commit (see Verrier v. Director of Public Prosecutions [1967] 2 A.C. 195 at 223) ...".

The Code provides no special penalty for the crime presently in question and the maximum punishment is that prescribed by the general conspiracy provision (s.541), seven years. Nevertheless, it is of interest that some conspiracies have been thought of sufficient gravity, compared with the substantive offence, to warrant the remark just quoted.

It is not difficult to find instances of substantial penalties for conspiracy being imposed, absent any substantive offence. An example of the same kind as the present case is R v Kane [1975] V.R. 658, where a conspiracy to commit robbery was punished by five years' imprisonment, the conspiracy having been abandoned, as here, "not as the product of repentance but on account of frustration of its performance" (661). We have also noted the heavier penalty imposed in R. v. E.J. Smith (1982) 2 N.S.W.L.R. 608 - 14 years with a non-parole period of 10 years,

where the conviction was one of conspiracy to rob whilst armed with offensive weapons; that case must have been much worse than that we have to consider. Some other conspiracy to rob sentences are collected in the Australian Sentencing Digest by R.W. Carter at pp.536-540. In our opinion no general rule applicable to conspiracy sentences can be derived from them. But they suggest that, as one would expect, sentences for conspiracy are not commonly fixed at only a very small proportion of the sentence which might have been imposed had the substantive offence been committed; that is what occurred here.

In our opinion, and with all respect to the primary judge, it does not appear to us that the sentence imposed on Ucchino can be upheld. Ucchino, being on parole for the offences for which he had been sentenced to three years' imprisonment and resentful of having been deprived by the courts of the proceeds of those offences, determined on the robbery as another way of making quick money. The offence contemplated was one of considerable seriousness, involving the use of a shotgun, apparently intended to be loaded, to rob a van taking money away from a bank. If committed, it would, having regard to Ucchino's recent history, have warranted the imposition of a very substantial penalty. The offence was carefully planned and involved the solicitation of a youth to steal cars for use in it. There is nothing to suggest that had the police not become aware of the plan (as they did, from Appleton) it would not have been put into effect. The circumstances and background of the offender are in some respects unfortunate, but not of a very remarkable character. In our opinion, the sentence imposed should be set aside and in lieu Ucchino should be sentenced to four years' imprisonment, with a recommendation for parole after eighteen months.

As to Evans, we have mentioned that she has no prior convictions and was 20 years of age at the time of the conspiracy. Counsel for the appellant pointed out that the transcripts of the tapes disclose her not to have been a merely passive or unenthusiastic participant. She had argued with Ucchino that Appleton should be cut out of his share of the expected proceeds, on account of his poor performance, which had delayed implementation of the robbery. But her role was nevertheless subsidiary in the planning of the offence and was to be subsidiary in its execution; those circumstances, as well as her youth and previous clear record, have persuaded us that the appeal in respect of her sentence should be dismissed.

The order of the Court will therefore be, as to Ucchino, that the appeal is allowed, the sentence imposed below set aside and that he be sentenced to four years' imprisonment, with a recommendation that he be eligible for release on parole after eighteen months. The appeal in respect of Evans will be dismissed.