Regina v Wheeler

LEGISLATION CITED : Crimes Act 1900 Pearce v The Queen - High Court of Australia CASES CITED: Regina v Henry Regina v Budd DECISION : Leave to appeal granted; Sentences imposed in Court below quashed; Re-sentenced as per judgment

1 SULLY J: : Mr Matthew Wheeler applies for leave to appeal against a number of sentences imposed upon him on 19 May 1999 by his Honour Judge Kirkham sitting in the District Court at Gosford. Mr Wheeler had pleaded guilty to seven counts, each of which charged against him a significantly serious criminal offence. 2 Four of the seven matters involved a charge of robbery, a contravention of s 94 of the Crimes Act 1900, attracting upon conviction a maximum statutory penalty of imprisonment for fourteen years. 3 There was a single count of attempted robbery, a contravention of, in combination, ss 94 and 344A of the Crimes Act 1900 and attracting upon conviction a maximum penalty of imprisonment of fourteen years. 4 Counts 5 and 6, the remaining two counts, each charged the offence of robbery in company, such offence being a contravention of s 97(1) of the Crimes Act 1900 and attracting upon conviction a statutory maximum penalty of imprisonment for twenty years. 5 The applicant asked that there be taken into account in connection with his sentencing other matters listed on a Form 1. They involved two matters of assault; and four matters each involving the theft of a motor vehicle. 6 The learned primary Judge dealt with the application as follows: on the first two counts, each of which was a count of robbery, his Honour imposed a sentence of imprisonment for twelve years apportioned between a minimum term of nine years and an additional term of three years; and each such sentence was ordered to be served concurrently. In respect of each of the outstanding five matters, his Honour imposed a sentence of imprisonment for four years as a fixed term, and dated so as to be served concurrently with the sentences passed upon counts 1 and 2. His Honour took into account in the appropriate way the matters that had been placed before him on the Form 1. 7 The seven matters now in point were committed on seven separate days as follows: 5 May 1998, 14 May 1998, 5 June 1998, 21 August 1998, 18 September 1998, 21 September 1998 and 25 September 1998. In other words, the applicant stood for sentence in respect of seven discrete offences committed over a period of some five months. 8 It is appropriate to attend with some care to the particular facts of each offence. 9 The first offence, that is to say the offence committed on 5 May 1998 involved a robbery at the Hornsby Branch of the Westpac Bank. At about 2.30pm on that particular day the applicant entered the bank and approached a particular teller. He asked her for certain directions. She gave them to him. As he left he was seen to scan the counters. At about 3.20 that same afternoon he returned, approached a female teller and passed her a note saying to her words to the effect, "We will shoot". He kept pointing to the note with his right hand while keeping his left hand lowered and out of the teller's vision. 10 He spoke, according to the available evidence, in a distorted tone of voice saying insistently to the teller the words "hundreds, hundreds". The teller handed over an amount of money which totalled $4,000. While all of that was taking place an adjacent teller, suspicious that a robbery might be in course, activated a silent alarm and a security camera. When the applicant left the bank another employee of the bank followed him out and saw him join up with a third party who had been waiting immediately outside the building. The applicant and that third party were thereafter seen to depart from the vicinity of the bank. 11 The second matter charged against the applicant, that is to say the robbery that took place on 14 May 1998, involved a robbery of the Tuggerah Branch of the National Australia Bank. On this occasion the applicant approached a teller and passed her a bag and a note and told her to put all her money in the bag "before I shoot." The teller saw that the applicant had his right hand in his trouser pocket; and she saw something which she thought looked like the barrel of a gun causing the pocket to bulge. 12 Apparently, one of the teller's fellow employees caught sight of the note and told the teller to give the applicant the money that he had demanded. The applicant then told the teller to "fill up the bag". He then took hold of a lady who was in the bank being served by a nearby teller, and announced that he would shoot her, all the time continuing to hold one of his hands in his pocket. Once again the applicant demanded large denomination notes. Presently, the bag filled with notes was handed to the applicant, and he thereupon released his customer hostage, grabbed the bag and ran from the bank. The customer who was dealt with by the applicant in the way that I have described was a twenty-nine year old lady who was in the bank with her little son then aged about two years. She believed that the applicant was, indeed, armed. It surely needs no extended emphasising that her experience, and, indeed, that of the child, must have been simply terrifying. For myself, I think that these circumstances are particularly reprehensible; and, speaking in purely objective terms, give this second robbery a criminality significantly greater than it would in any event have had. It would seem that this robbery yielded some $12,100. 13 The third offence, that is to say the one occurring on 5 June 1998, took place at the North Rocks Branch of the National Australia Bank. On this occasion the applicant approached a teller and passed her a note which read "Money in the bag", and told her "I will shoot you, get the money"; making what appeared to this person to be a deliberate show of pretending to have a gun in his pocket. 14 The particular teller had the presence of mind to activate the security screens, which had the effect of sealing off the bank staff from the customer side of the telling area. The applicant decamped, as it would seem not having actually got hold of any money to take with him. This explains, of course, why he was charged in connection with this matter with the offence of attempted robbery. 15 The fourth matter, that is to say the matter occurring on 21 August 1998, involved the robbery of the Tuggerah Branch of the NRMA. Once again the applicant approached a teller in that institution and handed over a note instructing the teller to hand over the money in the teller's drawer. The teller did so and he was then told to empty the drawer of the adjacent work station. While he was doing that the teller in the adjoining work station apparently queried with his colleague what was going on and was told by the prisoner just to do what she was told and she would not be hurt. On this occasion the prisoner seems to have received from the robbery some $3,400. 16 The fifth count involved a robbery in company at the Marsfield Branch of the Unicorn Credit Union. The applicant and his co-offender entered the relevant premises and the applicant, once again, passed a demand note to a teller; his co-offender simultaneously making a verbal demand for money. 17 The teller had the impression, from what he could see and hear, that the applicant's co-offender was carrying a weapon. The teller emptied some notes from her drawer and an adjacent drawer and handed them over to the applicant and his co-offender. It does not seem that a great deal of money was obtained from this particular robbery. The evidence suggests that it was as little as $150. 18 Of course, the fact that the amount in question was so small does not detract from the objective criminality of the particular crime, that is to say, the crime of robbery in company, which is punishable under the relevant provisions of the Crimes Act, and as I have earlier herein noted, with a severity significantly greater than that attending a robbery in contravention of s 94 of the Crimes Act. 19 The sixth matter occurred on 21 September 1998 and involved, again, a robbery in company, this time of the West Gosford Branch of the National Australia Bank. 20 The applicant's co-offender entered the bank first and seated himself at a desk in the banking chamber. He motioned to the applicant to enter, which the applicant did. The applicant approached a teller holding his right hand in his pocket and a plastic bag in his left hand. He pushed a note towards the teller and said, "Put the money in the bag." The teller told him she could not. She sat down in a rather agitated state, being so nervous that she failed to activate the alarm which was available to her. She did, however, kick a kickboard which activated some form of security alarm or device. There was then a rather vivid verbal exchange between the applicant and the teller; and the applicant and his co-offender, apparently, formed the view that the better course to follow on this particular occasion was simply to leave matters as they were, and to get out of the bank as quickly as they could, which they did, apparently taking no money with them. 21 The final count was a count of robbery involving, on this occasion, the Wyoming Branch of the Westpac Bank. On this occasion the applicant approached a teller, and once again pushed over a note to the teller, at the same time saying to her, "Give me the money and you won't get hurt. I want hundreds and fifties." The teller emptied the large denomination notes into a bag and got himself or herself down onto the floor, no doubt for safety's sake. The applicant then took the money, or the bag containing the money, and decamped from the bank premises. On this occasion the sum of $9,012 was taken from the bank. 22 Each of these crimes, as I have previously summarised the bare facts, was, objectively speaking, a serious breach of the criminal law. Any one of them would have been sufficient to have warranted condign punishment in the form of a significantly severe sentence of full-time imprisonment. Seven such offences, committed individually on different dates over a period of five months, must have in the nature of things a cumulative criminality of a significantly high degree. It is not necessary to repeat now the detail of what has been said time without number by variously constituted Benches of this Court concerning the gravity of all crimes of robbery; the added gravity of crimes of robbery which entail the deliberate instilling of fear into the victims; and the acute public concern to see that crime of that kind is put down with all proper efficiency and severity. 23 Youth, which is a factor presently to be considered in the applicant's case, is not of itself some cloak of convenience behind which people can go around robbing their fellow citizens, and the institutions such as banks and credit unions upon whom those fellow citizens largely rely for personal services essential to them. 24 The learned sentencing Judge took an extremely severe view of these offences. In my respectful opinion, his Honour was entirely justified in so regarding the objective gravity of the offences. 25 It is true that in the applicant's case as, of course, in practically every such case, there were subjective matters to be given their proper place in the scheme of things. 26 The applicant's age, to which I have already briefly referred, was one of those things. The applicant was born on 27 March 1978. He was aged, therefore, a shade over twenty-one years when he stood for sentence in May 1999; and he is now aged almost twenty-two years. When he stood for sentence his antecedents were, to say the least, not helpful to his cause. All of the offences of which I have been speaking were committed by the applicant at a time when he was at liberty on parole serving the additional term of an apportioned sentence that had been imposed upon him in the Penrith District Court and on 29 August 1997 for an offence of armed robbery. 27 He was in breach, as well, of a three-year good behaviour recognizance which had been extended to him by order of that same Court on that same day and in connection with the illegal use of a conveyance. It is, I think, a reasonable inference that the use of the conveyance in question was related in some way or other to the armed robbery. It is to be noted that exactly the same situation occurred in respect of some of the offences now in point: that is to say stolen motor vehicles were used. That circumstance accounts for some of the matters on the Form 1 to which I have earlier referred. 28 The applicant was dealt with in the Penrith District Court for his breach of recognizance. He was dealt with separately by the New South Wales Parole Board in respect of his breach of parole. He was committed to prison for various terms in respect of both of those actions by the authorities. 29 It is prudent to note in terms that the applicant is, of course, not to be punished again for those breaches; but the fact that the crimes for which he is now to be punished were committed while he was at liberty on parole and subject to recognizance, is something properly and sensibly to be kept in mind in connection with the framing of any penalty. There was before the learned sentencing Judge, and in connection with the subjective aspects of the applicant's case, a deal of material which his Honour has summarised in his remarks on sentence, and which I do not think it is necessary now to repeat. 30 The present application has been grounded in two distinct, but in a way complimentary, submissions. 31 It is submitted, first, that the learned sentencing Judge fell into error in that when his Honour came to frame the sentences, he did not take as his starting point the requirement, clearly established as part of the sentencing laws since the decision of the High Court of Australia in Pearce v The Queen, that consideration be given to the appropriate sentence for each individual offence for which the applicant was to be sentenced. 32 It seems to me that there is no denying that his Honour did, in fact, err in that he did not apply his mind in the precise way that Pearce requires to that initial differentiation of individual sentences for the individual offences. That error is, I think, incontestably of such a character as to give rise to the statutory entitlement of this Court to intervene, and to consider for itself afresh the sentencing of the applicant. I shall return presently to that aspect of the matter. 33 The second point of the attack made upon the sentences imposed in the Court below is more broadly conceived. It is based upon the existing statistical material; and it postulates, quite simply, that the present case has been dealt with in a way so severe as not only to put it at the upper limit of the relevant pre-existing range of sentences, but to put it beyond, and measurably beyond, that upper limit. This, it is contended, on its face indicates error in the sentencing process. 34 The correct application to such a case as the present one of the principles established by the decision in Pearce is not by any means a simple matter. Two things not necessarily reconcilable, if indeed reconcilable at all, have to be held in a fair overall balance. 35 One of them is the consideration conventionally referred to in the Courts as the principle of totality. That is to say, the principle that accepts the need, in a case of multiple offences, to adopt an approach which is more discriminating than the approach of simply fixing individual sentences, and then simply aggregating the individual sentences so as to reach a result, which such a process almost inevitably produces, of a truly enormous head sentence. 36 The countervailing factor, no less legitimate, is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose. 37 It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour. 38 As I say, the balance is easy enough to describe but not at all so easy to strike. In connection with its striking, we have been referred to the particular decision of the Court dealing with the cases of Henry and Budd: that is to say, the particular decisions that followed upon, and sought to give effect to, the newly established principles set in place by the guideline judgment of a specially convened five-Judge Bench of this Court in the matter of R v Henry and Budd. 39 The relevant material to which we have been referred in particular, forms part of the judgment of Simpson J in Henry's case. Henry had been convicted of two separate offences, and they were separated by something like twelve months in time. The Court accepted that a sentence of imprisonment for five years would have been appropriate for the first of them, and a sentence of five and a half years appropriate for the second of them. Simpson J took note of a Crown submission, the broad effect of which was that the case would have been one appropriate for the accumulation of those sentences. 40 Her Honour observed, when ruling on that submission, that to accumulate sentences of that order would offend the principle of totality and result in injustice. Her Honour proceeded from that point in her reasoning to the proposition that Mr Henry's sentences should be restructured so as to provide in each case a total term of five and a half years, apportioned in a way that is not now important in its detail as between minimum and additional terms. 41 The present case is not a suitable vehicle for any embarking by a two-Judge bench of the Court upon a critique of the reasoning in that part of her Honour's judgment of which I have spoken. I will simply note, so that my own position with regard to it is established as a matter of record that I do not follow why, if it be accepted that in Mr Henry's case it would have been a breach of the principle of totality simply to have added together the two proposed sentences, - bearing in mind that each of them was said to have been appropriate to the particular individual offence, - it necessarily followed that there was no room for any accumulation; and that the only proper way in which effect could be given to the principle of totality was by, in effect, making concurrent two separate sentences for two separate offences which could not be described, I would have thought by any stretch of the imagination as part of one continuous course of criminal conduct. 42 I presume to express the view that as time passes, and as the approach to sentencing which is now required by the decision in Pearce comes into operation, it will be necessary in particular cases of multiple offenders to come to grips in a serious way with how a point of balance is to be struck between the two extremes of a simple concurrence of sentences for multiple offences; and a simple, and unacceptable, arithmetical aggregation of such individual sentences. 43 I say again that it is of the highest importance, in my view, and with respect to those who might think differently, that such a question not be approached, either in general or in the particular case, in a way which leaves reasonable room to suspect that successive offences are not being taken seriously in terms of what they show as to the contumelious disregard by the particular offender of the requirements of the law. 44 I accept, however, that while the law is in its present condition this Court is bound by the decision in Henry, and ought to consider itself constrained to adopt in broad principle the approach adopted in those portions of the judgment to which I have particularly referred. I shall return presently to the expressing of a view as to how I think that approach should reflect itself in practical terms in the present case. 45 Before doing that, it is appropriate to say something about the alternative basis of the application. As I earlier noted, the alternative basis rests upon an analysis of the relevant statistics available from the relevant information service. Frequently, it is not possible, as the Court has remarked on many an occasion, to do more than to draw from such statistical material more than a bare indication of a range within which it might be thought a proper sentence might lie in the particular case. In my view, it has to be conceded that the available statistical material is of rather more pointed use in the present case, in that it does establish, as I earlier observed, that the sentences imposed on the present application at first instance are, really and literally, in a class of their own when compared statistically to sentences, or rather to the range of sentences, whether expressed as full terms or minimum terms, imposed across the board in respect of offences of robbery and cognate offences. 46 The point is the sharper because the database is fairly extensive. There are 414 statistically analysed cases of simple robbery, and 920 cases statistically analysed in connection with the offence of robbery in company or a cognate offence of robbery being armed. 47 Put in very simple terms, it seems to me that the statistical material would warrant the view that the applicant would be dealt with justly if, instead of a total penalty of twelve years' imprisonment, there was passed upon him a structure of sentences entailing service of an overall sentence of eight years, apportioned between a minimum term actually to be served of six years, and an additional term of two years. 48 If one tests that provisional result against the sort of result that might be achieved by a thoughtful application of the Pearce approach to the present case, then it seems to me that if one were to start with the first offence, looking at an overall sentence in the order of - I repeat in the order of rather than exactly, - four years, and were then to increase it steadily and incrementally, but allowing a larger increment in the case of the second matter which involved the assault of the young lady and her child, and in the fifth and sixth matters, which are the more serious in terms of their statutory maximum penalties, then one would arrive by a process of reasoning at a result much to the same effect as that suggested by the bare statistics. 49 For myself, I would give effect to those combined approaches by imposing in respect of counts 5 and 6 a sentence of imprisonment for eight years divided between a minimum term of six years, and an additional term of two years. I would take into account in connection with the fifth count, the Form 1 matters. I would impose in respect of each of the remaining five matters a sentence of imprisonment of four years as a fixed term. I would date all the sentences so as to entail that they were served concurrently. 50 I, therefore, propose orders as follows: 1. That the application for leave to appeal be granted. 2. That the sentences imposed in the Court below be quashed. 3. That the applicant be re-sentenced as follows: On counts 5 and 6, to imprisonment for a term of eight years, apportioned between the minimum term of six years and an additional term of two years. The minimum term will date from 19 March 1999 and expire on 18 March 2005. The additional term will date from 19 March 2005. In respect of counts 1, 2, 3, 4 and 7 I would in each case impose a sentence of imprisonment for four years as a fixed term to date from 19 March 1999. I propose orders accordingly. 51 CARRUTHERS AJ: I agree. I would merely wish to acknowledge the assistance which has been afforded to the resolution of this important case by the statistical data maintained by the Judicial Commission of New South Wales. I agree with the orders proposed by the presiding Judge and his reasons therefor. 52 SULLY J: The orders I propose are the orders I have announced. Mr Wheeler, that means that we have reduced your sentence to some significant extent. Instead of twelve years it will be eight years; and instead of nine years it will be six years. That is the practical effect. Do you follow? APPLICANT: Yes, thank you.

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