R v. Berrell [2003] NSWCCA 85

Thursday 27 March 2003 R v. Robert Anthony BERRELL Judgment

1. SMART AJ: Robert Anthony Berrell seeks leave to appeal against the length of these concurrent sentences: Counts 1-5 - Aggravated robbery - imprisonment for 5 years with a non-parole period of 3 years and 4 months. Count 6 - Aggravated armed robbery taking into account six further offences of aggravated armed robbery, one offence of aggravated assault with intent to rob, one offence of aggravated robbery and three offences of assault - imprisonment for 10 years with a non-parole period of 6 years and 8 months.
2. The circumstances of aggravation in each instance of aggravated armed robbery was being armed with a dangerous weapon, namely, the same replica pistol. The applicant was committed for trial on 27 July 2001. On arraignment on 14 December 2001 he entered pleas of guilty. The judge gave the applicant an appropriate discount for his early plea.
3. At the start of the hearing of the appeal the applicant queried the number of armed robberies in which he had been involved stating that there were only nine armed robberies.
4. It appears from the judge's remarks on sentence and on the transcript that in some instances there was more than one victim at a particular armed robbery at particular premises and this explains the difference in the number of charges. There were some 10 incidents.
5. At the hearing the sentencing judge took the applicant through all the matters on the Form 1 and confirmed that he was pleading guilty. The judge summarised the 10 incidents, out of which the offences arose, thus: Incident A 5 May 2000 Chamberlain Newsagency Campbelltown Aggravated armed robbery with a dangerous weapon

At approximately 8.30am on 5 May 2000, the offender entered the Chamberlain Newsagency at Campbelltown, produced a black replica pistol and demanded money. The victim handed over $664.60, a quantity of $2 lottery tickets and some cigarettes. The offender left the store on foot. This offence is the first offence on the form 1 schedule. Incident B 9 May 2000 Monte Carlo Café Campbelltown Aggravated armed robbery Offence 2 on form 1. At about 9pm on 9 May, the offender entered the Monte Carlo Café at Campbelltown, produced a black replica pistol and demanded money. The victim handed over $330 in cash, a quantity of cigarettes and some ice creams. The offender then left the store on foot. Incident C 17 May 2000 Pizza Hut Parramatta Count 1, aggravated armed robbery with a dangerous weapon Counts 6 and 7 on the form 1 of common assault.

Between 9.30 and 9.45pm on 17 May the offender entered the Pizza Hut at Parramatta. He pointed the replica pistol at a staff member, Daniel Alkhouri, and pushed him to the floor (this gives rise to one count of assault on the form 1 schedule). He also demanded that other staff members, including Jessica Rios get on the floor [this apparently gives rise to another count of assault on the form 1 schedule]. He then pointed the replica pistol at Aaron Farrell, aged twenty one, and demanded money. A large quantity of cash was handed over. The offender estimated that this was about $1,500. The victim was forced to put the money in a plastic bag whilst the offender had the firearm pointed at his chest. The offender left the scene on foot. Incident D 1 June 2000 Brownhill's Pharmacy, Campbelltown Count 2 aggravated armed robbery with a dangerous weapon Offence number 8 on the form 1 schedule of aggravated assault with intent to rob. At about 3.45pm on 1 June, the offender entered the Brownhill's Pharmacy at Campbelltown. He approached some of the staff and demanded money. One of those people was Cheyenne Loy [apparently this gives rise to offence 8 on the form 1 schedule]. As there is no evidence before me about the corporal violence used on Cheyenne Loy, I will approach this offence on the basis of the acknowledgment of guilt in connection with the elements of the offence. A seventeen year old shop attendant, Alana Mathieson, handed over a quantity of cash from the till. The offender disputes the estimate of the quantity of money said to be $1,390. He asserted in the interview that he obtained around $500 from this offence. He then requested that the safe be opened and a quantity of drugs were placed in a bag. These included Codeine Phosphate, Dexa-amphetamine, Pethidine, Retinol and Hyprondon. The offender left the scene on foot. When his premises were searched on 11 July some of the drugs and/or their containers were found. Incident E 16 June 2000 Liverpool Night and Day Chemist Offences 3 and 4 on the form 1 of aggravated armed robbery with a dangerous weapon.

At about 9.55pm on 16 June 2000, the offender entered the Liverpool Day and Night Pharmacy in Liverpool. He produced a black coloured pistol and demanded money from the victim. The victim handed over several hundred dollars from the till [this gives rise to the fifth offence on the schedule]. The victim was then able to escape from the pharmacy through the rear door. The offender then demanded money from an elderly customer who was in the store. She handed over a small quantity of cash [this gives rise to the other offence]. The offender then left the scene. Incident F 26 June 2000 Arcade Pharmacy, Wentworthville Count 3 aggravated armed robbery dangerous weapon. Offence 9 on the schedule, aggravated armed robbery.

At about 6.50pm on 26 June, the offender entered the Arcade Pharmacy at Wentworthvile. He produced a replica pistol and pointed it towards the store assistant, Mary Gooseen. She handed over money from the till [this apparently gives rise to the offence on the schedule]. The offender asked that the safe be opened. He was told that there was no safe. The owner of the shop then handed over some more cash which gives rise to count 3. The offender then left the shop on foot. Incident G 2 July 2000 Pizza Hut, Wentworthville Count 4 aggravated armed robbery with a dangerous weapon Offence 10 on the schedule of common assault.

At about 9.55pm on 2 July, the offender entered the Pizza Hut store, produced a replica pistol and pointed it at Paul Edwards and another employee, Michael Clark [the latter incident apparently gives rise to the assault on the form 1 schedule]. The offender demanded money and jumped over the counter. He yelled to the staff to get to the floor. He produced a bag and the victim, Paul Edwards, placed about $877 in it. He demanded that the safe be opened. However, this was not possible as it had a time delay lock. The offender then pushed the victim to the cash register in another part of the store. When that was finally opened, further money was taken from it. The offender left the premises on foot after he had pulled the phone cable out. Incident H 7 July 2000 Tasty Chicken, Wentworthville Offence 5 on the schedule of aggravated robbery. Between 8.45 and 8.50pm on 7 July 2000, the offender entered the Tasty Bird Charcoal Chicken shop at Wentworthville. He jumped on to the counter and produced a black replica pistol. He demanded the till be opened. When the victim took some chips out of the cooker, the offender pulled the top of the pistol back and threatened the victim. A brief struggle ensued during which the victim was pushed to the ground. The offender then grabbed some money from the till and again pushed the victim to the ground and smashed the counter causing it to collapse. He then left the shop on foot taking $500 or $600 with him. In the record of interview, the offender asserted that the victim was the initial aggressor. However, he acknowledged that it would not have been necessary for him to manhandle the victim had he not gone into the shop to rob it. Incident I 7 July 2000 Red Rooster, Wentworthville Count 5 aggravated armed robbery with a dangerous weapon Count 11 aggravated armed robbery with a dangerous weapon. About 5 minutes after the offender left the Tasty Bird Charcoal Chicken Shop, he entered the Red Rooster store at Wentworthville. He produced the replica pistol and demanded money. The victim, Belinda Robinson [aged sixteen] opened the till and the offender took all of the money out of it [count 5]. He then demanded that another till be opened. He was yelling at her to open another cash register. She began to cry so he tried to open it himself. However, he was unsuccessful. He then went to another employee and demanded that she open the cash register. He took all of the money from it [this gives rise to offence 11 on the schedule]. The offender then left on foot taking about $550 or $600. Incident J 8 July 2000 McBeeth's Pharmacy, Westmead Count 6 aggravated armed robbery with a dangerous weapon. At approximately 12.50pm on 8 July 2000, the offender entered McBeeth's Pharmacy at Westmead and produced a replica pistol. He demanded money from the till and from the safe. About $1,600 was handed over and he left the store on foot. 6. The judge found that shortly after his arrest on 11 July 2001 the applicant took the police to where he had secreted the replica pistol used in the commission of the offences. Following that he made admissions to the police. The judge held that the offences were premeditated. The applicant had to travel by public transport to the premises where the robberies occurred. Some of these premises were some considerable distance from where he lived. Between the robberies the pistol was either kept at his house or hidden elsewhere. 7. On many occasions he took extra items of clothing with him and changed into them after the robbery to avoid detection. In most instances no disguises were worn although on occasions he did wear sunglasses. 8. In his oral submissions the applicant contested that the robberies were planned. He said the situation was that he knew that he needed money for the house on a particular day and then he took public transport to a particular suburb and premises were selected. Despite what the applicant says I think the judge was correct to regard the robberies as exhibiting a degree of planning. 9. The applicant was born on 27 October 1967. He has a lengthy criminal history. It included dishonesty offences, driving offences and drug offences, all of which were dealt with in the Local Court and for most of which he was fined. 10. For supplying a prohibited drug he received a fixed term of imprisonment for 12 months to be served from 2 November 1995. In 1997 he was sentenced to periodic detention for 9 months for stealing. The applicant's record did not contain any offence approaching the seriousness of the offences, the subject of the indictment, but his record, unfortunately, did not entitle him to leniency. Although the applicant at the hearing of the appeal advanced some matters by way of explanation for the commission of the offences in 1995, they do not excuse those offences. 11. The applicant gave evidence before the judge that during the period of the offences he had a relationship with a woman called Andrea Hinds and that he carried out the robberies to provide her with funds to satisfy her drug addiction. The judge accepted this evidence. The applicant gave evidence of his past history and the difficulties which he had experienced. He insisted that the pistol he used was a plastic toy pistol not a replica pistol. He said that he was stupid to commit the offences and that he should not have done so. He was sorry for what he had done. 12. After leaving school the applicant worked as an apprentice in his father's locksmith business for about three years. It was the applicant's belief that the business would be passed to him. During his third year as an apprentice his father sold the business. The applicant was greatly aggrieved, left his job and commenced to abuse drugs. The letter of the mother, which we received today, points out that there were other circumstances which necessitated the sale. 13. In 1993/1994 the applicant entered Odyssey House. He left the program shortly before completing it as a result of a disagreement with other members in the program about his final proposal. For some time afterwards he blamed others for his failures. He told the judge that he now realises that he cannot blame others and must take responsibility for himself. 14. At the time of the offences the applicant was on a methadone program. The judge accepted that he was living with a woman who had come from New Zealand. She was also a drug addict and wanted to go on the methadone program. This was not possible until she got a Medicare card. 15. There was some delay in obtaining this card and, in his oral submissions today, the applicant has detailed the delays on the part of Miss Hinds. The judge appeared to accept that the applicant committed these offences to support himself, Miss Hinds and her drug habit. He took some of the illegal drugs himself to top up his methadone. He overdosed on some of the drugs stolen from one of the pharmacies and spent a night in hospital as a result. He believed his girlfriend had informed on him and used him. This led him to harbour considerable resentment towards her. The material contained in the statement of Detective Charles indicates that the applicant's belief was well founded. 16. Dr A Sharah, psychiatrist, first saw the applicant in October 1999. He was still raging and grieving over his father, despite his promise, selling the family business. Dr Sharah noted that failure has attended the applicant's other activities including his relationships with women. He had been taking drugs on and off. 17. In his report of 24 September 2000 Dr Sharah expressed the view that the applicant was "a very sick person, suffering from a paranoid depressive illness. He believes that he can't succeed and that everything he does, no matter how he tries, fails". Dr Sharah wrote "If he is given the help he needs, namely, the direction of his art talent and the psychotherapy to overcome this deep hurt and resentment, then I think he may be able to cope with outside living again without being a menace to himself and others". 18. In his subsequent report of 24 October 2001 the doctor stated, "I was surprised and delighted by that change that had come over him" since his report of September 2000. The applicant had done a number of substantial courses and was studying maths and chemistry. The applicant wanted to pursue further studies. 19. Dr Sharah stated there was none of the previous violent hostility raging inside the applicant. He greatly regretted what he had done. He had gained insight into himself. He was on methadone 80mg per day and he tested positive for Hepatitis C. He was on no other medication. His mother and father had visited him in gaol; both his relationship with his father and his appreciation of his parents had improved greatly. Dr Sharah wrote: "There is no doubt in my mind that he is quite fit to plead now, but I would not have agreed to this a year ago. The paranoia has lessened greatly although I think it could be reactivated in difficult circumstances and he should...have continuing psychiatric help for some time." The applicant has remained drug free in custody and has tested positive for Hepatitis C. 20. The judge regarded it as significant that at the age of 30 the applicant returned to study and completed his HSC at TAFE. He attained a TER of 78. He then enrolled in a science degree at university, leaving after two terms as he found the maths component too difficult and could not keep up. 21. The judge assessed the applicant's prospects of rehabilitation as reasonable. 22. The judge correctly found special circumstances in the following. This will be his first sentence of substantial length and he will need a considerable period of support to make adjustment to life in the community when released. The judge also adjusted the non-parole period having regard to the principle of totality. 23. The judge stated that his starting point for the offence, the subject of count 6 of the indictment, was 5 years and that he had added another 5 years to that to cover all the offences taken into account. This is an overt and permissible approach. 24. In his written submissions received by the Court in December 2002 the applicant complained that he did not have a fair trial, he was poorly represented by his solicitor, and the psychiatrist making the report and the facts led, did not give an account of what happened or why it happened. 25. He complained he had about 15 different solicitors, none of whom listened to anything that he said. He asserted that he should have pleaded not guilty due to mental illness but was persuaded by "legals" not to do so. 26. The applicant asserted that he was taken advantage of by an unscrupulous woman who used him. She had prevailed upon him to help her become stable so she could obtain custody of her small child. She had used her previous man in a similar way but he received a non-parole period of 3 years. He had asked his solicitor to look up this case and the sentence the man received but the solicitor did not do so. He contended that many people in prison have 3 to 4 year sentences for more serious offences. He repeated that the weapon was a "toy gun". 27. He further submitted: (a) There was no violence in any of the offences. (b) He helped police with the case but he had not received the help promised by them. (c) He was just as much a victim as the people he stole from. (d) There was no greed in any of the offences. He got little to nothing out of the offences. The applicant believed that there were extenuating circumstances which were not adequately placed before the sentencing judge. 28. The applicant submitted that his sentence was far too long and excessive. He did not deserve 10 years by way of head sentence. 29. The applicant stated that of his own volition he had seen a psychiatrist frequently prior to being arrested. Since he has been in prison he has only seen a psychiatrist on two occasions. He stated that he cannot obtain any proper treatment in prison and that in the meantime his resentment and anger grow. The applicant contended that he had had no help and that he had been bashed by inmates and officers and practically tortured in some cases. He asserted that he had been held in segregation for nothing for weeks on end. 30. The applicant has been in prison since 11 July 2000 and the earliest date on which he will be eligible for release is 10 March 2007. He is naturally disturbed that his desire to help the lady mentioned led him to a course of action that resulted in the offences and such a long term in prison. Understandably a note of desperation runs through his submissions. 31. A defence of mental illness had no prospects of success given the actions of the applicant. I doubt if the applicant appreciates how difficult it is to establish a defence of mental illness within the meaning of those words at law. The applicant caught public transport to the venues of the offences and often took a change of clothing. Then he gave directions at the premises, took money and selected goods. There was a degree of planning and a selection of premises. 32. On the materials available no jury would have held that the applicant did not know the nature and quality of his act and that it was wrong. The appellant was correctly advised that the defence of mental illness was not available. 33. There is no substance in the applicant's contention that he did not receive a fair trial. The judge gave him every opportunity to present his case, paid close attention to his evidence and that called on his behalf, and delivered careful and detailed reasons for the sentences imposed. 34. An examination of the record does not reveal that the applicant was poorly represented by his psychiatrist or his solicitor. It seems that his solicitor was concerned not to put forward matters that did not assist the applicant's case. Evidence was led from the applicant as to why he committed the armed robberies and other serious offences and the judge accepted the applicant's explanation. It would not have assisted the applicant's case to establish that another man had been used by the lady mentioned and had received a much lesser non-parole period. 35. In his oral submissions today the applicant elaborated on the problems he experienced with his legal representation. He complained that he saw a series of solicitors, estimated to be between 10 and 15 in number. That is to be regretted. He stated that he instructed his representatives not to tender Dr Sharah's report of 24 September 2000 because it was in part unfavourable. 36. However, that report was referred to in the later report of Dr Sharah which was substantially in the applicant's favour. The legal representatives of the applicant could not properly have withheld the tender of the earlier report without attracting a great deal of adverse comment as to the applicant. 37. The applicant complained that the barrister only spent a very short period with him prior to the hearing commencing before the judge and that he was not warned that he was going to be called. The fact there was only a relatively short conference is much to be regretted but the applicant seemed to be able to explain most of his case to the judge when he gave oral evidence. 38. The applicant complained that he had not been given the discount which he should have been given because of his assistance to the police. He submitted that the police would not have been able to prove that he was involved in a number of the charges if it had not been for his admissions. 39. The admissions which the applicant made greatly assisted the police and the Crown. However, it appears from the statement of Detective Senior Constable Charles that prior to the applicant's arrest they had been given considerable information, much of it from Miss Hinds. They also had information that the applicant corresponded in description with the person who attended and committed the armed robberies. It must be remembered that the applicant was not wearing a disguise but only sunglasses. 40. The applicant was taken through a number of robberies and identified those in which he was involved. The tenor of Detective Charles' statement is such that it appears that the police were in a position to gather a great deal of detailed evidence if the applicant had not made the admissions. In the circumstances which appear from that statement I am not persuaded that this is the sort of case where what is commonly called an Ellis discount should have been granted. 41. The judge pointed out that those whom the applicant held up in the various premises were not to know that the pistol was a toy pistol. They were confronted by a man holding a pistol and demanding money. The judge rightly concluded that all the various people in the various premises would have been terrified. 42. This Court does not conduct a review of all the sentences passed on other prisoners or even some of them. The task of the judge and this Court is to concentrate on the offences in question and the circumstances of their commission along with the subjective features of the applicant. 43. It is not correct, as the applicant initially contended, that there was no violence in the offences. Robbery with the presentation of a pistol, whether a replica or a toy, accompanied by a demand for and taking of money, bespeaks violence at law. There does not have to be the infliction of serious bodily injury for there to be violence. It is probably in the latter sense that the applicant intended his submission but it is no answer. The applicant's submission, in his written submissions, that he was just as much a victim as the people from whom he stole, cannot be accepted. 44. While some of the sums of money taken were moderately substantial, this was not a case where it was suggested that the applicant received any long term benefits. The money was principally used for the purposes of the lady earlier mentioned. 45. It is not necessary to detail all of the applicant's history prior to the commission of the offences, but I have, I think, sketched in sufficient of it to give an idea of the general background. The applicant has told the Court of his continuing studies in gaol so as to advance his rehabilitation, and that is much to his credit. 46. What the applicant has to accept is that the persuasions of the lady mentioned and his desire to assist her, provide no justification or excuse for his very serious offences. Shopkeepers are entitled to conduct their business on the basis that neither they nor their staff will be held up and money and goods demanded and taken at gunpoint. 47. The judge carried out the task of sentencing correctly, setting the correct sentences for each offence, and then considering questions of concurrency and totality. The applicant's difficulty is that there were a great many serious offences. 48. If, by contrast, a broad overall view were taken the applicant committed many armed robberies and other offences. There is a degree of overlap in that some of the incidents covered more than one offence. There were some 10 incidents and in effect he received one year by way of head sentence for the crime or crimes committed in each of the serious incidents. The total non-parole period was 6 years 8 months. 49. The sentences had to be and were proportional to the high degree of criminality revealed. Unfortunately, the offences merited heavy sentences. The sentences imposed are not out of line with sentences imposed in other cases where there has been a large number of armed robberies. Considerably higher sentences would have been imposed if the judge had not attached significant weight to the applicant's subjective features. 50. Because of the length of the sentences and the gravity of the offences I would grant leave to appeal but the appeal must be dismissed. 51. STUDDERT J: I agree. The orders of the Court will be those as proposed by Smart AJ.

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