Sentencing - Robbery - 4 years imprisonment imposed - Whether in this case a non-custodial sentence should have been imposed - Turns on own facts

Brown v The Queen, unreported; CCA SCt of WA; Library No 6028; 3 October 1985

Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

R v Harrison (1930) 22 Cr App R 82

R v Peterson [1984] WAR 329

Reppas v The Queen, unreported; CCA SCt of WA; Library No 970221; 15 May 1997

Smith v Desmond [1965] AC 960

Tapper v Fowler, Butterworths unreported; SCt of WA; BC8700710; 28 August 1987

Weng Keong Chan (1989) 38 A Crim R 337

1 PIDGEON J: The facts as set out in the reasons of Murray J.

2 It is admitted in the grounds of appeal that a complainant withdrew money from an automatic teller machine and placed it on the top of his wallet. The appellant snatched the money from the top of the wallet and commenced to run but he was immediately apprehended by the complainant who took hold of the appellant's collar and shirt. The appellant continued to run and his doing this caused the complainant to be dragged along by the appellant's momentum until the appellant's shirt came off and the complainant went to the ground. The appellant was convicted of robbery. He is appealing on the ground that no violence or physical force was applied towards the complainant for the purpose of taking the money. The only physical contact between the two was a fleeting touch when the appellant snatched the money from the top of the wallet and the contact the complainant had in holding on to the collar of the appellant's shirt to prevent his escape. It was submitted that the pulling of the complainant to the ground was unintentional on the part of the appellant and it occurred after the taking.

3 Robbery is defined by s 391 of the Criminal Code in the following manner:

"Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery."

4 Both the term "actual violence" and the expression "uses or threatens to use actual violence" were terms earlier used in the texts to describe the common law concept of robbery and had acquired a special meaning. In interpreting the Code it would be proper to examine the meaning in order to ascertain the intended meaning and possible limitation of the expressions used. The expressions were used by Sir James Fitzjames Stephen in his Digest of the Criminal Law (1877 Edition) 208, Article 296:

"If the thing taken or carried away is on the body or in the immediate possession of the person from whom it is taken and if the taking is by actual violence intentionally used to overcome or to prevent his resistance, or by threats of injury to his person or reputation the offence is robbery."

5 The taking need not be immediately from the person of the owner; it will be sufficient if it be in his presence. (1 Hale PC 533), (Russell on Crimes and Misdemeanours, 7th ed, vol 2, 1132)." The Larceny Act 1861 (Imp) made it an offence and provided punishment for "whosoever shall rob any person" but it did not attempt to define the term "rob" and left it having the meaning it had already acquired under the common law.

6 Although the term "actual violence" has stood for some centuries in defining armed robbery, there has been no attempt in England, and to all intents and purposes, no attempt in Australia for the courts to attempt to define it further. Gibbs CJ in The Queen v De Simoni [1981] HCA 31; (1980) 147 CLR 383 at 393 when expressing the view that there is no difference between using actual violence to any person, and using personal violence to any person, said that actual violence means no more than physical force which is real and not merely threatened or contemplated.

7 I consider the absence of definition has arisen by reason of the fact that the courts have seen the words speaking for themselves in plain English with no need for further definition and it is a matter for the jury in each case to determine whether there was actual violence or a fear of violence for the purpose of obtaining the property stolen. In this sense it is in a similar category to expressions such as "beyond reasonable doubt" which need no further explanation.

8 There have, however, been many cases as to what actions amount to actual violence and what actions fall short of this. There have also been a number of cases where it has been held that if the violence comes after the taking, then it is not robbery but a stealing from the person. As Parke J said in Smith's and Dorran's case, [1830] 1 Lewin 301, 168 ER 1048:

"The force necessary to constitute robbery must be employed before the property is stolen. If the stealing be first and the force afterwards, the offence is not robbery, but stealing from the person."

9 The offence of stealing from the person was an alternate verdict in England and would be an alternate verdict in this State by reason of s 594 of the Code as a stealing from the person "would be involved" in the commission of the offence charged.

10 There have been many earlier cases of snatching property from the victim. A leading case on the question was R v Gnosil [1824] EngR 432; [1824] 1 CAR & P 304. In that case the prisoner laid hold of a person's watch chain, and, with considerable force, jerked his watch from his pocket; a scuffle then ensued and the prisoner was secured. Garrow B held that the mere act of taking, being forcible, would not make this offence a highway robbery. His Lordship said that to constitute the crime of highway robbery, the force must be either before, or at the time of the taking, and must be of such a nature, as to show that it was intended to overpower the party robbed, and prevent his resisting, and not merely to get possession of the property stolen. His Lordship then gave an example by saying that "If a man walking after a woman in the street, were by violence to pull her shawl from her shoulders, though he might use considerable violence, it would not, in my opinion, be highway robbery; because the violence was not for the purpose of overpowering the party robbed, but only to get possession of the property."

11 His Lordship found the prisoner guilty of larceny. The report contains a footnote where the reporter referred to the case of Plunket Horner O B 1790 2 East PC 703 and said that where the prisoner had snatched the prosecutrix's umbrella out of her hand, as she walked along the street, Buller J and Thomson B said that it had been held, by very high authority at the Old Bailey, about 80 years before, that snatching anything, unawares, from a person, constituted a robbery; but the law was now settled, that unless there were some struggle to keep it, and it were forced from the hand of the owner, it was not so; and they said, that this species of larceny seemed to form a middle case, between stealing privately from the person, and taking by force and violence. But where there has been a struggle by the owner to keep the property, and the thief gets it, this will be a robbery."

12 This newer test would indicate that in the present case the offence would not have been robbery as the struggle did not force the property from the hand of the owner, but was a struggle immediately after the property was taken from the owner's hand. It is significant, however, that when there was an attempt made to codify the law of robbery, words were inserted to indicate that the threat of violence could be "immediately after the time of stealing". Sir Samuel Griffith in his original draft Code indicates that the source of the words used was the English Codification Bill of 1880, s 268. In my view the inclusion of these words in the section made it clear that there was not intended to be the type of distinction made in Gnosil's case and the footnote contained in the report. A view consistent with this was expressed by the Court of Criminal Appeal in Queensland in R v Hay (1925) The Queensland Justice of the Peace 44, Lukin J at 46 said the section extended the violence used to enable escape with the plunder and secure its removal beyond the reach of immediate recovery.

13 I consider on the facts of the present case it would have been proper and sufficient for the trial Judge to direct the jury by asking them if they were satisfied whether the appellant immediately before or immediately after the time of stealing used actual violence in order to obtain the thing stolen. I consider the inevitable answer would be that he did. The words of the section would preclude the necessity of saying the violence must precede the taking. It would be open to the jury to look at the continuous act which must have occurred over a very short period of time of grabbing the money in the presence of the complainant and in circumstances where the complainant must have been aware of the grabbing, and to use the violence he did in order to fully obtain control of the money that was then in his possession. There would be no need to examine when the asportation was complete. It would be sufficient to see if there was violence within the meaning of the section.

14 I would dismiss the appeal against conviction. I would also refuse leave to appeal against sentence. I do that for the reasons of Murray J, with which reasons I agree.

15 WALLWORK J: I agree with the reasons of Pidgeon J and Murray J and to the orders proposed by their Honours.

16 MURRAY J: On 21 and 22 October 1999 the appellant was tried before a Judge and jury in the District Court at Geraldton upon an indictment charging that on 8 January 1999 he committed a robbery. It was alleged that he stole the sum of $300 from the victim of the offence. The appellant was convicted and on 26 October 1999 he was sentenced to 4 years imprisonment with parole eligibility. He now appeals against his conviction and sentence.

17 Apparently the proceedings were not recorded. We were told that the equipment malfunctioned. However, the parties agreed that the point at issue in the appeal against conviction, which is brought on a point of law, should be determined upon the facts as they are stated in the ground of appeal. In fact, leave to appeal is sought, but as the ground of appeal involves a question of law alone, the appeal is as of right: Criminal Code (WA), s 688(1)(a).

"The verdict should be set aside on the grounds that it is unreasonable and cannot be sustained having regard to the evidence in that:

(a) There was no evidence, nor could the evidence adduced sustain the inference, that violence was applied by the Appellant to the complainant to obtain the money, the evidence being that the complainant withdrew money from the automatic teller machine at the Commonwealth Bank at Geraldton on the 8th January 1999, placed it on top of his wallet and the Appellant snatched the money off the top of the wallet and ran.

(b) That there was no evidence, nor could the evidence adduced sustain the inference, that violence was applied by the Appellant to the complainant when he ran off, the evidence being that the complainant grabbed the Appellant by the collar of the shirt, was dragged along by the Appellant's momentum until the Appellant's shirt peeled off when the complainant went to the ground.

(c) The evidence of the complainant was that no violence or physical force was applied by the Appellant towards the complainant, that the only physical contact between the two was a fleeting touch when the Appellant snatched the money from the top of the wallet and the contact the complainant had in holding on to the collar of the Appellant's shirt to prevent his escape."

19 The offence of robbery is defined by the Code, s 391 as follows:

"Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery."

The point at issue, of course, is whether in the circumstances of this case there was "actual violence" used by the appellant to the person of the victim of the offence in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen.

20 I am grateful to Pidgeon J for his investigation of the offence of robbery as it was understood by the common law. I will not repeat that discussion which, however, I think is not inconsistent with the view to which I have come about the proper interpretation of s 391.

21 On the facts given there was undoubtedly in this case a stealing of the victim's money within the meaning of the Code, s 371. There was a physical taking of the money with the intention to permanently deprive the owner of it. That offence was complete when the appellant commenced to run away. The victim immediately took hold of the appellant by his shirt and the appellant struggled to be free. That process continued while the victim was dragged along until the appellant's shirt came off and the victim fell to the ground.

22 There is little modern authority on the point at issue. In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 393, Gibbs CJ said, "Actual violence means no more than physical force which is real and not merely threatened or contemplated." Of course it may be to the person or property.

23 In R v Hay (1925) 19 QJPR 44 the Queensland CCA had to deal with the Criminal Code (Qld), s 409, which provision was then and remains worded identically to our s 391. It would seem from the short reference made to the facts of the case that it was not dissimilar to this. The victim was one Pearce. It appears that the offence was committed at an hotel. He had been in the company of the two offenders and left the bar to go to the lavatory. He was followed and it appears that his property was stolen there. He ran from the lavatory back into the bar, hotly followed by the offenders. A scuffle occurred in which one of the offenders tripped Pearce and kicked him when he was down. The second man made his escape. The conviction for robbery was upheld.

24 Lukin J, with whom Macnaughton and O'Sullivan JJ agreed, said at 46:

"There may be within the meaning of that section the use of violence to obtain the thing stolen - that is to say, to enable escape with the plunder and secure its removal beyond the reach of immediate recovery, or to overcome the resistance then being continuously offered by Pearce to his property being stolen."

The Court felt that on the evidence this was certainly a case of the latter kind.

25 In my opinion the appellant used actual violence to the person of the victim when, knowing that he was being held, as he must, he continued to struggle to make his escape, having immediately prior to that incident completed the act of stealing. Putting the events into the language of s 391, the appellant was liable to be convicted of robbery if the jury were satisfied beyond reasonable doubt, as they must have been, that he stole the victim's money and "immediately after the time of stealing it" he used, by struggling to free himself, "actual violence to any person ... in order ... to prevent or overcome resistance to its being stolen".

27 I have mentioned that the appellant was sentenced to a term of 4 years imprisonment with eligibility for parole. The application for leave to appeal against that sentence is made upon the following grounds:

"1. The circumstances of the offence including the lack of violence.

2. The Learned Trial Judge failed to give adequate or proper consideration to the imposition of a non-custodial sentence.

3. The Learned Trial Judge failed to give any or any sufficient weight to matters personal to the Appellant, namely his age, antecedents and the reports tendered on behalf of the Appellant indicating that since the Appellant had committed the offence he had successfully undergone a program of drug rehabilitation."

28 It can be seen that the grounds do not suggest that the sentence of 4 years imprisonment was excessive in itself, if it was necessary to impose a sentence of imprisonment to be immediately served. It was argued that an intensive supervision order or some other type of community based order was the appropriate disposition, having regard to the fact, as it was submitted to be, that the circumstances of the offence place it at the lower end of the scale of seriousness for offences of this kind and having regard to the matters to which ground 3 refers.

29 This Court has held that because of the prevalence of robbery in circumstances such as this, there is a heightened need, not only for the punishment and particular deterrence of the offender but, perhaps more importantly, general deterrence with a view to endeavouring to reduce the incidence of the crime. It is a crime which is thought to be of such seriousness that imprisonment to be immediately served will be almost inevitable save in exceptional circumstances. Where imprisonment is to be imposed there has been a "firming up" of the sentences: Miles v The Queen (1977) 17 WAR 518, 521 and more recently Taylor v The Queen, unreported CCA SCt of WA; Library No 980152; 6 April 1998, per Ipp J at 4 and Thomson v The Queen, unreported; CCA SCt of WA; Library No 980482; 3 August 1998 at 28.

30 As to the offence itself, it was clearly to be accepted that, as the appellant asserted, he was under the influence of drugs at the time of its commission. He said he had no memory of leaving his home, travelling to the city, being at the bank in the area of the automatic teller machine, committing the robbery, his efforts to escape or the circumstances of his capture shortly thereafter.

31 The letter he wrote to the sentencing Judge suggested that he committed the offence on the spur of the moment. It is difficult to give that statement credence if it was indeed the case that he had no memory of the commission of the offence or the circumstances leading up to that occurrence, but I think it may be accepted to be a genuine view and no doubt, in part, this explains the lenient term of 4 years imprisonment. However, people who use ATMs are particularly vulnerable to the commission of such offences and the courts will endeavour to discourage such offences by appropriately severe punishment.

32 The real question here is whether the matters to which ground 3 refers should have dissuaded the sentencing Court from the imposition of a term of imprisonment to be immediately served. The appellant expressed his remorse after his guilt of the offence was established. When he came to be sentenced in October 1999 he was a young man of just 26 years of age. He had lived in Geraldton all his life. He came from a good family. He had completed an apprenticeship as a sheet metal worker. He had been regularly employed until he resigned to have a holiday.

33 In 1994 he became involved in the use of illicit drugs, cannabis, then amphetamines, and ultimately it seems whatever drug he could obtain. His first serious offence was one of burglary committed in August 1996. He was placed on probation for a period of 2 years. He moved from Geraldton to Kalgoorlie. He paid compensation of about $5,000 and it is said that he did not breach the probation order. However, while in Kalgoorlie he commenced to use heroin and he soon became addicted. By the time he left Kalgoorlie and returned to Geraldton during the period covered by the probation order, at about the end of 1997, he was a hopeless drug addict.

34 He obtained employment. He earned good money and for a while from that source he was able to finance his addiction. Eventually he was unable to hold his employment, which ended in about October 1998. He was without money and hence the robbery offence committed in January 1999, no doubt for the purpose of obtaining money to buy drugs.

35 After he was charged and released on bail he admitted himself to Geraldton Regional Hospital to attempt detoxification. While there he stole a quantity of prescription drugs and discharged himself. At that point he was undoubtedly, as counsel said, at "rock bottom".

36 It is to the appellant's credit that he realised this and consulted a local doctor who placed him on a methadone programme. The doctor and the pharmacist who reported to the court thought he was well motivated to continue and complete the programme. They were pleased with his progress and both expressed confidence that he would ultimately be totally rehabilitated and would be able to rejoin the community as a productive member of society.

37 All of that was placed before the learned sentencing Judge. It is a depressingly familiar story, but in my opinion it was not a story of such an exceptional character as to justify diverting the court from the disposition of a sentence of imprisonment. The story, particularly of the appellant's efforts to pursue his rehabilitation, was however, such as to justify keeping the punishment to a minimum and was a strong argument to order eligibility for parole.

38 Nonetheless the matters to which I have referred, particularly the aspect of general deterrence, required the imposition of imprisonment. The simple point which by means of the punishment imposed the courts endeavour to bring home to such offenders, is that when they are hopelessly in the grip of drug addiction they must seek assistance to achieve their rehabilitation before, rather than after, committing an offence of such seriousness.

39 I would refuse the application for leave to appeal against sentence.