Application for leave to appeal against sentence dismissed

Applicant : Unrepresented Criminal Appellants Scheme

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Miles v The Queen (1997) 17 WAR 518

Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998

Munro v The Queen, unreported; CCA SCt of WA; Library No 970022; 6 February 1997

R v Shaharuddin [1999] WASCA 229

Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

Van de Worp v The Queen [2000] WASCA 154

1 KENNEDY J: The applicant was found guilty by a jury of having, on 12 July 1999, at Joondalup, stolen from Mrs N Ganfield, with actual violence, a sum of approximately $1,800 in money, the property of City Farmers Holdings Pty Ltd, at the time being armed with an offensive weapon, namely a letter opener. He was also found guilty by the jury of having, on the same date and at the same place, unlawfully detained Mrs Ganfield

2 In sentencing the applicant, the learned District Court Judge found that the applicant, having been dismissed from his employment with City Farmers Holdings Pty Ltd in June 1999, had become angry at what he perceived to be his unfair treatment by the company. Some of his anger was directed at a former fellow employee, Mrs Ganfield, who was then aged 52. He conceived a plan to enter the company's store and to steal the day's receipts from Mrs Ganfield. His planning involved arranging with his sister to provide him with a false alibi. Being known to Mrs Ganfield, he had necessarily to assume a disguise, for which purpose he wore a balaclava and gloves.

3 The applicant did not take any weapon into the store with him. Having gained entry to the store, which was closed at the time, and knowing that Mrs Ganfield stayed back late every night after closing time in order to do paper work, the applicant concealed himself in the manager's office. While he was in the office, he took up a sharp paper knife and, as the learned sentencing Judge indicated, perhaps fuelled by alcohol and anger, he slashed the office furniture. He then went into the area where Mrs Ganfield was counting the day's receipts.

4 His Honour accepted that the applicant had threatened Mrs Ganfield by holding the paper knife against her neck and running it down her back, all the while making threats, including threats to kill her. The applicant was agitated and angry, and at one stage he stabbed the knife into the desk in front of Mrs Ganfield. He then proceeded to tie her hands with tape and to secure her so that she remained tied to her chair. His Honour accepted that the post-traumatic stress which afflicted her following the crime was severe, and that it will take a long time for her to resume a normal life if, indeed, she ever does so. The fact that the robbery continued over a considerable period of time significantly increased Mrs Ganfield's ordeal.

5 When Mrs Ganfield ultimately managed to break free, she telephoned the police. The applicant became an immediate suspect. When the police searched the applicant's premises, they did not find the knife, the balaclava or the gloves and they were unable to locate any of the stolen money. Initially, the applicant's sister supported her brother's false alibi, as did a Mr Frankish; but, as his Honour observed, to their credit they did not persist in that lie and gave evidence as to the true circumstances on the day so far as it affected them. His Honour was satisfied that when Detective Bethell interviewed the applicant, the applicant, realising that the evidence against him was strong, made a confession in the course of a videoed interview, although, subsequently, on his trial, he denied that his confession had been true.

6 The learned sentencing Judge noted that the applicant had been treated for depression and he accepted that the offences committed by him had taken their toll on him. As he observed, at the time of sentencing, the applicant was aged 32, was in employment and engaged to be married. He also accepted that these violent crimes were out of character, almost certainly planned, and committed, while he was under the influence of alcohol. Nevertheless, the crimes were so serious that all the matters which might have mitigated his punishment had comparatively little weight.

7 The learned sentencing Judge then went on to summarise the aggravating features of the crimes as follows -

(i) They were committed for a combination of greed and malice;

(iii) there was a deliberate infliction of terror on a defenceless woman going about her business, having regard to the length of time of the robbery, the use of the knife and the threats to her life;

(iv) the applicant's detention of Mrs Ganfield by binding her wrists with tape to further disable her; and

(v) the attempted involvement of others in an effort to hide his crime.

8 Noting that the Court of Criminal Appeal has held that the range of sentences for a single count of armed robbery is between 6 and 9 years, depending on the circumstances, his Honour expressed the view that the robbery and the deprivation of liberty were at the top of that range before matters of mitigation were taken into account. He also indicated that he would allow a deduction of 1 month, having regard to the time spent by the applicant in custody. He then proceeded to sentence the applicant to terms of 6 years and 5 months' imprisonment for the armed robbery and 2 years for the deprivation of liberty, those sentences being directed to be served concurrently. He ordered that the applicant be eligible for parole.

9 The applicant initially sought leave to appeal against his sentence simply on the ground that his Honour did not take into account, or give sufficient weight to, the applicant's antecedents, claiming in particular that he had no prior conviction. Further and better particulars of this ground of appeal were subsequently supplied. They were as follows:

"1. The learned sentencing Judge erred in law in failing to take into account or in failing to give sufficient weight to the following mitigating circumstances -

(a) the applicant has no significant prior criminal record;

(b) the applicant has no previous history of violent behaviour or drug abuse;

(c) the applicant has a history of stable employment;

(d) the applicant is engaged and has a stable and supportive family situation and consequently has a very low likelihood of re-offending;

(e) the applicant was under the influence of alcohol when the offence was committed;

(f) the applicant has a history of depression and was suffering from depression when the offence was committed."

10 Mr Prior, who appeared for the applicant under the Unrepresented Criminal Appellants' Scheme, rightly did not pursue, as a mitigating circumstance, the fact that the applicant was under the influence of alcohol at the time of the offences. Nor was the applicant's history of depression pressed, there being no supporting medical evidence before the learned sentencing Judge or before this Court.

11 In Norman v The Queen, unreported; CCA SCt of WA; Library No 7489; 1 February 1989, at 3, Malcolm CJ said:

"For what one might describe as the conventional armed robbery of a bank or similar premises, the range of sentences which has been imposed in the recent past would seem to be between five and seven years or upwards, depending upon the seriousness of the offence."

12 In Miles v The Queen (1997) 17 WAR 518, at 521, Malcolm CJ, having referred to his judgment in Norman's case, commented:

"Since that time, sentences have tended to firm up as a result of the increasing prevalence of the offence by giving greater weight to the requirement of deterrence and less weight to the antecedents and other matters personal to the offender in the manner described by Burt CJ in R v Petersen [1984] WAR 329 at 332. The offence of armed robbery has become significantly more prevalent since 1989 and sentences have been firmed up in that period. At present, the range of sentences commonly imposed for a single offence, depending upon the circumstances, would be from 6 to 9 years."

13 It must be appreciated that in Miles v The Queen, the Chief Justice was referring to the range of sentences as being the range of sentences actually imposed. He was not referring to the starting point prior to making allowances for mitigating factors, the most significant of which generally is an early plea of guilty; but this mitigating factor was not applicable to the applicant.

14 In House v The King [1936] HCA 40; (1936) 55 CLR 499, which was an appeal against a sentence, Dixon, Evatt and McTiernan JJ said, at 505:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own jurisdiction in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may

not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

15 The High Court has stressed more recently, in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at 671 - 672, in a joint judgment of all members of that court, the importance of the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. The Court described this principle as "basic" and then proceeded to reiterate that the discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice.

16 Having given careful consideration to the submissions put forward by Mr Prior on behalf of the applicant, I am not persuaded that the sentences were disproportionate to the seriousness of the offences, or that any factor was overlooked by the sentencing Judge so as to justify the intervention of this Court.

17 In the circumstances, I would dismiss the application for leave to appeal against the sentences imposed.

18 PIDGEON J: I agree with the reasons of Kennedy J.

19 WALLWORK J : I agree with the reasons for judgment of Kennedy J and with the order proposed by his Honour.