Veneziani v The Queen
[2001] WASCA 246
•21 AUGUST 2001
VENEZIANI -v- THE QUEEN [2001] WASCA 246
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 246 | |
| COURT OF CRIMINAL APPEAL | 21/08/2001 | ||
| Case No: | CCA:4/2001 | 15 JUNE 2001 | |
| Coram: | MALCOLM CJ WALLWORK J TEMPLEMAN J | 15/06/01 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against sentence dismissed | ||
| B | |||
| PDF Version |
| Parties: | TYRONE ANTHONY WILLIAM VENEZIANI THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Total sentence of 14 years in respect of four offences of car stealing and four armed robberies Whether disparity between these sentences and those imposed on co-offender in four armed robberies and car thefts and third co-offender in three armed robberies and car thefts gave rise to a justifiable sense of grievance Sentences confirmed |
Legislation: | Criminal Code (WA) s 378, s 393 |
Case References: | Krakouer (1999) 107 A Crim R 408 Postiglione v The Queen (1997) 189 CLR 295 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : VENEZIANI -v- THE QUEEN [2001] WASCA 246 CORAM : MALCOLM CJ
- WALLWORK J
TEMPLEMAN J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Total sentence of 14 years in respect of four offences of car stealing and four armed robberies - Whether disparity between these sentences and those imposed on co-offender in four armed robberies and car thefts and third co-offender in three armed robberies and car thefts gave rise to a justifiable sense of grievance - Sentences confirmed
Legislation:
Criminal Code (WA) s 378, s 393
(Page 2)
Result:
Application for leave to appeal against sentence dismissed
Category: B
Representation:
Counsel:
Applicant : Mr B G Illari
Respondent : Mr J Mactaggart
Solicitors:
Applicant : Bruno Illari
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Krakouer (1999) 107 A Crim R 408
Postiglione v The Queen (1997) 189 CLR 295
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: This was an application for leave to appeal against sentence. At the conclusion of the argument on 15 June 2001 the Court was unanimously of the opinion that the application for leave to appeal against sentence should be dismissed, and so ordered. It was then indicated that the reasons for making that order would be published later. These are my reasons for the joining in the making of that order.
2 On 15 December 2000 the applicant was convicted after trial by jury before Miller J on four counts of car stealing and four counts of armed robbery in company, one of which involved an additional circumstance of aggravation, namely the use of personal violence. The maximum penalty for stealing a motor vehicle is imprisonment for seven years under s 378 of the Criminal Code (WA). The maximum penalty for armed robbery under s 393 of the Code is life imprisonment.
3 The applicant was jointly charged with one Mark Steven Tyler ("Mr Tyler") and Steven Anthony Pridham ("Mr Pridham"). Mr Pridham pleaded guilty and gave evidence against the applicant and Mr Tyler at their trial on 11 - 15 December 2000. He had earlier been sentenced by Templeman J on 22 June 2000 to imprisonment for one year on each of the four counts of armed robbery and six months on each of the four counts of stealing a motor vehicle, to be served concurrently with each other, but to be served cumulatively in respect of each armed robbery, making a total sentence of imprisonment for four years. An order was made for eligibility for parole in respect of the sentences imposed upon the applicant and each of his co-offenders.
4 The learned Judge who sentenced the applicant and Mr Tyler imposed a total sentence of imprisonment for 14 years on the applicant, being imprisonment for one year on each of the four counts of stealing a motor vehicle, seven years for each of the armed robberies, except for the last (count 8), in which a term of imprisonment for eight years was imposed. The sentences were directed to be served concurrently except for the sentences for the armed robbery the subject of counts 2 and 4 which were directed to be served cumulatively, making a total of 14 years' imprisonment. An order was made for eligibility for parole in respect of each of the sentences imposed.
5 Miller J sentenced Mr Tyler to imprisonment for one year in respect of each of the counts of stealing a motor vehicle and four years in respect of each of the armed robberies, except for the last (count 8) in respect of which a sentence of five years was imposed. All of the sentences were directed to be served concurrently, except those for counts 2 and 4, which
(Page 4)
- were directed to be served cumulatively, making a total of imprisonment for eight years. An order was made for eligibility for parole.
6 The applicant's single ground of appeal raises an issue of parity as follows:
"Having regard to the principles of parity of sentencing and to the actual sentences imposed on the Applicant's co-offenders the learned sentencing Judge erred by imposing a total sentence of 14 years' imprisonment with parole eligibility on the Applicant.
Particulars
1. The co-offender Steven Pridham received a total of four years' imprisonment after allowance had been made for his early plea of guilty and his co-operation with the Police. It was stated at his sentencing hearing that were it not for these factors he would have received a total sentence of 10 years' imprisonment.
2. The co-offender Mark Tyler was sentenced to a total of eight years' imprisonment with parole eligibility on three charges of Armed Robbery and three counts of Car Stealing for which he was convicted. On each count of Armed Robbery of which he was convicted he was sentenced to four years' imprisonment as against the Applicant's sentences of seven years' imprisonment on each of counts 2, 4 and 6 and eight years' imprisonment on count 8.
3. It would appear that the learned sentencing Judge took no account of the difference in ages between the applicant and the co-offender Tyler, who was 11 years old.
4. Whilst some disparity was called for given the different roles played by each offender and their respective antecedents, the disparity actually achieved in the sentencing exercise was too great in all of the circumstances and demonstrates error."
7 In Postiglione v The Queen (1997) 189 CLR 295 at 301 - 302 the parity principle was propounded and analysed by Dawson and Gaudron JJ as follows:
(Page 5)
- "The parity principle on which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (Lowe v The Queen (1984) 154 CLR 606 at 610 - 611 per Mason J). In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error (Lowe v The Queen (1984) 154 CLR 606 at 617 - 618 per Brennan J). Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle as identified and expounded in Lowe v The Queen ((1984) 154 CLR 606, especially at 610 per Gibbs CJ; at 613 per Mason J; and at 623 per Dawson J) recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance' (Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ; at 613 per Mason J; and at 623 per Dawson J). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
8 In sentencing the applicant and Mr Tyler the learned Judge said:
"The facts at trial revealed that in the week of 14 to 18 February this year you, Veneziani, committed four armed robberies of various locations in the hills area. They were the BP Maida Vale on the Monday, the Glen Forrest post office on the Tuesday, the Peak service station at Mount Helena on the Thursday, and the Stoneville fresh market on the Friday. You knew the area well because you had been brought up in that particular location.
(Page 6)
- Each robbery was well-organised. A car was stolen first and used to take you to the scene of a robbery. In three cases your accomplice Pridham drove the vehicle, but in one, the first, you drove. You went into the service station or the store in each case with a 2 foot 6 inch wooden baton, with which you threatened the attendant or attendants who were present. The threats were real because you slammed the baton on the counter on a number of occasions, and the video clip from the BP service station shows that you were extremely menacing. You meant business.
You stole various amounts of money, ranging from $300 to $600, and the stolen vehicle was used to take you from the scene of the robbery to a clean getaway car, which was driven away by you, Tyler. It was waiting nearby, and it enabled the stolen car to be dumped and the three of you to escape. You, Tyler, were involved in doing this on only three occasions, as on the Thursday you did not attend at the scene of either the car theft or the robbery."
9 The learned Judge then gave consideration to matters personal to each of the offenders. So far as the applicant was concerned, the learned Judge said:
"You, Veneziani, were born on 1 October 1977, and so you are 23 years of age. You have a 19-month-old son. You are one of five children in your family. You completed a year 10 achievement certificate. You have worked with your father in his building business, where you were doing an apprenticeship.
You have a number of Children's Court convictions of which I take no account, but in the District Court at Perth you were convicted in 1999 of a number of offences, including burglary, for which you were imprisoned for 2 years, fraud, possession of heroin, stealing and receiving. You were on parole when you committed these offences."
10 So far as Mr Tyler was concerned, the learned Judge said:
"You, Tyler, were born 15 January 1966, and so you are 34 years of age. You were educated to the age of 15 years, and then completed a floor-laying apprenticeship. You later joined the army and then became a truck driver. You have been twice married, but you are separated from your present wife. You
(Page 7)
- have three children, and you were last employed in Canberra, having come to Perth only shortly before the commission of these offences. You have a record of convictions, but mainly for motor vehicle related matters, including stealing a motor vehicle, but not a stealing such as here occurred."
11 The learned Judge went on to say that:
"In sentencing in this matter, I take into account firstly the gravity of the offences. The armed robberies here were extremely serious. They were at the higher end of the scale of seriousness. The staff who were threatened with you, Veneziani, with the baton while you were masked and shouting at them, were very apprehensive.
In one case, the fourth case, Mrs Johnston from the Stoneville fresh market actually took you on with a vegetable knife but you attacked her with a baton with the result that the knife scored the baton and was knocked from her hand. In so doing, you hit her on the finger with the baton, causing her an injury. She was brave to have taken you on. As she said in her own evidence, she decided to act like a hero. It was fortunate for her that she was not more seriously injured.
You, Tyler, played an indispensable part in three of the robberies. You assisted by taking Veneziani and Pridham to the location where a vehicle was stolen, then you waited near the scene of the robbery so that you could take them both away and avoid detection. Your role was a lesser role than that of Veneziani but nevertheless an indispensable one.
The offences of car theft were also serious. People are entitled to leave their cars locked up in railway stations, school carparks and public swimming pool areas without having them broken into and stolen by people like you.
I take into account the effect on the victims. Each of them I am sure was clearly traumatised. Ms Trusso from the Peak service station was very traumatised and had to be brought into court with a friend and had to be taken out the side door so that she did not confront the two of you on leaving. I also refer to her victim impact statement handed to me today in which she says:
(Page 8)
- 'Since the robbery I just don't feel safe any more. The robbery adversely affected me greatly and my world has been shattered. I keep thinking that if my partner Neville hadn't been there, I could have been badly hurt. As we are running our own business, this now is for me an ongoing fear.'
- All of that I think is quite reasonable and to be expected. I take into account, however, the personal factors relevant to you. I have referred to those. You, Tyler, have no serious criminal convictions, and that's to your credit, and you did co-operate to some slight extent with the police.
In imposing sentence I take into account the questions of just punishment, deterrence, prevalence of the offences of armed robbery and car stealing, prospects of rehabilitation and your antecedents. Just punishment is particularly important in this case and so is deterrence; likewise, prevalence of the offence. The offence of armed robbery is at epidemic proportions in Perth. The armed robberies conducted through the hills area by the two of you were such that there is a need to impose appropriate punishment in order to deter you and others from committing these types of offences.
I have already mentioned your antecedents. As to your rehabilitation, I have got some reservations. You, Veneziani, appear to be determined to commit criminal offences. You, Tyler, engaged in the commission of these offences without care or consideration for the consequences.
The appropriate disposition of these matters is obviously by way of a sentence of imprisonment. There can be no other disposition. The seriousness of the offences is such that only imprisonment can be justified. I take into account the sentence imposed upon Pridham, who would have been sentenced to 10 years' imprisonment had he not pleaded guilty and undertaken to co-operate. He was the first getaway driver and the only getaway driver in relation to one of the offences.
There can be no question of suspending the sentences of imprisonment."
12 The learned Judge then went on to impose the sentences to which I have referred. In so doing, the learned Judge said:
(Page 9)
- "It is necessary I take into account the totality principle and avoid imposing what would otherwise be a crushing sentence upon you. For this reason all sentences will be concurrent save for the sentences on counts 2 and 4. They will be cumulative. The result is that you [Veneziani] are sentenced to 14 years' imprisonment. You will be eligible for parole. The sentence will date from 26 July 2000.
You, Tyler, will be sentenced to: count 1, 1 year imprisonment; count 2, 4 years' imprisonment; count 3, 1 year imprisonment; count 4, 4 years' imprisonment; count 7, 1 year imprisonment; count 8, 5 years' imprisonment. Again I take into account the totality principle, therefore all sentences will be concurrent save for those in relation to counts 2 and 4 which will be cumulative.
The result is that you are sentenced to 8 years' imprisonment. You will be eligible for parole. The sentences will date from 10 July 2000. There will be an order for compensation in the sum of $150 to Jason Moroni, that order being made against each of you."
13 In the result, the applicant was sentenced to imprisonment for one year in respect of each of the car stealing charges and imprisonment for seven years on each of the armed robbery counts 2, and 6. He was sentenced to imprisonment for eight years in relation to the offence the subject of count 8. All sentences were made concurrent save those in respect of counts 2 and 4, which were made cumulative. The total sentence was 14 years and the applicant was made eligible for parole.
14 Mr Tyler received a total sentence of imprisonment for eight years, with eligibility for parole. In relation to counts 2 and 4, he was sentenced to imprisonment for four years on each and in relation to count 8 he was sentenced to five years' imprisonment. He was sentenced to imprisonment for one year for each of the car stealing charges. All of these sentences were made concurrent save those in respect of the sentences for counts 2 and 4, which were made cumulative.
15 It was conceded on behalf of the applicant that the facts as found were clearly open to the learned sentencing Judge to find, given the verdicts of the jury and the evidence which was led at the trial by the prosecution. The most significant facts in relation to this were that in the case of each armed robbery in company, the applicant was the one who performed the actual robbery, the one who was actually armed, the one
(Page 10)
- who actually issued threats and, in count 8, the one who had caused injury to Ms Johnston. The co-offender Tyler was the second getaway driver, the first being the co-offender Mr Pridham.
16 It is conceded that the applicant had a record which commenced in 1991, and which included convictions for car stealing and burglary. He had no prior convictions for robbery, or other offences involving violence.
17 In my opinion, the applicant could have expected a longer prison sentence than those imposed on his co-offenders, as he had played a significantly greater role in each of the actual robberies than either of Messrs Tyler or Pridham.
18 The learned sentencing Judge was clearly entitled to take the view that the applicant played a significantly greater role in each of the armed robberies than he was prepared to admit or concede. It is accepted by all concerned that the applicant was on parole at the time of the offences.
19 As against that, the applicant was the youngest of the three, being aged 23 at the time, whereas Mr Tyler was aged 34 and Mr Pridham was aged about 30. It was contended on behalf of the applicant, notwithstanding his greater role in the four armed robbery offences, that the difference in sentencing between the applicant and Mr Tyler was too great and demonstrated a disparity, in the context of sentencing.
20 In the result, taking each count of armed robbery on which the convictions were recorded, Mr Tyler was sentenced to imprisonment for four years whereas the applicant was sentenced to imprisonment for seven years. On count 8 Mr Tyler was sentenced to imprisonment for five years and the applicant eight years. Although Mr Tyler played a significantly lesser role in the actual commission of the offences in which he was involved, he was nonetheless an accomplice. It is in this context that Mr Tyler's role and that of Mr Pridham fall to be considered. In the case of Mr Pridham, the facts, as recited by Templeman J, were:
"The offences followed a pattern. A motor vehicle would be stolen, two of the offenders would drive it the target premises, one offender would go inside, the same offender in each case, and commit the robbery while the other one waited in the car outside. After the robbery had been committed the two offenders would drive to a pre-arranged location where the third offender was waiting in another car. The stolen car would be abandoned and the three of you would drive off in the other vehicle.
(Page 11)
- On the first occasion your role was to wait at the pre-arranged location while the other two committed the offence. On the three later occasions your role was to drive the stolen car to and from the target premises. The first robbery was committed at the BP service station at Maida Vale and some $634 was stolen; the second robbery was at the Glen Forrest Post Office, $675; the third robbery at Peak service station in Helena Valley and I understand from your statement that about $300 was stolen; the fourth robbery, the Stoneville fresh food market, about $320 stolen.
The man who carried out the robberies in each case disguised his face, he armed himself with a baton and on each occasion he used the baton in a threatening manner. In the final robbery he was challenged by a female staff member. He struck her with the baton, injuring her finger. It was only after he had done that that the money was handed over. Although you did not yourself enter any of the target premises, your role in providing assistance in the way that you did makes you equally liable with the others for the commission of the robberies. You played a more active role in the theft of the second, third and fourth motor vehicles, but you played a lesser part in the theft of the first one. It is clear from your statement that in relation to that you were involved as an aider."
21 So far as Mr Pridham was concerned, his motive for the commission of the offences was to obtain money to buy food and drugs and, in particular, heroin.
22 Templeman J also commented that:
"In determining what is the appropriate sentence in your case, I have to have regard to the seriousness of the offences. That is determined by taking into account the maximum penalty, the circumstances in which the offences were committed and any aggravating and any mitigating circumstances. I have already referred to the first two matters.
There are aggravating circumstances because the robberies were committed against what the courts describe as soft targets. An unprotected motor vehicle in a public car park is a soft target and more importantly the businesses that you robbed are soft targets because they are small businesses. They provide a
(Page 12)
- valuable service to the public. They usually only have one or two people present as staff members and they almost inevitably have cash in the till. That is why they are soft targets and they have to be protected.
There are two mitigating factors. The first is your early plea of guilty and the second is your undertaking to provide assistance in the prosecution of your co-offenders. Both of those matters demonstrate very clearly your remorse. The Court of Criminal Appeal has said that single offences of this kind should carry terms of imprisonment of between 6 and 9 years. Although imprisonment is a sentence of last resort, I am quite satisfied that I must impose a sentence of imprisonment in this case because of the seriousness of the offences and the number of the offences and the need to protect the community."
23 The learned Judge went on to adopt a starting point of a sentence of imprisonment for five years for the armed robbery and 12 months for the theft of the motor vehicle in each case, saying:
"I think a starting point below the range is appropriate because your involvement was less than that of your co-offenders."
- Templeman J went on to say:
"The Crown accepts that each of the sentences to be imposed for stealing the motor vehicles should be imposed to run concurrently with the sentence for the associated armed robbery and that is, I think, appropriate, but because the offences were committed quite deliberately on separate occasions, then each head sentence, I think, should be imposed cumulatively.
That would mean four lots of 5 years which is 20 years' imprisonment. That is obviously far too long. That would impose a crushing burden on a person of your age and with your background. I therefore have regard to the totality principle and having regard to that I conclude that I should start with 10 years' imprisonment and first of all discount that to 8 years to have regard to your plea of guilty. I then propose to discount that considerably because of your undertaking to co-operate with the prosecuting authority.
It is very much to your credit that you have been prepared to give that undertaking and to assist in that way, particularly, as I
(Page 13)
- understand it, as you have been subjected to threats of violence while you have been in custody. It seems to me, having regard to all the circumstances, that your undertaking to assist is a valuable undertaking and should be rewarded accordingly.
I have considered a number of cases to which I have been referred in which substantial discounts have been given in these circumstances and I have come to the conclusion that I should discount by a further 50 per cent. I have to emphasise, as I did on the last occasion, that that assumes that you continue to make good your undertaking and that you do assist by giving evidence - you have now given a statement, but that you give evidence as you have said you will - because, as I made plain on the last occasion, if you don't do that, then the power exists to reimpose the higher sentence. You must understand that.
The total sentence of imprisonment will therefore be 4 years and I will achieve that result by imposing sentences of 12 months for each of the four armed robberies and 6 months for each motor vehicle theft. The motor vehicle and armed robbery sentences, each pair, as it were, will be served concurrently but cumulatively on each other, making 4 years in total."
24 The sentences so imposed were backdated to commence on 18 February 2000. In imposing those sentences Templeman J took into account Mr Pridham's antecedent report which disclosed a series of convictions for offences including burglary, the possession of drugs of dependence for the purposes of sale, possession of an unlicensed dangerous weapon and also took note that he had been disqualified indefinitely from driving a motor vehicle as a result of several motor vehicle offences. Sentences of imprisonment had been imposed on previous occasions. The learned Judge also took into account that Mr Pridham may well be segregated in prison because of the threats of violence made against him.
25 In passing sentence on the applicant and Mr Tyler the learned sentencing Judge in this case said:
"You, Veneziani, were born on 1 October 1977, and so you are 23 years of age. You have a 19-month-old son. You are one of five children in your family. You completed a year 10 achievement certificate. You have worked with your father in his building business, where you were doing an apprenticeship.
(Page 14)
- You have a number of Children's Court convictions of which I take no account, but in the District Court at Perth you were convicted in 1999 of a number of offences, including burglary, for which you were imprisoned for 2 years, fraud, possession of heroin, stealing and receiving. You were on parole when you committed these offences.
You, Tyler, were born 15 January 1966, and so you are 34 years of age. You were educated to the age of 15 years, and then completed a floor-laying apprenticeship. You later joined the army and then became a truck driver. You have been twice married, but you are separated from your present wife. You have three children, and you were last employed in Canberra, having come to Perth only shortly before the commission of these offences. You have a record of convictions, but mainly for motor vehicle related matters, including stealing a motor vehicle, but not a stealing such as here occurred."
26 It was conceded on behalf of the applicant that the findings of fact made by the learned sentencing Judge were clearly open, given the verdicts of the jury and the evidence which was led at the trial by the prosecution. It was acknowledged that the most significant facts in relation to the applicant were that, in the case of each of the armed robberies in company, the applicant was the one who performed the actual robbery, the one who was actually armed, the one who actually issued the relevant threats and, in the case of count 8, the one who caused the injury to the attendant. It was acknowledged that, clearly, the applicant should have expected a longer prison sentence than the others as he had played a significantly greater role in the case of each of the armed robberies than either Mr Tyler or Mr Pridham. It was also conceded that the learned sentencing Judge was entitled to take the view that the applicant played a significantly greater role in each of the armed robberies.
27 The applicant was aged 22 at the time of the commission of the offences and was considerably younger than both Mr Tyler and Mr Pridham who were aged 34 and 30 respectively at the relevant time. As against that, as was conceded by his counsel, the applicant had a significant criminal record dating back to 1991 in the Children's Court, although his first serious offences were the stealing of two motor vehicles and one attempted stealing of a motor vehicle, of which he was convicted on 1 September 1993 when he was aged 15. On 27 October 1993, some three weeks after he attained the age of 16, he was convicted of 22 counts of burglary and five counts of fraud, in respect of which he was placed on
(Page 15)
- probation and ordered to perform community service. After a gap of some four years he was convicted of possession of cannabis on 17 March 1998 and fined.
28 On 13 April 1999, however, then aged 21, he was convicted in the District Court at Perth and sentenced to imprisonment for a total of two years and six months as shown in his record as follows:
"DC 13/04/1999 BURGLARY & COMMIT 1 2 YRS IMP
OFFENCE
(HABITATION)
DC 13/04/1999 FRAUD 4 3 MTHS IMP CONC
EA CHG
DC 13/04/1999 HEROIN POSSESS A 1 6 MTHS MP CONC
QUANTITY
DC 13/04/1999 POSSESS SMOKING 1 3 MTHS IMP CONC
IMPLEMENT
DC 13/04/1999 RECEIVING 1 3 MTHS IMP CONC
DC 13/04/1999 STEALING 2 3 MTHS IMP CONC
DC 13/04/1999 UNLAWFUL 1 3 MTHS IMP CONC
POSSESSION TOTAL: 2 YRS &
6 MTHS IMP"
"DISTRICT COURT 13/04/1999 NO MOTOR DRIVERS 4 3 MTHS IMP,
LICENCE - UNDER MDL DISQ 12
FINES SUSPENSION MTHS CUM
DISTRICT COURT 13/04/1999 STEALING A MOTOR 1 2 YRS & 6
VEHICLE-PRESCRIBED MTHS IMP
DISTRICT COURT 13/04/1999 STEALING A MOTOR 3 6 MTHS IMP
VEHICLE
DISTRICT COURT 13/04/1999 FAILING TO STOP 1 $100
WHEN CALLED UPON
DISTRICT COURT 13/04/1999 CARELESS DRIVING 1 (PERTH) $100
DISTRICT COURT 13/04/1999 CARELESS DRIVING 1 3 MTHS IMP"
31 On 19 April 1999 he was convicted in the Midland Court of Petty Sessions on four counts of receiving for which he was sentenced to imprisonment for three months concurrent on each charge. He was subsequently convicted in the District Court on 29 April 1999 of some traffic offences.
(Page 16)
32 It was contended that, notwithstanding his greater role in the four armed robbery offences, the difference in sentencing between the applicant and Mr Tyler was too great and demonstrated an unjustified disparity. It was submitted that in relation to each count of armed robbery in respect of which a conviction was recorded, Mr Tyler was sentenced to imprisonment for four years whereas the applicant was sentenced to imprisonment for seven years. In relation to count 8, Mr Tyler was sentenced to imprisonment for seven years and the applicant for eight years. The submission on behalf of the applicant was that although Mr Tyler played a significantly lesser role in the actual carrying out of the offences, both of them were principals in the same enterprise and must have been involved in the planning and execution of each offence. They both stood to gain from the profits of each offence. In these circumstances, it was contended that the disparity in sentencing between them was so great as to demonstrate error. In the course of argument it was also conceded that Mr Tyler not only had a lesser role than the applicant but also a lesser role than Mr Pridham.
33 The gravamen of the complaint made on behalf of the applicant appears to be that, in relation to the three armed robberies of which both the applicant and Mr Tyler were involved, there was too great a disparity giving rise to a reasonable sense of injustice on the part of the applicant. In my opinion, it needs to be borne in mind that, first, Mr Tyler was found not guilty of the stealing of the motor vehicle the subject of count 5 and the armed robbery the subject of count 6 on the indictment, in respect of which the applicant was sentenced to imprisonment for seven years for the armed robbery. In relation to the armed robberies the subject of counts 2 and 4, the applicant was sentenced to imprisonment for seven years and Mr Tyler for four years. In relation to the armed robbery the subject of count 8, the comparative sentences were eight years and five years respectively. Those sentences were absorbed by concurrency so that the end result was that the applicant was sentenced to a total of 14 years and Mr Tyler was sentenced to a total of eight years.
34 The complaint is directed to the comparison of the total sentences imposed. As counsel put it, Mr Tyler, although he played a lesser role, played an indispensable role in respect of each offence of which he was convicted. As counsel put it:
"He was part of the team, if you like, and, if you like, [the applicant] is the front man, he's the man who goes in, he's the man who wields the weapon, but without his backup, his role would have been impossible …"
(Page 17)
35 At the same time, it was accepted that the applicant was on parole which made his situation somewhat worse than Mr Tyler and that he had "a somewhat worse record" than Mr Tyler. In the circumstances, the most significant point to be made in the applicant's favour was his comparative youth, although it was acknowledged that it also counted against him that he committed these offences just over two months after he had been released on parole on 12 November 1999.
36 Mr Tyler's record was relatively minor by comparison to that of the applicant. Between November 1989 and April 1991 he had been convicted of six traffic offences in respect of which fines had been imposed. In 1996 he was convicted of driving without a licence. On 28 May 1996 he was sentenced in the District Court to pay a fine of $1,000 for stealing a motor vehicle. Apart from two other minor traffic convictions, his only other criminal convictions were two summary convictions for fraud on 3 January 2001 in respect of each of which he was sentenced to imprisonment for six months to be served concurrently.
37 In my opinion, having regard to all of the circumstances, the total sentence of imprisonment for 14 years imposed upon the applicant by the learned trial Judge was well within the range of a sound discretionary judgment and appropriately reflected the seriousness of the offences of armed robbery in which he was involved and the role that he played. Furthermore, having regard to the eight serious offences which were involved and the fact that they required a significant degree of planning, in respect of which the applicant played a leading role, the total sentence of imprisonment for 14 years could not in any way be described as excessive, whether in relation to the application of the totality principle or otherwise.
38 I accept the submission on behalf of counsel for the Crown that to the extent that the applicant had a sense of grievance arising from the leniency afforded to the co-offender Mr Pridham, such was not a legitimate sense of grievance. Not only did Mr Pridham plead guilty but he gave evidence for the Crown. In this case, Mr Pridham entered a plea of guilty at an earlier stage and was prepared to expose himself to the risks and dangers of giving evidence against his co-offenders. Consequently, he was entitled to substantial mitigation of the sentences which would otherwise have been imposed upon him. Given the circumstances, I do not consider that the applicant would be entitled to feel any justifiable sense of grievance at the extension of comparative leniency in the sentencing of Mr Pridham: cf Krakouer (1999) 107 A Crim R 408 at 413 per White J.
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39 In all the circumstances, having regard to both the role played by the applicant and his antecedents compared with the others, it is apparent that it was the applicant who was prepared to disguise himself with a balaclava and to play a leadership role in the sense of being the person who would, while armed with the baton which he was clearly willing to use, as he did on one occasion, to employ violence to facilitate the commission of these armed robberies. The fact that he was disguised by means of a balaclava meant that it would have been difficult to determine his age with any certainty. These were all circumstances which aggravated the commission of the offences so far as his role was concerned.
40 In my opinion, the applicant's role and degree of criminality in relation to these offences was significantly greater than that of either of his two accomplices. In all of the circumstances, I do not consider that the disparity between the sentences imposed on the applicant and those imposed upon his co-offenders is such that would entitle the applicant to a legitimate sense of grievance. As between the applicant and Mr Pridham, the differences are clearly accounted for by the latter's pleas of guilty and the fact that he gave evidence for the prosecution. In the case of Mr Tyler, the difference can be accounted for not only by their different roles in relation to the commission of the offences, but also by Mr Tyler's more favourable criminal record and the fact that he was involved in only three of the four stealing offences and three of the four armed robbery offences.
41 WALLWORK J: I agree with the reasons for judgment of Malcolm CJ. They include my reasons for joining in the order to refuse leave to appeal.
42 TEMPLEMAN J: The reasons published by the Hon the Chief Justice reflect my own reasons for joining in the decision on 15 June 2001 to dismiss the application for leave to appeal against sentence.
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