" ... at New Town in Tasmania on or about the 12th day of

November, 1991 robbed David John Goodwin of approximately

$14 in money and at the time of the robbery was armed with

an offensive weapon to wit a wooden stick which had the

appearance of a gun."

" ... at Hobart in Tasmania on or about the 16th day of

January, 1992 stole approximately $1615.00 in money and

immediately before, at and after the time of stealing the

said money threatened to use violence to Vere Keith Brown in

order to obtain the said money and used violence to prevent

or overcome resistance to the stealing of the same."

2. Upon the first indictment the applicant pleaded not guilty to armed robbery but guilty of robbery. Pursuant to the Criminal Code, s355(1)(a) the Crown accepted the plea. The applicant pleaded guilty to the second charge. By consent the proceedings upon each indictment were heard at the same time.

3. Upon the first indictment the applicant was sentenced to twelve months' imprisonment and upon the second indictment the applicant was sentenced to two years' imprisonment to commence at the expiration of the first sentence. This is an application for leave to appeal against those sentences. The grounds of the application are:

"1 The Learned Trial Judge erred in law in imposing a

sentence which was manifestly excessive in relation to:

(i) the indictment dated the 25th day of March 1992.

(ii) the indictment dated the 14th day of April 1992.

(iii) the global sentence imposed on both indictments.

2 That the learned trial judge erred in taking into account

circumstances of aggravation which would have warranted a

conviction for a more serious offence."

4. Notwithstanding that they were heard at the same time the proceedings upon the two indictments were discrete and there should have been two applications for leave to appeal. However no point has been taken by the Crown and I shall proceed as if we were hearing two distinct applications at the same time.

5. The first crime was committed whilst the applicant was a passenger in a taxi being driven by the complainant. After visiting a house the applicant returned to the taxi and pulled out of his pocket what the complainant described as "a black tube which I took to be the barrel of a pistol". The complainant said that the applicant then said "that he wanted all my money or else he'd use this gun" and then took coins to the value of $14 from the centre console of the taxi. The applicant searched for more money and "kept on threatening" the complainant in some unspecified way "asking me where the rest of the money was". Uncontested assertions by counsel for the Crown and by counsel for the applicant established that the crime was committed on impulse and that the object which the complainant took to be a gun was in fact a stick which he'd broken off a tree just before he committed the crime.

6. The second crime was committed in the shop of the complainant. The applicant approached the complainant with his hand in his jacket pocket and said "This is a stick up and I've got a shooter here. Don't bugger about or I'll use it". The applicant then pushed the pocket of his jacket into the complainant's side and told the complainant to open the till. The complainant did so and the applicant took bank notes to the value of $1615.00 from the till. The applicant then tied up the complainant's feet and hands with leather straps and made his escape.

7. Both crimes were committed whilst the applicant was drunk. In each case the applicant made statements to the police admitting the crimes. After being arrested and charged for the first crime the applicant was released on bail. The second crime was committed whilst he was on bail. The applicant failed to answer to his bail but subsequently attended the Russell Street Police Station in Melbourne and as a result was eventually arrested on warrant.

8. The applicant was aged thirty nine years at the time he was sentenced. He had a history of excessive drinking. He had prior convictions for many relatively minor offences which did not relate to property or involve violence and convictions for stealing in 1984, 1985 and 1990 which it appears were not serious. He had no history of violence. His only previous sentences of imprisonment were for drink driving offences.

9. When imposing sentence the learned trial judge said:

"Graeme Alan Bryant: You have pleaded guilty to two counts

of robbery. In the first case you robbed a taxi driver of

$14.00 by threatening him with a piece of wood which he took

to be a weapon and which you, no doubt, intended him to take

to be a weapon. Taxi drivers are particularly vulnerable to

this kind of attack and such attacks, even if amateurish,

ought to be deterred.

Having been apprehended on this charge, you were given bail,

but whilst still on bail you committed a further robbery

using much the same technique on a shopkeeper, thereby

acquiring the sum of $1,600.00 or so. Though you may have

been affected by alcohol on that occasion as well, this

robbery had a degree of premeditation to it and you effected

your escape by tying him up. You then absconded from bail,

although I accept the fact that you later gave yourself up.

These offences are clearly very serious and they require a

deterrent sentence. I note that you have got previous

convictions for dishonesty, although none for anything

involving violence.

On the first indictment, that is the theft from the taxi

driver, you are sentenced to twelve months' imprisonment;

and on the second indictment, the robbery of the shopkeeper,

you are sentenced to two years' imprisonment cumulative upon

the sentence of twelve months' on the first indictment - a

total of three years. The sentence will commence on 29

February 1992."

10. There is no substance in this ground. When he was considering sentence it was entirely appropriate for the learned trial judge to have regard to the fact of the presentation of the weapon as part of the violence or threat of violence which comprised one of the elements of the crime of robbery. I am quite unpersuaded that his Honour was in effect sentencing the applicant for the more serious crime of armed robbery.

11. The nature of the crime and the need to protect taxi drivers and others who are especially liable to be the subject of crimes of this kind made a sentence of imprisonment not inappropriate. However the following considerations were relevant to the determination of the appropriate sentence in this particular case:

1 The applicant's prior convictions were not especially

serious and were of little relevance.

2 The crime was committed on impulse.

3 It was not a serious example of this class of crimes: no

actual violence was used, no harm was intended or caused and

only $14 was stolen.

4 The applicant made full admissions to the police and

pleaded guilty.

12. In my respectful view the sentence of 12 months' imprisonment did not adequately reflect those considerations. I would allow the application for leave to appeal, allow the appeal and quash the sentence.

13. A sentence of imprisonment was plainly appropriate for the second crime. The circumstances relating to the first crime numbered 1 and 4 above were also applicable to the determination of the appropriate sentence for the second crime. However the following circumstances were also relevant:

1 There was a degree of premeditation involved.

2 The applicant subjected the complainant to additional

actual violence by tying him up after he had robbed him.

3 The crime was committed whilst the applicant was on bail

after being charged with the first crime. As that did not

affect the nature or seriousness of the crime in any way it

could not be regarded as an aggravating consideration per

se. To the extent that R v Richards (1981) 2 NSWLR 464 is

authority to the contrary I am of the view with respect that

it is not in accord with the basic principle that a person

may only be sentenced for the crime of which he has been

convicted. However the fact that the crime was committed

whilst the applicant was on bail was relevant to the

determination of the likelihood of the applicant

re-offending and to the determination of the weight which

needed to be placed upon the need to impose a sentence of

personal deterrence.

4 A fairly large amount of money was stolen.

14. In my opinion in the light of those circumstance a sentence of imprisonment of two years whilst in the upper bracket of appropriate sentences could not be characterised as a manifestly excessive sentence.

15. For the foregoing reasons I am of the opinion that the following orders should be made.

1 Application for leave to appeal against sentence of twelve

months' imprisonment granted.

2 Appeal allowed.

3 Sentence of twelve months' imprisonment quashed and a

sentence of six months' imprisonment commencing on 29

February 1992 substituted therefor.

4 Application for leave to appeal against sentence of two

years' imprisonment refused.

CRAWFORD J The applicant seeks leave to appeal against two sentences of imprisonment, one of twelve months and the other of two years cumulatively, upon his pleas of guilty to two counts of robbery which were contained in separate indictments. The grounds of the application may be summarised as follows:

1 The sentencing judge erred in law in imposing a sentence

which was manifestly excessive in relation to each count and

in relation to the global sentence imposed on both counts.

2 The sentencing judge erred in taking into account

circumstances of aggravation which would have warranted

conviction for a more serious offence.

2. The robberies were committed by the applicant about two months apart. The first robbery was committed on 12 November 1991 and involved a taxi driver and the theft from him of approximately $14 in cash. At about 8.30 pm the applicant engaged a taxi at Wrest Point Casino and directed the driver to take him to a hotel which was closed. He then directed the driver to take him to another hotel which he entered for a short period. He returned and directed the driver to take him to a house in New Town. The applicant went in the dark to the house and returned saying that he would have to go around the back, which he did. A short time later he returned again. He opened his wallet, sat in the back of the cab and put his right hand in his jacket pocket. He pulled his hand half-way out to reveal what the driver thought was a black tube and which he assumed to be the barrel of a pistol. Only an inch of it, or an inch and a half, could be seen. The applicant demanded all of the driver's money and threatened that otherwise he would use "this gun". He grabbed about $14 worth of coins from the centre console and said that if the driver did not tell him where the rest of his money was he would use the "gun". The driver replied that he had no more. The applicant unsuccessfully searched and then directed that he be driven to the centre of the city. He kept threatening the driver and asking where the rest of his money was. At a red traffic light at a city intersection he jumped out and ran away.

3. When interviewed by the police the accused said that the "gun" was a piece of wood he had obtained after getting out of the taxi. His counsel told the sentencing court that he at first formed the intention of running away from the taxi to evade the fare but then, for some reason essentially unknown to him, he broke a stick off a tree and used it in the way which had been explained to the court. It was not put to the court that the driver suffered any psychological injury.

4. Three days after its commission the applicant was interviewed by the police and admitted the robbery. He was charged and bailed. While on bail, he committed the second robbery on 16 January 1992. It involved the theft of approximately $1,615. At about closing time the applicant went to a city store, the proprietor of which was alone. He spoke briefly to the proprietor and walked around the store. He then stepped up to the proprietor and said "this is a stick-up and I've got a shooter here. Don't bugger about or I'll use it". He had his hand in his right jacket pocket which he pushed into the proprietor's side. What was pressed into the proprietor felt harder than a finger and made the jacket bulge. Upon being ordered to do so by the applicant, the proprietor opened the cash register and gave him all the notes from it. The applicant told him to go into a workshop and sit in the corner. He was pushed into the corner and told that he was going to be tied up. The proprietor asked why, to which the applicant replied that he needed to get away. He said that he would tie him up so that it would only take ten minutes to get free. The proprietor sat down and his feet were tied together. He rolled onto his side and the applicant tied his hands together. The ties were two leather bands about seven feet long. The proprietor had been frightened and had felt threatened.

5. The applicant went to Victoria and did not answer his bail. However, he voluntarily presented himself to the Victorian Police and was in due course returned to Tasmania to face the two charges. Concerning the second robbery he said to the police that he was drunk at the time but did not offer that as an excuse. He said he did not want to hurt the proprietor but his intention at the time of entering the shop was to steal some money.

6. The applicant was 39 years of age. He was an alcoholic and destitute. After leaving high school in South Australia, alcohol became a dominating part of his life. It probably caused him to be largely unemployed. A marriage failed. He had many appearances in South Australia courts from the age of 17 for petty offences, most of which were alcohol related. They included offensive behaviour, disorderly behaviour, indecent language, offensive language, drunk and disorderly (five times), driving under the influence of alcohol (two), exceeding .05, refusing a breath analysis, driving while disqualified and possessing a prohibited plant (two). In 1973 and 1978, sentences of three months imprisonment and two months imprisonment were respectively imposed for drink/driving offences. They were the only sentences of imprisonment imposed on him. He had also appeared in courts for a number of minor offences of dishonesty, they being making off without payment, failing to pay public vehicle fares (three times) and stealing (four). His appearances in court for stealing occurred in 1984, 1985 and 1990. They must have been minor offences because the penalties consisted of relatively small fines and good behaviour bonds. He had no record whatever for violence. By about 1981 his wife had left him and his parents, with whom he had then lived, had died. He became destitute and essentially lived with the support of the Salvation Army. He was drunk on and off but managed some periods of sobriety extending for as long as one year. In fact, his counsel told the sentencing judge that immediately before he came to Tasmania, he had been sober for a period of thirteen months. He had contracted hepatitis B at some stage.

7. In October 1991 he moved to Tasmania, apparently influenced by the fact that he had relatives here, although he had not seen them since childhood. He came to Hobart. The drink took hold of him again and it was during a bout of drinking that the first robbery was committed. His sole source of income was the invalid pension. According to his counsel, he did not have the money for a deposit on a flat and went to the casino to try and double what he had through gambling. He lost what he had. He engaged the taxi with no money to pay. He hoped that he would be able to borrow the money from acquaintances he had made in Hobart and directed the driver to two hotels for that purpose. He then decided to run away without paying for the taxi but at the last moment changed his mind, broke a stick off a tree and used it for the purpose of committing the first robbery in the way I have described.

8. I will deal with the grounds of the application in reverse order. The second ground complains that the sentencing judge took into account circumstances of aggravation which would have warranted conviction for a more serious offence. Reliance was placed on R v De Simoni [1981] HCA 31; (1980) 147 CLR 383. There is no merit in this ground, simply because nothing was said by the learned judge which reveals that he did take into account such circumstances. When sentencing the applicant for the first robbery the judge said to him that "you robbed a taxi driver of $14 by threatening him with a piece of wood which he took to be a weapon and which you, no doubt, intended him to take to be a weapon". As to the second robbery the learned judge said that it was committed "using much the same technique".

9. The elements of the crime of robbery which were admitted by the pleas of guilty to that crime, are to be found in the Criminal Code s240(1). They are that the applicant stole something and that immediately before, at, or immediately after the time of the stealing he used or threatened to use violence to any person or property in order to obtain that thing or to prevent or overcome resistance to the stealing. It was submitted for the applicant that the learned judge took into account an additional circumstance which would justify a conviction for armed robbery under s240(3). That additional circumstance was that the applicant was "armed with a firearm or other dangerous or offensive weapon or instrument at the time of committing that robbery". By virtue of s1 "'offensive weapon' includes anything that has the appearance of a gun or pistol of any kind, whether capable of being discharged or not". On both counts the prosecution case, which was not contested by the applicant, was that he threatened to shoot the victim by pretending that he had a firearm and the judge plainly sentenced on that basis, saying nothing to suggest that the applicant was armed with a firearm or with anything that had the appearance of a gun or a pistol.

10. The first ground of the application complains that the sentences were manifestly excessive, individually and globally.

11. Ignoring the drink/driving offences which have little relevance, this was his first appearance in court for a serious offence. But the circumstances of the first robbery justified imprisonment. It was said by the sentencing judge, and it has been said by many others, that taxi drivers are particularly vulnerable to robbery. The need for significant general and personal deterrence becomes paramount in most cases of robbery involving taxi drivers. But notwithstanding this, there are a number of circumstances in this case which persuade me that the deserved sentence of imprisonment should have been a relatively short one for the first robbery. They are - the applicant's alcoholism and destitution; their influence as a cause of his conduct; the absence of actual violence and the likelihood that whatever might have occurred the driver would not have been injured; the lack of premeditation; the admission and plea of guilty. Overall, I consider that the criminality of the applicant's conduct was less than that encountered by courts in most cases involving robbery of taxi drivers and that the sentence of imprisonment should have been at the lower end of the scale of imprisonment normally imposed. With some hesitation I have concluded that the sentence of twelve months imprisonment for the first robbery was manifestly excessive and I would grant leave to the applicant to appeal, allow the appeal, quash the sentence of twelve months imprisonment and impose in substitution for it a sentence of six months imprisonment.

12. However, the sentence of two years imprisonment for the second robbery was justified. Notwithstanding that he had been arrested and charged for the first robbery, he was not deterred from committing that crime again within a period of only about two months. When the appropriate sentence for the second robbery was being considered he was not entitled to be treated as a first offender for a crime of this nature. A substantial sentence was required by way of punishment and deterrence. There was an element of premeditation. He pressed something hard into the body of the proprietor of the store and caused him to believe that it was a firearm and subsequently he tied up his victim. It can therefore be said that actual violence was used. The sentence of two years imprisonment was, in all these circumstances, justified. It was certainly not manifestly excessive either individually or in the context of it being imposed cumulatively upon the sentence imposed for the first robbery.

13. For these reasons I would grant leave to appeal and partly allow the appeal by quashing the sentence of twelve months imprisonment imposed for the first robbery which was charged in indictment No.18/1992 and in lieu thereof I would sentence the applicant to six months imprisonment for that crime to commence on 29 February 1992, which was the date upon which the sentencing judge ordered that the sentence would commence.

SLICER J The applicant seeks leave to appeal against a cumulative sentence of imprisonment of three years, imposed following convictions for two counts of robbery. The basis of the appeal was that the sentence was manifestly excessive in both component and totality. Leave was granted to allow an amended ground, namely:

"That the learned trial judge erred in taking into account

circumstances of aggravation which would have warranted the

conviction of a more serious offence."

2. The first indictment alleged the commission of a robbery on 12 November 1991. During the course of the evening the applicant had hired a taxi and subsequently produced an object which the taxi driver took to be a pistol, but which was, in reality, a piece of wood. The applicant said that he wanted money or he would use "this gun". He took a sum of $14 in coins and demanded more, adding that if he was not told of the location of the money, he would use "the gun". After a futile search, he demanded that the driver take him to the city. The driver did so, activating (to no avail) his emergency alarm during the course of that journey. In the centre of the city the applicant alighted from the vehicle and made his escape.

3. No material was put to the court concerning any adverse effect on the driver. The applicant's record included four previous convictions for stealing and two convictions for evasion of a public vehicle fare, but none for violence.

4. He was aged 39 years and had not previously been to prison. In mitigation, it was put that the applicant was in need of money to use as a rental deposit for accommodation and, affected by liquor, had gambled at the Casino to obtain the same. Losing his money, he had hired a taxi and then acted upon impulse.

5. The finding of the learned sentencing judge was that the applicant:

"... robbed a taxi driver of $14 by threatening him with a

piece of wood which he took to be a weapon and which ... no

doubt intended him to take to be a weapon. Taxi driver's

are particularly vulnerable to this kind of attack and such

attacks, even if amateurish, ought to be deterred."

6. The applicant was sentenced to a term of imprisonment of twelve months. It could not be said that such a sentence was outside the range of penalties which have been imposed with respect to the crime of robbery. It is not such that it significantly departed from the appropriate sentence. In addition it could not be said to approach too closely the sort of sentence expected of an offence of a different nature. The sentence did not reflect a circumstance of aggravation (namely the presence of a weapon which would bring the act within the provisions of the Criminal Code, s240(3)) and the finding of the learned trial judge that the taxi driver believed the object to be a gun, was one perfectly proper for him to make. The threat by the applicant that he would use the gun if obstructed could not be disregarded by the learned sentencing judge simply because the crime was one of robbery. The threats and the production of the object comprise the threat of use of violence required by the provisions of s240(1).

7. The crime alleged in this indictment occurred on 16 January 1992 whilst the applicant was on bail with respect to the earlier charge. The amount of money involved was $1615 and actual violence was used on the victim. The applicant entered shop premises shortly before closing and, keeping his right hand in his pocket, claimed to have a firearm which he would use if necessary. Having threatened the victim and taken the money, he proceeded to immobilise the victim by binding his hands and feet. The victim understandably stated that:

"I was frightened for myself and I felt threatened at the

time because I didn't know what he was going to do next."

8. The applicant told the interviewing police that he was affected by alcohol at the time of the commission of the crime.

9. The crime warranted the imposition of a more severe penalty than that imposed with respect to the previous indictment. Relevant considerations warranting such an approach are:

- the commission of the crime involved a similar methodology

as that previously employed;

- as such it could not be regarded as a spontaneous or

impulsive act performed out of character;

- it involved the use of actual violence and the leaving of

the victim in an immobilised state;

- there was evidence of an effect (even if transitory) upon

the victim;

- the crime was committed whilst the offender was on bail

with respect to an identical offence.

10. I do not agree with the approach taken by Street CJ in R v Richards (1981) 2 NSWLR 464 where he stated at 465:

"The community must be protected as far as possible from

further criminal activities by persons who take advantage of

their liberty on bail to commit further crimes. The only

means open to the criminal courts to seek to provide this

protection is to pass severely deterrent sentences upon

those who thus abuse their freedom on bail. This will

ordinarily involve a significant accumulation of the

sentence for any subsequent offences on top of the sentence

proper to be passed for the original offence. It must be

made abundantly plain that persons at large on bail cannot

expect to commit further crimes 'for free'. On the

contrary, they will receive salutary penalties for the very

reason that they have abused their freedom on bail by taking

the opportunity to commit further crimes."

11. Instead, in cases where it is alleged that further crimes have been committed whilst on bail, it would be more appropriate to re-examine the question of continuation of the grant of bail. Nevertheless, the fact that an offence was committed whilst on bail may still have significance in the determination of penalty. It is relevant to the consideration of the question of rehabilitation. I would adopt the approach taken by the Full Court of Victoria in R v Gray [1977] VicRp 27; (1977) VR 225, where in a joint judgment, McInerney and Crockett JJ stated at 229:

"As to the circumstances that offences were committed whilst

the applicant was on bail, it is, we think, permissible for

a sentencing judge to take this into account at least to the

extent of assessing the prospects of the applicant's

reformation."

and at 230:

"The real point is that the commission of offences whilst on

bail indicates contempt for or disregard of the system of

law under which bail was granted to the offender; it

suggests that the offender has small regard for the law and

little intention of obeying its commands."

12. The sentence of two years' imprisonment was certainly at the higher end of the range of penalties imposed for crimes of robbery committed not in company and without the use of a weapon. Material was put to the court giving some details of other penalties imposed during the last twelve months for comparable crimes. Regard is paid to that material in the general sense that it helps to define the range of penalties applied by the courts and assists in achieving a degree of consistency. However, the importance of reference to other penalties is to pay regard to "a well established trend in sentencing over a substantial period of time a period of time long enough to neutralise the element of personal idiosyncrasy", Nettlefold J in Reynolds v The Queen (unreported No 46/1974 at 12). See also Underwood J, Franklin v The Queen No 82/1991.

13. However, although the sentence lay at one end of the range of penalties it could not be said, of itself, to "afford convincing evidence that ... the exercise of the discretion has been unsound", Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 at 520.

14. Regard should be paid to the overall effect of the sentence, Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372.

15. In this case the total sentence imposed amounted to three years. The applicant had an extensive record for street offences but only one conviction for a crime of dishonesty during the previous six years. He had not previously been to prison. I do not regard the sentences imposed (considered separately) as being of such a nature that they warrant the interference of an appellate court. The question is whether, given that each of the sentences imposed is within the appropriate range, the total could be thought to result in too severe a punishment for the incidents in question. See R v Roune (1979) 1 A Crim R 284 at 286. The approach is stated by Thomas, Principles of Sentencing, 2nd ed at 57 - 58, in the following terms:

"A cumulative sentence may offend the totality principle if

the aggregate sentence is substantially above the normal

level of sentences for the most serious of the individual

offences involved, or if its effect is to impose on the

offender 'a crushing sentence' not in keeping with his

record and prospects."

16. In such a case it is preferable, rather than to interfere with the penalty in respect of each offence, to consider whether they could be made concurrent or partly concurrent. See R v Smith and Shoesmith (1983) 32 SASR 219 at 221. Thomas (supra) expresses that proposition at 57 as:

"Where the totality of the sentences does appear to be

excessive and some adjustment is necessary, it is usually

preferable to make the adjustment by ordering sentences to

run concurrently, rather than by reducing the length of

individual sentences and allowing them to remain

consecutive."

17. This case is a borderline one. To interfere drastically with the sentence would be wrong, and to vary it slightly would be to adjust it in accordance with one's own "personal idiosyncrasies". The question is that as posed by Nettlefold J in Reynolds v R Unreported No 46/1974 at 10:

"Upon the facts is the decision unreasonable or plainly

unjust so that the Court may infer that in some way there

has been a failure properly to exercise the discretion?"

18. I do not believe that the circumstances of this case warrant a finding that the totality of the sentence was unreasonable or plainly unjust. Interference would amount to determination of the application on the basis that "... individual members of the Court might have inflicted a different sentence, more or less severe" (see Sidlow v R (1908) 1 Cr App R 28 at 29). To order that part of one of the sentences ought to be served concurrently with the other would, in my opinion, amount to such an approach.

19. The application for leave to appeal should be refused.