R v Burke

IN THE COURT OF CRIMINAL APPEAL 60451/00 Sheller JA James J Dowd J

Friday 3 November 2000 REGINA v Stuart BURKE

1 SHELLER JA: I agree with James J. 2 JAMES J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Stuart Burke by his Honour Judge Ducker in the District Court on 20 June 2000, after the respondent had been found guilty by a jury of one count of robbery. His Honour sentenced the respondent to a term of imprisonment of three and a half years commencing on 28 October 1999, with a non-parole period of eighteen months. A notice of appeal by the Director of Public Prosecutions against this sentence was filed on 20 July 2000. 3 The facts of the offence of robbery can be briefly stated as follows. At about 12.40 pm on 4 July 1996 the respondent entered a small branch of the Australia and New Zealand Banking Group Limited at Lennox Head. The respondent was wearing dark sunglasses and a baseball cap and he had a black stocking over his head. He was carrying two calico bags. The respondent entered the staff area of the bank premises and demanded that a teller put money in one of the bags. The teller took all the money out of one teller's unit and put it in the bag. The respondent took money out of another teller's unit and put it in the other bag. The total amount taken from the tellers' units was about $3,000. The respondent then left the bank premises. 4 Although he was suspected of having committed the robbery, the respondent was not arrested and charged with the robbery, until some time after 31 August 1998. On 31 August 1998 listening devices were lawfully installed in the house in which the respondent was living, pursuant to warrants granted by a Supreme Court judge. On the same day a police officer had a conversation with the respondent in which the police officer referred to the robbery and suggested that it might have been an armed robbery. Subsequently, by means of the listening devices, the respondent was heard making admissions that he had committed the robbery but denying that it had been an armed robbery. 5 It is necessary to set out some of the criminal history of the respondent. On 24 June 1982 the respondent, who was born on 16 November 1960, was sentenced to penal servitude for life for murder. The murder had been committed on 26 August 1981 in the course of an armed robbery being committed by the respondent and others. On 26 November 1982 the respondent was sentenced, on each of three counts of armed robbery, to lengthy terms of penal servitude. Appeals brought by the respondent against the convictions and sentences on the charges of murder and armed robbery were dismissed by the Court of Criminal Appeal. 6 On 9 July 1993 an application by the respondent for a redetermination of his life sentence for murder was allowed, and, in lieu of the life sentence originally imposed, the respondent was sentenced to a term of penal servitude of sixteen years, consisting of a minimum term of twelve years to date from 1 September 1981 and an additional term of four years. The respondent was released from custody on parole, soon after the minimum term of the re-determined sentence expired. The present offence of robbery, committed on 4 July 1996, was committed during the additional term of the re-determined sentence for murder, while the respondent was at liberty on parole. 7 On 12 February 1998, after the respondent had committed the robbery of 4 July 1996 but before he was arrested for that offence, the respondent committed an offence at Nimbin, which was described by Judge Ducker in his remarks on sentence as being similar to the offence the respondent committed on 4 July 1996. However, the respondent was charged, not with robbery, but with demanding money with menaces. The respondent pleaded guilty to this charge. On 30 October 1998 Judge Phelan of the District Court sentenced the respondent for the offence of demanding money with menaces to a term of imprisonment of two and a half years, containing a minimum term of twelve months to date from 28 October 1998. No appeal was brought either by the respondent or by the Crown against the sentence imposed by Judge Phelan. 8 After the minimum term of the sentence imposed by Judge Phelan expired on 27 October 1999, the respondent remained in custody, bail refused, by reason of the present charge of robbery. Accordingly, Judge Ducker made the sentence he imposed commence from 28 October 1999. 9 In his remarks on sentence Judge Ducker referred to the matters I have so far stated. With regard to the facts of the offence of robbery, his Honour recognised that all robberies are serious offences but considered that the respondent's offence was "towards the bottom end of the scale". His Honour found that the respondent had not been armed; that the respondent "took unusual pains to reassure the staff (of the bank) that there would be no violence done to them if they co-operated, which they did" and that no violence had in fact occurred. 10 In his remarks on sentence his Honour quoted extensively from the second of two reports by a consulting clinical psychologist Mr A Andreasen, who had seen the respondent on 13 October 1998, shortly before he was sentenced by Judge Phelan, and on 7 June 2000. Inter alia his Honour quoted a passage in the second report headed "Conclusions and Implications for Sentencing". This passage read as follows:- "This is a highly intelligent man with widespread immaturity and distortion of personality development reflecting failure of parental nurturance and constant threat during his childhood, teenage years spent largely under the influence of drugs and alcohol, and the past 20 years spent mainly in prison. During the five years that he spent in the outside world following his release from a life sentence at the age of 33, despite working in a Youth Refuge, tutoring at the University and working on a Master's Thesis on Criminology, at a deeper psychological level he quite failed to adjust to the personal freedom and responsibility of everyday life. He committed this offence in 1996 and a subsequent one in 1998 as an expression of an ongoing condition of considerable agitation, depression and frustration that he was not achieving any feeling of comfort in, or adjustment to, the outside world. This man has prominent anti-social and schizoid dimensions to his personality, so that there is little internal control that can be relied upon as any basis for social and interpersonal responsibility and feelings of mutual identification. He would be at his best whilst hard at work and he has shown that he is capable of this by his attainment of an undergraduate degree in prison and much of a Master's Degree since then. He would benefit from a long period of probationary supervision so that there would be some observation and supervision of his adjustment whilst he gets on with his life and work, which may very well eventually be some use to society, and while he engages with some skilled treatment by a clinical psychologist. He is genuinely interested in doing this and his considerable intelligence would be the basis of a hopeful prognosis for him to address the immaturity and distortion of his personality development". 11 In his remarks on sentence Judge Ducker noted that, after the redetermination of his life sentence, the respondent had been released on parole more rapidly than is usually the case. The respondent had gone from being a high security prisoner to minimum security and had then been released on parole, all in the remarkably short period of about four months. His Honour found, partly in reliance on opinions expressed by Mr Andreasen, that the respondent, prior to his release on parole, had been severely institutionalised and that the respondent had then been released on parole too quickly, not having had the opportunity, for example by a period of work release, gradually to adapt to living outside prison. His Honour concluded that he should give the respondent a final chance to make good. His Honour said:- "I think that in the long run, this man will be much less a danger to society, if he is given intense psychological counselling outside a gaol environment and a further chance to settle back into the community". 12 It is apparent from his Honour's remarks on sentence that his Honour was conscious that the sentence he was imposing could be regarded as unduly lenient. His Honour anticipated an objection to the sentence he was imposing that it would be "somewhat inconsistent" with the guideline judgment for the offence of armed robbery in R v Henry (1999) 46 NSWLR 346 and in particular pars 162 and 170 in the judgment of Spigelman CJ. 13 In response to this anticipated objection, his Honour pointed out that the present offence was robbery, not armed robbery, and therefore a lower starting point or base was warranted. As to the factors mentioned in par 170 of the judgment of the Chief Justice in Henry, his Honour found that there was no weapon and that there had been some premeditation, as was shown by the steps taken by the respondent to disguise himself, although it was difficult to say how much premeditation there had been. 14 As to the vulnerability of the victims of the robbery, his Honour found that the vulnerability of the bank officers was "below average", because, his Honour said, bank officers are trained as to what to do (in the event of a robbery), they are comparatively seldom hurt and "it's not their money going out the door". As regards the Bank itself, his Honour said that the amount taken "would be less than a very small drop in a very big bucket but, on the other hand, banks are notoriously stingy". 15 His Honour estimated the intensity of the threat to be "below average, amounting to a brazen but polite bluff, reinforced by a veiled threat if there was to be any resistance". 16 His Honour found that the amount taken was above average for all robberies but low for bank robbery. 17 Subsequently in his remarks on sentence his Honour said:- "Because of his age, because of his previous long period of incarceration, because the two offences, although serious, did not involve any suggestion of real danger to any of the victims, and because I feel that this man was not given the necessary preparation that he should have had to readjust to society, this matter is removed from the usual run of offences. The unusual circumstances, I think, provide good reason to take the course I have. I am emboldened in this belief by the statement of King CJ in R v Osenkowski (1982) SASR 394, that there is a place for the exercise of leniency, even for offenders with bad records, if leniency at that stage of the offender's life might lead to reform". 18 His Honour also found that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act, including the respondent's long period of previous imprisonment with only a short break, the existence of the sentence imposed by Judge Phelan, on the minimum term of which the sentence to be imposed by his Honour would be cumulative and what his Honour considered to be the respondent's "urgent need for skilled psychological help and treatment". His Honour said:- "There is, I believe, a much greater possibility of rehabilitation and the offender adjusting to normal, lawful community life, than would be the case if he were in prison for a longer period with a shorter term of parole". 19 In the written submissions of counsel for the Director of Public Prosecutions on this appeal it was not contended that the sentencing judge had made any identifiable error in his remarks on sentence (although this concession was qualified in oral submissions) or that the total sentence imposed by his Honour was manifestly inadequate or that the sentencing judge had erred in finding that there were special circumstances within s 44(2) of the Sentencing Act. What was submitted in the written submissions for the appellant was that the sentencing judge had erred in fixing a non-parole period which was manifestly too short to satisfy the requirement that a non-parole period or minimum term should not be less than the minimum time that justice requires that the prisoner should serve in prison, having regard to all the circumstances of the case. See Bugmy v The Queen (1990) 169 CLR 525 especially at 536. 20 It was submitted that his Honour had made this error, probably as a result of (a) not giving sufficient weight to the serious circumstance of aggravation, that the offence of robbery had been committed while the respondent was on parole (b) regarding, as mitigating the objective criminality of the offence of robbery, the absence of features, such as the absence of any weapon and the absence of any actual violence, which, if they had been present would have changed the offence from simple robbery to an aggravated form of robbery, which would carry a higher maximum penalty (c) being too favourable to the respondent, when considering the application in the present case of the factors identified by the Chief Justice in pars 162 and 170 of his judgment in Henry. For example, unlike the type of offender referred to in the example given by the Chief Justice in par 162 of his judgment in Henry, the respondent was, quite obviously, not a young offender with little or no criminal history. 21 In oral submissions counsel for the Director of Public Prosecutions submitted that the sentencing judge had erred by underestimating the objective gravity of the offence committed by the respondent; by wrongly considering that the absence of matters, which, if they had been present, would have changed the respondent's offence into a more serious offence, mitigated the offence of robbery for which the respondent was being sentenced; by underestimating the vulnerability of employees of a bank and in making the comments his Honour made about banks themselves; and by placing too much emphasis on the rehabilitation of the respondent, at the expense of setting a minimum term appropriate to the objective gravity of the offence. 22 Counsel for the respondent in his submissions drew attention to the limited extent of the Director of Public Prosecutions' challenge to Judge Ducker's sentencing decision. As no challenge had been made to the length of the total sentence imposed by his Honour or to his Honour's finding that there were special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act, (a finding which would be justified both by the circumstance that the sentence imposed by his Honour would be served cumulatively on the minimum term of the sentence imposed by Judge Phelan and by the respondent's need for psychological help and treatment outside prison), the issue for this Court was the narrow issue of whether a minimum term of one and a half years should be interfered with, when the Director of Public Prosecutions was not disputing that a minimum term of something less than thirty-one and a half months (that is three quarters of the total sentence of three and a half years) would have been proper. 23 At the hearing of the appeal counsel for the Director of Public Prosecutions accepted that, if this Court was to allow the Crown appeal and re-sentence the respondent, it should not, after allowing for special circumstances and the double jeopardy involved in a Crown appeal against sentence, impose a non-parole period of more than two years. 24 Some of the principles to be applied by a Court of Criminal Appeal in determining a Crown appeal against sentence was stated by this Court in R v Allpass (1993) 72 A Crim R 561 at 562-3 and it is unnecessary to repeat those principles here.

25 In Dinsdale v The Queen (2000) HCA 54, 12 October 2000) Kirby J said at par 62:- "For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle', such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences". 26 In the present, after giving full weight to the principles to be applied in determining Crown appeals against sentence, I have reached the conclusion that the non-parole period of the sentence imposed by his Honour was manifestly inadequate to fulfil the requirement stated by the High Court in Bugmy. This manifest inadequacy resulted from, inter alia, the sentencing judge underestimating the objective gravity of the offence of robbery committed by the respondent, from the sentencing judge giving insufficient weight to the serious circumstance of aggravation that the offence had been committed while the respondent was on parole and from the sentencing judge placing too much emphasis on the rehabilitation of the respondent, at the expense of setting a minimum term which would satisfy the requirement stated in Bugmy. I consider that his Honour underestimated the vulnerability of bank officers, who handle large amounts of cash in premises to which the public have unrestricted access. I do not consider that his Honour should have made the comments he made about banks. 27 However, in view of the limited challenge made by the Director of Public Prosecutions to his Honour's sentencing decision and the concession made by counsel for the Director of Public Prosecutions that, if this Court was to uphold the appeal and re-sentence, it should not impose a non-parole period of more than two years, the question arises whether to allow the appeal and to increase the non-parole period of the sentence from eighteen months to two years would amount to no more than an appellate "tinkering" with the sentence imposed by his Honour, this Court having been warned against appellate "tinkering" by, among others, Kirby J in Dinsdale. I have formed the conclusion that, if this Court was to intervene and re-sentence, increasing the non-parole period from eighteen months to two years, this would be such a small adjustment to the sentence imposed by his Honour as to be properly categorised as "tinkering" with the sentencing judge's sentencing decision. Accordingly, although I consider that error has been demonstrated, I would dismiss the appeal against sentence by the Director of Public Prosecutions. 28 DOWD J: I have seen the reasons for judgment of James J. I concur with the proposed orders, and with His Honour's judgment.

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