New South Wales Court of Criminal Appeal CITATION : Regina v Anthony Terrance Pearce [2001] NSWCCA 349 FILE NUMBER(S) : CCA 60785/99 HEARING DATE(S) : 17 August 2001 JUDGMENT DATE : 17 August 2001 PARTIES : Regina Anthony Terrance Pearce JUDGMENT OF : Sully J at 1; Smart AJ at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0457 LOWER COURT JUDICIAL Rummery DCJ OFFICER : COUNSEL : G. Smith - Crown M. Ramage QC - Appellant SOLICITORS : S. E. O'Connor - Crown Ross Hill & Associates - Appellant LEGISLATION CITED : Criminal Appeal Act DECISION : Extension of time granted; Application for leave to appeal against sentence granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60785/99 SULLY J SMART AJ Friday 17 August 2001 REGINA v ANTHONY TERRANCE PEARCE JUDGMENT 1 SULLY J: On 1 September 1998 Mr Anthony Terrance Pearce, who applies for leave to appeal against sentence, pleaded guilty in the Sydney District Court and before Rummery QC DCJ to a number of related offences. The most serious of them was an offence of robbery in company, contravening s 97 of the Crimes Act and attracting upon conviction a statutory maximum penalty of imprisonment for twenty years. 2 His Honour was asked to take into account, in the appropriate statutory format, four related matters: one of driving a vehicle in a manner dangerous; one of driving a stolen motor vehicle; one of driving a motor vehicle whilst unlicensed to drive it; and one of stealing a motor vehicle. 3 His Honour, taking account of all the additional matters, imposed a sentence of imprisonment of five years and three months, apportioning that sentence between a minimum term of three years and three months to commence on 26 July 1998 and an additional term of two years to commence on 26 October 2001. 4 The relevant facts can be sufficiently canvassed for present purposes by quoting from the remarks on sentence: "The facts are that between 6.00 pm on 16 March and 6.00 am the following day, the date of the robbery, a 1994 model Subaru Impreza sedan motor vehicle registered number AFQ46B was stolen from a car yard at 764 Parramatta Road, Lewisham, known as Lewisham Toy Shop. It was valued at $35,000. At 3.55 pm on Tuesday 17 March 1998 the prisoner and two other co-offenders, whose identities are unknown arrived outside the premises of the Commonwealth Bank of Australia at 57 Connells Point Road, South Hurstville. All except the prisoner Morgan entered the premises. All attempted to disguise themselves by pulling clothing over their faces. One of the unknown offenders jumped the service counter and as a result there was a struggle between him and Stephen Wells, the manager of the bank's branch. The security screens were activated. One of the offenders in the course of the struggle was able to open the staff security door through which the unknown two offenders who had entered the building entered the bank chamber. In the course of the struggle between Mr Wells and one of the offenders, Mr Wells was pushed to the ground and kicked several times to the head and upper region of his body. The offenders were successful in obtaining an amount between $58,000 and $61,000. In the course of the robbery all bank tellers on duty were repeatedly subjected to threats and directed to open the cash drawers. One of the known offenders punched the teller Elias Vertsetis to the side of his face. The offenders ran from the bank with Mr Wells in pursuit. He managed to catch a taxi in Connells Point Road and was driven to Woniora Road where he saw the five offenders travelling in a white Subaru Impreza sedan, motor vehicle registered number AFQ46B. He then spoke to police by telephone and a description of the vehicle was circulated. The Subaru motor vehicle was seen by police at Railway Parade, Banksia. It was then occupied only by the three prisoners. It was pursued. In the pursuit it reached speeds of 180 kilometres an hour. In the course of the pursuit the Subaru vehicle rammed the police vehicle in Niblick Street, Banksia, and afterwards collided with two parked motor vehicles in Bestic Street, Kyeemagh. At Kyeemagh the prisoner Pearce was seen to be seated in the driver's seat of the vehicle. The pursuit continued at high speeds to Lachlan Street, Waterloo. It was stopped shortly afterwards near the intersection of Bourke and McEvoy Streets, Redfern. When searched a substantial sum of money in Australian currency notes was seen to be strewn throughout the vehicle and other property was identified as belonging to one of the victims of the robbery. A sum in the vicinity of $60,000 was stolen in the robbery as well as personal property of some of the victims. Mr Wells sustained bruising to his head and body and Mr Vertsetis sustained bruising to the area of his head ....... The Court deals with the facts in relation to each of the prisoners on bases that include that none of them jumped the service counter, opened the staff security door, entered the banking chamber, or was the offender who assaulted either of the bank officers, and as to the prisoner Morgan, that he did not enter into the customer area of the bank premises." 5 It hardly needs to be said that this congeries of related criminal offences was objectively culpable in high degree; and, dealt with properly and fairly by the sentencing Judge, was properly seen as attracting an appropriately severe sentence of imprisonment. 6 The one essential point taken in support of the present application is that the sentencing discretion miscarried by reason of an erroneous finding of fact. It is contended that the learned sentencing Judge took into account, but incorrectly, the proposition that the applicant at the time of the commission of the offences with which the present application is principally concerned, had then been at liberty on parole. It is unnecessary to say more than that such a perception would have misconceived the relevant facts. 7 His Honour makes, effectively, two references to that proposition; and although his Honour does not say in so many words that he has taken that erroneous proposition of fact into account, it is contended, and in my own view correctly, that a reasonable reading overall of what his Honour has said would tend to suggest that his Honour did give some weight to that erroneous proposition of fact. It is, in the circumstances, impossible to express in any precisely quantified way the extent to which his Honour did so. 8 In other words, there has been demonstrated at least a technical error underlying the sentencing procedure in the Court below. That such an error occurred at all is not, if I might say so, surprising, having regard to the rather tangled factual background connected with the applicant's periods of, respectively, freedom and custody. Suffice it to say that on 26 February 1998 parole which the applicant was then serving was revoked by the Parole Board. That revocation was to have effect on 16 August 1997. 9 The parole was revoked in contemplation of two particular convictions in Local Courts. Their detail is not important. What is important is that it is said that the applicant lodged appeals against those convictions in the Local Court. Material available to this Court is a good deal less than satisfactory upon this aspect of affairs. It seems that appeals were lodged, in the sense that they were lodged with the parole authorities, or the Corrective Service Authorities, or both, - again, the material is not clear, - but that for some reason wholly unexplained the appeals do not ever seem to have found their way into a Court competent to deal with them. It is, as I have said, a highly unsatisfactory state of affairs, but there is no point in complaining about it. The Court must simply do the best it can upon the basis of the material that is in fact before it. 10 The applicant, as I have understood the rather tangled skein of suggestive facts and figures, was in fact at liberty, his parole revoked, until his arrest on 17 March 1998 in connection with the present particular offences. 11 He served from 17 March 1998 to 26 July 1998 a period of imprisonment representing the balance of the revoked parole. Of course, he was as well in custody during that period, bail refused, in connection with the present matters. 12 This explains, I think, why Rummery QC DCJ, when his Honour came to frame the sentences of which I have earlier spoken, set as the commencement of the minimum term, the date 26 July 1998: that is to say, the day of expiration of the period served in connection with the balance of revoked parole. 13 Given the facts and circumstances of which I have spoken, it seems to me that one can approach the present application in one or two different ways. 14 One way of approaching it is to accept that, albeit understandably, the learned primary Judge did make an error of fact; and it seems that the error of fact is a technical error of no significance otherwise. 15 An alternative approach, and the one which I myself prefer, is to ask whether, given that there was error technical or not, the resulting situation is that this Court should come to the conclusion that a different and more lenient sentence is, in the words of the Criminal Appeal Act "warranted in law". 16 Another way of approaching the matter might be to approach it on the basis that the learned sentencing Judge had available to him a variety of dates that he might have nominated for the commencement of the minimum term nominated by his Honour. That is to say, the date of arrest; the date of imposition of the penalty; or the date of expiration of the period served in connection with revoked parole. 17 Insofar as it is appropriate to approach the present matter on the third of those suggested bases, it would be sufficient in my opinion to say that what was entailed was a judicial discretion, and that it has not been shown that the discretion miscarried. 18 I return to the second of the three suggested possibilities, repeating that that is the basis upon which I think it is proper in law, and fair in fact, to approach the disposition of the present application. Once again, it is not necessary to embark upon the spinning of a fine web of hypothetical principles. The question is a pragmatic question to be answered in a sensible sort of way. There are cases, of which I think this present one is a very good example, where the criminality of what has been done is so grave that particular points of the kinds to which I have referred, in the end do not justify a conclusion that a sentence otherwise reasonable should be disturbed by this Court on appeal. Differently constituted Benches of this Court have said for years that robbery in company, and certainly a robbery in company with the incidents of the offence with which we are concerned in this application, is serious crime; and that it must be treated as such, and visited with properly severe penalties. 19 For the whole of the foregoing reasons, therefore, I would propose orders as follows: 1. Grant the extension of time necessary to permit a hearing of an application by the applicant for leave to appeal against sentence. 2. Application for leave to appeal against sentence granted. 3. Appeal against sentence dismissed. 20 I propose orders accordingly. 21 SMART AJ: I agree. 22 SULLY J: The orders will be as I have proposed. ********** 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.