Driver v The Queen [2012] VSCA 242

1 I invite Nettle JA to deliver the first judgment.

2 This is an application for leave to appeal against a total effective sentence of eight years and six months' imprisonment with a nonparole period of six years imposed on the applicant on pleading guilty to one charge of theft, one charge of being a non prohibited person in possession of a registered long arm without being licensed, one charge of shortening the barrel of a rifle, one charge of armed robbery, two charges of incitement to commit armed robbery and one charge of possession of an imitation unregistered general category handgun.

Possessing a registered category A longarm without being the holder of a licence

Possessing an unregistered general category handgun

S 6AAA Declaration: 10 years and 9 months' imprisonment with NPP of 8 years.

3 Around June 2010, the applicant, who was then a man of 51 years of age without prior convictions, began to plan an armed robbery. He was aware that a local farmer stored on old bolt action .22 calibre rifle in the roof area of his stables and he removed the weapon from the property and proceeded to shorten the barrel and stock with a hacksaw to make it easily concealable. His conduct in stealing, possessing and shortening the barrel of the rifle were the acts which comprised charges 1, 2 and 3.

4 On 4 November 2010, he used the weapon to commit an armed robbery on the ANZ Bank a Koroit from which he netted some $52,500. For that purpose he disguised himself with make up, a stocking and a red cap to conceal the stocking. He also prepared a set of sunglasses by painting them black with spray paint to avoid detection. He drove to Koroit and parked in Spring Street and then stood at a bus stop for about 15 minutes watching until the time was right.

5 At the appropriate time, he pulled the stocking over his face, put on the sunglasses and pulled the shortened .22 calibre rifle from a bag. Brandishing the weapon, he confronted the manage, one Jay Evril, and told him words to the effect, 'You know the drill'. He commanded Mr Evril not to press any buttons and forced him towards the secure teller area. He demand cash from Mr Evril and from a teller, Tanya O'Brien, and told them to place it in a reusable bag, which he had brought with him. He also asked Mr Evril about money in an automatic teller machine but Mr Evril told him he did not have access to it.

6 The applicant then turned his attention to a large safe located in the teller area and forced Mr Evril to open it and put cash from it into the bag. Next, he forced Mr Evril and Ms O'Brien to kneel on the floor, saying to them:

You'll get home tonight if you do what I tell you to do. I'm not going to shoot you.

7 Finally, he made a further inquiry about the automatic teller machine before telling Mr Evril and Ms O'Brien to lie face down on the floor, warning them to stay down there for 20 minutes because he had a bloke out the front who would start shooting if they came out of the bank before then. The judge found that the applicant's weapon was not loaded at the time of the robbery.

8 The applicant left the bank and removed his sunglasses and stocking mask and returned to his home in Killarney where he put the clothing in a bag which he concealed in the bush. He used the funds from the armed robbery to gamble on horses through TAB, through his account and with bookmakers. He also paid some bills including rent and car registration and for some dental work to the value of $1,780. On about 20 November he attended the Crown Casino and placed bets of $10,000 to $15,000 over the table. Around the same time he purchased himself a set of golf clubs and golfing equipment for $2,380.

9 Having succeeded in the first armed robbery, on 31 December 2010 he met an undercover policeman whom he believed to be a wouldbe robber and he discussed with him committing an armed robbery at Terang racecourse on New Year's Day 2011. He later attended the racecourse on two occasions to watch the collection of cash and security arrangements. He told the undercover policeman that he wanted to target the security guard responsible for transporting the day's takings from the racetrack and he discussed the movements of and vehicle used by the proposed target. He said that he was concerned that the target looked like he could handle himself.

10 In preparation for the armed robbery, the applicant accompanied the undercover policeman in his car for a 'dry run' over the target location. He told the undercover policeman that he needed a decent weapon, such as a sawnoff shotgun, to do the job because his own firearm was too small and conspicuous. He discussed obtaining disguises and destroying them after the robbery and also talked about the need for alibis for both men.

11 The applicant told the undercover policeman that he would have to hide in the bushes near the toilet block where the security guard parked his vehicle and strike to security guard with a bat to render him unconscious. He said that he would have to check if the guard were armed and whether he was working on his own. He also told the undercover policeman that he would leave the scene in his vehicle with false registration plates attached.

12 On the way back to Warrnambool, the applicant told the undercover policeman that he had done three months' planning for the first armed robbery. When the policeman asked the applicant if he went loaded the last time, the applicant replied that:

...you're asking too many questions...Don't worry if fucken someone needs to be shot, it'll be done...It'll be fucken done, don't worry. If it needs to be, but I don't, I think with you, I don't think it'll need to be...If you put him down pretty quick...She's...the fucken sheila's me worry...I might have to, I might have to give her, have to give her a clip over the fucken ear.

13 The applicant also told the undercover policeman that he would contact him about 1 pm on 1 January 2011 prior to committing the offence. He emphasised that neither man should use a mobile phone.

14 Those are the acts which comprised the offence of incitement to commit the armed robbery at the Terang racecourse, the subject of Charge 5.

15 On Saturday 1 January 2011, the applicant informed the undercover policeman that he was ill and unable to undertake the armed robbery, but he said that he would consider doing something on Monday 3 January 2011 and would contact the undercover policeman later.

16 Charge 6 concerned the applicant's incitement of the undercover policeman to commit an armed robbery at the Royal Hotel at Warrnambool. On Monday 3 January 2011 at 1.04 pm, the applicant contacted the undercover policeman and informed him that he wanted to talk. The undercover policeman went to the applicant's home at Killarney and they discussed changing the appearance of the vehicle driven by the policeman by painting the wheels and roll bar.

17 The applicant said he proposed an armed robbery to be committed at 10 pm that night at a hotel although he did not then identify it. He said that he had organised a toy firearm which he had painted black and he described the weapon as, 'pretty fucken lethal, like, looking'. He also mentioned that he was concerned about using the firearm which had been used at the Koroit ANZ Bank because he said someone might put two and two together. He and the undercover policeman agreed to tape up the sawnoff firearm with duct tape to change its appearance.

18 The applicant told the undercover policeman that he should demand that the hotel safe be opened and that the applicant would just pull the money out of it. The applicant said they might gain some $40,000. They also discussed the layout of the hotel and immobilising an hotel employee with duct tape.

19 At about 10.35 pm the applicant met the undercover policeman at Rafferty's Tavern in Warrnambool. He took out his sawnoff firearm, wrapped in silver duct tape to disguise it, and handed it to the undercover policeman. They then drove to the Royal Hotel in Fairy Street where he told the undercover policeman that he knew the room in which the manager was located and then got out of the car and walked up the stairs to the hotel residential area.

20 Later, he returned to the vehicle and said that access to the manager's office could not be gained from the rear entrance and he directed the undercover policeman to drive to the front of the premises because he said he wanted to check out the front door which was also locked. Then he returned to the car and said:

Just go straight up there. His fucken car's there, the light's on in the room. You can't get in the back, the door's fucken locked. I should have gone in earlier.

21 The undercover policeman drove his vehicle to a closed service station opposite the hotel and parked it and then got out of the vehicle in possession of the sawnoff rifle provided by the applicant.

22 At 10.50 pm the applicant was arrested by armed police officers as he sat in the undercover policeman's car opposite the hotel. At that time, he was found to be in possession of an imitation plastic handgun which was the subject of Charge 7. A search warrant was executed at his home and various items, including clothing used for the purpose of disguise, some cash and a .22 calibre rifle were seized.

23 The applicant was interviewed at Warrnambool police station on 4 November 2010 and made very full admissions. He also assisted police in recovering various items hidden after the first robbery. At the time he was interviewed, he did not know the true status of the undercover policeman he had incited to commit armed robberies and the judge found therefore that it could not be said that the applicant's admissions were because he knew that 'the game was up'.

24 Under the heading of proposed Ground 1, counsel for the applicant argued that, despite the nature and gravity of the offending, the sentences imposed were manifestly excessive having regard to the large array of mitigatory considerations which he said militated in favour of the applicant. They included, he submitted, the fact that the applicant was 51 years of age, now 52, and without prior convictions, his plea of guilty at the first opportunity, and the fact that the judge found the applicant had demonstrated remorse and cooperated with the police.

25 It was also significant, counsel contended, that the judge found on the basis of the expert evidence of psychiatrist, Dr Lester Walton, that the applicant was suffering from a depressive illness at the time of the offending and that it made a central contribution to the offending. The judge accepted that the illness meant that the need for specific deterrence was, to some extent, reduced and that prison would be more burdensome for the applicant than for a prisoner of ordinary mental health. But his Honour did not accept that the condition had any more than a limited effect on the need for general deterrence. Other relevant and mitigatory considerations were said to be that the applicant was found to have good prospects of rehabilitation and was unlikely to appear in court again.

26 Counsel submitted that, given those matters, the individual sentence of five years and six months imposed on the charge of armed robbery went so far beyond 'very high' as properly to be described as manifestly excessive and, further or alternatively, that while a sentence of that order might well be regarded as appropriate in other circumstances, it went significantly beyond what was appropriate in this case.

27 Further, in counsel's submission, having regard to what he described as the interrelated nature of the offences, the degree of cumulation was clearly excessive. He argued that the first and second offences should have been seen as but parts of one episode of criminal conduct, the latter being a resumption of the first after it was stalled by the applicant's illness. He also instanced the cumulation of four months or, as he put it, 66 per cent of the sentence imposed for the offence of shortening the .22 rifle, and three months or, as he put it, 50 per cent of the sentence imposed for possession of a plastic imitation firearm as manifestly excessive and he argued that 12 months' imprisonment imposed for each of those offences of incitement was also excessive.

28 In my view those submissions are not persuasive. Beginning with the sentence of five years and six months' imprisonment imposed for the offence of armed robbery, I do not think it reasonably to be arguable that a sentence of that order is excessive for this premeditated, elaborately planned armed robbery committed on a bank in daylight hours in circumstances which were calculated to instil terror into the victims and which was potentially capable of leaving them with serious emotional damage. It demanded condign punishment.

29 I do not overlook that the judge found that the weapon was not loaded, but the effect on the victims was, doubtless, just the same. Nor do I overlook any of the mitigatory considerations which counsel listed. I reiterate, however, that it was not considered that the applicant's depressive illness was such as to have more than a limited effect on the need for general deterrence and I consider that, in those circumstances, anything much less than the sentence imposed would have failed to provide the level of general deterrence required.

30 Going then to the incitement offences, while I allow that the two were interrelated, I do not accept that they were but parts of a single instance of criminal behaviour. The period of time and change in target as between the first and second of them dictates the conclusion that each was a discrete offence requiring separate punishment.

31 I am equally unpersuaded that the orders for cumulation of four months or, as counsel put it, 66 per cent of the sentence imposed for the offence of shortening the .22 rifle, or three months or 50 per cent of the sentence imposed for possession of a plastic imitation gun, and 12 months of both the sentences imposed for the offences of incitement were excessive. The offence of shortening the weapon was separate and apart from the offence of theft and added to the applicant's overall criminality. The offence of theft warranted a significant separate sentence because it involved the taking of property as opposed to the effect on bank staff of the armed robbery. Each of those offences warranted a substantial degree of cumulation to reflect their contribution to total criminality. Moreover, the degree of cumulation is so evidently moderate as to avoid any possible element of double punishment.

32 The same applies to possession of a plastic imitation handgun. It was separate and apart in both time and substance from the offence of possession of the sawnoff rifle.[1] The situation here thus stands in contrast to the R v Paoletti[2] and R v Armistead[3] where, in each case, there were two charges of possession of a firearm related to the same weapon.

33 Views may differ as to the exact extent of the cumulation which should have been ordered but, as the President observed in R v Hogan,[4] the discretion to order cumulation is very broad and should not unduly be circumscribed by appellate intervention. Suffice it to say, I regard the extent of cumulation in this case as indisputably within the range.

34 The thrust of submissions advanced in support of Ground 2 was that the sentencing judge erred by failing to take into account that, since the offence of being in possession of the imitation handgun was committed, the Firearms Act 1996 was amended so that possession of imitation weapon was no longer caught by that Act and the Control of Weapons Act 1990 was amended so that possession of an imitation firearm is now covered by s 5 of the latter Act and accordingly attracts a maximum penalty of only two years' imprisonment as opposed to the maximum penalty of seven years which applied to the offence committed.

35 Counsel conceded that this was not a situation to which s 114(2) of the Sentencing Act 1991 applies,[5] but he submitted that the sentencing judge should have taken the legislative changes into account in accordance with the principles essayed in R v Ronen.[6]

36 In Ronen it was contended that because of legislative changes after the commission of the offences which resulted in different offences with lesser penalties, in effect in place of the offences charged, the applicable maximum penalties for the offences charged should have been those applicable to the newly created offences. Howie J, with whom the Spigelman CJ and Kirby J agreed, rejected that contention but went on to add that:

However, notwithstanding that I am of the opinion that the maximum penalty was imprisonment for 20 years for the conspiracy offences, it may not necessarily follow that that the fact that the maximum penalty for the fraud offences in the Code is imprisonment for 10 years is totally irrelevant. The Judge in the present case, as a matter of fairness and justice, took into account the change in attitude of Parliament to the seriousness of the type of offences committed by the applicant when determining the appropriate sentences to impose upon them...[7]

I find it impossible, consistently with this approach,[8] to ignore legislative acts or statements that indicate that Parliament's view of the seriousness of particular criminal conduct, as reflected in the maximum penalty for an offence punishing that conduct, has changed. This is particularly so where the offending occurs at a time relatively proximate to the expression of the change of view. The applicants' criminal conduct came to an end in 2001 the same year that the legislation was amended.[9]

37 In R v Bowen,[10] Vincent JA, with whom Buchanan and Kellam JJA agreed, accepted what Howie J said in Ronen. His Honour said that:

No final view need be expressed concerning the circumstances or extent to which this principle should be applied. Ordinarily, and for the reasons to which Howie J referred, it is reasonable to assume that the reduced penalty regime would be regarded as governing the situation. But it seems to me that this may not always be the case and could be dependent upon a number of factors, including, for example, possible changes in circumstances that may have caused the legislature to adopt a different view of the seriousness of later offending, but could not be seen to bear upon earlier conduct of a similar kind. However, this possibility need not be explored in the present case, and I see no reason why the reduced penalty here should not guide the Court. There is no indication that any attention was given to this issue in the court below, and there is force in the appellant's argument on this aspect.

38 More recently in Grenfell v R,[11] Harrison J, speaking for the New South Wales Court of Criminal Appeal, said that, while such a change in legislation is something which a sentencing judge may take into account, failure to do so does not necessarily bespeak sentencing error:

The Crown contended that while a sentencing judge is entitled to take that last mentioned fact into account, it is not an error to fail to refer to it. In any event, as both parties were at pains to emphasise, the offending conduct in this case spanned some 28 years and much of it occurred at a time significantly before the changes to the legislation. Moreover, the applicant's submission appears to overlook or to ignore the fact that the applicant was sentenced in relation to a number of offences that were to be served concurrently. That was an approach taken by the sentencing judge that was favourable to the applicant.

In my view the sentencing judge did not fall into error. As the authorities reveal, the legislative changes did not have the effect of re-calibrating the sentences for the offences with which the applicant was charged and to which he pleaded guilty. The significant issue in this respect is that for the most significant proportion of the extensive period over which these offences were committed, the penalties that applied were in line with those to which his Honour had regard. I agree with respect that the repeal of one offence and the enactment of a different offence do not operate as a reduction in the sentence for the repealed offence. The legislation does not say so and the implication that it did so is not strong. An argument to this effect is something to which a judge may, not must, have regard without falling into error so that the failure of a judge to do so does not correspondingly bespeak error.

39 In this case, the offending occurred late in 2010 and early in 2011. The legislative changes which recharacterised the offence of possession of imitation firearm, to give effect to an interstate agreement, came into force on 1 July 2011. Thus to adopt Howie J's language, the offending occurred at a time relatively approximate to Parliament's expression of change of view.

40 On the other hand, as counsel for the Crown submitted, the significance of the change is limited to the difference between the elements of the more general offence introduced by the legislative changes and the offence under the provisions which have now been revealed. As Buchanan JA explained in Pak v R,[12] elements of the offence created by s 5 of the Control of Weapons Act are different from the elements of the offence created by s 7B(1) which prohibited possession of an unregistered general category handgun including imitations by persons who do not have the necessary exemption or approval. Contrastingly, it was not an element of the offence under s 5 of the Control of Weapons Act that the imitation firearm be unregistered.

41 Consistently with what was said by Vincent JA in Bowen, I consider that it is appropriate that the new maximum penalty of two years' imprisonment be taken into account as indicating that Parliament's view of the seriousness of the offence of possession of an imitation handgun has now changed. I accept, too, that the sentencing judge's failure to take it into account is properly to be regarded as sentencing error even though the point was not relied upon below and the judge can in no way be criticised for failing to detect it. With all respect to the opposite view expressed in Grenfell, if it is legally impossible to ignore legislative acts or statements that indicate that Parliament's view of the seriousness of particular criminal conduct has changed, as was held to be the case in Ronen, then it must surely follow that the judge's failure to take such a charge into account amounts to sentencing error.

42 Finally, despite the force of submissions put to the contrary by counsel for the Crown, I think the change was to some extent significant. I would, therefore, allow the applicant leave to appeal on that ground and resentence him on Charge 7 to three months' imprisonment of which one month ought be served cumulatively on the other sentences.

43 In effect, Ground 3, repeats the contention that the orders for cumulation in relation to the sentences imposed on charges 2 and 3 amount to double punishment. For the reasons already given I reject that contention.

44 In the result I would allow the application for leave to appeal on Ground 2 and treat the appeal as instituted and heard instanter and allowed. I would set aside the sentence passed below on Charge 7 and resentence the applicant on that charge to two months' imprisonment of which one month should be served cumulatively on the sentence imposed on Charge 4, thus making for a new total effective sentence of eight years and four months, and I would set a new nonparole period of five years and 10 months.

1. The application for leave to appeal against sentence is granted.

2. The appeal is treated as instituted instanter and is allowed.

3. The sentence on charge 7, the cumulation ordered thereon, the total effective sentence and the non-parole period passed below are set aside.

4. In lieu thereof the applicant is sentenced to be imprisoned for a term of 2 months on charge 7 and it is ordered that one month of that sentence be cumulated on the sentence imposed on charge 4.

5. The total effective sentence is 8 years and 4 months' imprisonment.

6. A non-parole period of 5 years and 10 months is fixed.

7. Otherwise the individual sentences and the orders for cumulation made below are confirmed.

8. It is declared that a period of 691 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

9. It is declared but for the plea of guilty the Court would have imposed a total effective sentence of 10 years and 6 months' imprisonment with a non-parole period of 8 years.

10. The ancillary orders for the retention of a forensic sample and for forfeiture made in the court below are confirmed.

[1] Cf R v Vaudreu [2009] VSCA 262.

[2] [2003] VSCA 77.

[3] [2011] VSCA 84.

[4] [2008] VSCA 279.

[5] Section 114 of the Sentencing Act 1991 provides that:

(1) If an Act (including this Act) or subordinate instrument the penalty or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision effecting the increase.

(2) If an Act (including this Act) or subordinate instrument reduces the penalty or the maximum or minimum penalty for an offence, the reduction extends to offences committed before the commencement of the provision effecting the reduction for which no penalty had been imposed at that commencement.

[6] [2006] NSWCCA 123; (2006) 161 A Crim R 300, 308 [31]-[32] (Howie J with whom Spigelman CJ and Kirby J agreed and see also R v Bowen [2008] VSCA 33, [11]-[14] (Vincent JA, with whom Buchanan and Kellam JJA agreed) and Grenfell v R [2009] NSWCCA 162; (2009) 196 A Crim R 145, [21]-[27] (Harrison J, with whom Campbell JA and Latham J agreed).

[8] That the maximum penalty reflects the seriousness of the crime in the mind of the public given a voice through Parliament.

[9] [2006] NSWCCA 123; (2006) 161 A Crim R 300, 317-8 [73].

[10] [2008] VSCA 33, [12].

[11] [2009] NSWCCA 162; (2009) 196 A Crim R 145, 152 [26]-[27].

[12] [2012] VSCA 4, [33] (Buchanan JA).