R v Synan [2002] VSCA 38

Court of Appeal (Vic)|2002-03-15|Before: WINNEKE, P., BATT, J.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Sentencing - Two armed robberies - Appellant undergoing sentence for later armed robbery - Errors below - Resentencing - Totality - Effect of sentence on co-offender - Rehabilitation.

I invite Batt, J.A. to give the first judgment in this appeal.

The appellant admitted 70 "previous convictions" (being 67 convictions strictly so-called and three findings of guilt) from 11 court appearances between 1982 and 1993. There were no prior convictions for armed robbery amongst them but there were 40 convictions for offences of dishonesty, including burglary and theft, and six convictions for offences related to weapons. The appellant had received terms of immediate imprisonment on eight occasions. They occurred in 1982, 1983, 1989, 1990, 1992 and thrice in 1993. In addition to the prior convictions, the appellant had a significant subsequent conviction. On 27 August 1998 he had been sentenced in the County Court at Melbourne by Judge Curtain to eight years' imprisonment for armed robbery and theft and a non- parole period of four years six months had been fixed. Her Honour had declared pre-sentence detention of 549 days, the appellant having been in prison continuously since his arrest on, according to counsel's statement, 24 February 1997. That armed robbery had been committed in February 1997 and the maximum penalty applicable to it was 20 years' imprisonment. The non-parole period fixed by her Honour expired in July 2001 and the eight year sentence will expire on 24 February 2005.

To return to the counts to which the appellant pleaded guilty on 29 March 2001, the sentencing judge (who was not on this occasion Judge Curtain), having heard a plea in mitigation of penalty on that day, sentenced the appellant on 18 April 2001 to eight years' imprisonment on each of the two counts and ordered that three years of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. Thus the total effective sentence for those two offences was imprisonment for 11 years. Her Honour further ordered that six years of the sentence be served cumulatively upon the then current sentence which the appellant was serving, "making a new effective sentence of 14 years' imprisonment", and purported to refix a non-parole period of 10 years. In sentencing the appellant on the two counts of armed robbery her Honour stated at the beginning of her sentencing remarks that the maximum penalty for that offence was 25 years' imprisonment.

The appellant now appeals, by leave of a single Judge of Appeal, on 10 grounds, as substituted by order of the Registrar on 6 February 2002.

It is unnecessary to set out or discuss any of those grounds other than the last three, which are largely self-explanatory and read:

"8. The Learned Sentencing Judge misapprehended the maximum sentence applicable to both counts. 9. The Order for Cumulation with the partially completed sentence the Applicant was undergoing was misconceived in that there was insufficient of the unexpired portion of the sentence the Applicant was undergoing to run concurrently with the portion of the new sentence that was intended to be concurrent. 10. The Learned Sentencing Judge misconceived the operating date of the new minimum sentence that was imposed pursuant to s.14 Sentencing Act 1991."

Counsel for the respondent conceded or virtually conceded, and a concession was in my view correct, that each of the three errors alleged in grounds 8, 9 and 10 had been made and that it is necessary for this Court to re-sentence the appellant, though he did not concede that the error as to the maximum term would by itself have had that effect. Nor need I decide that, for the other errors clearly vitiate the sentence and re-open the entire sentencing discretion. I need only explain the error in the fixing of the new single non-parole period pursuant to s.14 of the Sentencing Act. Her Honour seems to have intended that the effective maximum sentence she imposed and the new single non-parole period should operate from the date of imposition of the pre-existing or uncompleted sentence of Judge Curtain, namely 27 August 1998, with the pre-sentence detention being deducted from the sentence. But, as explained in D.P.P. v. Ibrahimoff[1] and R. v. Rich[2] and the cases there cited, a new single non-parole period fixed by a primary sentencing judge under s.14 operates, in conformity with s.17 of the Sentencing Act, from the day on which it was imposed, here 18 April 2001. Thus, the period here ran to 18 April 2011, which would mean that it exceeded the 14 year period measured from the previous sentence (but after deduction of the pre-sentence detention) which her Honour intended the appellant to serve.

The Court must therefore quash the sentence imposed below and re-sentence the appellant. To that end we have the benefit of very helpful written and oral submissions for the appellant and for the respondent.

The two offences to which the appellant ultimately pleaded guilty were very serious indeed. They were committed within a month of each other and involved offending in company; careful planning; use of disguises, stolen cars and firearms, one of which in the second armed robbery was loaded; the stealing of large sums of money, none of which has been recovered; and the instilling of fear into those robbed and those nearby them.

In summary, the first armed robbery was committed on the Seville branch of the National Bank of Australia Limited on Friday 24 December 1993 at about 9.30 a.m., when it was open for business and customers were present. The appellant and his co-offender, one Mark Caudwell, ran into the bank carrying a 12 gauge sawn-off shotgun and a .357 magnum revolver respectively. There were male and female staff members in the bank and a female customer and male customers. Caudwell scaled the teller's counter and entered the banking chamber, while the appellant remained in the foyer area, pointing his gun at customers and shepherding them into a group. He placed his gun to the right side of a customer's head and instructed the customer to move towards the back of the bank. Caudwell was swearing. He demanded money from the staff and collected what he was given. The appellant and Caudwell fled the bank in a vehicle which they had stolen the day before. They counted the stolen money, which amounted to $18,007, and divided it equally between themselves.

The second armed robbery was committed on 24 January 1994 on a Brambles Security van at approximately noon at the Safeway supermarket in Preston. The appellant and Caudwell had stolen two vehicles from residential streets in Doncaster on 16 January and had intended to rob the van the next day, Monday 17 January, but had had to abort their plan when it did not arrive as expected. They disposed of the two vehicles they had stolen. On Sunday 23 January they stole two more vehicles. The next day they drove to the supermarket, where, in a carefully organised operation (though there was a hitch when a two- way radio malfunctioned), Caudwell, on a signal from the appellant, pointed his loaded .45 semi-automatic pistol at the two Brambles Security guards, as they were returning to their van, with .38 calibre revolvers in their holsters, and demanded that the bag of money be thrown to him. One of the guards complied. The bag contained $62,700. But for the hitch already mentioned the offenders might well have obtained $150,000, being the amount which the guards had been able to secure in their van on an earlier return to it. The appellant and Caudwell met a further co-offender in Mooroolbark and divided the moneys between the three of them and yet another offender, who had supplied information.

On 26 October 1997 Caudwell surrendered himself to police in Queensland. He confessed to his part in the two armed robberies and implicated the appellant. He also confessed to other crimes. On 10 July 1998 he pleaded guilty before Judge Dixon in the County Court at Melbourne to three armed robberies, including the one at Seville and the one at the Preston supermarket, as well as four counts of theft of motor cars, a robbery and an associated count of administration of a substance. Having assisted the police already, he undertook to give evidence against the appellant. Judge Dixon said that he had decided to make, as I understand his remarks, an allowance of approximately one-half for that together with a discount for Caudwell's co-operation and plea of guilty. His Honour sentenced Caudwell to a total effective sentence of four years 10 months with a minimum term of three years. The sentence on each of the two relevant counts of armed robbery was two years, and one year of the sentence imposed on the second of those counts was cumulated upon the sentence imposed on the first.

A detailed description of the facts of the two offences and of the appellant's circumstances and background is contained in the sentencing remarks of the judge. Mr Punshon for the appellant told the court that he had no quarrel with any of that save for one small matter which is of insufficient significance to mention it now. I therefore do not restate the descriptions in the sentencing remarks which I have mentioned.

The hearing before us proceeded on the footing that the appellant and Caudwell were equally complicit in the two armed robberies.

Mr Punshon stressed in his submissions the principle of totality, the delay in charging the appellant after his complicity in the offences was known, and the rehabilitation which, he submitted by reference to a series of reports by Mr Joblin, the forensic psychologist, the appellant had already achieved and was likely to achieve further. In that regard also he drew attention to the lengthy period of parole which her Honour Judge Curtain had allowed for; and he sought for the appellant some sort of "parity" with the sentence imposed on Caudwell, suggesting a doubling of the individual sentences imposed, and of the cumulation directed, by Judge Dixon, whilst recognising that there were other differences between the two offenders and that the exercise was not a mere mathematical one. In this case, unlike many that come before this Court, the evidence of rehabilitation seems substantial. I need not, I think, summarise it here. Counsel pointed out that the appellant had spent a very large part of the period from September 1989 to the present in custody, by his calculation all but about two years. Mr Punshon submitted - and in this I think he was right - that the real question for this Court was how much more time should the appellant spend in custody. He urged the Court not to extend the maximum ultimate release date significantly, submitting that three years was as much as should be added, and, on the other hand, he urged the Court to allow eligibility for release on parole soon.

Mr McArdle, for the respondent, with his usual candour, said that, accepting Mr Joblin's reports and linking them to the sentence imposed by Judge Curtain, there must be good prospects for rehabilitation and that he was happy to concede that. Mr McArdle emphasised differences in Caudwell's circumstances, explained and sought to minimise the delay in charging the appellant and submitted that there had to be a sentence of some significance because of the seriousness of the offences and the appellant's prior convictions. It may be, he said, that the Court could allow for an unusually long period on parole.

Ordinarily, with offences of armed robbery of the gravity of these two offences and with an offender having such a bad criminal record as the appellant has, the primary sentencing purposes would be general and specific deterrence and would require stern sentences on each count and significant cumulation. But the two offences, together with the appellant's antecedents, do not fall for consideration in isolation. Some regard must be had to the sentences imposed on Caudwell for the two offences, and the appellant's rehabilitation achieved and prospective must be recognised and allowed for. But above all in this case, as it seems to me, the principle of totality must be of paramount importance in guiding the Court's discretion in the light of the sentence imposed by Judge Curtain and the great proportion of the appellant's recent life which he has spent in prison. In short, the requirement of the principle of totality must keep down the individual sentences, the direction for cumulation and the non-parole period.

18 In the light of the foregoing, including the submissions of counsel, I would propose that the appellant be re-sentenced on each of the two counts to imprisonment for five years and that it be directed that two years of the sentence imposed on count 2 be cumulative upon that imposed on count 1. Thus, the total effective sentence would be imprisonment for seven years. The effect of s.16(1) of the Sentencing Act is, and I would declare, that that term of imprisonment is to be served concurrently with the uncompleted sentence imposed by Judge Curtain. Pursuant to s.11 of the Sentencing Act I would fix three years from the date of today, 15 March 2002, as the period during which the appellant is not eligible to be released on parole. No declaration as to pre-sentence detention is required or appropriate.

For the foregoing reasons I would allow the appeal, quash the sentence imposed in the County Court on 18 April 2001 and re-sentence the appellant in the terms I have proposed.

Before parting with this appeal I wish to make two things clear. First, the effect of the sentence I propose is that the appellant's sentence runs to 14 March 2009, but he becomes eligible for parole on 14 March 2005. Secondly, I have endeavoured in what I have said to make it clear the peculiar circumstances affecting and limiting the exercise of our sentencing discretion and in particular the effect of the principle of totality in keeping down the sentence. Accordingly, it should be understood that this case should never be cited as a precedent for the sentencing of persons convicted of armed robberies of the seriousness of those in question here.

I agree with Batt, J.A. that these appeals should be allowed for the reasons that he has given and I agree with the orders which his Honour proposes should be substituted for the orders made by the learned judge below.

22 I wish to identify myself with the final comments made by Batt, J.A. that this sentence which this Court is imposing is designed to cater for the peculiar circumstances with which both the appellant and this Court are confronted and that the sentences that we have imposed in this matter should not be cited hereafter as precedents for crimes as serious as these ones were.

The formal order of the Court is as follows: the appeal is allowed, the sentences imposed by the County Court on 18 April 2001 are quashed and this Court re- sentences the appellant in the following terms: that on each count on the presentment a term of imprisonment of five years is imposed; two years of the sentence imposed on count 2 is to be cumulated upon the sentence imposed upon count 1. Thus, the total effective sentence is imprisonment for seven years. We declare that that term of imprisonment is to be served concurrently with the uncompleted sentence imposed by Judge Curtain. Pursuant to s.11 of the Sentencing Act we fix three years from the date of today, 15 March 2002, as the period during which the appellant is not to be eligible for release on parole. No declaration of pre-sentence detention is made or required.

BATT, J.A.: May I just ask, there's no mistake, Mr Punshon, such as was made down below in the concurrency?

MR PUNSHON: I think I'd better check that, Your Honour. I don't think there is, Your Honour.

BATT, J.A.: I just followed the wording of the Act.

WINNEKE, P.: "Concurrently with" Judge Curtain's order.

WINNEKE, P.: It ought to be made known that that is what this Court intends.

WINNEKE, P.: That the sentence which we have imposed of seven years will run concurrently with the unexpired portion of the sentence of Judge Curtain, currently being undergone.

MR PUNSHON: Which I think is about two years - almost three years.

WINNEKE, P.: The trouble is it had the PSD taken into account to my understanding.

WINNEKE, P.: There is a little under three years of that head sentence to run.

MR PUNSHON: Yes, Your Honour. It's eight years from the day he went into custody which was in January of 1997 and so that would expire January of 2005.

O'BRYAN, A.J.A.: I note you gave us or Mr McArdle gave us the date as being 24 February 2005.

MR PUNSHON: That was the date I gave which I calculated as being eight years from the day on which he went into custody which was 24 February 1997.

MR PUNSHON: I did? I am sorry, I am confusing myself.

WINNEKE, P.: That is why we think it is just under three years of that sentence to run and we have made it clear that the sentence we have imposed today will be running concurrently with the remainder of that sentence.

BATT, J.A.: Then it carries on when the other one cuts out.

WINNEKE, P.: I do not think anybody will misunderstand it and our order will be going to the Corrections Department with our reasons.

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