Regina v Guider

[2000] NSWCCA 355

CITATION:	Regina v Guider [2000] NSWCCA 355
FILE NUMBER(S):	CCA 60322/99
HEARING DATE(S):	4 September 2000
JUDGMENT DATE:	13 September 2000
PARTIES :	The Crown Timothy Paul Guider (Appl in person))
JUDGMENT OF:	Fitzgerald JA at 1; Newman J at 7; Greg James J at 79

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0256
LOWER COURT JUDICIAL OFFICER :	Armitage DCJ

COUNSEL :	P Hock (Crown) Appl in person
SOLICITORS:	S E O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - robbery - evidence - reliability - mental disorders - conduct of legal practitioners - incompetence of counsel - duties of trial judge
LEGISLATION CITED:	Crimes Act 1900 Sentencing Act Evidence Act (NSW) 1995
CASES CITED:	R v Farrell [1998] 194 CLR 286 R v Birks (1990) 19 NSWLR 677 at 685 R v Ignjatic (1993) 68 A Crim R 333 at 338 R v Zorad (1990) NSWLR 91 R v Cann, unreported, CCA, 12 October 1994
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60322/99

FITZGERALD JA
NEWMAN J
GREG JAMES J

WEDNESDAY, 13 SEPTEMBER 2000

REGINA v Timothy Paul GUIDER

JUDGMENT

1    FITZGERALD JA: The circumstances giving rise to this appeal against conviction and application for leave to appeal against sentence are set out in the reasons for judgment of Newman J. I agree with his Honour’s reasons for judgment and with the orders which his Honour proposes.

I propose to add only brief comments.

2    As Newman J has stated, the appellant attacked the competence of the legal practitioners who represented him at his trial. The copy of his trial solicitor’s notes which the appellant placed before the Court contained inappropriate flippant comments concerning evidence, especially evidence given by the appellant. While the appellant’s solicitor’s scepticism is understandable, the notes indicate an unacceptable unprofessional approach.

3    Further, although the appellant waived privilege and his trial only occurred last year, neither the barrister nor the solicitor who represented him at his trial made any effort to explain their conduct of the appellant’s defence or their omission to provide an explanation of their conduct at the trial. Their failure to do so is also unsatisfactory. They should at least have explained the reasons for the course which was taken in relation to Mr Redibaum’s evidence.

4    The trial effectively involved a contest between Mr Redibaum’s evidence implicating the appellant and the appellant’s evidence implicating Mr Redibaum. A decision not to challenge the reliability of Mr Redibaum’s evidence on the basis of his criminal history cannot be criticised if, as I think, it was legitimate to seek to ensure that the jury did not receive evidence of the appellant’s prior criminal history. The decision not to lead evidence of the appellant’s prior criminal history is readily explicable and, without the advantage of hindsight, could not possibly be criticised. That being so, the decision not to adduce expert evidence concerning the consequences of Mr Redibaum’s brain injury was understandable. The expert evidence would have revealed Mr Redibaum’s criminal activities in the course of explaining his dishonesty was a consequence of his brain injury.

5    However, it was theoretically possible to cross-examine Mr Redibaum to establish, without reference to any suggestion that he had committed offences, that, since his brain injury and as a consequence of it, he had a tendency to lie. If that could have been established, it would have provided the basis for a submission that his evidence was the evidence of an acknowledged liar, which the jury should not accept. Nonetheless, that course would have involved a considerable risk that the prosecution would become entitled to prove the appellant’s prior criminal history, and cannot be stigmatised as incompetent.

6    More broadly, I can perceive no basis which would justify a conclusion that there has been any miscarriage of justice. There was a very strong prosecution case against the appellant. If the prosecution had been able to prove the appellant’s criminal record as a result of his lawyers’ conduct of the trial, the case against him would have been overwhelming.

7    NEWMAN J: Timothy Paul Guider appeals against his conviction on two charges and seeks leave to appeal against a sentence imposed following his conviction.

8    The appellant was indicted on two counts before Armitage DCJ. Count one charged that between 10 November 1997 and 19 November 1997 at Sydney he conspired with one, Filipe Tongilava Uhila to commit a robbery whilst armed with an offensive weapon.

9    The second count was that on 18 November 1997 he was armed with a weapon namely an imitation pistol with intent to commit an indictable offence, namely robbery whilst armed with an offensive weapon.

10 The first count which is a common law offence has a discretionary maximum penalty but it is appropriate in conspiracy cases for a sentencing judge to take into account the penalty prescribed by the Crimes Act for the substantive offence, in this case robbery whilst armed with an offensive weapon, carries a maximum penalty of twenty years imprisonment.

11    The second count carried a maximum penalty of seven years imprisonment.

12    In the event, the appellant was convicted on 28 May 1999 by a jury on each count. His Honour in relation to the first count imposed a head sentence of ten years consisting of a minimum term of seven years six months and an additional term of two years six months.

13    In relation to the second count he imposed a concurrent fixed term of three years.

14    The Crown case was as follows.

15    The appellant and one, Solomon Redibaum had first met some twenty years prior to 11 November 1997 in Western Australia. Redibaum knew the appellant well. On 11 November 1997 Redibaum had a chance meeting with the appellant. There the appellant told Redibaum that he was planning a robbery and invited him to join with him in that enterprise. The appellant and Redibaum drove to Primrose park. En route the appellant talked about his work as a mural artist. The conversation moved on to personal finance and the appellant indicated he was seeking credit. Redibaum suggested that he may be able to arrange a loan to the appellant through his uncle. He said that he would try to raise $25,000 of which $5,000 he would retain.

16    At Primrose Park Redibaum was introduced to Filipe Tongilava Uhila who arrived in an RAV4 motor vehicle. Redibaum witnessed the appellant and Uhila transfer various items, including a pistol, from Redibaum’s vehicle to the RAV4 vehicle. The three men drove to the city where Redibaum was dropped off. Before parting company the appellant gave Redibaum his mobile telephone number and invited him to call him.

17    Redibaum contacted police and subsequently met with Det Dowding and Det Kerr-Thompson. Redibaum was registered as an informer. After that meeting Redibaum telephoned the appellant and arranged to meet him at Dee Why. The appellant drove Redibaum to his house in Collaroy. That night the two men discussed the robbery which the appellant estimated would raise a sum of between $200,000 or $300,000. He also indicated that he had a gun for use in the robbery.

18    Early on the morning of 13 November 1997 they drove in the appellant’s four wheel drive motor vehicle to Warriewood Square where they observed the opening procedures at the Commonwealth Bank and St George Bank. The appellant described the opening procedures to Redibaum. The appellant said that he and Uhila would enter the Commonwealth Bank with the second group of staff. Once inside they planned to tie up the staff and empty the safe. In the case of the St George Bank the appellant planned the same strategy except he and Uhila would enter with the last of the employees. The appellant said that Redibaum would be required to remain outside and observe the car park and listen to the police scanners. Redibaum gave the appellant money for the purpose of renting a vehicle for possible use in the enterprise. The appellant mentioned that he had a pair of numberplates. After parting company Redibaum met with police at the Dee Why RSL club. At some point the appellant showed Redibaum a pair of two way portable radios and a police scanner. He then instructed Redibaum how to use them.

19    On Sunday 16 November 1997 Redibaum accompanied the appellant to a toy shop at Warriewood Square. The appellant shoplifted a toy pistol that was grey/blue in colour and similar in design to a small version of a Berretta pistol. They then went to K-Mart where the appellant shoplifted a lock worth approximately$90. Redibaum returned the lock to the shop and exchanged it for cigarettes.

20    On 17 November 1997 the appellant indicted to Redibaum that he planned to commit the robbery that day. Redibaum went with the appellant to Warriewood. In the car park of Franklins the appellant gave Redibaum a two way portable radio and the two men communicated on the radios to ensure they were in working order. At the car park Redibaum was able to call police on his mobile phone and communicate with them using a pre determined message. The men then went to Warriewood Square. The appellant informed Redibaum that it was the St George Bank that was to be targeted. After the appellant had left the vehicle two female police officers arrived on the scene. Redibaum advised the appellant of this on the portable radios and the plan was aborted. Snr Const Bolton gave evidence that she was at Warriewood Square on 17 November 1997 at about 8.15 am in the company of Const Berry. In the car park she saw a maroon coloured RAV4 motor vehicle index number THS 834. Driving on the main road she saw a four wheel drive vehicle number ULN 650.

21    Redibaum and the appellant then drove to the city and parked the RAV4 vehicle. En route they picked up Uhila and Redibaum purchased a balaclava at Kelly’s Disposal store. The three men observed the security arrangements at the Westpac Bank on Castlereagh Street opposite the Imperial Arcade. The appellant explained that he and Uhila would rob the bank, escape through the Imperial Arcade and make a getaway from Pitt Street. Redibaum was instructed to observe the security guards and watch out for police. Acting on the appellant’s instructions Redibaum walked into the bank appraised it and reported his observations to the appellant. He then left the scene and returned to the RAV4 vehicle. He telephoned police. The appellant and Uhila returned to the RAV4 vehicle fifteen minutes later and announced they had not committed the robbery. The appellant stated that they would go to Warriewood Square the next day and carry out the plan. Later that day Redibaum met with police to discuss the robbery planned for the next day. Subsequently he telephoned the appellant to advise that he would supply a vehicle for the following day.

22    The following morning, 18 November 1997, Snr Sgt Sturchow fitted Redibaum with a listening device and Snr Const Kerr-Thompson supplied him with a Commodore motor vehicle with South Australian registration number VWZ 399. Redibaum telephoned the appellant using Kerr-Thompson’s mobile telephone. Later in the morning Redibaum met with the appellant and witnessed him unload items from his car into the Commodore. They drove to Dee why and met with Uhila. From Dee Why the three men drove to Warriewood. On two occasions they stopped the vehicle. At the first stop the appellant changed the registration plates. He also handed Redibaum a police scanner that he tuned into police radio bands. On the second occasion they stopped at a service station at North Narrabeen where Redibaum purchased a pair of sunglasses for Uhila.

23    Redibaum waited in the car park opposite St George Bank while the appellant and Uhila exited the car. Redibaum and the appellant tested the two way portable radios. The appellant and Uhila were apprehended by police. Snr Const McFadyen gave evidence of their apprehension. McFadyen witnessed the appellant being searched and observed the following items on the appellant’s person, an imitation pistol, a police scanner, a two way radio connected to an earpiece in his ear and a knife. Snr Const Brody searched Uhila and seized from his person items including an imitation firearm, a semi automatic pistol, sunglasses and a hat. A black bag was also seized. The bag contained, two caps (one with the word “police” on it) two pairs of rubber gloves, three lengths of rope and one opened packet of rubbish bags. Snr Const slot gave sworn evidence that he searched a white Commodore motor vehicle and seized items including a screwdriver, four small screws and a two way radio. Acting Det Inspector Dowding arrested the appellant and Uhila. The appellant was taken to Dee Why police station where he spoke with a solicitor. He declined to participate in a recorded interview.

24    In reply to the Crown case the appellant gave sworn evidence that he, in fact, met Redibaum on 11 November 1997. His evidence in chief represented an almost total reversal of Redibaum’s account.

25    He said that Redibaum offered to arrange a $25,000 interest free loan through his uncle of which $5,000 would go to Redibaum as a form of commission. The appellant recounted that Redibaum went onto suggest that there were banks at Warriewood that were vulnerable to robbery and he invited the appellant and his friend Uhila to observe the banks. The appellant declined the invitation. When they parted company the appellant gave him his mobile telephone number and said he would contact Redibaum. The appellant said he met with Redibaum later that day and they went to the appellant’s house.

26    On 12 November 1997 Redibaum spent the night at the appellant’s house. Redibaum again requested that the appellant and Uhila accompany him in the morning to observe the banks he had referred to previously. The appellant agreed and contacted Uhila. The three men observed the banks the following morning and Redibaum again asked the appellant to consider his suggestion about the banks. Redibaum gave the appellant $70 before they parted company. Redibaum stayed the night at the appellant’s house and again mentioned the banks.

27    The next day, 13 November 1997 the appellant contacted Redibaum by phone on a number of occasions and they met. Their discussions centred on the loan Redibaum had offered to arrange.

28    The appellant next met Redibaum on Saturday, 15 November 1997. At Redibaum’s request the appellant allowed a number of items to be put in his car. The items included black plastic bags, black balaclava and an imitation firearm.

29    On Sunday, 16 November 1997 the appellant discussed the proposal to rob the bank with Redibaum and described it as ridiculous. The appellant did not want to upset Redibaum as he feared he would withdraw his offer to arrange the loan. The two men went to a toy shop to buy a birthday present for the appellant’s son. In the shop Redibaum shoplifted a toy gun. They then went to K-Mark where Redibaum shoplifted a lock and then returned it to the shop where it was exchanged for a carton of cigarettes. At some point on the weekend Redibaum suggested they organise Uhila and go to the banks for a dress rehearsal. The appellant was to bring the items previously given to him and a pair of portable two way radios which the appellant used at work. They also discussed the loan on the weekend.

30    On Monday, 17 November 1997 the appellant went to Redibaum’s flat where he saw a scanner, number plates and hats which were in plastic bags. They went to collect Uhila in the appellant’s motor vehicle but he was not there. They then drove to Warriewood. They stopped in the car park of Franklins at Mona Vale where the appellant put various items in plastic bags and demonstrated how the two way radios operated. The appellant left the car with the bag containing balaclavas and imitation pistols. He met Uhila who was already at the shopping centre. The appellant saw two police officers and after going to the bakery he returned to the vehicle. The appellant said that he only went with Redibaum to humour him and harboured no intention of going through with the robbery.

31    The three men left Warriewood and travelled to the city for a purpose related to the appellant’s work as an artist. They stopped on their way and Redibaum purchased a balaclava. The appellant said the he told off Redibaum. Redibaum pressed on with his idea and suggested they carry out a robbery the next day. In the city Redibaum parted company with the appellant and Uhila. The appellant discussed the situation with Uhila and decided he would pretend to go along with robbery in the morning. In failing to execute the planned robbery the appellant had hoped that Redibaum would leave him alone.

32    On Tuesday, 18 November 1997 the appellant went along with Redibaum in the preparation of the planned robbery. He said that his commitment to the enterprise was pretence. He went along with the charade only because he was interested in obtaining the loan through Redibaum. About forty feet from St George Bank the appellant and Uhila were seated reading newspapers. The appellant said he was about to return to Redibaum in the car when they were arrested. The appellant denied that he was the mastermind behind the planned robbery and that he had recruited Redibaum as a participant.

33    When the trial commenced the appellant was unrepresented. At the appellant’s request a voir dire examination was carried out. The voir dire was directed at the evidence Redibaum was to give in the Crown case. The appellant challenged Redibaum’s evidence on two bases.

34    First, that the evidence of the conversation between Redibaum and the appellant of 18 November 1997 recorded on a listening device should be excluded on the basis that it was obtained illegally and improperly pursuant to s 138 of the Evidence Act (NSW) 1995. No challenge is made in this appeal to his Honour’s ruling that the evidence was properly obtained.

35    The second basis was that Redibaum’s evidence should not in its entirety be led in the Crown case because his evidence would be inherently unbelievable.

36    In relation to both of the challenges made to Redibaum’s evidence, the appellant relied upon psychiatric and neurological evidence. That evidence consisted of reports from two psychiatrists, Drs Wong and Reid and a neurologist Dr Leicester. It is the second matter which is the subject of challenge in this appeal.

37    The reports tendered before his Honour revealed that Redibaum, in February 1969 had suffered brain damage when a motor cycle he was riding collided with a tree at which time Redibaum was not wearing a helmet. Dr Leicester, who had seen him at the time, diagnosed Redibaum as suffering from traumatic brain damage with compound left frontal skull fracture, post-traumatic epilepsy, blind left eye, anosmia and frontal lobe personality change.

38    Not before his Honour in the report from Dr Leicester which he had before him, was an observation made in a statutory declaration by that doctor dated 22 June 2000 in which he stated that while he had not previously commented on prognosis he knew that the features I have set out above might be permanent in which case Redibaum, though capable of remembering and reporting, might be unreliable.

39    The psychiatric reports tendered did not suggest that Redibaum might be an unreliable witness but indicated that his brain damage had left him in a situation where he would commit offences of dishonesty on impulse. Indeed, Dr Reid observed as follows in a report dated 20 July 1972:

“The surprising thing is that this young man although he shows marked signs of grossly anti-social behaviour, also has a very considerable amount of insight and intellectual honesty, as he has no illusions about himself and indeed in some ways he is almost over-critical of his own conduct, as he is obviously guilty and has pangs of conscience about quite a number of things. One thing which surprised me about him, was the honesty with which he almost rejected the idea that his head injury could be relevant to his crime.”

40    In a later reported dated 22 September 1980 Dr Reid again refers to the honesty of the approach taken by Redibaum.

41    Dr Wong in his reports makes no reference to Redibaum being unreliable.

42    In the event his Honour heard evidence from Redibaum and the police involved in the matter. Contrary to a submission made by the appellant to this Court, a close and careful reading of Redibaum’s evidence on the voir dire demonstrates that he did not resile from his evidence as to the events as set out above, despite a very exhaustive and lengthy cross examination carried out by the appellant.

43    The same may be said about the evidence given by police on the voir dire. His Honour rejected the appellant’s contention that Redibaum’s evidence should be excluded on either basis. However, his Honour concluded his judgment on the voir dire by stating:

“Mr Redibaum’s mental state is also a matter that may be further investigated at the trial.”

44 It should be observed that R v Farrell [1998] 194 CLR 286 confirms the common law that expert evidence may be called where that evidence is directed to the existence of a disability the consequences of which might bear on the reliability of a witness’s evidence.

45    It follows that his Honour correctly left the question of such a challenge to Redibaum’s credibility open at the trial. No error can be demonstrated in the reasons given by his Honour for allowing Redibaum’s evidence to be led. He considered with care, both the lay and medical material before him.

46    When the trial commenced the appellant was represented by a solicitor and counsel. No cross-examination was directed by counsel to Redibaum concerning his brain damage and consequent psychiatric problems.

47    In written instructions dated 14 May 1999 given to his legal advisers the appellant stated that “in regard to Drs Wong etc I note there is an issue of relevance and reports will have to be read by my advisers”.

48    Accordingly, there is no doubt that the question of Redibaum’s mental state was brought to the attention of those appearing for the appellant. Indeed, in a somewhat circumscribed affidavit the then counsel for the appellant stated that “my only recollection at present is that I did consider the issue of Mr Redibaum’s mental state and associated psychiatric reports in the context of Mr Guider’s trial.”

49    Not only was no cross-examination directed but also and no doubt as a consequence of the absence of cross-examination, the psychiatric and neurological evidence contained in the reports to which I have referred, was not put before the jury.

50    I turn then to the grounds of appeal.

Ground One: the evidence of the main witness, on whom the Crown case relied, a Mr Solomon Redibaum, was unreliable for psychiatric reasons.

51    I have already dealt with his Honour’s ruling on this question above. As I have said no error is detected in the ruling his Honour made therefore this ground must fail.

Ground two: due to gross negligence or incompetence on the part of my former legal representatives they refused (against my wishes) to raise Mr Redibaum’s mental state before the jury.

52    I should add that in addition to the question of Redibaum’s mental state the appellant also complained under this head, that his legal advisers failed, as he wished them to, to lead evidence of the appellant’s prior criminal history which includes numerous convictions for armed robbery.

53    In this regard the appellant contended that he wished to have it submitted to the jury that an experienced armed robber like himself, would be unlikely to undertake such an amateurish attempt to rob a bank as was the case here. Particularly as the bank was one he used and in the area in which he lived.

54    I shall return to this additional point later in these reasons.

55    While the affidavit of the appellant’s trial counsel does not give the reason why, having considered the question of Redibaum’s mental state, he did not raise it as an issue going to Redibaum’s reliability, there is no doubt that his decision not to do so was a considered one.

56    The question therefore arises is whether his decision not to do so falls within the concept of incompetence of counsel being such as to give rise to a miscarriage of justice.

57 This question has been considered over the last decade in a number of case before this Court. In R v Birks (1990) 19 NSWLR 677 at 685 per Gleeson CJ:

“A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

58 Subsequently in R v Ignjatic (1993) 68 A Crim R 333 at 338, Hunt CJ at CL made it clear that it is for the appellant to persuade the court that a miscarriage of justice has occurred and it is for the appellant to provide the evidence upon which such a conclusion could fairly be based. His Honour went on to state at 338:

“It is not sufficient that the appellant may have merely lost a chance to raise various issues which were not raised at the trial. There was no miscarriage of justice unless it can be shown that there was at least a substantial chance that the appellant would have succeeded in relation to those issues”.

59    The decision not to cross-examine Mr Redibaum about his mental state plainly was a tactical decision taken by the appellant’s counsel. Hunt CJ at CL in Ignjatic said at 336:

“Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere”.

60    In the light of the factual issue raised by the appellant at his trial, namely that he did not intend to take part in the armed robbery but went as far as he did merely to humour Redibaum in order that Redibaum would continue his efforts to obtain a loan for the appellant, the tactical decision not to raise Redibaum’s mental state as an issue is readily explicable.

61    Particularly as the transcript of what was recorded by the listening device of the conversation between Redibaum and the appellant shortly before his arrest is indicative of the leading role played by the appellant in the planning of the proposed robbery further explains why counsel would not challenge the reliability of Redibaum in the manner suggested by the appellant.

62    In these circumstances the conduct of counsel does not fall within the principles adumbrated in Birks and Ignjatic and thus no miscarriage of justice has occurred.

63    Again, the decision of counsel not to raise the appellant’s criminal record is also explainable in tactical terms. The appellant was arrested in circumstances where he had been recorded on a listening device as taking a very active part in the planning of the proposed robbery and in circumstances where at the time of his arrest paraphernalia (false pistol, balaclava etc) which are normally associated with a bank robbery, were found in his close proximity.

64    To deliberately raise his prior extensive record as an armed robber might well be considered by competent counsel as being absolutely fatal to the issue raised by the appellant, namely while present he had no intention of taking part in the proposed robbery.

65    Once more the tactical decision not to lead evidence of the appellant’s past record does not offend the principles set out in Birks and Ignjatic and this point must also fail. Accordingly the second ground must also be dismissed.

66    I should add that included in the appellant’s submission was a contention that the evidence of Drs Wong, Reid and Leicester constituted fresh evidence which should have been put before this Court by way of vive voce evidence in support of the appeal.

67    The evidence was certainly not fresh. Indeed it was referred to in the voir dire examination. The fact that Dr Leicester now says that the brain damage might make Redibaum’s evidence unreliable again does not fall within the concept of fresh evidence as such evidence was available at the hearing.

68 It was also contended by the appellant in his submissions in relation to the voir dire examination that because at that stage legal aid had not been granted, the principle in cases such as R v Zorad 1990 NSWLR 91 was breached by his Honour by not giving the appellant proper guidance. To the contrary the transcript of the voir dire examination reveals that his Honour did in fact proffer adequate guiance.

69    Indeed, he left it open to the appellant or his representative to raise the question of the reliability of Redibaum’s evidence in the trial proper. In these circumstances this latter contention must also fail. Accordingly I am of the view that the appellant’s appeal against conviction must be dismissed.

70    I turn then to the question of sentence. There is no doubt that a ten year head sentence for a conspiracy to commit armed robbery represents stern retribution. I have indicated above that the appellant, in fact, has a significant criminal history.

71    The appellant was first convicted and sentenced for armed robbery in 1976. He was convicted of like offences in 1981 and 1986. In fact at the time of the commission of the offence at the age of forty-four he had been convicted of no less than sixteen robbery offences, eight of which were offences of armed robbery.

72    In R v Cann, unreported Court of Criminal Appeal, 12 October 1994, this Court held as I have indicated above, that while this is a common law offence having no prescribed maximum penalty, it is appropriate in assessing penalty for the common law offence to bear in mind the penalties prescribed for armed robbery with an offensive weapon, namely twenty years imprisonment.

73    The planning for the proposed robbery was considerable as is evidenced by the paraphernalia found by police at the time of arrest. While his Honour, in his remarks on sentence, pointed out that it was in the appellant’s favour that the weapon in question was an imitation pistol which was not capable of killing or inflicting serious injury. Had the proposed robbery taken place it would have involved the terrorising of those in the bank who would not know that the pistol was an imitation one. Bank robberies are rightly considered by the criminal law as standing high in the criminal calendar.

74    In this case the fact that the proposed robbery was to be carried out in company was an aggravating feature. The appellant’s past criminal history placed him in a situation where he could hardly expect to be given lenient treatment by the courts for criminal conduct of this type.

75    There is nothing in the evidence before his Honour which suggests that there were any special circumstances which would require any variation of the proportion between the minimum and additional terms as set out in the Sentencing Act as it then applied. His Honour in his remarks made such an observation.

76    The appellant complained largely on an anecdotal basis that others convicted of similar crimes have received lesser sentences than himself. However, in the light of the nature of the offence and his past criminal record I find that his Honour committed no error in applying the relevant sentencing principles when imposing the subject sentence.

77    Because of the importance of the matter to the appellant I would grant him leave to appeal but would proposed that the appeal against sentence be dismissed.

78    In short, the orders I propose are:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted but appeal against sentence dismissed.

79    GREG JAMES J: I agree with Newman J.