Moore v R [2010] NSWCCA 188 (14 October 2010)

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Moore v R [2010] NSWCCA 188
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/6973

HEARING DATE(S):
19 August 2010

JUDGMENT DATE:
14 October 2010

PARTIES:
Kevin John Moore (Applicant)
Crown (Respondent)

JUDGMENT OF:
McClellan CJatCL Hall J Davies J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/6973

LOWER COURT JUDICIAL OFFICER:
Black DCJ

LOWER COURT DATE OF DECISION:
19 August 2009

COUNSEL:
C Loukas (Applicant)
V Lydiard (Respondent)

SOLICITORS:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - sentence - armed robbery - 2 offences committed whilst Applicant on parole for similar offences - toy gun used to commit offences - extent of accumulation - sentences manifestly excessive.

LEGISLATION CITED:
Criminal Appeal Act 1912
Criminal Code

CATEGORY:
Principal judgment

CASES CITED:
Baleiovalau v R [2009] NSWCCA 153
Graham v R [2009] NSWCCA 212
McIver v R [2010] NSWCCA 7
Pearce v The Queen (1998) 194 CLR 610
R v Berrell [2003] NSWCCA 85
R v Majstrovic [2000] NSWCCA 420
R v Readman (1990) 47 A Crim R 181
R v Spinks [2005] NSWCCA 459
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Spinks v R [2007] NSWCCA 52
Ta v R [2009] NSWCCA 196

TEXTS CITED:

DECISION:
(1) Leave to appeal granted. (2) The sentences imposed by the District Court on 19 August 2009 are quashed.
(3) In lieu the Applicant be re-sentenced in respect of Counts 1 and 2 on the indictment as follows - Count 1: Sentenced to 10 years imprisonment commencing 31 December 2008 and expiring on 30 December 2018 with a non-parole period of 6 years commencing 31 December 2008 and expiring 30 December 2014. Count 2: Sentenced to 10 years imprisonment commencing 31 December 2010 and expiring on 30 December 2020 with a non-parole period of 6 years commencing 31 December 2010 and expiring 30 December 2016.

JUDGMENT:

3 DAVIES J: On 9 June 2009 the Applicant pleaded guilty to 2 charges of armed robbery counts with a dangerous weapon.

4 He was sentenced on 19 August 2009 by Judge Black in the District Court as follows:

The overall sentence was one of fifteen years with a non-parole period of 10 years.

5 The maximum sentence for these offences is 25 years imprisonment. There is no statutory non-parole period.

6 In respect of Count 2, 2 offences on a Form 1 were taken into account. The first was an offence of take and drive a conveyance being a Ford Focus used in the robberies. The second offence was receive property stolen outside New South Wales, being the number plates on the Ford Focus stolen from another car in Queensland.

7 The Applicant now seeks leave to appeal on the grounds that the sentences were manifestly excessive.

8 The sentencing Judge did not detail the facts upon which he proceeded. A Statement of Facts was tendered and the sentencing Judge makes reference to them but only in connection with the Form 1 offences. It appears from that Statement that the facts are what follows.

9 In mid-December 2008, the Applicant went to a toyshop in Queensland and bought a plastic gun for $2.00. On 13 December 2008 he hired a Ford Focus from Thrifty Car Rental at Brisbane Airport. The rental agreement was completed in his own name and provided for the return of the car on 17 December.

10 The Applicant then replaced the registration plates on the vehicle with plates he had removed from an abandoned car in Spring Hill, Queensland. He then drove to the Northern Rivers area of New South Wales.

11 On 17 December, when the Applicant failed to return the rental car, it was reported stolen to Queensland Police.

12 On Tuesday 23 December 2008, the Applicant was driving the Ford Focus through Lennox Head when he saw the Southern Cross Credit Union branch on Ballina Street, and decided to commit an armed robbery. He looked for an escape route around the back of the Credit Union. He parked the car on Ballina Street and walked a short distance to the Credit Union.

13 At about 3:30pm, the Applicant entered the Credit Union carrying the plastic gun and a blue denim Billabong backpack. On his head, the Applicant was wearing a red piece of material across his face, a cap and wrap-around sunglasses. He approached the counter area, where Marjorie Hillier and Michael Estreich were working next to each other.

14 The Applicant pointed the gun at Mr Estreich's stomach area and said, "Give me all your money". At one stage, Ms Hillier wondered whether or not it was a real gun but was not prepared to take any chances. Fearing for their safety both employees immediately complied, and handed to the Applicant a total of $5,814.85 cash.

15 The Applicant walked out of the Credit Union, down the side and around the rear of the building, then back to the car and drove away.

16 On Tuesday 30 December 2008, the Applicant drove to Tweed Heads Shopping Centre. He walked past the Southern Cross Credit Union housed within the centre, and briefly observed the operation of the Credit Union. He planned to commit another robbery there.

17 The following day, Wednesday 31 December 2008, the Applicant returned to Tweed Heads Shopping Centre. He drove there in the stolen Ford Focus still bearing the substituted registration plates that had been taken from another car in Queensland. He parked in the underground car park and walked upstairs to the Credit Union.

18 At about 9:40am, the Applicant walked into the Southern Cross Credit Union in the Tweed Heads Shopping Centre. On his head he was wearing a peaked cap, sunglasses and a piece of material tied around his mouth, concealing his face. He was carrying the same plastic gun and was also carrying a white shopping bag.

19 The Applicant walked up to the counter area where Ashlea Evans and Anne-Marie Piper were working. He pointed the gun at Ms Evans' chest and said in a loud angry tone of voice, "Give me everything you've got", as he looked between her and Ms Piper. Fearing for her safety, Ms Evans complied. When the Applicant saw the notes that she had produced he said, "You've got to have more than that". The Applicant took the notes from Ms Evans and then walked over to Ms Piper.

20 The Applicant said to Ms Piper, "Give me all your money", as he stood about one metre away from her. She also handed cash over to the Applicant.

22 As this was occurring, 62 year old John Whitta walked past the Credit Union and observed the robbery. He realised immediately that the gun was plastic or a replica but could see that the women in the credit union looked terrified; one was shaking uncontrollably. He walked inside and said to the Applicant, "It's no good getting the girls to hurry because you're not getting out the door. You've gotta get past me".

23 The Applicant attempted to run past Mr Whitta who crash-tackled him to the ground. A wrestle ensued and other witnesses came to Mr Whitta’s assistance. Another witness realised that the gun was a fake. The witnesses subdued the Applicant until police arrived.

24 Ms Evans was shaken and could not stop crying. She had been very scared and afraid that she may be shot if she did not comply with the Applicant’s demands. Ms Piper was also crying and shaking. She thought that the gun was real and may have been loaded.

25 Police arrested the Applicant and located the cash and the replica gun. Police later recovered the Ford Focus and found the Billabong backpack used in the Lennox Head robbery.

26 The Applicant was taken back to Tweed Heads Police Station where he participated in an ERISP. He made full and frank admissions in relation to the offences.

27 The Applicant admitted that he took the number plates off an abandoned car in Queensland, before swapping them with the number plates on the rental car. He admitted buying the gun from a Queensland toy store a couple of weeks before the first offence for $2.00.

28 Before he left Queensland on 13 December, he had been working full-time as a warehouse storeman in Brisbane for about 18 months.

29 He said that the decision to commit the Lennox Head robbery was made about an hour before he committed the offence. He thought that the tellers had given him the money without him having to make any verbal demands. He had the plastic gun out but he did not raise it because the tellers just started giving him the money.

30 The Applicant said that he spent some of the approximately $5800 on living, but most of it on gambling. He said that in the days after the Lennox Head robbery, he lost $4000 in one day gambling at the Brunswick Heads Hotel.

31 In relation to the Tweed Heads robbery, he admitted that he planned to commit the robbery the previous day. He said that he approached the tellers with the same plastic gun in his hand and demanded money. He could not recall whether he pointed the gun directly at them. He intended to use the money to live because he was short of money, and he is a gambler.

32 The Applicant was aged 55 at the time of sentence. Apart from what must be considered as 2 minor offences of forgery and uttering in 1972, the Applicant had no criminal record until July 1990. His record thereafter is as follows, all offences being committed in Queensland:

DATE	OFFENCE	SENTENCE
31/07/90	1. Possession of concealable firearm whilst not licensed 2. Stealing	On each charge, discharged under section 657A Criminal Code on entering a recognisance of $200 to be of good behaviour for 2 years.
18/08/95	Steal with actual violence whilst armed with a dangerous weapon (7 charges on and between 21/12/94 and 30/5/95)	On each charge, 10 years imprisonment to be served concurrently with a recommendation for parole after 3 years.
12/10/01	Robbery with actual violence - armed with a dangerous/offensive weapon/instrument (7 charges on and between 5/1/99 and 10/11/99)	On all charges, convicted and sentenced to 7 years imprisonment cumulative on the prior sentence. Defendant declared to be a serious violent offender.

33 The Applicant was released to parole in Queensland on 31 May 2007 and that parole was to have expired on 3 April 2013.

34 His Honour had before him a report from a psychologist, Mr Allan Andreasen, which detailed the background of the Applicant and identified why it was that he commenced a life of crime at the time he did. The material in this report was consistent with what was in the Probation and Parole Service Pre-sentence Report which was also before the sentencing Judge.

35 Mr Andreasen’s report disclosed that the Applicant had been sexually assaulted by a Cub master when he was aged between 10 and 12 years. The sexual assaults only ceased when he left the Cubs at the time he was due to join the Scouts. His mother appears not to have believed him when he told her about the sexual assaults at the time.

36 He left school after Year 12 and seems to have been in consistent employment with the Local Council, ending up as manager of its Health Department. He married and had 3 children. His work caused him to neglect his family and the marriage eventually broke up. At that time he resigned from his position on the Council. He then started to gamble. His father had originally introduced him to gambling as a teenager, it being the only interest they then had in common.

37 When he started gambling after his marriage broke down he got into financial difficulty and that was what led to the bank robberies.

38 His Honour outlined the 2 offences charged and then said that the Applicant was entitled to a full discount for his early plea. He noted that the offences charged were committed whilst he was on parole in Queensland.

39 His Honour noted the Victim Impact Statements from 2 of the persons who worked in the branches of the Credit Union. His Honour then made reference to the report from Mr Andreasen and in particular to the statement made by the Applicant to Mr Andreasen that he had not realised what the effect of what he was doing would have on the employees in the premises he robbed. His Honour said he was not prepared to find that that was untrue.

40 His Honour noted that the offences were separate and that because of what was said in Pearce v The Queen (1998) 194 CLR 610 there would have to be some accumulation of the sentences.

41 His Honour said that the offences were very grave and the 2 aggravating features were the Applicant’s prior record of similar offences and the fact that the offences for which sentence was being passed were committed whilst the Applicant was on conditional liberty.

42 His Honour said he could not find on the Applicant’s track record that he was unlikely to re-offend. He said whilst he was not saying the Applicant had good prospects of rehabilitation, he took the view that it was in the public interest that he had an extended period during which he could be rehabilitated. He said he was not prepared to second guess what the Queensland authorities would do in relation to his parole by reason of the fact that he had committed further offences.

43 His Honour said that had it not been for the plea of guilty the overall sentence would have been one of 20 years. That was discounted to

15 years because of the plea. His Honour then said that special circumstances to which he had referred made it appropriate to order a non- parole period of 10 years which he said was to be achieved in the following way. His Honour then set out the periods of imprisonment for each of the offences including the non-parole periods and the fact that he took into account the two matters on the Form 1 in respect of Count 2. His Honour then said:

44 The Applicant accepted that his Honour faced a difficult sentencing exercise. The offences were very serious and the Applicant possessed an invidious record involving a persistent pattern of offending. The Applicant accepted that protection of the community loomed large as a consideration.

45 Nevertheless, the Applicant submitted that the sentences imposed were not in line with prevailing sentencing patterns. In that regard the Applicant drew attention not only to the statistics but also drew attention to individual cases that might be thought to have been comparative.

46 The Applicant acknowledged that the maximum penalty of 25 years remains a very relevant consideration. That is undoubtedly so when the Applicant’s lamentable record is taken into account together with the fact that these offences were committed whilst he was on conditional liberty from offences of the same nature.

47 Despite those adverse features a number of matters requires consideration. First, it is appropriate to view armed robberies on an escalating scale of seriousness: R v Readman (1990) 47 A Crim R 181 at 185. In circumstances where the Applicant was using a toy pistol on both occasions, the serious of the offence is at a lower level on the scale: R v Majstrovic [2000] NSWCCA 420 at [9] and [11]. Further, he used no actual violence against the persons at whom the toy pistol was pointed.

48 Secondly, the statistics tend to show that both his Honour’s starting point of 20 years and the actual sentence he imposed of 15 years, if not beyond the top of the range shown in the statistics, was at the very top end. Whilst this Court has on a number of occasions noted the care that must be taken in the use of statistics (R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [140]; Graham v R [2009] NSWCCA 212 at [35]- [37]), the Court has also acknowledged that an offender is entitled to be sentenced in accordance with the actual range of sentences being imposed for the offence in question: McIver v R [2010] NSWCCA 7 at [17].

49 Thirdly, apart from the case of R v Spinks [2005] NSWCCA 459 and Spinks v R [2007] NSWCCA 52, an examination of a number of other cases with comparable features to the present suggests that the sentence imposed by Judge Black was significantly out of line.

50 Spinks was a more serious matter than the present. The offender was being sentenced for 4 aggravated armed robberies. On a Form 1 there were 3 further aggravated armed robberies. As with the present Applicant, Spinks was on conditional liberty and possessed a lengthy criminal record. However, the gun involved in the offences was a shortened rifle. Although his head sentence was 15 years he received a non-parole period of 8 years and 9 months, a shorter non-parole period (by 1 year 3 months) than the Applicant in the present case.

51 In Baleiovalau v R [2009] NSWCCA 153 the offender was sentenced for 3 counts of aggravated armed robbery, 2 of which involved the holding up staff at a Credit Union. For 2 of the offences the offender used a shortened 12-gauge self-loading shotgun, and on the third occasion he used a shortened rifle. At the time of the commission of the offences the offender was on parole in respect of 3 counts of aggravated armed robbery and 2 counts of aggravated robbery, with further robbery and aggravated robbery counts being taken into account on a Form 1. The offender was sentenced to an overall term of 10 years 6 months with a non-parole period of 7 years 6 months. This Court dismissed his appeal against that sentence.

52 In Ta v R [2009] NSWCCA 196 the offender was sentenced for 2 counts of robbery whilst armed with a dangerous weapon and 1 count of attempted robbery whilst armed with a dangerous weapon. He pleaded not guilty but was convicted on all counts. He received a total effective term of 8 years with a 6 year non-parole period. The weapon used was a pistol. He had a record of prior offences including using an offensive weapon, aggravated break, enter and commit serious indictable offence, assault police officer in the execution of duty causing actual bodily harm, and 4 offences of driving whilst disqualified. The armed robberies were committed whilst the offender was on parole from one of the offences of driving whilst disqualified. An appeal against the sentence on the basis that it was manifestly excessive was dismissed.

53 In R v Berrell [2003] NSWCCA 85 the offender was sentenced for aggravated armed robbery with 6 further offences of aggravated armed robbery, 1 offence of aggravated assault with intent to rob, 1 offence of aggravated robbery and 3 offences of assault being taken into account. He was sentenced to imprisonment for 10 years with a non-parole period of 6 years and 8 months. The aggravated armed robberies involved the offender being armed with a replica pistol. He pleaded guilty. The offender had a lengthy criminal history involving dishonesty offences, driving offences and drug offences all of which were dealt with in the Local Court. He was a drug addict and suffered from a paranoid depressive illness. His appeal against the sentence on the basis that it was excessive was dismissed.

54 Even allowing for the use of a toy pistol in Berrell, the circumstances of the offences in all of those cases were more serious than the circumstances of the present offences. In all but Berrell they were committed whilst on conditional liberty and involved the use of real firearms. Multiple incidents were involved in each case.

55 Fourthly, Judge Black, although making passing reference to Pearce, has not approached the sentencing exercise in the way that Pearce mandates. What he has done is to take a starting point that the desired overall sentence for both offences is one of 15 years with a non-parole period of 10. He then seems to have worked from that starting point with the result that the overall sentence for both offences would have been 20 years but for the plea, and has then adjusted the non-parole periods to fit in with the overall result he had to achieve. The further evidence of that approach is that, although it is difficult to distinguish between the robberies in any qualitative sense (and the sentencing Judge has certainly not done so), he has provided for a shorter non-parole period of 5 years for the second Count compared to 7 for the first Count although it was the second Count to which the Form 1 offences were relevant. Having done that, he has then accumulated the sentences to reach his overall desired result.

56 This is clearly not the approach that Pearce requires. Had Pearce been properly applied it is difficult to see how his Honour would not have provided for the same non-parole period for both of the offences. Moreover, if regard was had to the statistics and the comparative cases, his Honour would have seen that an overall sentence of 15 years with a non-parole period of 10 was outside the range of appropriate sentences, particularly taking account of the matters referred to in para [47] above.

57 The Probation and Parole report found that the Applicant was suitable for a medium level of intervention by that Service, and the report put forward strategies to address his gambling and sexual assault issues. That was consistent with Mr Andreasen’s view that individual clinical psychology treatment might well allow him to come to terms with the causes of his recurrent emotional difficulties that led to his gambling, and might help him to move on from the events surrounding the breakdown of his marriage. Additionally, his evidence at the sentencing hearing revealed that he had come to appreciate the traumatic effect his actions had had upon the victims of the offences, and expressed what appeared to be genuine remorse. These are positive indicators on the issue of the applicant’s rehabilitation prospects.

58 Given the errors in approach to sentencing made by his Honour, the appeal should be allowed and this Court should re-sentence the Applicant.

59 In the recent affidavit sworn by the Applicant he deposes to having successfully completed a course to deal with his gambling problem, “The Best Bet” program, whilst in custody. He has commenced a course known as Self Management and Recovery Training which builds on the earlier course.

60 Notwithstanding the Applicant’s prior criminal record and the fact that the present offences were committed whilst he was on conditional liberty, both of which were serious aggravating factors, the overall sentence imposed by the Judge was manifestly excessive taking into account the circumstances of the offences, the statistics and sentences in comparable cases.

61 Bearing those matters in mind and the other material that was before the sentencing Judge I propose pursuant to s 6(3) of the Criminal Appeal Act 1912 the following orders:

Count 1: Sentenced to 10 years imprisonment commencing 31 December 2008 and expiring on 30 December 2018 with a non-parole period of 6 years commencing 31 December 2008 and expiring 30 December 2014.

Count 2: Sentenced to 10 years imprisonment commencing 31 December 2010 and expiring on 30 December 2020 with a non-parole period of 6 years commencing 31 December 2010 and expiring 30 December 2016.

62 The first date upon which the Applicant will, accordingly, be eligible for parole will be on 30 December 2016.

AMENDMENTS:

15/10/2010 - Correction of year eligible for parole. I - Paragraph(s) 62

LAST UPDATED:
15 October 2010

Supreme Court of New South Wales - Court of Criminal Appeal

Moore v R [2010] NSWCCA 188 (14 October 2010)