Regina v Martin

[2001] NSWCCA 442

CITATION:	Regina v Martin [2001] NSWCCA 442
FILE NUMBER(S):	CCA 60580/00
HEARING DATE(S):	26/10/01
JUDGMENT DATE:	26 October 2001
PARTIES :	Regina Shane Leslie Martin
JUDGMENT OF:	Spigelman CJ at 1; Studdert J at 2; Ireland AJ at 42

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/12/0235
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

COUNSEL :	P G Berman SC - Crown P Byrne SC - Respondent
SOLICITORS:	S E O'Connor - Crown Naomi Hamilton - Respondent
CATCHWORDS:	Respondent sentenced by one Judge for a series of armed hold ups (13) within a period of approximately 3 months and later sentenced by another Judge for a series of 8 additional armed hold ups taking place within the same time-frame. The second sentences concurrent and effecting no increase in punishment. Failure to increase penalty held to be erroneous.
LEGISLATION CITED:	Criminal Appeal Act, 1912 Crimes Act, 1900
CASES CITED:	Mill v The Queen (1988) 166 CLR 59 @ 66 R v Wheeler (2000) NSWCCA 34 Pearce v The Queen [1988] 194 CLR 110 R v Itamua (2000) NSWCCA 502 R v Lemene (2001) NSWCCA 5 R v Holder and Johnston (1983) 3 NSWLR 247 R v Todd (1982) 2 NSWLR R v Moyse (1988) 38 A Crim R 169
DECISION:	Crown appeal allowed ; Respondent re-sentenced; Sentence and non-parole period increased by 18 months.

IN THE COURT OF
CRIMINAL APPEAL

60580/00

SPIGELMAN CJ
STUDDERT J
IRELAND AJ

Friday, 26 October, 2001

REGINA v Shane Leslie MARTIN

JUDGMENT

1 SPIGELMAN CJ: I invite Ireland AJ to deliver the first judgment.

2 IRELAND AJ: This is an appeal by the Director of Public Prosecutions under s 5D of the Criminal Appeal Act, 1912 against the inadequacy of sentences imposed by his Honour Judge Dodd at Sydney District Court on 14 July 2000.

3 On 23 May 2000 the respondent pleaded not guilty to an indictment containing eleven counts of armed robbery. Following an unsuccessful application for severance of the counts, the trial proceeded before his Honour and a jury of twelve.

4 On 2 June 2000 his Honour directed the jury to enter verdicts of not guilty to counts 2, 10 and 11. On 6 June 2000 the jury returned verdicts of guilty to the remaining eight counts.

5 The offence of armed robbery in contravention of s 97(1) of the Crimes Act 1900 is punishable by a maximum penalty of imprisonment for twenty years. On 14 July 2000 his Honour sentenced the respondent in relation to all counts to imprisonment for eight years to date from 16 October 1997 and to expire on 15 October 2005, with a non-parole period of six years to expire on 15 October 2003.

6 Prior to being sentenced by Judge Dodd on 14 July 2000, the respondent had been sentenced by his Honour Judge Armitage on 3 February 2000 for twelve counts of armed robbery and one of attempted armed robbery. The sentences imposed by Judge Armitage were comprised of a minimum term of six years and an additional term of two years commencing on 16 October 1997 on all thirteen matters.

7 Accordingly, in the result, the sentences imposed by Judge Dodd were identical with and entirely concurrent with the sentences previously imposed by Judge Armitage, that is to say for the twenty-one discrete offences the respondent was sentenced to eight years imprisonment, with a non-parole period of six years, all sentences commencing on 16 October 1997.

8 The sentencing of the respondent by Judge Armitage on 3 February 2000 followed two trials, which took place between 2 September and 11 October 1999. At each trial the jury returned verdicts of guilty on all charges set out in the indictments. The thirteen offences with which Judge Armitage was concerned in passing sentence were all committed between 20 May and 7 August 1997.

9 The eight offences upon which Judge Dodd passed sentence occurred in the same period of approximately three months.

10 The facts upon which Judge Dodd proceeded to sentence may be summarised as follows: exercising substantially the same modus operandi, the respondent held up pharmacies where the female employees, and on two occasions, the same female proprietor, were ordered at gunpoint to fill up with money the plastic bag that the respondent provided.

11 The gun pointed at the victims during the course of the armed robberies was a replica or toy pistol, a fact of which the victims were unaware. A similar modus operandi was employed in the offences with which Judge Armitage was concerned, with the variation that on one occasion the victim of the robbery was a bank and its employees.

12 Judge Dodd at the time of sentence had before him the remarks on sentence of his Honour Judge Armitage, which made plain that the respondent had used the same modus operandi and had committed the offences within the same time-frame. In addition to the criminal history of the respondent, Judge Dodd was provided with a pre-sentence report of 16 November 1999 and an updated report of 12 July 2000, together with a report of Dr Robert Finlay-Jones, dated 11 July 2000. Also included in the appeal papers is the report of Elizabeth Kusch, psychologist, of 15 November 1999.

13 The material included in the appeal papers discloses that the respondent, who was thirty-two years of age at the time of the offences, is presently aged thirty-six years. His criminal history apparently dates back to 1987, after he had concluded his service with the Royal Australian Navy, where he obtained qualifications as a diesel mechanic.

14 Following the break down of a relationship which produced a daughter, the respondent commenced using heroin at a gradually increasing level, which adversely affected his employment, and ultimately led to him committing offences to finance his addiction.

15 The respondent was adopted at a very early age, and was one of five children adopted by the same parents. He has little or no contact with his adoptive parents or his siblings. He has successfully completed a therapeutic course, whilst in custody, aimed at examining personal issues and identifying the source of his antisocial behaviour. To Dr Finlay-Jones the respondent has indicated genuine remorse and a desire to change his past behaviour. He is said to have matured psychologically.

16 Prior to the present criminal offences, the respondent served numerous terms of imprisonment. These terms of imprisonment include a fixed term of two years imposed in 1989; a sentence of one year and four months with a non-parole period of one year, commencing in November 1989; imprisonment for four and a half years with a non-parole period of eighteen months commencing in June 1994; and imprisonment for a fixed term of six months commencing in September 1996.

17 Whilst these offences involved dishonesty in various forms, they did not result from armed robbery. The respondent was on parole at the time of committing the twenty-one armed robberies, including the one offence of attempted armed robbery.

18 The single issue now for determination is whether Judge Dodd fell into appellable error in concluding, as the sentence he imposed makes plain, that the respondent should receive no additional punishment over and above that imposed by Judge Armitage for the eight additional armed robbery offences of which he was found guilty, so as to attract the intervention of this Court.

19 The Crown submits that the proper approach to this question which is in essence one of totality of criminality, is to consider what the sentence would have been if the respondent had been sentenced for all offences at the one time - Mill v The Queen (1988) 166 CLR 59 at 66. The error in sentencing postulated is that of concluding that the eight additional armed robberies added so little to the criminality of the respondent as to not warrant a longer period in custody in order to reflect the greater need for retribution as well as personal and general deterrence.

20 Cited in support is R v Wheeler (2000) NSWCCA 34 where at para 37 Sully J, with whom Carruthers AJ agreed, said:

"... It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences - and the present applicant's case is a good example of the kind - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour ... "

21 The Crown further submits that following the course of selecting a period of imprisonment to reflect the overall criminality and imposing that sentence on all counts is impermissible, being contrary to what was said by the High Court of Australia in Pearce v The Queen [1998] 194 CLR 110, where in the majority judgment of McHugh, Hayne and Callinan JJ, at para 45 appears the following:

".... To an offender, the only relevant question may be 'How long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality". Cited is Mill v The Queen to which I have referred.

22 The submission of the Crown in the present case is that in conformity with authority, the sentencing judge should have selected the appropriate period of imprisonment required, then have given effect to the principle of totality by utilising the power to partially accumulate sentences now to be found in s 52(2) of the Crimes (Sentencing Procedure) Act.

23 In this regard, we have been referred to R v Itamua (2000) NSWCCA 502 and R v Lemene (2001) NSWCCA 5. On behalf of the respondent, Mr Byrne of senior counsel makes the point that the Crown is faced with the task of establishing that the sentence imposed upon the respondent should have been substantially and significantly greater than it now is, in order to attract the intervention of this Court.

24 Mr Byrne submits that in sentencing the respondent on 3 February 2000 his Honour Judge Armitage had the principle of totality in the forefront of his mind, categorising the twelve armed robberies with which he was concerned, and the one attempted armed robbery, as a course of conduct engaged in by the respondent which "... should be looked at as a continuing period of criminality ... ".

25 On this basis Mr Byrne, in his written submissions, submits that had his Honour Judge Armitage been sentencing the respondent for nineteen offences of armed robbery committed within the specified period, the sentence would not have been markedly different from that which was imposed for eleven offences in the nature of armed robbery, committed within the same period.

26 In this regard, Mr Byrne would appear to be in error in that Judge Armitage proceeded to sentence on the basis of twelve counts of armed robbery and one count of attempted armed robbery, a total of thirteen matters, which together with those matters dealt with by Judge Dodd, amount to twenty charges of armed robbery and one charge of attempted armed robbery. Nevertheless, as I understand it, the submission remains the same.

27 As to the principle of totality, Mr Byrne has referred the Court to R v Holder and Johnston (1983) 3 NSWLR 247; R v Todd (1982) 2 NSWLR 517 and to the South Australian case of R v Moyse (1988) 38 A Crim R 169 as being authorities which affirm the legitimacy of a court reducing the total effect of sentences merited by a consideration of the individual crimes.

28 The submission is made that on an application of the principles appropriately to be applied to the circumstances of the respondent's case, there has not been demonstrated such an error as would justify the exceptional remedy of upholding a Crown appeal against the inadequacy of the sentences imposed.

29 I reject this submission. In my view, had Judge Armitage been sentencing the respondent for convictions on twenty discrete armed robbery charges, and one charge of attempted robbery, he would have, as he certainly should have, imposed a markedly higher sentence. Not to do so would have resulted in manifest error. In saying this, I am mindful of what was said by his Honour Judge Dodd in the passage appearing at page 3 of the transcript on 14 July 2000.

30 To say otherwise, when the sentencing judge is dealing with multiple convictions for the serious crime of armed robbery, which carries a maximum term of twenty years imprisonment, is to make no distinction between, on the one hand, the criminality of an armed robber undertaking routinely a planned campaign resulting in a large number of robberies, and, on the other, a significantly lesser number of such offences.

31 I am not persuaded that regarding the series of serious offences which the respondent committed as a "continuing period of criminality", as described by Judge Armitage, derogates from the significant error demonstrated by Judge Dodd in effectively placing at nought, in terms of punishment, the eight convictions for armed robbery by the respondent upon whom he was required to pass sentence.

32 The appropriate course was, as submitted by the Crown, to have exercised the power available under s 52(2) of the Crimes (Sentencing Procedure) Act and make the sentences imposed by the learned sentencing judge partly concurrent and partly consecutive. It follows, in my view, that the Crown appeal should be allowed and the respondent re-sentenced.

33 I am mindful of what has been said by the High Court in Pearce and the delay in prosecution of the matters, to which Mr Byrne has made reference. I would propose the following orders:

34 1. That the Crown appeal be allowed;

35 2. That the sentence imposed on 14 July 2000 be quashed;

36 3. That in lieu thereof the respondent be sentenced in respect of each offence to imprisonment for a period of eight years, with a non-parole period of six years, to be served partly concurrently and partly consecutively with the sentences imposed on him on 3 February 2000;

37 4. The sentences with regard to each offence will date from 16 April 1999 and will expire on 15 April 2007;

38 5. The non-parole periods will date from 16 April 1999 and will expire on 15 April 2005, on which date the respondent will be eligible for parole;

39 6. Order that on release to parole the respondent be supervised by the Probation and Parole Service of New South Wales for such portion of the two year parole period as the supervising officer considers necessary.

40 In the result, eighteen months is added to the sentence and to the non-parole period. That means that the non-parole period is slightly higher than the statutory ratio. Nevertheless, I would affirm, that in my view, it is appropriate in this case.

41 SPIGELMAN CJ: I agree.

42 STUDDERT J: I also agree.

43 SPIGELMAN CJ: The orders of the Court will be as indicated by Ireland AJ.

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