R v Robertson [2010] ACTCA 19

The incident was entirely captured on CCTV. The police were able to trace the card used by the respondent. A subsequent search warrant of the respondent’s residence found the replica gun and the respondent made full admissions. The respondent was arrested on 20 November 2009 and was remanded in custody until sentenced on 16 April 2010.

Aspects out of the ordinary in relation to this offence included the fact that the respondent was well known to the shop attendant. In any case, the use of the respondent’s credit card at the premises and the CCTV images meant that it was inevitable that his identity would be discovered by the authorities. The respondent said that he committed the crime out of desperation for fear that he was about to become homeless. To that extent the crime was impulsive and motivated by something other than drug addiction. It is also notable that the respondent had no previous criminal history at all. Grounds of appeal

Although the DPP said the sentencing judge erred by giving a discount for a plea of guilty which was unreasonably disproportionate to the nature and circumstances of the offence, and by failing to give sufficient weight to general deterrence, the fundamental complaint seems to be that the sentence was manifestly inadequate.

The principles governing prosecution appeals against sentence have been stated by this Court in a number of cases. In the most recent of these, R v Riddle [2010] ACTCA 8 at [6]-[8], this Court said: 6. A Crown appeal in this jurisdiction is as of right. However, a Crown appeal should be brought only where it is necessary to establish a matter of principle or where it is necessary for the maintenance of the proper administration of justice. A Crown appeal should not be brought for the purpose of having the appeal court disagree with the sentence actually imposed by the sentencing Judge: Griffiths v The Queen (1977) 137 CLR 293 at 310. 7. In Dinsdale v The Queen (2000) 202 CLR 321, Kirby J said at 341: 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. 8. Thus on this appeal the Crown must demonstrate with clarity that the sentence imposed by the sentencing Judge was manifestly inadequate. It is not enough for the Crown to persuade this Court that this Court would have imposed a different sentence. The Crown must establish an error of principle on the part of the sentencing Judge, which may be demonstrated by a sentence of manifest inadequacy.

As far as this appeal is concerned, we understand that the Court’s approach to appeals of this nature is accepted by the DPP. He made specific reference to R v Osenkowski (1982) 30 SASR 212 at 213 where King CJ said: The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.

The submissions that were initially made by the DPP on this appeal seemed to relate to what was said to be the need for this Court to establish a “tariff” for the offence of aggravated robbery. When pressed by the Court as to what was meant by that submission, the Director conceded that he was not seeking to put before this Court statistics or a series of relevant cases that might demonstrate or support a submission that the Court take such an approach. Similarly, the Director expressly declined to seek from the Court some form of guideline in terms of a “guideline judgment”. Rather, the DPP appeared to propose that “guidance” from this Court would be an appropriate outcome. We find it difficult to understand the distinction drawn by the DPP.

In light of what has always been the approach of this Court that the offence of aggravated robbery is an offence of utmost gravity, and that a sentence of imprisonment including a period of actual custody is generally the appropriate disposition of such matters, it is difficult to understand what more the DPP was actually seeking.

There is no doubt that in the present case the sentencing judge recognised the Court’s existing approach as appropriate in remarking, as he did, that aggravated robbery: is one of the more serious crimes referred to in the criminal calendar. As I remarked during the course of argument it carries a higher maximum penalty than does the crime of manslaughter.

The sentence he actually imposed also recognised that approach, consisting of a term of imprisonment including a period of actual custody.

The DPP suggested in his submissions that this Court: ...should not allow a situation to develop where sentences for armed robbery are significantly lower in this jurisdiction than in neighbouring jurisdictions, thereby inviting the attention of interstate criminals.

Whatever the merits of such a submission, it was in no way supported by any material to indicate that the risk identified by the DPP was a real risk, or that this particular case raised any such risk.

Furthermore, there is just nothing in the present case that could support such a submission. This case is not an appropriate vehicle to agitate a question of the kind posed by the Director.

As mentioned, complaint was made about the sentencing judge’s application of s 35 of the Crimes (Sentencing) Act 2005 (ACT) which permits a discount being given in respect of a plea of guilty, and about the sentencing judge’s approach to the guideline judgment of the New South Wales Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. The issues raised by the DPP in this regard do not seem to be to the point. The sentencing judge had placed before him, without objection, a number of sentences for the offence of aggravated robbery that had been imposed by judges of this Court. A further and more detailed list of offences was also placed before this Court by the respondent without objection from the Director.

We are satisfied from a review of the sentences in the list provided that the sentence imposed by the sentencing judge in this case cannot be said to be outside the range of sentences reasonably open to him. This is not a case where the sentence imposed can be said to be so unreasonably disproportionate to the seriousness of the crime as to shock the public conscience.

In our view, appellant intervention in this case could not be justified unless the sentence under consideration is markedly different from sentences that have been imposed in other cases (cf Wong v The Queen (2001) 207 CLR 584 at [58]). That is not necessarily the only determining factor but, in any event, it cannot be said to be the circumstance in this case.

It is for these reasons that the Court dismissed this appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Date: 26 August 2010 Counsel for the Appellant: Mr J White Solicitor for the Appellant: ACT Director of Public Prosecutions Counsel for the Respondent: Mr K Archer Solicitor for the Respondent: Legal Aid Office (ACT) Date of hearing: 4 August 2010 Date of judgment: 26 August 2010