Regina v Carlos Gonzalez; Regina v Francisco Javier Gonzalez

IN THE COURT OF CRIMINAL APPEAL 60758/01 60759/01 SMART AJ BLANCH AJ

Friday, 19 July 2002 REGINA V CARLOS GONZALEZ REGINA v FRANCISCO JAVIER GONZALEZ

JUDGMENT

1. SMART AJ: Carlos Gonzalez and his elder brother Francisco Javier Gonzalez each seek leave to appeal against sentences of imprisonment imposed upon them in respect of 20 counts of robbery while armed with an offensive weapon and one count of assault with intent to rob being armed with an offensive weapon (Count 20). Details of the sentences imposed are as follows: Count Period Sentence

1-11 18 Feb 2001 to On each count fixed term 6 March 2001 of 3 years from 26 March 20 23 March 2001 2001 to 25 March 2004

12-18 9-17 March 2001 On each count fixed term of 3 years from 26 March 2004 to 25 March 2007

19 & 21 22 & 24 March 2001 On each count imprisonment for 6 years from 26 March 2007 to 25 March 2013 with a non-parole period of 3 years expiring on 25 March 2010 Thus the effective head sentence was 12 years and the effective fixed term/non-parole period was 9 years. 2. The applicants were arrested on 26 March 2001 and have been in custody ever since.

This Court has the benefit of detailed and careful remarks from the sentencing judge. He has set out the facts in relation to each offence. Reference should be made to those remarks for the detailed facts.

The judge took the view that broadly the offences were committed in the three time periods outlined above. Upon their arrest each of the accused co-operated fully with the police. They made full admissions and on occasions identified themselves as the persons shown in the photographs or films taken from the video cameras in the premises where they had carried out the offences. They pleaded guilty before the magistrate at the earliest opportunity.

The offences were committed whilst the applicants were addicted to heroin. That was the root cause of their offending. They needed money to buy drugs. The judge held that their drug taking was neither a matter of mitigation or aggravation. At the time of the offences the applicants were under the influence of heroin to varying degrees.

Some 14 of the offences were committed in circumstances where there was video evidence which identified the offenders with varying degrees of accuracy. With seven of the offences there was no video imaging and there may have been identification difficulties. The fingerprints of Francisco Gonzalez were located at one of the sites of the later robberies.

Francisco Gonzalez was initially armed with a baseball bat and later with a long yellow handled screwdriver. In respect of each offence he wore the same clothes, that is, a black Nike cap, a black jacket with white stripes and hood and beige Adidas pants with black stripes.

Carlos Gonzalez was armed with a black handled knife, the blade of which, when extended, was about four inches long.

Needing cash, the applicants selected an area in which to carry out an armed robbery and then selected a soft target within the area. The targets selected all involved persons working in retail positions in vulnerable situations such as convenience stores or petrol station shops (console operators) either late at night or early in the morning. Mostly, the victims were working on their own.

Usually the mode of operation was that one brother would select an item for purchase or offer to buy cigarettes and as the attendant began the transaction with the till the other would move behind him and cause the till to be opened. Frequently a knife was produced. There were variations but the role of one brother was to engage the attendant while the other moved into position to enforce the demands for money, phone cards and cigarettes, all of which were taken in variable amounts depending on what was available. Overall, considerable quantities of money and phone cards were involved. There were occasions when the applicants obtained very little. The attendants or console operators were generally fearful of being injured and much affected by their experiences. Some premises were visited more than once with, on occasions the same attendant being involved in each visit.

The judge summarised the position thus: "As the outline of facts has shown, both prisoners participated in each of the robberies to an equal degree. They established a modus operandi pattern and each adopted a well settled role in relation to the robberies. They became, in effect, a practised team, one using a subterfuge by way of a purchase to obtain access to the attendant and the till, and then the other, whilst the attendant was distracted, using the threat of a knife to compel the attendant to open the till to give access to cash, or cash and phone cards, and then, if available, cigarettes. It was usually Carlos Gonzalez who waited near the console, armed with a knife, to compel the attendant to open the till once Francisco had approached to carry out the bogus purchases."

As the judge imposed the heaviest sentences on Counts 19 and 21, I set out the judge's summary of the facts as to each of these counts: " Count 19. At about 10pm on Thursday 22 March 2001 the prisoners returned to the Quix Service Station at Lindfield. This service station was subject to the robbery subject of count seven. Francisco Gonzalez approached the attendant and asked for two packets of cigarettes. As he did so, Carlos Gonzalez approached the console and told the attendant to open the till, and then produced a black handled knife. Carlos Gonzalez pressed buttons on a coin dispensing safe and took two $20 notes, but the attendant managed to activate the alarm. Carlos Gonzalez grabbed a number of notes from the till and a quantity of cards from under the till and Francisco Gonzalez demanded and was given four packets of cigarettes. The prisoners ran from the scene. $120 in cash, $8.91 in cigarettes and $400 in phone cards were stolen. The victim was an eighteen year old console operator who was alone, late at night, in a vulnerable position. That is underscored by the comment that was made to the police that the victim allowed the guys to take the money because one of them had a knife and the victim was scared he might be knifed if he did not do what he was told. The victim was still feeling a bit shocked about what had happened and would be glad once the guys were caught." and " Count twenty-one . The last offence, which is count twenty-one, took place on Saturday 24 March 2001 The victim on this occasion had the misfortune to be the same attendant as that who was robbed in the offence which is the subject of the third count in the indictment. At about 12.40am the prisoners entered the 7-Eleven store at Drummoyne. They approached the attendant and Francisco Gonzalez asked for a packet of cigarettes, at which time Carlos Gonzalez came around the side of the counter and produced a knife and told the attendant to open the till. Carlos Gonzalez removed money from the till and Francisco Gonzalez asked for the phone cards and the attendant opened a drawer and Carlos Gonzalez removed a quantity of cards. Francisco Gonzalez then asked the attendant for his wallet, but when told he did not have one he asked for the attendant's mobile phone. When the attendant refused, both men left. The attendant identified the two who robbed him as the same two who had previously robbed the service station." 13. Carlos Gonzalez was born on 16 January 1978. He has two convictions in 1997 for minor drug related offences for which he was fined. He had a normal upbringing and his family remain supportive. He has a close relationship with his elder brother, his co-offender. After his release he intends to return to Spain with his parents. While his early schooling was in Australia he continued schooling in Spain to the equivalent of the Year 10 certificate. His employment has been with his family's businesses, namely in family-owned cafes in Spain and with his father in Australia in a cement rendering business. He was a consistent and co-operative worker while on remand who was often placed in trusted positions. He has expressed remorse.

14. He began using cannabis at sixteen and by nineteen was smoking heroin. A month prior to being gaoled he was using heroin on a daily basis. Initially he financed his heroin from his employment but was unable to continue financing his need from that source and embarked upon the robberies.

15. Since he has been in gaol, Carlos Gonzalez has sought the assistance of the Drug and Alcohol Services. For sentencing purposes the judge accepted this assessment made by the Probation and Parole Officer: "Records here advised that Mr Gonzalez presented with a maturity and remorse that had previously been absent at the time of his last pre-sentence report. He is able to identify criminogenic factors that are involved in his offending and has attempted to access drug and alcohol services whilst in custody. Of concern is Mr Gonzalez' continued association with his brother who is the co-offender of the current offences as they would appear to have a strong relationship and it is possible, given their history of drug use together, that if one should relapse into drug use the other may follow.

Although there are limited services available in his current custodial environment, it is the writer's opinion that given his current level of motivation Mr Gonzalez would benefit from ongoing counselling focused on relapse prevention." 16. The applicant has attended Narcotics Anonymous meetings since he has been in gaol and has expressed interest in gaining admission to a rehabilitation centre. The judge accepted that Carlos Gonzalez has been drug free since being gaoled and that he was making a deliberate attempt to deal with the question of his drug addiction within the resources which were available to him in the gaol.

The judge accepted a joint letter from the applicants in which the robberies were described as cowardly and they apologized to the victims and their loved ones, the community, the businesses and to the court. The judge quoted this passage from the joint letter: "To upset, traumatise another human being in such a manner is totally inexcusable, and do (sic) expect full responsibility for our actions. We also acknowledge how serious these crimes are, therefore we should and will be severely dealt with.

A drug addiction led us to a state of unprincipled demeanour." They had written to others to the same effect.

He estimated in his police recorded interview that he was spending about $100 to $150 per day on his heroin habit. The judge stated that the antecedent criminal record of Carlos Gonzalez was not a good one and was not such as to entitle him to any leniency. I do not regard the two relatively minor drug offences in 1997 and a further matter referred to in the Pre-Sentence report but not in his record as disentitling the applicant to all leniency. There was apparently an earlier offence. No details have been provided. He was apparently sentenced to 4 months periodic detention in 1996. He is entitled to some leniency but not the full measure of leniency to which he would be entitled if he had no convictions.

The judge considered that with his family support and his attitude towards drugs Carlos Gonzalez had prospects of rehabilitation and that they constituted special circumstances.

Francisco Gonzalez was born on 9 February 1975. In November 1994 he was fined for larceny. In April 1995 he was dealt with for some 12 offences including two counts of break, enter and steal, two counts of stealing, two counts of possess housebreaking implements, driving offences, resist police and failures to appear. He was sentenced to imprisonment for 7 weeks, ordered to perform community service and placed on recognizances to be of good behaviour for 2 years. On 3 April 1996 he was sentenced on each three counts of larceny to a minimum term of 9 months with an additional term of 3 months concurrent. He was also sentenced on two counts of breaching a Community Service Order. In December 1996 he was sentenced for failure to appear, driving offences and breaches of recognizance (4 counts) to 7 days imprisonment and fined. In April 1999 he was sentenced to home detention of 6 months with an additional term of 2 months for making a false statement to obtain money. During the home detention he completed a real estate practice course at TAFE and attended a drug and alcohol education programme at an attendance centre. His levels of cannabis were significantly reduced over that period.

Francisco Gonzalez has also lived part of his life in Spain (his country of origin) and part in Australia. His upbringing was normal. He has a close relationship with his family who are very supportive. After his release he intends to return to Spain with his parents who are selling the family home to do so. He had been in a relationship for about four years prior to sentencing, but his partner had a drug problem and he has had limited contact with her.

He completed his schooling in Australia to Year 10. He worked in Spain with his father in the family café businesses. He next worked for the Ambulance Service for two years. On his return to Australia he was employed by his father's business as a painter/plasterer. He is literate in Spanish and English and the welfare staff at the gaol made positive reports of the assistance he has offered and given in translating for Spanish speaking inmates. On remand he was a consistent and co-operative worker who is also often placed in trusted positions. He expressed remorse to the Probation and Parole Officer and attributed his offences to drug use. He asserted that he was under the influence of drugs when he committed the offences. He related the following history to the officer. He began using cannabis when aged 15. This developed into daily use. At the age of 17 he experimented with cocaine, heroin and speed. 23. Following his release from Home Detention in 1999 his supplier of cannabis began adding heroin. He initially smoked the substances but then injected heroin on a daily basis prior to his arrest, spending about $500 a day to finance his use. He also used additional other substances including LSD, cocaine and ecstasy on an irregular basis. He initially financed his heroin use through the proceeds of his employment but this proved to be insufficient. He committed the offences to finance his use.

24. The judge accepted this summary by the Probation and Parole Officer of Francisco's position: "Mr Gonzalez is able to identify criminogenic factors that are involved in his offending and has attempted to access drug and alcohol services whilst in custody. Of concern is Mr Gonzalez continued association with his brother who is the co-offender of the current offences as they would appear to have a strong relationship and it is possible given their history of drug use together that if one should relapse into drug use the other may follow. Although there are limited services available in his current custodial environment, it is the writer's opinion that given his current level of motivation Mr Gonzalez would benefit from ongoing counselling focused on relapse prevention."
25. Francisco had attended Narcotics Anonymous meetings in gaol and evinced interest in being admitted to a rehabilitation centre to overcome his drug addiction. He has also joined in the written apology earlier mentioned.

26. In his recorded interview Francisco admitted each of the offences, identified his brother as his accomplice and expressed much remorse. He estimated that at that time his habit was costing him $800 per day. He stated that the need to get money to buy drugs was the reason he committed the robberies.

27. The judge held that each of the applicants participated equally and willingly in the offences. Whilst acknowledging that their antecedent criminal records were different and after considering the matter of parity, the judge thought that each of the applicants should receive the same sentence "in the particular circumstances of these offences and having regard to the way in which they were committed."

28. Relying on the Pre-sentence and gaol reports the judge was satisfied that the applicants had changed their attitudes, were contrite and should be given credit for their contrition. The judge said: "I have taken their contrition into account quite separately in coming to the head sentence before I make any deduction for the utilitarian value of the pleas."
29. The judge, after noting that both applicants had fully co-operated with the police, entered their pleas of guilty at the earliest opportunity and that questions of identity could have arisen as to the seven offences, said: "The utilitarian value of the pleas in each of the situations is … overall the same. I intend to allow a twenty five per cent reduction in the head sentences, after making allowances for all the necessary subjective and other matters, including the plea of guilty and contrition."
30. The judge made clear what he meant when he formulated the individual sentences. His starting point for each of the offences in counts 1-11 (the first group) and count 20, taking into account all the subjective factors and contrition was one of 6 years. He reduced that period by 25 per cent for the utilitarian value of the plea of guilty (the facilitation of the administration of justice) and arrived at a concurrent head sentence on each of counts 1-11 of 4 years 6 months. Because of special circumstances he fixed a non-parole period of 3 years. As to counts 12 to 18 (the second group) for the same reasons he fixed the same sentences on each count to be served concurrently with each other but cumulatively to the sentences imposed on counts 1-11. As to counts 19 and 21 (the third group) the judge's starting point was one of 8 years which he reduced to 6 years. He fixed a non-parole of 3 years.

31. When he came to actually impose the sentences the judge sentenced the applicants to concurrent fixed terms of 3 years on each of counts 1 to 18 and 20, those on counts 12 to 18 being cumulative to those on counts 1-11 and 20. The judge found special circumstances and imposed the concurrent sentences earlier mentioned on counts 19 and 21. The judge stated that he had taken totality into account. The accumulation of sentences constituted special circumstances. In setting the fixed terms on counts 1-18 and 20 the judge also took special circumstances into account. The fixed terms selected included an allowance which had been based on special circumstances (4½ years head sentence, 3 years non-parole period). The favourable prospects of rehabilitation in each case coupled with the family support constituted special circumstances as the judge found.

Appeal Ground 1 reads: "His Honour erred when he found in relation to the third group (counts 19 and 21) that there had been an 'acceleration in the criminality'."

33. Counts 19 and 21 occurred on 22 and 24 March 2001, that is at the end of the spree of armed robberies. Count 19 involved the applicants revisiting the service station mentioned in count 7, holding up the console operator with a knife and stealing cash, cigarettes and a pre-paid phone card (or cards). Count 21 involved the applicants revisiting the convenience store mentioned in count 3, holding up the same attendant with a knife and stealing cash, cigarettes and a phone card (or cards).

34. There was no error in the judge remarking that by the time of counts 19 and 21 "there had been an acceleration in the criminality." As the offences accumulated, the applicants' prospects of being entitled to leniency ebbed. The court was looking at a period of sustained and repeated criminality.

35. Further, there was no error in the judge dividing up the offences into three groups and accumulating the sentences.

Appeal Ground 2 reads: "The manner in which the sentences were structured resulted in an outcome which failed to properly reflect the finding of special circumstances."

The applicants submitted that the ultimate effect of the sentences was that the applicants were required to spend three-quarters of their total sentences in custody. Counsel for the applicants accepted that the judge correctly applied the requirements of s.44 of the Crimes (Sentencing Procedure) Act 1999 when imposing each discrete sentence but submitted that the ultimate result failed to adequately reflect his findings. This submission overlooks, in part, the benefit the applicants received in the judge setting fixed terms which allowed for the findings of special circumstances. Overall, on counts 1-18 and 20 the applicants received a benefit by way of special circumstances of 9 months. Three-quarters of 4 years 6 months is 3 years 4½ months and this has to be allowed for twice because of the cumulative sentences. This ground fails.

Appeal Ground 3 reads: "The sentences imposed and the manner in which they are structured, resulted in a total sentence that is manifestly excessive."

The applicants accepted that the totality of criminality involved in the individual offences and the number of offences was serious and substantial as the deployment of weapons and putting the attendants in fear evidenced. However, it was submitted, and probably correctly, that actual violence was never contemplated. For example, when one attendant refused to open the till and drove the applicants from the shop producing a shovel (count 12) the applicant fled. On a further occasion when the attendant refused to give the applicants any money from the till and said he had no phone cards the applicants left (count 20). On another occasion when Francisco Gonzalez demanded the attendant's mobile phone, the latter refused and the applicants left (count 21).

The applicants submitted that as all the criminal acts took place within a discrete period (18 February-24 March 2001) it was artificial and arbitrary to divide the offences into three groups. I do not agree. It was submitted that this division became the rationale for a double accumulation of sentences. I do not agree. It was open to the judge to take the course which he did.

The applicants contended that the sentences did not sufficiently reflect the strength of the subjective factors of the applicants.

In R v Antecki [2001] NSWCCA 312 the applicant was sentenced for eight armed robberies and two attempted armed robberies. On one count a further thirteen offences of armed robbery and one of attempted armed robbery were taken into account the effective head sentence was 11 years and the effective non-parole period was 7 years. The Court in that case was dealing with 24 serious offences. The method of operation was similar to that in the present case. The victim in each instance was a console operator. The prospects of rehabilitation were above average. He had a disadvantaged childhood. He was aged 18 at the time of the offences and the subjective features were strong. The pleas of guilty were entered at the earliest opportunity. This Court varied the effective head sentence to 9½ years with a non-parole period of 5½ years, endorsing the sentencing judge's finding of special circumstances. This Court took the view that as all the offences formed part of one series of criminal events it was appropriate for there to be a degree of partial concurrency in the sentences imposed and that the sentences did not adequately reflect the principle of totality.

This Court was referred to a series of other cases, namely, R v Fleming [1999] NSWCCA 142, R v RLS [2000] NSWCCA 175, R v Lay [2000] NSWCCA 30, R v SD [2000] NSWCCA 43, R v Uasi [1993] NSWCCA 306 but in each of those decisions the facts were sufficiently different to result in those decisions not being of much assistance. The present case must be distinguished from those where physical harm was inflicted or people were tied up or made to lie on the floor or were herded into a particular space.

The sentences imposed do not adequately reflect the subjective features of the applicants and particularly the principle of totality. The correct application of the principle of proportionality leads to the conclusion that Carlos should receive a slightly lesser sentence than Francisco. The judge was incorrect when he held that Carlos' record of prior offences disentitled him to any leniency. Francisco's record was appreciably worse.

As to Francisco Gonzalez the correct result can be achieved by a slight reduction in the sentences for counts 19 and 21 and some overlapping of the sentences. I would not disturb the sentences imposed on counts 1-18 and 20. They already reflect special circumstances. Lower sentences could not have been imposed on those counts and the accumulation was correct. Special circumstances exist as to counts 19 and 21 being the accumulation of the sentences and the favourable prospects of rehabilitation.

In the case of Carlos Gonzalez there should be a small reduction in the sentences and some overlapping in the sentences to allow some credit for his better record and the principle of totality. Special circumstances exist and include the accumulation of the sentences and the favourable prospects of rehabilitation.

49. Francisco Gonzalez (i) Leave to appeal granted; appeal allowed in part (ii) Dismiss the appeals against sentences on counts 1-18 (both inclusive) and count 20. (iii) Appeal against sentences on counts 19 and 21 allowed; those sentences quashed. In lieu the applicant is sentenced to imprisonment for 5 years 6 months starting on 26 March 2006 and ending on 25 September 2011 with a non-parole period of 2 years 10 months commencing on 26 March 2006 and ending on 25 January 2009 on which date the applicant will be eligible for release on parole. (The effective head sentence is thus 10 years 6 months and the effective non-parole period is 7 years 10 months).

50. Carlos Gonzalez (i) Leave to appeal granted; appeal allowed; sentences quashed. (ii) In lieu the applicant is sentenced to imprisonment for a fixed term of 2 years 8 months on each of counts 1-11 (both inclusive) and count 20 to commence on 26 March 2001 and to end on 25 November 2003 and to imprisonment for a fixed term of 2 years 8 months on each of counts 12-18 (both inclusive) to commence on 26 November 2003 and to expire on 25 July 2006. On counts 19 and 21 the applicant is sentenced to imprisonment for 5 years 4 months commencing on 26 July 2005 and expiring on 25 November 2010 with a non-parole period of 2 years 10 months commencing on 26 July 2005 and expiring on 25 May 2008 on which date the applicant will be eligible for release on parole. (The effective head sentence is thus 9 years 8 months and the effective non-parole period is 7 years 2 months).

51. BLANCH AJ: I agree with the orders proposed by Smart AJ.

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