New South Wales Court of Criminal Appeal CITATION : REGINA v LEONI [1999] NSWCCA 14 FILE NUMBER(S) : CCA 60357 of 1998 HEARING DATE(S) : 2 March 1999 JUDGMENT DATE : 4 March 1999 PARTIES : Ricardo Leoni (appellant) The Director of Public Prosecutions (respondent) JUDGMENT OF : Abadee J at 1; Barr J at 4; Adams J at 6 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0857 LOWER COURT JUDICIAL OFFICER : Delaney DCJ COUNSEL : Crown: Mr W Dawe QC Appellant: Mr J Papayanni SOLICITORS : S E O'Connor (respondent) Jeffreys & Associates (appellant) CATCHWORDS : Plea of guilty; application to withdraw; charge under s 97(1) Crimes ; robbery in company; meaning of 'company' ACTS CITED : Crimes Act 1900 Criminal Law Consolidation Act 1935-1976 R v Galey (1985) 1 NZLR 230 R v Brougham (1986) 43 SASR 187 R v Cooper (1978) 17 SASR 472 R v Langlands (1932) VLR 450 Mcauliffe (1995) 79 A Crim R 229 CASES CITED: R v Howard (1987) 1 NZLR 347 Ferrer Esis (1991) 55 A Crim R 231 at 233 R v Chiron (1980) 1 NSWLR 218 Ryan (1995) 90 A Crim R 191 Boag (1994) 73 A Crim R 35 at 37 Astor v Hayes (1988) A Crim R 219 DECISION : Application to appeal against conviction and sentence is refused. Reasons given 4 March 1999 1 IN THE COURT OF CRIMINAL APPEAL NO. 60357/98 ABADEE J BARR J ADAMS J 2 March 1999 REGINA v RICARDO LEONI JUDGMENT 1 ABADEE J: I will ask Mr Justice Adams to deliver the orders and he will indicate that we will give our reasons in due course. 2 ADAMS J: In respect of the appeal from his Honour's refusal to allow the plea of guilty to be withdrawn, I propose that the appeal be dismissed. If leave be necessary, I propose that leave be granted and the appeal be dismissed. In respect of the application for leave to appeal against the sentence, I propose that the application be refused. I propose that the Court should deliver its reasons at a later date. 3 ABADEE J: I agree with the orders proposed by Mr Justice Adams. 4 BARR J: I also agree. 5 ABADEE J: The orders of the court are the orders proposed by Mr Justice Adams and the reasons for such orders will be delivered in due course. REASONS FOR JUDGMENT 4 MARCH 1999 6 ADAMS J: The appellant appeared before his Honour Judge Shillington on 6 April 1998 at Sydney District Court on a charge of robbery with wounding and, in the alternative, of robbery in company. The Crown accepted a plea of guilty to the second charge in full satisfaction of the indictment. On the occasion that this plea was entered the appellant was represented by Mr Papayanni of counsel. He was remanded to a date to be fixed, bail continued and a pre-sentence report ordered. On 29 May 1998, the appellant appeared for sentencing before his Honour Judge Delaney. However, on that occasion Mr Papayanni sought an adjournment upon the ground that, as he submitted, he wished to reconsider the correctness of the advice that he had given to the appellant pursuant to which he had pleaded guilty. Mr Papayanni's misgivings about the correctness of his advice arose from his reading of R v Galey (1985) 1 NZLR 230, a decision which deals with the intention of a person charged with the offence of robbery in company. I will return to this decision in due course. Mr Papayanni indicated that he wished to consider whether to advise his client to seek leave to withdraw his plea. 7 His Honour acceded to the application and the matter came back before him on 5 June 1998 when Mr Papayanni applied on his client's behalf for leave to withdraw the plea. The evidentiary basis for this application comprised a statement of facts, statements by police officers concerning admissions made by the appellant, a hand-written statement made by him to police, statements by each of his two accomplices and a statement from the victim, a Ms Mary Walsh: for his part, Mr Papayanni called evidence from the appellant as to the circumstances of the offence. His Honour refused the appellant's application and, following admission of evidence relevant to sentence, imposed a sentence of penal servitude for five years comprising a minimum term of 33 months commencing on 5 June 1998 and expiring on 4 March 2001 and an additional term of two years and three months commencing 5 March 2001 and expiring 4 June 2003. His Honour found special circumstances justifying the variation from the statutory ratio. The appellant appealed to this Court from his Honour's order refusing leave to withdraw his plea, alternatively asking this Court to exercise a discretion to quash the conviction and substitute a conviction for robbery simpliciter, on the ground that in the circumstances there was a miscarriage of justice and, failing success in these applications, reduction of the sentence as excessive. 8 Before dealing with the various ways in which the case has been put, it is convenient to set out the facts as they emerge from the statements of the four persons involved, namely the appellant and his two accomplices and their victim. Ms Walsh, who was at the time of the offence 65 years old, lived alone in her house at Vaucluse. At about 9 pm on 29 July 1997, she was at home alone watching television. She heard the door bell ring and went to the front door, asking through the closed, locked and bolted door, "What is it, what do you want?" She heard a woman, apparently sobbing or crying, saying, "My dog has been run over, may I use the phone?" Ms Walsh opened the front door for the female accomplice, Sarah Jane Crowther, who was then seventeen years old. She walked into the house and stood next to Ms Walsh. At this point, the other accomplice, Michael Albert Brincat, then seventeen years of age, rushed in. He was wearing a beanie which had been folded down with holes for the eyes and mouth to look like a balaclava and he had a silver object in his belt, which she took to be a weapon of some kind. In fact the object was a bicycle seat pipe. Brincat pushed Ms Walsh back against a wall, threw some cloth over her head saying, "Don't make any noises, where's your money?" He said this several times. Ms Walsh said that she would give him what money she had and told him that her handbag was in the dining room, a short distance down the hall. They went to the dining room. As they were walking, Ms Walsh saw, briefly, a male run up the stairs also wearing what she took to be a balaclava. I interpolate that this person must have been the appellant, who was the only other person involved. If this evidence were accepted, the appellant needed not to fear identification and hence remain out of view. At this time, Crowther was present because she heard Brincat tell her to cut the telephone line. Ms Walsh heard Crowther go into the kitchen where the telephone was. Ms Walsh handed the money to Brincat which she took out of her wallet that was in her handbag. He insisted that she had more money and demanded more. Shortly after this she heard Crowther return from the kitchen and say, "I've cut it". Brincat demanded to know where the safe was but she told him there wasn't one (which, as it happens, was the truth). Brincat forced Ms Walsh into a chair in the dining room, grabbing her round the throat several times, forcing her head back, choking her and demanding money. At this time, Crowther was also present. Ms Walsh could hear the footsteps of the third person running around upstairs and downstairs and around the house. She thought perhaps something like 15 or 20 minutes had elapsed. Shortly later, Brincat hit her on the head with the weapon which he had taken from his belt. She saw him raise it quite high with his right hand and bring it down upon her head with great force. This cowardly and entirely gratuitous violence resulted (quite apart from the severe pain) in a laceration requiring three sutures. At the hospital, Ms Walsh noticed bruising from a swelling and abrasion on her right cheek under her eye, a sore spot on the bridge of her nose where Brincat had pushed her glasses back against her face and her bottom lip was also swollen and sore. Overall, she felt battered and bruised. She was afraid for her life and terrified by the ordeal. There can be no doubt that this was an extremely serious crime. 9 As I have mentioned, Brincat made a statement which was tendered, on the application for leave to withdraw the plea, without objection. He said that about two days before the offence he met the appellant, with whom he used to work. He told him that he had nowhere to live and the appellant offered to let him stay at his place. According to Brincat, the appellant said to him - You will have to help me do a job. It's my old landlord and my girlfriend has just had a baby and the place was falling to bits and pretty disgusting inside and the landlord didn't do anything. I want to get her back. The weekend after we got evicted, she fixed the place up. I want money from her. She keeps her money in the house. It would probably be in the safe...I know the address. All you have to do, you need a female's voice to get into the front door and when the door's open, run in. 10 Brincat's girlfriend, Crowther, was there at the time. Brincat said that he was, at this stage, uncertain. He and his girlfriend stayed with the appellant and two days later, they all went to the premises by bus. Brincat claims that the appellant said that, "We have to run into the house, get whoever's in the house on the ground and get the money". Brincat claimed that he said that he did not want to do it, but that the appellant and his girlfriend said to him, "Don't be a dog". He said that then Crowther went up to the front door with the appellant and him on either side of him and his girlfriend said to the occupier that he dog had been run over and asked to use the phone to ring her parents. According to Brincat, when the door opened the appellant said, "Go", and he pushed the door and ran in together with his girlfriend. He said that the appellant stayed outside. Brincat said that he and his girlfriend were both with Ms Walsh when her head was covered and he demanded that she tell him where the safe was. Brincat said that he instructed Crowther to go and look for the safe and she went upstairs to do so. He said that he could see the appellant at the front door at this time. Brincat says that after she returned he told Crowther to get the phone in the kitchen and break it, that she went into the kitchen and returned, grabbed his arm and said, "Let's go, let's go". Brincat says that "Sarah and Rick (the appellant) had run out the front door. They left the front door wide open and they had gone." He said that he did not know what to do next, so he panicked and hit Ms Walsh with the bike seat pole and then ran out the door. Brincat said, and this is significant, that he always carried the pole. Brincat said that whilst the three were running away he asked the appellant, "Why didn't you come in?" and he said "I was keeping an eye out". 11 Crowther's statement differed in respect of some significant matters from that of Brincat. She says that the appellant instigated the robbery and made it a condition of permitting Brincat and her to stay at his place. She says, in effect, that the appellant told them what they should do in respect of the robbery. She did not say that Brincat protested that he did not wish to commit the crime. She says that at the time that Brincat was demanding money from Ms Walsh in the house, the appellant was standing at the door telling her to "Cut the phone" and things like "Go upstairs and check the rooms" and "Try and find a safe", although he did not actually enter the house. If this account be accepted Ms Walsh must have been aware of the appellant's presence. 12 For his part, the appellant admitted his involvement in a hand-written statement to the police. He said that he visited Brincat at his grandparents' house, not having seen him for fourteen months, and asked him if he would like to take part in a robbery. The appellant said that Brincat wanted his girlfriend to be involved. The appellant claimed that it was Brincat's idea to have his girlfriend knock on the door and induce Ms Walsh to open it. He agreed that he and Brincat were at the door when it was opened. He said that whilst he was still outside Brincat and Crowther moved Ms Walsh to the back room about five metres from the front door. He said that whilst "they were still menacing her in the room, I was still outside". He then entered the "little foyer which is behind the front door" and stood there as the robbery was taking place. He was aware of Brincat's demands and Crowther's search upstairs. He said that as he stood in the foyer, he told Brincat to hurry up and that moments later they fled. He said that as "we were leaving the house Michael hit her over the head with a seat pole which he was carrying with him". This rather suggests that this occurred in his presence. He said that Brincat had taken the pole from his house and claimed that he, however, had not known this. On the other hand, he said that whilst at his (the appellant's) house shortly before the robbery, Brincat had shown him and his girlfriend the pole and that the appellant had said to him that it was not needed. The appellant claims that his (the appellant's) girlfriend said to Brincat, "You better not hit her as she is frail and...has just come out of hospital". The appellant said that Brincat told him, in effect, that he would not use it. The appellant claims that his girlfriend repeated what she had told him "for up to ten times" and that the appellant said to him "not to hit her as he had no reason to". 13 It is clear on the appellant's case, that he was aware that Ms Walsh knew of his presence, at least at the front door, a position from which, of course, he was able to assist the other two offenders, if necessary. Furthermore, it is clear that the appellant at all times envisaged that Brincat and Crowther would enter the house, so that one would be in the position to assist the other in the robbery, if it became necessary. 14 Broadly speaking, the appellant's evidence was in line with his statement to the police but he added the detail - Q. Did you know at any time or was it discussed with you that Sarah Crowther would participate in any way? A. We mentioned it, but all we asked of her was to open the front door for Michael [Brincat]. And I presumed that she was going to stay at - outside the front door with me but she didn't. Q. Is that what you are saying, that was the only part that she was to play? A. Yes, that's all knowledge that I told her of. 15 It is now necessary to come to the elements of the offence of robbery in company. S 97 of the Crimes Act 1900 is in the following terms - 97(1). Whosoever...being in company with another person, robs, or assaults with intent to rob any person...shall be liable to penal servitude for twenty years. 16 The crucial question arising for decision in this case, is what is meant by the phrase "being in company". In R v Brougham (1986) 43 SASR 187, King CJ said (at 191) - A person commits a robbery, or an assault with intent, in company, where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required. 17 It seems to me that the essence of this offence is not that the accused intended that the victim should be overborne by the presence of more than one robber or that he should intend to come to the assistance of the other if necessary. In my opinion, the only relevant intent is that the offender placed himself in the position in which he knew or expected that the victim would know of his presence and ability to assist in the robbery if called on to do so. 18 In R v Cooper (1978) 17 SASR 472, the Court considered the effect of s 158 of the Criminal Law Consolidation Act 1935-1976 which used the phrase "together with one or more person or persons robs etc". The Court held that this phrase bore the same meaning as the words "in company". Bray CJ said (at 475) - For all that appears from the actual words of the charge in this case, the physical robbery might have been committed by one and the other two might have been merely principals in the second degree, or accessories before the fact, eg by standing aloof and keeping watch [in which case they would not have been in company with the robber]". Walters J said (at 476) - Thus, I think the participation by one party in the common unlawful purpose of an assault with an intent to rob merely by his giving assistance or encouragement, such as is afforded by keeping watch to prevent the discovery on the other or others actually present together and committing their external or overt operations, or by his being near enough to give physical assistance if it be required, would not be enough to support a charge under s 158(b) of the Act. In other words, I think that actual physical participation in the assault is essential. Support for this view may, I think, be found in the decision in R v Langlands [1932] VLR 450. In that case, the prisoner, by use of violence, detained a shop keeper in one room while his confederates stole money from a till in the shop in the adjoining room, the evidence pointing to the conclusion that the door between the shop and the room in which the victim was detained was closed during the time the prisoner kept the victim confined. The Full Court of Victoria held that since a theft with violence had not been committed by the prisoner on the person, or in the presence, of the victim, the prisoner could not be convicted of robbery in company. It seems to me that the reason underlying that decision may be applied in the case of a person who is charged with assault to intent to rob in company, but who does not actually take part in the commission of the assault. 19 The crucial question, however, in Langlands was not whether the accused was in the company of one or more others but whether the robbery was on the person or of goods in the presence of the victim. Since the property was actually stolen from an adjoining shop with the communicating door shut, the Court concluded that the theft had not occurred in the presence of the victim. With the greatest respect, I do not see how Langlands provides support for the view expressed by Walters J in Cooper that it is necessary before a person can be convicted of assault with intent to rob in company that that person must actually take part in the commission of the assault. However, it may not be that Walters J intended to convey this meaning. As King CJ said in Brougham (supra) it may be that his Honour was stressing that participation in the common purpose at a distance or by mere encouragement or keeping a lookout was not sufficient but that his Honour was not suggesting that presence at the scene with the intention of physically participating if required was insufficient. 20 In my opinion, presence at the scene with the intention of physically participating, if required, is sufficient to satisfy the section, even if that presence is unknown to the victim. However, if the offender makes his presence known to the victim so that, to use the words of the Chief Justice in Brougham "the victim is confronted by the combined force or strength of two or more persons" that will be sufficient to satisfy the section even if the offender did not, as it happened, intend to physically participate if required. 21 It is necessary to refer to R v Galey [1985] 1 NZLR 230. A seaman was assaulted and robbed by one man whilst the appellant was close at hand encouraging the other in that activity but not being an actual physical participant in the robbery or intending to give assistance if required. The Court of Appeal held that the relevant New Zealand provision (indistinguishable from the South Australian section to which I have already referred) was "intended to apply only to cases where the forces of two or more persons, acting in concert, are deployed against the victim in the actual commission of the offence" as distinct from "for example, an accomplice whose only role is as a lookout man, or as the driver of a getaway vehicle" ([1985] l NZLR at 234). However, it is crucial to an accurate understanding of this decision to appreciate that the evidence from the victim was that he was aware of only one assailant namely the appellant's accomplice and did not remember seeing anyone else nearby, either man or woman, at the time of his attack. Accordingly, it does not seem to me that Galey is authority for the proposition that an offender who is present in the sense that the victim is aware of him or her and that he or she is in a position to come to the aid of the direct assailant, is not "in company" with that assailant simply because, as it happens, he or she is, for example, merely a lookout and does not intend to participate in the actual assaults or threats. 22 In this case, on the appellant's own account, the victim was aware of his presence. She was also aware, as the appellant knew, of the presence of Crowther at the time that she was being threatened and assaulted by Brincat. Whether the appellant intended that Crowther should do more than procure the opening of the door by the victim does not seem to me to be the point. He must have been aware that the victim would know that she was an accomplice of her assailant as well as be aware that he was present even if waiting outside what was the open doorway. In short, the appellant, in effect, admitted that he intended that the victim should be aware at least of Brincat and Crowther. Of course, if Crowther is to be believed, the appellant acted in a way which must have led Ms Walsh to appreciate that there was a third person giving directions to the other two and therefore available to assist if she should resist whilst, if Ms Walsh's account is to be believed, the appellant had actually entered the house and was actively searching for property and plainly in a position to assist the young man who was physically restraining and attacking her. 23 To my mind, the fact (if it be the fact) that the appellant agreed or intended no more than that Ms Walsh was to be aware only of the presence of Brincat and his girlfriend, does not mean that for relevant purposes concerned with the extent of his criminal liability, the fact that he intended that she should not know of his presence (on the assumption that he acted to conceal it, which does not seem to be the case) does not excuse him from liability for the offence in respect of which he pleaded guilty. It is clear that, on his own account, the appellant was acting in concert with Brincat and Crowther in pursuit of a common criminal design namely, that Ms Walsh was to be robbed in the course of a plan which must have involved her knowledge not only of Brincat but of Crowther so that, to use the language of King CJ in Brougham ([1986]) 43 SASR at 191), the appellant participated "in the robbery or assault together with another or others in a sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim": Mcauliffe (1995) 79 A Crim R 229; R v Howard [1987] 1 NZLR 347 at 355. 24 Whilst it may be that Ms Walsh does not mention seeing a third person at the door, noting only Crowther and "a young man wearing a balaclava" who was obviously Brincat, I would not infer that this omission meant that she was unaware at this time of the third person. After all, the appellant himself says that he was at the door next to Crowther with Brincat on her other side. I think it significant that he says in his statement to the police "Michael was on one side and I, my stupid self, was on the other side both near the door" (emphasis added). I think this reference by the appellant to his stupidity reflected chagrin at placing himself in a position where he could be identified. It might be that he thought that identification led to his arrest. However, this is merely a straw in the wind. For the reasons that I have stated, I do not think it matters that the appellant had attempted (perhaps even successfully) to keep his presence unknown. 25 As I apprehend the Crown's case, it was that the appellant was guilty of the offence to which he pleaded on the basis either that he was part of a criminal enterprise to rob in company or that he actively participated in robbing in company by entering the house, giving directions and being physically present in a way intended to intimidate Ms Walsh. I am of the view that the learned trial Judge was entitled to evaluate the question whether leave should be granted upon the whole of the evidence tendered on the application. It was not submitted to him that he should disregard the account given by Ms Walsh or, for that matter, the accounts given by the appellant's co-offenders. As I have mentioned, the statements of the other witnesses were tendered without objection. It followed that they were evidentiary material to which the Judge was entitled to have regard. On the crucial question, his Honour concluded that, on the balance of probabilities, the appellant "was a person who, from inference, had an intention to be involved in the activities of the other two persons, Brincat and Crowther". He inferred that, contrary to the appellant's assertions that he did not know what was going to happen, he did know what was going to happen. Indeed, to my mind, no other conclusion was open on the evidence. 26 Where a person, through an error as to the elements of an offence made by the counsel who advised him to plead guilty pleads guilty under a mistaken apprehension of the law, it will usually be appropriate to permit the plea to be withdrawn. However, in this case counsel's advice had not erred. Merely because the appellant's counsel changed his mind following the plea does not seem to me to provide a sufficient basis for permitting the plea to be withdrawn. 27 The appellant bore the onus of establishing that he should be permitted to change his plea. He submitted that he did not appreciate the nature of the charge to which the plea was entered (see eg Ferrer Esis (1991) 55 A Crim R 231 at 233 and R v Chiron [1980] 1 NSWLR 218.) In Ryan (1995) 90 A Crim R 191 at 194, 5 Hunt CJ at CL pointed out that where a plea could not be attributable to a genuine consciousness of guilt, but due to incorrect legal advice, "it would usually follow that there has been a miscarriage". As I have said, I do not think that the appellant's plea was, as it happened, induced by any mistake. It is also obvious from what I have said that there is otherwise no miscarriage of justice because it is not the case that there was no evidence upon which he could have been convicted even limiting that evidence to his own account: see Boag (1994) 73 A Crim R 35 at 37. Furthermore, it is clear that the learned trial Judge did not (and it seems to me for good reason) accept the account given by the appellant in the witness box before him though his Honour may readily have accepted that Mr Papayanni was being completely candid as to his advice and the reasons for it. At all events, it must be uncertain whether the appellant's plea of guilty was in fact induced by his counsel's advice as distinct from his own independent awareness of what would be likely to be established on trial. 28 It follows that his Honour's refusal to permit the appellant to change his plea was appropriate. 29 I come now to the question of sentence. It is clear from what I have already said that this was, indeed, a very serious crime. Ms Walsh said that Brincat wore a balaclava. He carried a pipe in clear view to use as a weapon. The victim saw the appellant also with a balaclava. It is clear that the applicant instigated the crime and indeed, on one view of the evidence, manipulated Brincat and Crowther into joining with him. The fact that Brincat had a balaclava, which he must have put on at the door, and had a pipe must have been well-known to, if not suggested by, the applicant. The likelihood that this would add to the terror of Ms Walsh is obvious and would have been appreciated by the applicant. The applicant knew that Ms Walsh had just come out of hospital, she was elderly and frail. He realized that it may have been that she was so frightened that she might suffer a fatal heart attack, although this realization may have come after the event. To my mind, his Honour was entirely justified if accepting Ms Walsh's evidence that, in fact, the appellant did enter the premises and made his presence known. 30 It has been submitted on the applicant's behalf before us, as before his Honour the learned sentencing Judge, that significant mitigation arises from the allegations made by the applicant concerning the way Ms Walsh acted as the lessor of the flat in which he, his girlfriend and his baby daughter resided. In essence the allegation is that because a window which was broken was unrepaired for eight or nine days at a time of heavy rain, water came into the flat and caused widespread mildew over the walls and furniture. Furthermore, because a person who lived across the hall had a cat with fleas, the applicant surmised that those fleas came into the flat and he, his girlfriend, and daughter suffered from flea bites. They also found some cockroaches in the food cupboards after a little while. Since keeping a flat in these circumstances clean is the responsibility of the lessee and it is obvious that some emergency steps could have been taken by them, even assuming Ms Walsh was dilatory in this respect, to shield the window, I must confess to a considerable degree of scepticism about the nature and extent of the complaints made by the applicant. The Crown did not really contest the applicant's account, not having a basis for doing so as it appears that Ms Walsh was not asked for her version of events (I note that the appellant himself had said that she had been in hospital) but that did not mean that his Honour was bound to accept its veracity, still less to regard it, even if true, as significantly reducing the criminality of the extremely serious robbery to which Ms Walsh was subjected. 31 Perhaps something should be said about the submission that there was a belief in the applicant "that he had a claim of right of some type against Mrs Walsh". In his statement to police, the applicant said that he committed the crime "out of desperation of money". However, that statement does not advert to any claims arising out of the failure to maintain the flat. Indeed, no complaints at all about that matter were made. According to Brincat, the applicant had told him that "the place was falling to bits and pretty disgusting inside and the landlord didn't do anything. I want to get her back." Neither Brincat nor his girlfriend suggest that the money which was intended to be stolen was money which the applicant thought he was entitled to. It will be recalled that both had been to the applicant's flat before undertaking the robbery. Their statements make no reference to its state, nor to any complaint made by the applicant about needing to replace furnishings, bedding or other items. It seems that complaints about these latter items were not made either to Brincat or Crowther. The essence of a claim of right is that it places in issue the intent to defraud which is an element of the crime of stealing whether the crime charge is larceny or where, in the case such as robbery, stealing is an element of the crime. Where it is raised, the Crown must satisfy the tribunal of fact that the accused had no honest belief that he was legally entitled to the property which was taken. It is clear from his plea that the appellant admitted all the elements of the offence with which he was charged including, in particular, the relevant intention to steal. In the circumstances, in my view this was merely accepting the inevitable. At the very least Brincat's and Crowther's participation excluded the claim: Astor v Hayes (1988) A Crim R 219. Merely because, had the facts been different, the applicant might have been acquitted, seems to me to provide no mitigation whatever. If there is any mitigation, it arises from an evaluation of the whole of the circumstances including those which might give rise to an argument suggestive of the existence of a claim of right. 32 The learned sentencing Judge rejected the contention that the applicant had only instigated and undertaken the robbery to get his money back for the property that he claimed to have lost. In my opinion, there was ample evidence justifying his Honour's conclusion and there is nothing before us that would justify this Court in reaching a different one. I do not accept that the applicant's grievance mitigated his culpability to any significant degree, even though his Honour gave it some weight. 33 The applicant was 21 years at the time of the offence. When he was 15 years old he was convicted of attempted armed robbery with actual violence and, nine months later, of breaking and entering a school with intent to steal. He was placed under the care and control of the Queensland Department of Community Service and in respect of the latter offence, in strict custody for four months. It appeared that he has a low intellectual capacity and a history of a disruptive and dysfunctional family background. Indeed, he left home at the age of 15 years and has had very limited contact with his mother, who was recorded as being "moody and unpredictable". The applicant told the Probation and Parole officer that he had commenced running away from home from the age of nine years and from the age of fifteen led a transient and "street-wise" lifestyle revolving around friends. On the other hand he had been in his current relationship for about five years with a partner who also lacks family support because of family difficulties. As I have mentioned they had a young daughter and it appears their concern for that child is genuine and the applicant is a dedicated father. The applicant has been the major care giver as his partner has been employed. Despite his difficulties and the fact that he left school at the age of fifteen years without gaining any formal qualification, the applicant has completed two courses in landscaping and cooking and has had a number of short-term jobs, his last employer stating that he was a good worker who was reliable and punctual. It does not appear that drug or alcohol abuse are relevant in this case. These are undoubtedly all matters which, together with the plea of guilty and the relatively immediate confession to the police on his arrest of what he had done must be taken into account in mitigation of his sentence. Of course, he was not sentenced in relation to the infliction of the wound to the victim. 34 It is also relevant to note that Brincat was sentenced, in respect of his involvement in the crime which, of course, included a very serious assault, to a sentence of four years and three months of which the minimum term was 27 months (effectively 28 months, as he had served a month in custody before sentence). Of course, Brincat was much younger than the applicant, did not instigate the offence and was given a substantial discount because he had indicated his preparedness to give evidence at the trial of the applicant. 35 In the circumstances, I do not see that his Honour has made any error in weighing up the factual circumstances of the crime, the subjective circumstances of the applicant and the issues arising out of parity with Brincat. Indeed, in my view there was scope for a significantly more severe sentence than that which his Honour imposed upon the applicant. 36 In respect of the appeal from his Honour's refusal to allow the plea of guilty to be withdrawn I propose that the appeal be dismissed; if leave be necessary I propose that leave be granted and the appeal be dismissed. In respect of the application for leave to appeal against the sentence I propose that the application be refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.