Scott Raymond Brown v Regina

[3] The appellant has never had a conviction for an offence of violence. A sentence of 10 years with a non-parole period of 8 years for armed robbery in company is too severe. 58 The third of the grounds propounded is unsound in fact. The appellant's head sentence on each of the two aggravated armed robberies charged in counts 2 and 3 of the indictment was one of imprisonment for 8 years with a non-parole period of 6 years. Had the sentence passed upon the appellant for these two offences been in fact one of 10 years with a non-parole period of 8 years, I would have rejected out-of-hand the submission that such a sentence was manifestly excessive. The robbery was premeditated. From first to last it was accompanied by violence and threats of violence. During the course of the robbery a .38 calibre revolver was presented to the victims and was fired once in such a way as to coerce the victims into complying with the outrageous demands being made upon them by their attackers. Any armed robbery in company is a serious breach of the criminal law. Any such breach attracts a statutory maximum penalty of imprisonment for 25 years. A head sentence of about one-third of the statutory maximum, passed in respect of each of two related offences and ordered to be served concurrently, cannot be regarded, on any sensible view, as excessive when the relevant criminal culpability is balanced sensibly against the relevant subjective factors, all of which the learned sentencing Judge correctly identified and brought fairly to account. 59 It is correct to say, and as the appellant submits, that his antecedent criminal record did not contain a conviction for a crime of violence. The record was, nevertheless, a very bad one. It embraced a significant number of offences some of which involved breaking, entering and stealing. Others of the offences in the antecedent record were serious driving offences; and there were some drug-related offences. The record showed a breach of a community service order and three instances, one in 2000, one in 2003 and one in 2004 of imprisonment for periods ranging from a low of 6 months to a high of 3 years with a non-parole period of 18 months. The appellant, when he stood for sentence on 22 February 2005, so stood with an antecedent criminal record which could fairly be regarded as having manifested a marked disregard for the law. 60 Generally as to the points now taken by the appellant, the correct starting point is a simple one and it is stated succinctly by Gleeson CJ in his Honour's concurring judgment in R v Mills, unreported, NSWCCA 3 April 1995. His Honour there says: "For the sake of the appellant's determination to get his hands on a few hundred dollars, an innocent person lost his life. This is a case of murder involving a very high degree of seriousness." 61 It is the case, as the appellant points out in his written submissions, that there is an abundance of authority, to much of which the appellant's submissions refer in terms, for the proposition that incarceration in protection is an additional hardship to the particular prisoner and that the incidents of such additional hardship are available to be taken into account in mitigation of sentence. 62 That the factor is available to be taken into account in mitigation of sentence does not mean that it is automatically to be weighted in such a way as will entail, more or less as a matter of course, that, no matter how heinous the particular crime or crimes for which punishment is being imposed, incarceration on strict protection must have the effect of reducing an otherwise proper sentence. 63 It is trite that a sentencing Judge must bring into a fair and sensible balance the objective criminality of the particular crime or crimes and such subjective matters as are properly available to be called in aid by the person standing for sentence. It is, however, important always to keep in mind that the striking of that balance in a way that is correct in point of legal principle, entails a need to be careful that subjective considerations do not simply swamp the relevant objective criminality. 64 As I have said, the robbery of the Retravision store was a premeditated crime that was, from first to last, instinct with violence. In the aftermath of the carrying out of that joint criminal enterprise an innocent man was shot to death at point blank range in broad daylight on the footpath of a public street. The appellant sought to argue that Mr. Rawas was an unprovoked aggressor of the co-offender Hudd; and that he had been shot by Hudd in self defence. The appellant submitted in terms that Mr. Rawas ought not to have accosted Hudd; but should have simply called for assistance from the police. I consider that such an argument is affronting, both to common morality and to common sense, and I would reject it out of hand. All five of the crimes of which the appellant was convicted, - and in my opinion correctly convicted on the evidence, - were appalling crimes, the proper punishment of which called for appropriately severe sentences. 65 The effect of the way in which the learned sentencing Judge structured the sentences passed by his Honour upon the appellant was to impose an effective head sentence of imprisonment for 21 years and 10 months with an effective non-parole period of 16 years and 10 months. The appellant has submitted that he should receive from this Court a reduced head sentence of imprisonment for 15 years with a reduced non-parole period of imprisonment for 11 years, both those periods to be dated from 14 October 2003. In my opinion that submission ought to be firmly rejected. As overall punishment, according to proper principle, for a cold-blooded murder; for two premeditated armed robberies in company, each of which was accompanied by egregious violence; for a malicious wounding with intent to do grievous bodily harm; and for an assault in company occasioning actual bodily harm; neither the overall head sentence nor the overall non-parole period can reasonably be regarded as appellably excessive. 66 I would grant leave to appeal against sentence. The appeal against sentence should be dismissed.

5. Orders 67 In my opinion the Court should order:

1. that the appeal against convictions be dismissed;

2. that leave be granted to appeal against the sentences passed at first instance;

3. that the appeal against those sentences be dismissed. 68 LATHAM J: I agree with Sully J. **********

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