Moore v R

The Applicant's submissions 44 The Applicant accepted that his Honour faced a difficult sentencing exercise. The offences were very serious and the Applicant possessed an invidious record involving a persistent pattern of offending. The Applicant accepted that protection of the community loomed large as a consideration. 45 Nevertheless, the Applicant submitted that the sentences imposed were not in line with prevailing sentencing patterns. In that regard the Applicant drew attention not only to the statistics but also drew attention to individual cases that might be thought to have been comparative. 46 The Applicant acknowledged that the maximum penalty of 25 years remains a very relevant consideration. That is undoubtedly so when the Applicant's lamentable record is taken into account together with the fact that these offences were committed whilst he was on conditional liberty from offences of the same nature.

The sentence was manifestly excessive 47 Despite those adverse features a number of matters requires consideration. First, it is appropriate to view armed robberies on an escalating scale of seriousness: R v Readman (1990) 47 A Crim R 181 at 185. In circumstances where the Applicant was using a toy pistol on both occasions, the serious of the offence is at a lower level on the scale: R v Majstrovic [2000] NSWCCA 420 at [9] and [11]. Further, he used no actual violence against the persons at whom the toy pistol was pointed. 48 Secondly, the statistics tend to show that both his Honour's starting point of 20 years and the actual sentence he imposed of 15 years, if not beyond the top of the range shown in the statistics, was at the very top end. Whilst this Court has on a number of occasions noted the care that must be taken in the use of statistics (R v Way (2004) 60 NSWLR 168 at [140]; Graham v R [2009] NSWCCA 212 at [35]-[37]), the Court has also acknowledged that an offender is entitled to be sentenced in accordance with the actual range of sentences being imposed for the offence in question: McIver v R [2010] NSWCCA 7 at [17]. 49 Thirdly, apart from the case of R v Spinks [2005] NSWCCA 459 and Spinks v R [2007] NSWCCA 52, an examination of a number of other cases with comparable features to the present suggests that the sentence imposed by Judge Black was significantly out of line. 50 Spinks was a more serious matter than the present. The offender was being sentenced for 4 aggravated armed robberies. On a Form 1 there were 3 further aggravated armed robberies. As with the present Applicant, Spinks was on conditional liberty and possessed a lengthy criminal record. However, the gun involved in the offences was a shortened rifle. Although his head sentence was 15 years he received a non-parole period of 8 years and 9 months, a shorter non-parole period (by 1 year 3 months) than the Applicant in the present case. 51 In Baleiovalau v R [2009] NSWCCA 153 the offender was sentenced for 3 counts of aggravated armed robbery, 2 of which involved the holding up staff at a Credit Union. For 2 of the offences the offender used a shortened 12-gauge self-loading shotgun, and on the third occasion he used a shortened rifle. At the time of the commission of the offences the offender was on parole in respect of 3 counts of aggravated armed robbery and 2 counts of aggravated robbery, with further robbery and aggravated robbery counts being taken into account on a Form 1. The offender was sentenced to an overall term of 10 years 6 months with a non-parole period of 7 years 6 months. This Court dismissed his appeal against that sentence. 52 In Ta v R [2009] NSWCCA 196 the offender was sentenced for 2 counts of robbery whilst armed with a dangerous weapon and 1 count of attempted robbery whilst armed with a dangerous weapon. He pleaded not guilty but was convicted on all counts. He received a total effective term of 8 years with a 6 year non-parole period. The weapon used was a pistol. He had a record of prior offences including using an offensive weapon, aggravated break, enter and commit serious indictable offence, assault police officer in the execution of duty causing actual bodily harm, and 4 offences of driving whilst disqualified. The armed robberies were committed whilst the offender was on parole from one of the offences of driving whilst disqualified. An appeal against the sentence on the basis that it was manifestly excessive was dismissed. 53 In R v Berrell [2003] NSWCCA 85 the offender was sentenced for aggravated armed robbery with 6 further offences of aggravated armed robbery, 1 offence of aggravated assault with intent to rob, 1 offence of aggravated robbery and 3 offences of assault being taken into account. He was sentenced to imprisonment for 10 years with a non-parole period of 6 years and 8 months. The aggravated armed robberies involved the offender being armed with a replica pistol. He pleaded guilty. The offender had a lengthy criminal history involving dishonesty offences, driving offences and drug offences all of which were dealt with in the Local Court. He was a drug addict and suffered from a paranoid depressive illness. His appeal against the sentence on the basis that it was excessive was dismissed. 54 Even allowing for the use of a toy pistol in Berrell, the circumstances of the offences in all of those cases were more serious than the circumstances of the present offences. In all but Berrell they were committed whilst on conditional liberty and involved the use of real firearms. Multiple incidents were involved in each case. 55 Fourthly, Judge Black, although making passing reference to Pearce, has not approached the sentencing exercise in the way that Pearce mandates. What he has done is to take a starting point that the desired overall sentence for both offences is one of 15 years with a non-parole period of 10. He then seems to have worked from that starting point with the result that the overall sentence for both offences would have been 20 years but for the plea, and has then adjusted the non-parole periods to fit in with the overall result he had to achieve. The further evidence of that approach is that, although it is difficult to distinguish between the robberies in any qualitative sense (and the sentencing Judge has certainly not done so), he has provided for a shorter non-parole period of 5 years for the second Count compared to 7 for the first Count although it was the second Count to which the Form 1 offences were relevant. Having done that, he has then accumulated the sentences to reach his overall desired result. 56 This is clearly not the approach that Pearce requires. Had Pearce been properly applied it is difficult to see how his Honour would not have provided for the same non-parole period for both of the offences. Moreover, if regard was had to the statistics and the comparative cases, his Honour would have seen that an overall sentence of 15 years with a non-parole period of 10 was outside the range of appropriate sentences, particularly taking account of the matters referred to in para [47] above. 57 The Probation and Parole report found that the Applicant was suitable for a medium level of intervention by that Service, and the report put forward strategies to address his gambling and sexual assault issues. That was consistent with Mr Andreasen's view that individual clinical psychology treatment might well allow him to come to terms with the causes of his recurrent emotional difficulties that led to his gambling, and might help him to move on from the events surrounding the breakdown of his marriage. Additionally, his evidence at the sentencing hearing revealed that he had come to appreciate the traumatic effect his actions had had upon the victims of the offences, and expressed what appeared to be genuine remorse. These are positive indicators on the issue of the applicant's rehabilitation prospects. 58 Given the errors in approach to sentencing made by his Honour, the appeal should be allowed and this Court should re-sentence the Applicant. 59 In the recent affidavit sworn by the Applicant he deposes to having successfully completed a course to deal with his gambling problem, "The Best Bet" program, whilst in custody. He has commenced a course known as Self Management and Recovery Training which builds on the earlier course. 60 Notwithstanding the Applicant's prior criminal record and the fact that the present offences were committed whilst he was on conditional liberty, both of which were serious aggravating factors, the overall sentence imposed by the Judge was manifestly excessive taking into account the circumstances of the offences, the statistics and sentences in comparable cases. 61 Bearing those matters in mind and the other material that was before the sentencing Judge I propose pursuant to s 6(3) of the Criminal Appeal Act 1912 the following orders: