Appeal allowed to extent of reducing effective term to 11-1/2 years

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

B v The Queen, unreported; CCA SCt of WA: Library No 950482; 13 September 1995

Director of Public Prosecutions v Ottewell [1970] AC 642

Hellings v The Queen, unreported; CCA SCt of WA; Library No 940440; 24 August 1994

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993

Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007

Magee v R [1980] WAR 117

Miles v The Queen (1997) 17 WAR 518

Mill v The Queen (1988) 166 CLR 59

Pearce v The Queen [1998] HCA 57; (1998) 72 ALJR 1416

Peters v The Queen [2000] WASCA 28

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Duff [1999] WASC 124

R v French (1994) 15 Cr App R (S) 194

R v McAndrew [1999] WASCA 124

R v Nevermann (1989) 43 A Crim R 347

R v Osenkowski (1982) 30 SASR 212

R v Peterson [1984] WAR 329

R v Weng Keong Chan (1989) 38 A Crim R 337

Robinson v The Queen, unreported; CCA SCt of WA; Library No 980587; 9 October 1998

Shooter v The Queen, unreported; CCA SCt of WA; Library No 970628; 21 November 1997

Taylor v The Queen, unreported; CCA SCt of WA; Library No980152; 6 April 1998

Vasich v The Queen, unreported; CCA SCt of WA; Library No 980038; 6 February 1998

Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

Verschuren v The Queen (1996) 17 WAR 467

Walsh v The Queen, unreported; CCA SCt of WA; Library No 960471; 26 August 1996

Wicks v The Queen (1989) 3 WAR 372

Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

1 KENNEDY J: The essential facts are set out in the reasons for judgment of Wallwork J, and it is unnecessary for me to repeat them, except to the extent that they are relevant to these reasons.

2 The applicant pleaded guilty to four serious crimes of violence. His pleas were not made under the fast track system, although, as the learned sentencing Judge accepted, they were made at a relatively early stage in the proceedings. In this regard, her Honour noted that, when first interviewed by detectives, the applicant made a full admission as to his offences, explaining that his motivation was his need for money. The applicant also claimed that he had assisted the authorities with information; but his assistance appears to have gone no further than his admitting his guilt. Her Honour did, however, recognise that the applicant was entitled to an appropriate discount on his sentences for his early admissions. She also recognised that the applicant had, at the time of sentencing, begun to understand the impact which his crimes were likely to have had upon the lives of the staff of the banks and that he appeared to show some remorse for his conduct.

3 The applicant, prior to these offences, had been employed by his father in the north west of this State. He returned to the metropolitan area because he wished to see his young son, who was then living with his estranged wife. By reason of the fact that he had voluntarily left his employment, the applicant did not become eligible to receive unemployment benefits for a period of eight weeks. That period had expired before the offences referred to in the third and fourth counts had been committed. The proceeds from the first two offences amounted to $11,450, a sum which, based on the applicant's claims, would have been enough to support him until he commenced to receive unemployment benefits. His offending, however, continued.

4 Her Honour rightly stressed the applicant's record of convictions. She described his present offences as being serious, and observed that, although the weapon with which he was armed on each occasion was only a replica, the bank staff were not to know of that fact. The applicant's disguise by means of a balaclava would, no doubt, have reinforced the impression given to the staff that they were being confronted by a dangerous offender and that their lives were likely to be at risk. As she indicated, the trauma that an offence of this nature causes to its victims, and the serious continuing effects which it may have on their lives, is well recognised. Her Honour also pointed out that these were not the applicant's first offences for armed robbery. Unfortunately, however, the record of convictions which was put before her Honour duplicated a conspiracy to commit an armed robbery, a robbery whilst armed in company, and a stealing. The offences committed by the applicant were dealt with in the Supreme Court on 12 February 1993. The duplicated offences were shown as having been dealt with on 30 April 1993. These offences were in fact those offences committed by the applicant's co-offender. Unfortunately, counsel at the time of sentencing did not draw this duplication to her Honour's attention and, in her sentencing remarks, her Honour attributed the co-offender's offences to the applicant, not surprisingly accepting the record at face value.

5 Counsel for the applicant explained to her Honour the unfortunate background of the applicant. He suffered from abuse, sexual and physical, as a child, and he turned to the streets, living "rough" and abusing drugs. The applicant claims to have had a long history of depression and psychological difficulties. He has attempted suicide on a number of occasions by taking an excess of prescribed medication, and later by endeavouring to gas himself in his motor vehicle. The attempted gassing resulted in his being admitted as an involuntary patient to the Alma Street Centre in Fremantle for a period of five days. He was discharged when an examining psychiatrist indicated that he did not believe that the applicant should continue to be held as an involuntary patient. One of his suicide attempts was made shortly after he had been taken into custody in relation to the last of his four offences.

6 Brennan J, in Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, at 324, recognised that emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by countervailing factors. That was said in a context where the emotional stress was shown to be directly linked to, and a causal factor in, the commission of the offence. In the present case, a senior consultant forensic psychiatrist, Dr A S Pullela, has indicated in his report that, in his view, there was no relationship between the applicant's depressive symptomatology, which he accepted as a fact, and his offending. He was of the opinion that the applicant's depressive symptomatology was not of such severity or intensity to the extent that he was not aware of what he was doing or that his will was impaired to the extent that he was unable to realise the consequences of his actions.

7 In the pre-sentence report, it was confirmed that the information contained in Dr Pullela's psychiatric report was consistent with the information gathered and verified by the writer. However, the applicant was critical of the psychiatric report and he made a complaint to the Medical Board of Western Australia regarding the psychiatrist's conduct during his consultation with him. His complaint was made some months after the applicant had been sentenced. We were advised by the applicant at the hearing that the Board was not pursuing his complaint further, because he had not provided sufficient evidence to lead to the conclusion that there had been any breach committed by the psychiatrist.

8 One of the reports before her Honour also indicated that the applicant's explanation for failing to meet his responsibility to make alternative arrangements to accommodate his financial commitments appeared to be unrealistic, which it clearly was. It further suggested that the applicant's athletic physical appearance was inconsistent with someone who is suffering from severe mental depression. It went on to say that the applicant suffered an unfortunate early childhood, primarily due to his step-mother's physical and mental abuse, and that he linked this to his depression. The writer of the report was of the view that the applicant lacked the appropriate inner resources to deal with life stresses. It was also indicated that reports throughout the applicant's file, and information received during the compilation of the report, indicated that, generally, he was a kind, gentle, caring and likeable person; but, as was pointed out, his offending behaviour belied his reported character and presentation. The report drew attention to the similarity of the circumstances in which offences had been committed by him in 1992. In that year, the applicant had also quit his employment, he had been unable to obtain further employment and he had not been entitled to immediate unemployment benefits, resulting in financial hardship. It appeared to the writer of the report that, when the applicant was confronted with difficulties in his life, his coping skills involved either attempting suicide or committing crimes.

9 At the time of sentencing, no criticisms were made of Dr Pullela's report or of the pre-sentence report by counsel who appeared for the applicant. Indeed, counsel for the applicant made use of both reports which are now criticised. The onus rested on the applicant to establish on the balance of probabilities that his depressive symptomatology was a causal factor in his commission of the offences. The report of Dr Pullela was clearly to the contrary, and the pre-sentence report provided no assistance to him in this respect. In the circumstances, her Honour was not required to attach significant weight to the applicant's symptomatology, and she did not do so.

10 The learned sentencing Judge carefully reviewed the circumstances of the offences and all the personal information relating to the applicant which had been placed before her. Save only for the effect of the erroneous record of convictions, I can identify no error in the exercise of her Honour's discretion. In my opinion, however, having regard to the error in that record, which, I am satisfied, would have had some influence upon her Honour, there should be a reduction in the sentences imposed upon the applicant. In the circumstances, I would reduce the overall sentence by 18 months to one of 11-1/2 years. To effect this reduction, I would deduct 6 months from each of the sentences of 6 years' imprisonment on counts 1, 2 and 4 (the counts of armed robbery), and 12 months from the sentence of 5 years' imprisonment on count 3 (the count of attempted armed robbery), thereby preserving an appropriate relationship between the completed offences and the attempt. The sentence in respect of count 2 will be cumulative upon the sentence on count 1 to the extent that the applicant will commence serving that sentence 12 months after he has commenced to serve the sentence in respect of count 1. The sentence in respect of count 4 will be cumulative upon the sentence on count 2 to the extent that the applicant will commence serving that sentence 12 months after he has commenced to serve the sentence in respect of count 2. The sentence on count 3 will be cumulative upon the sentence in respect of count 4. The sentence on count 1 will be backdated to 18 December 1998. There will be an order for eligibility for parole in respect of each sentence.

11 WALLWORK J: The applicant applies for leave to appeal against an aggregate sentence of 13 years imprisonment which was imposed on him on 31 May 1999 for three armed robbery offences and an attempted armed robbery offence. The offences were committed between 24 September 1998 and 18 December 1998.

12 The first robbery was committed on 24 September 1998 on the ANZ Bank at Beldon. The second was committed on 20 October 1998 on a Westpac Bank at Hillarys. The applicant then attempted to rob the Bank of Western Australia at Woodvale on 17 December 1998. The last robbery was committed on 18 December 1998 at Osborne Park at the National Australia Bank. The applicant obtained $3450 from the first robbery, $8000 from the second and $10,050 from the third. At each of the four offences the applicant used a replica revolver.

13 At the time of the first offence the applicant was 25 years of age. He had earlier been convicted of a number of breaking, entering and stealing offences in the Children's Court commencing in 1987 and continuing until 1991. Thereafter, as an adult, he had committed further breaking and entering offences, false pretences and stealing offences. In February 1993 he was convicted and sent to prison for a total of 6 years and 9 months for offences of armed robbery, conspiring to commit armed robbery and stealing. He was released from prison on 14 November 1994. The pre-sentence report says that he then led a reasonably law-abiding life until he committed the offences the subject of this application in late 1998.

14 When he was sentenced for the presently relevant offences there appeared on his record three offences of which he was said to have been convicted in 30 April 1993, being conspiracy, robbery whilst armed in company, and stealing. Those three offences were the offences he had been convicted of on 12 February 1993, but on a reading of the record of convictions, that is not necessarily apparent. One reason for that is that the first offence on 12 February 1993 is recorded as "conspiracy to commit armed robbery" whereas the first offence on 30 April 1993 is recorded as "conspiracy".

15 When sentencing the applicant for the present relevant offences the learned Judge in the course of the sentencing remarks said:

"Turning to your personal circumstances these are not the first offences of armed robbery you have committed. You were convicted of such offences in February 1993 and April 1993."

16 It appears from that statement that the learned Judge was under the impression that the applicant had been convicted of more armed robbery offences than he had, and that he had been sentenced to longer terms of imprisonment than was the case. It may well be that had the record not included the three extra serious offences, the aggregate sentence which was imposed for the relevant offences, being an effective sentence of 13 years imprisonment, would have been less.

17 The learned Judge thought that the applicant had responded positively to a degree when he had been given supervision in the past and that he appeared to show a degree of remorse. He had made full admissions to the offences on video-tape after his arrest. It was accepted that he had entered a plea of guilty at an early opportunity. He was entitled to an appropriate discount in the sentence for that offence. He was sentenced to 6 years imprisonment on each of the first three offences although the terms were ordered to be served partly concurrently. The applicant was sentenced to 5 years imprisonment to be served cumulatively for the fourth offence.

18 The aggregate of 13 years imprisonment was achieved by ordering that the second term of 6 years imprisonment would commence after the applicant had served 1 year of the first term of 6 years imprisonment. The third term of 6 years imprisonment was ordered to commence 2 years after the commencement of the first sentence. The fourth sentence was ordered to be served cumulatively. That had the effect that the applicant would serve 2 years imprisonment in respect of counts 1 and 2 and then commence to serve a total of 11 years imprisonment in respect of counts 3 and 4. He was ordered to be eligible for parole.

19 When considering whether the total effective term of 13 years imprisonment was too high in all the circumstances, it is relevant that each offence was committed with a replica revolver and not a loaded firearm. It is accepted that the victims were not to know that and that the effect on them was the same as if a loaded firearm had been used. However, the risk of harm is much greater if a loaded firearm is used.

20 With respect to count 3 which was the attempted armed robbery in company, a female employee entered the bank and was grabbed from behind by one of the two offenders. The applicant was armed with a silver replica handgun. That is the only occasion on which physical violence, other than the threat with the gun, was used.

21 After he had been arrested the applicant made full admissions to the offences on video-tape. He stated that his motivation was a need for money. He had no employment and was not in receipt of social security. He told the detectives that he had obligations concerning a car loan and maintenance. The learned Judge was told that the applicant had an extensive history of depression. Prior to the offences he had been working as a labourer for his father who was a contractor.

22 When sentencing the applicant the learned Judge said that each of the offences could attract a sentence in the range of 6 to 9 years imprisonment and that a sentence of around 8 years before taking account of mitigating factors would be appropriate. A sentence of around 7 years would be appropriate for count 3, which although an attempt, had been all but complete and had involved physically grabbing an employee.

23 The learned Judge noted that there was some difference of opinion between the pre-sentence report and the psychiatric report concerning the applicant's mental state. The Judge said it was not entirely clear whether, and to what extent, that condition may have contributed to the offending. The learned Judge said that it had been suggested that the applicant might lack the ability to cope with the ordinary ups and downs of life and that attention seeking by offending was one way in which he had attempted to cope. It was acknowledged that the applicant felt regret and remorse.

24 In the pre-sentence report dated 30 April 1999 it was stated:

"Reports throughout his file and information revealed during the compilation of this report indicate that generally Ginn is a kind, gentle, caring and likeable person. It seems Ginn's offending behaviour belies his reported character and presentation."

25 The pre-sentence report noted that the applicant had told the Community Corrections officer that at the time he committed the relevant offences he had been depressed due to the fact that he was unable to see his son and was experiencing relationship problems. The opinion was offered that when the applicant was confronted with difficulties in his life, his coping skills involved either attempting to commit suicide or committing crimes. It was said:

"This pattern of behaviour attracts excessive attention to himself and as there does not appear to be any other explanation for his offending behaviour, it leaves the writer with the conclusion that his behaviour amongst other things, is one of attention-seeking."

26 The psychiatric report states in its introduction:

"Mr Ginn claims that he was never admitted to any psychiatric hospital nor seen by a psychiatrist. It appears that he might have been seen by general practitioners who might have prescribed him antidepressant therapy on occasions."

27 That comment seems to be at odds with a document dated 20 November 1998 which is headed: "Involuntary patient order". The order is under the Mental Health Act 1996, s 43(2)(a) Form 6. That certificate reveals that the applicant had been detained at the Alma Street Centre between 20 November 1998 and 18 December 1998. The order was:

"I have examined the patient and having regard to section 26 of the Mental Health Act 1996, order that the patient be admitted to and detained in the above hospital as an involuntary patient."

The order was signed by a psychiatrist on 20 November 1998 at 12.30 pm. Apparently the learned sentencing Judge did not have that certificate.

28 The psychiatric report which the Judge had was dated 21 April 1999. Under "opinion and recommendations" it states:

"His psychiatric history indicates a depressive illness of dysthymic nature (chronic, persistently low, moods) with no evidence of periods of significant bouts of depression at any time warranting admission".

29 That comment seems to have been made without the knowledge of the order under the Mental Health Act 1996 which is referred to above.

30 It was the psychiatrist's opinion in the report of 21 April 1999 that there was no relationship between the depressive symptomatology and the applicant's offending.

31 The applicant has made a statutory declaration dated 6 November 1999 in which he complains of the psychiatric examination in April 1999. The applicant asserts that his state of mind "strongly" contributed to his offending. Ground 4 of the application is that the contents of a psychiatric report ordered by the court was inaccurate and incomplete.

32 In the amended notice of appeal it is claimed that the effective sentence is too long in view of the fact that the applicant had managed to stay out of trouble for a four year period after his previous prison sentence and had successfully completed the parole period.

33 There is another ground of appeal which asserts that the learned Judge was led into error concerning the applicant's past antecedents by the abovementioned double entry concerning his convictions for robbery.

34 In my opinion, in view of the comments of the learned Judge that the applicant had been convicted of offences of armed robbery in February 1993 and April 1993, error is revealed in the sentencing process.

35 I agree with the conclusion of Kennedy J that there should be a reduction in the sentence imposed upon the applicant. I also agree to the orders proposed by his Honour.

36 MURRAY J: I respectfully agree with Kennedy and Wallwork JJ that this applicant should be granted leave to appeal and the appeal should be allowed.

37 I would take that course because, like their Honours, I think it is clear that the learned sentencing Judge was influenced by the error made in the applicant's criminal history which was never brought to her Honour's attention. The error effectively doubled the seriousness of the very serious offences for which the applicant was sentenced in February 1993. There was a lengthy history of offending prior to that date and little afterwards and the offences shown as having been dealt with in 1993 were by far the most serious of the offences in the criminal history. They were offences of the same kind as those before the court which were committed in September, October and on two occasions in December 1998. The offences before the court were said to have been committed in similar circumstances and with a similar motivation to the earlier such offences.

38 Whether the significance of the earlier offences was considered in the context of their true number or the number wrongly given to the learned sentencing Judge, the position was that to which the High Court adverted in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 where the majority said that:

"... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and the protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

39 The offences before the learned sentencing Judge were no uncharacteristic aberration. They manifested a continuing attitude of disobedience of the law, but the degree to which a more severe penalty was warranted for the purposes referred to in Veen depended upon the degree to which it might be said that the applicant had failed to learn his lesson as a result of the punishment previously inflicted upon him. The simple proposition is that the capacity of the court to show leniency in sentencing reduces the more an offender continues to offend and the more it is demonstrated that condign punishment is required to deter him or her from offending again.

40 I am moved to vary the sentences imposed by the learned sentencing Judge only upon that ground. The onus rested upon the applicant to establish on the balance of probabilities that his culpability was reduced by reason of the fact that there was a causal connection between his psychological disorder, a depressive illness, and his offending on the occasions in question: Langridge v The Queen (1996) 17 WAR 346. This the applicant manifestly failed to do. It is likely, I think, that the applicant committed these offences, as he himself said on one occasion, because, being unemployed and unable to obtain unemployment relief, he was without funds upon which he might live and with which to meet certain financial commitments.

41 However, having regard to the effect of the error in relation to the seriousness of the applicant's previous criminal history, as I have said I also would take the view that leave to appeal should be granted and the appeal allowed. The sentences imposed should be quashed, but I too am loathe to vary to a substantial degree the sentences imposed by her Honour or the way in which they were structured. I too would leave in place the order of parole eligibility and the orders for the partial accumulation of the sentences which were to commence from 18 December 1998. However, to preserve those elements of the sentencing structure and to achieve a reduction in the total term imposed, and for that reason alone, it is necessary to reduce somewhat each of the sentences imposed.

42 I respectfully agree with Kennedy J that it is appropriate to sentence the applicant to 5-1/2 years imprisonment for the armed robbery committed on 24 September 1998, count 1 on the indictment. With respect to the armed robbery committed on 20 October 1998, count 2 on the indictment, I would impose a sentence of 5-1/2 years imprisonment to commence after serving 1 year of the sentence imposed for count 1. For the armed robbery committed on 18 December 1998, count 4 on the indictment, I would impose a similar sentence of 5-1/2 years imprisonment to commence after serving 1 year of the sentence imposed for count 2. To that point the aggregate term is 7-1/2 years imprisonment.

43 Like her Honour, the learned sentencing Judge, I would order that the sentence imposed for the offence which was count 3 on the indictment, an attempted armed robbery in company committed on 17 December 1998, be served cumulatively on the other terms, but I would reduce this sentence from one of 5 years imprisonment to one of 4 years, resulting in an aggregate term of 11-1/2 years and a reduction in the aggregate term imposed by her Honour of 18 months. The difference between this sentence and those for the completed robberies is justified by the fact that the applicant and his accomplice desisted before the offence was complete because the applicant thought that he had triggered an alarm.