R v NEMERE No. SCCRM-99-41 Judgment No. S228 [1999] SASC 228

The appellant was convicted on the verdict of a jury on one count of attempted armed robbery. He also pleaded guilty to one count of illegal use of a motor vehicle.

The charge of attempted armed robbery carries a maximum punishment of twelve years imprisonment. The District Court judge imposed a single sentence in respect of both counts. He sentenced the appellant to imprisonment for three years ten months, after reducing the sentence that he otherwise would have imposed by two months on account of the plea of guilty to illegal use. He fixed a non-parole period of two years three months.

The appellant complains that the sentence is manifestly excessive.

In brief, the circumstances of the offence are these. I refer to the main offence, the attempted armed robbery.

Mr Nemere and a friend, Mr Johnstone, needed money. Mr Nemere was addicted to heroin. They decided to steal a car and, using it, to commit an armed robbery.

Mr Nemere drove the car, and Mr Johnstone entered the relevant premises, a post office, armed with a replica pistol. The man behind the counter resisted, and Mr Johnstone ran out of the post office. Mr Nemere drove off, but they were quickly apprehended by police. They were still in the car when stopped and arrested. No property was taken.

Mr Johnston pleaded guilty. Mr Nemere pleaded not guilty, but was found guilty by the jury.

As I said, no property was taken. The victim of the attempted armed robbery was not harmed physically, but not surprisingly suffers feelings of anxiety from time to time when at work.

The District Court judge described this offence as "a badly executed, totally unsuccessful, attempted armed robbery". I agree, but, like the District Court judge, I consider that its amateurishness does not diminish its seriousness. It remains a serious offence and but for the resistance probably would have succeeded.

The offence of armed robbery is a prevalent one and the attempt is thus an attempt to commit a prevalent offence. The District Court judge rightly took into account the serious nature of the offence, and the need to deter people who want to get easy money by using such means to do so.

The fact that the appellant was the driver is of little significance. Each offender played a key part in the offence.

It is submitted in the outline that no violence was used. I disagree. Presenting the replica pistol is an act of violence. The victim had no way of knowing for sure that it was a replica, although apparently he suspected that it might be.

The fact that Mr Nemere did not resist the police when arrested is also of little significance. Had he done so, that would have been an aggravating circumstance. In my opinion the circumstances of the offence fully support the judge's comment that the offence was to be regarded seriously.

I turn to the appellant's personal circumstances.

Mr Nemere was about 38 years of age. The offence cannot be put down to youthful immaturity. He is divorced. The break-down of his marriage about four years ago affected him badly, resulting in excessive consumption of alcohol and then of heroin. It appears that Mr Nemere lost his house, his job, his possessions and lapsed into a life of aimless drifting. I agree that this is a sad state of affairs.

One cannot help feeling sorry for Mr Nemere, but these circumstances do not excuse what he did, and his sad story is not uncommon for this type of offence.

Since being in prison Mr Nemere has received counselling about his drug abuse. There are encouraging signs that he will break his dependence on drugs and alcohol and resume a useful life. That is the effect of the pre-sentence report. The District Court judge acknowledged that there were some prospects of rehabilitation. The pre-sentence report also supports that view.

While Mr Nemere's personal circumstances provide some explanation for what happened, they are not so compelling as to reduce significantly the seriousness of the offence. The prospects of rehabilitation are reasonable, but clearly the judge took this into account.

Mr Nemere's record is not a good one. He has a longish list of convictions. Many of the offences are related to the use of motor vehicles, and some of them involve driving associated with the consumption of alcohol, but there are some others that indicate a disregard for the law, quite apart from the driving offences, and for the rights of others.

Mr Nemere has not previously served any significant time in prison, but leniency has been extended on previous occasions and has not been successful. All in all, while his personal circumstances provide some basis for leniency, they cannot operate to reduce by much the sentence that the offence would otherwise attract.

The District Court judge carefully enumerated all relevant matters. I can find no error in his approach. Nothing relevant was overlooked.

Standing back and looking at the sentence in light of the circumstances of the offence, and of the appellant's personal circumstances, I do not consider that the sentence is excessive. That observation applies to the head sentence and to the non-parole period. Far from it, I consider that it was about right for this offence, and for this offender.

I do not agree that there is any disparity with the sentence imposed on Mr Johnstone that calls for intervention. The District Court judge said that Mr Johnstone's record was worse than that of Mr Nemere's. That might have warranted a higher starting point for the sentence than the starting point for Mr Nemere, but it cannot be said that it was an error to use the same starting point for each of them.

It remains only to repeat that armed robbery of the type attempted by persons addicted to drugs is a common offence. The prevalence of such offending is an illustration of the tragic effects of drug addiction.

Addiction is a complex social problem. However, the courts must remain firm in trying to deter people minded to offend in this way. The courts cannot accept addiction as a basis for imposing a lenient punishment for such serious offences as armed robbery, and attempted armed robbery.

For those reasons I agree with the approach of the District Court judge, and would dismiss the appeal.

DUGGAN J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

WICKS J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.