The Queen v Bihun, Peter

[1984] FCA 95

Re: THE QUEEN
And: PETER BIHUN
No. NTG 30 of 1983
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Forster J.
McGregor J.
Fitzgerald J.

CATCHWORDS

CRIMINAL LAW - Crown appeal against sentence - armed robbery - sentences manifestly inadequate - whether disparity such that Court should interfere - factors to be taken into account - regard to be had to subsequent sentence of co-offender.

HEARING

DARWIN

#DATE 6:4:1984

ORDER

The appeal from the Supreme Court of the Northern Territory against the sentences imposed upon PETER BIHUN by the Honourable Mr Justice O'Leary on 9 September 1983 in proceedings S.C.C. No. 76 of 1983 whereby the said PETER BIHUN pleaded guilty to and was convicted of two counts of armed robbery and whereby the said PETER BIHUN was sentenced on each count to be imprisoned with hard labour for a term of 4 years, such sentences to be served concurrently, with a non-parole period in each case of 21 months and it was directed that the said PETER BIHUN be released after serving 15 months of each of those sentences upon his giving security by recognizance in the sum of $1,000.00 that he will be of good behaviour for a period of 3 years be allowed and that the sentences be set aside and that in lieu thereof the said PETER BIHUN be sentenced in respect of each offence for a period of 6 years from 9 September 1983, such sentences to be served concurrently, with a non-parole period of 2 1/2 years from that date.

JUDGE1

The Crown appeals against sentences imposed by the Supreme Court of the Northern Territory on the respondent who pleaded guilty on two counts of armed robbery.

On 9 September 1983 the learned trial judge sentenced the respondent to imprisonment with hard labour for a period of 4 years in respect of each count, directing that those sentences be served concurrently. His Honour fixed a non-parole period of 21 months and further directed that the respondent be released after serving 15 months of each sentence, upon giving security by recognizance in the sum of $1,000 that he be of good behaviour for a period of 3 years. It was conceded on behalf of the respondent that the orders appealed from should be varied by the deletion of the non-parole period. At the time when he was sentenced, the prisoner had been in custody for four months.

Both offences were committed at Amburla Station on the Yuendumu Road some 98 kilometres from Alice Springs. On 7 May 1983, the respondent and a fellow worker, George Blanch, had been drinking in Alice Springs. At about 4pm they decided to go for a drive in a Nissan 4 wheel drive vehicle belonging to Blanch's de facto wife. Having travelled along the Stuart Highway and then along the Yuendumu Road, they decided to go to the Amburla Station homestead. The respondent had been there for a camp draft.

They arrived at the homestead at about 6pm and were met by Lachlan Douglas Hill, a young man employed as a ringer. After some conversation they left and drove back along the Yuendumu Road. They parked and, as a result of a conversation, decided to return to the homestead to steal some things from it. The arrangement was that the respondent would alight from the vehicle some distance from the homestead, taking a torch with him to signal either that the coast was clear or that he needed help. If there was no signal, Blanch was to leave after half an hour.

The arrangement was put into effect and the respondent returned to the homestead. Approaching Mr Hill from behind, he drew a long sheath knife that he was wearing in a belt and told Hill not to move. From that point on, Mr Hill was in a state of terror for a considerable period as the respondent plainly intended. The respondent put the knife to Hill's back and told him to lie down with his hands on the back of his head and not to do anything silly or he would get hurt. The respondent knelt over Mr Hill and put his jumper over Hill's head. He held the knife to Mr Hill's back and then to his neck.

The respondent then made Mr Hill walk from the kitchen to a demountable building a short distance away and again made him lie down on the floor. As a result of questioning Mr Hill, the respondent secured a .22 rifle and Hill's wallet. He then drove Mr Hill's holden panel van to the front of the house and loaded a number of items. He returned to the demountable, told Hill that he had found bullets for the .22 and also a .243 rifle; he loaded the .22 and fired a bullet into the floor close to Hill. The respondent threatened Mr Hill on more than one occasion that he would "fix" him if he moved. Meanwhile Blanch, not having seen any signals from the respondent, started to drive back to Alice Springs. Some 30 miles from Amburla, he pulled over to the side of the road to have a sleep. The respondent found him there, woke him and told him what had happened. They loaded the stolen property from the panel van into the Nissan. The Nissan was then hidden in some trees off the road and the respondent and Blanch returned to Amburla in the panel van. The first count charged the respondent with armed robbery of goods to the value of about $980.00, which did not include the value of the panel van.

On their arrival they found Mr Hill still lying on the floor of the demountable. The respondent put the rifle to Hill's back and asked him if he had telephoned. Hill said he had not. The respondent repeated the question, this time putting the rifle to Mr Hill's head and later to his foot. Again Hill said that he had not telephoned. Apparently to frighten Hill into telling the truth, the respondent loaded the rifle and again fired it into the floor close to Mr Hill who pleaded for his life. The respondent was concerned that Mr Hill had telephoned, but Blanch believed him.

The respondent and Blanch then went to the homestead where they loaded more property into the panel van. The respondent again returned to the demountable, again loaded the rifle and again fired a shot into the floor. The respondent and Blanch then drove back to Alice Springs. Further threats were made to Mr Hill on the occasion of the second robbery. The second count charged the respondent with armed robbery of goods to the value of about $3248.00.

Alcohol which the respondent had consumed on the day of the offences which the primary judge considered was "considerable" provides neither any justification nor any explanation for the respondent's conduct.

The offences were premeditated and deliberate with the motive of gain.

The respondent was arrested the next morning while driving the panel van in Alice Springs. When questioned by the police, the prisoner readily made full and frank admissions. He sought at no time to offer any excuse for his behaviour and accepted that he was the instigator and major participant in the offences which he acknowledged were serious. He did not seek bail at any time. He pleaded guilty at the earliest possible opportunity. The primary judge was satisfied of the respondent's real remorse and said "I entertain some hope that he will not offend again at least in this way".

At the time he was before the Court, the respondent was 32 years of age and single. He was born in Melbourne, the oldest of a family of 3. His father died as a result of an industrial accident when the respondent was only 4. His mother remarried some years later. The respondent reached the intermediate standard at high school. Initially he was employed as a junior draughtsman but then engaged in a variety of jobs in Victoria and South Australia. In 1975 he sustained an injury to his back at work as a result of which he received compensation in respect of 26 weeks on the basis of total incapacity and 26 weeks on the basis of partial incapacity. He returned to work but again injured his back as a result of which he received a lump sum settlement. The respondent then went shearing in Queensland and thereafter worked as a station hand in the Territory.

In 1976, the respondent was convicted of assault, for which he was fined $100.00. Apparently the conviction arose from an incident described by the respondent's counsel as "a fairly old fashioned romantic triangle".

In 1981, while he was in Melbourne, he was assaulted by a gang known as the Thomas Down Sharpies. He was beaten up and had petrol poured over his body which was then set alight. Fortunately for the respondent, he was wearing a thick woollen jumper. But he was in hospital for 2 months and skin grafts were carried out to his hands. He returned to the Territory in November 1982 and at the time of the offences appears to have been working for the Alice Springs Town Council.

Before the primary judge the respondent accepted that a prison sentence was inevitable but his counsel asked for consideration of a suspended sentence after some period of imprisonment. In support of that submission counsel pointed to the fact that while in prison the respondent was developing some skills in oil painting. Just before the commission of the offence, the respondent had become involved with an evangelical group in Alice Springs and this had led to some reduction in his drinking habits.

When the respondent was sentenced, Blanch had not been dealt with. He was charged with only one offence and has since been sentenced to 3 1/2 years imprisonment with a non-parole period of 21 months. Blanch who was an older man (54 years) had 19 prior convictions for dishonesty. Further, he was not in custody prior to sentencing.

Some criticism was made of parts of his Honour's comments upon sentencing but we cannot identify any specific error in what he said. Nonetheless, we cannot escape the conclusion that his Honour's discretion miscarried in a way which does not appear except in the sentences in fact imposed.

We do not find any assistance in the sentences imposed upon Blanch. Rather than Blanch's sentence providing a foundation for an inference as to the sentences appropriate to the respondent, it is not improbable that the Judge who sentenced Blanch paid regard to the sentences which had been imposed on the respondent. We do not know whether that was so and place no reliance upon it. However, in the circumstances, we do not find helpful a comparison with the sentence imposed on Blanch.

While the prisoner is entitled to have taken into account in his favour the various factors to which reference has been made, including his previous character and conduct, his remorse, his prospects of rehabilitation, and the period he had already served when sentenced, the offences seem to us to be such that substantial punishment was called for as retribution and as a deterrent for the protection of the public. The reign of terror to which Mr Hill was subjected, not once, but twice, at a remote station at nighttime, involving not only threats and a knife but the actual use of firearms, strikes us as calling for a significant period of imprisonment. The maximum possible sentence for each offence was imprisonment for life. In all the circumstances, we regard the sentences imposed as manifestly inadequate. In considering whether the disparity is such that the Court should interfere, we have taken into account that the appellant is the Crown, not the prisoner, and that, accordingly, in assessing whether the degree of inadequacy is sufficient to justify interference it is to be brought to account that a consequence of an increase in sentence will be to jeopardise the prisoner's present right to freedom at a fixed future time: cf R. v. Tait and Bailey (1979) 24 A.L.R. 473, 476. Nonetheless, we would increase the sentence in respect of each offence to 6 years imprisonment, such sentences to be served concurrently. We would fix a non-parole period of 2 1/2 years from the date of original sentence and delete the provision that the prisoner be released conditionally upon his entering into a recognizance.