Regina v Pintos

[1999] NSWCCA 209

CITATION:	Regina v Pintos [1999] NSWCCA 209
FILE NUMBER(S):	CCA 60844/98
HEARING DATE(S):	21 July 1999
JUDGMENT DATE:	21 July 1999
PARTIES :	Regina v Washington Herbert Pintos
JUDGMENT OF:	Simpson J at 2; Studdert J at 15

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/3227
LOWER COURT JUDICIAL OFFICER:	Ford ADCJ

COUNSEL:	Crown: P G Berman Appellant: In Person
SOLICITORS:	S E O'Connor
CATCHWORDS:	CRIMINAL LAW; armed robbery; sentence not manifestly excessive; no error by sentencing Judge; leave to appeal granted; appeal dismissed
ACTS CITED:	Crimes Act 1900
CASES CITED:	R v Henry & Ors [1999] NSW CCA 111
DECISION:	Leave to appeal granted; appeal dismissed

- 4 -

IN THE COURT OF
CRIMINAL APPEAL

No 60844/98

STUDDERT J
SIMPSON J

Wednesday 21 July 1999

REGINA -v- WASHINGTON HERBERT PINTOS

JUDGMENT

1    STUDDERT J: : I will ask Justice Simpson to give the first judgment.

2 SIMPSON J: The applicant pleaded guilty to three charges of aggravated armed robbery committed on 21, 23 and 27 June 1998. Pursuant to s 97(2) of the Crimes Act 1900, each offence rendered him liable to a maximum term of penal servitude for twenty-five years. On each charge Ford ADCJ sentenced the applicant to a total term of penal servitude for six years. Having found special circumstances justifying departure from the statutory ratio, he divided each sentence into a minimum period of four years and an additional term of two years. The applicant seeks leave to appeal the sentences.

3    The circumstances of the offences can be shortly stated. On each occasion the applicant, armed with a sawn-off single barrel shotgun, entered premises and demanded money from the attendant or attendants. The first and third offences both took place at the same service station in Fairfield. The second was at a liquor store at Fairfield. On each occasion the attendant handed to the applicant a relatively small amount of cash. On the first occasion the applicant ordered the attendant into a store room and before leaving fired a shot into a fixture shelf. On the third occasion he ordered the two attendants into the store room and closed the door.

4    The applicant was born on 14 May 1961 in Uruguay. He is now thirty-eight years of age. He came to Australia in 1970, at the age of eight, with his parents. He married at seventeen years of age and has two children aged fifteen and thirteen.

5    In 1996 he and his wife separated. Initially the children travelled interstate with their mother but after a few months she returned them to the applicant and they remained in his custody. At the time of sentencing they were being cared for by the applicant's parents.

6    The applicant has been a member of the Australian Army and has had other employment in the building and bricklaying industries. Since 1996 he has been largely unemployed.

7    After separating from his wife he began drinking heavily. At about the same time he became involved with a woman who was a drug user and who has since died from an overdose. He also became addicted to heroin. The need to support the addiction was the reason he gave for the commission of the offences.

8    He has a criminal history that pre-dates the breakdown of his marriage and indeed goes back to 1979. Most significantly, there are firearms offences committed in 1995.

9    The applicant gave sworn evidence in the sentencing proceedings. He maintained that on the occasion the gun discharged it did so accidentally as he was leaving the premises. As his Honour observed, this fact merely underscores the very real danger that accompanies the use of firearms.

10    The applicant appeared unrepresented in this court. In a letter written to the court through the Registrar on 3 June of this year he acknowledged that he had no argument with the minimum term imposed but wished to appeal the total term of six years. Having regard to his unrepresented status I consider it appropriate to treat his application as an application for leave to appeal both the minimum term and the total term.

11    The applicant invited the court to look at him as he is now and said that he appeared unrepresented so that he could more clearly put his position to the court. He did not assert any error on the part of Ford ADCJ although he was invited on a number of times to direct his mind to that question. He spoke of his work on a farm which, so far as I can see from the papers, came to an end in about 1994. According to the information before the sentencing judge and before this court he has been largely unemployed since 1996. He also expanded on some matters concerning his family and in particular on the reason for the breakdown of his marriage which he said related to his wife's wish to have more children and her subsequent loss of three children who were either stillborn or died shortly after birth. Indeed much of that material was before the sentencing judge. He also eloquently expressed his desire to return to work in the community. He did not, unfortunately, address the seriousness of the three offences for which he was sentenced and he was unable to point to any error in the sentencing process. He did ultimately request a reduction in the sentence imposed.

12    Because he appears unrepresented I have considered it appropriate carefully to consider the matters that might arise from Ford ADCJ's remarks on sentence and the material that was put before his Honour. Having done so I am unable to detect any error in the approach his Honour took. He accepted the applicant's expression of contrition as genuine and he noted that the applicant had become involved in an evangelical church which had offered him some support and to which the applicant in turn had offered assistance as an interpreter. His Honour recounted the circumstances of the applicant's turn to drugs and his family obligations.

13 Having regard to the decision of this court in R v Henry & Ors [1999] NSWCCA 111 and the matters there enumerated as the basis for the guideline judgment delivered, I am of the view that a sentence of six years for any one of these offences would not have been excessive. This applicant does not readily fit into the category described in Henry. When one takes into account that there were three offences in very quick succession, it is impossible to consider other than that the sentence imposed was a proper exercise of discretion.

14    I would grant leave to appeal but dismiss the appeal.

15    STUDDERT J: I agree with the orders proposed by Justice Simpson. Accordingly, the orders will be those proposed by her Honour.