R v Swingler [2001] VSCA 26 (15 March 2001)

Last Updated: 30 March 2009

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 207 of 2000

THE QUEEN

v.

MARK JOHN SWINGLER

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JUDGES:	CALLAWAY and BUCHANAN, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2001
DATE OF JUDGMENT:	15 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 26

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Criminal law - Sentencing - Armed robbery - Importance of general deterrence - Intellectual disability - Moderation of general deterrence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan	Acting Solicitor for Public Prosecutions
For the Appellant	Mr G.J. Thomas	Victoria Legal Aid

CALLAWAY, J.A.:

1 I shall ask Buchanan, J.A. to deliver the first judgment.

BUCHANAN, J.A.:

2 In the early hours of 28 September 1999, and within the space of less than an hour, the appellant committed the offences of armed robbery (counts 1 and 4), false imprisonment (count 2) and theft (count 3). The events immediately preceding the commission of the offences were described by the sentencing judge in the following terms:

"I was told that you became depressed to the point that you considered suicide. On the evening in question, you obtained alcohol. You took it to a church yard and consumed it. You were cold and miserable. You went home, consumed some more alcohol, then took possession of an old rusted rifle which you had found in your grandfather's garage. It was not loaded but you did have in your possession one round of ammunition."

3 At 1 a.m. the appellant entered the store of a BP service station in Brighton carrying the rifle. An employee at the counter turned to see the appellant pointing the rifle at him, saying, "Money, money, money." The employee opened the cash register and placed some money on the counter. The appellant said "Bag", and the employee produced a white plastic bag and put the money into it. The appellant demanded more money and the employee added some coins, making a total of some $200. The appellant demanded cigarettes and batteries, which were placed in the bag.

4 The appellant forced the store attendant into the attendant's car by pointing the rifle at his chest and made him drive about a kilometre. He then ordered the victim to lie flat on the side of the road or he would "blow [his] fucking head off". The appellant drove away. The victim was in considerable fear, describing his ordeal as "the most scary experience of my life".

5 Minutes later the appellant entered a 7-Eleven store in Brighton. He pointed

the rifle at the sales assistant in the shop and said, "Open the till and give me the money or I'll blow your head off." The sales assistant opened the till, whereupon the appellant reached into it and took the notes. He reached under the counter and picked up a container and filled it with coins from the till. The appellant noticed a security surveillance camera and hit it with his gun, breaking it. On his way out of the premises the appellant pushed over a pay phone and a fire extinguisher. Like the first victim, the sales assistant said that he was in fear for his safety, frightened that he would be shot. He had a sore shoulder as a result of being poked by the appellant's rifle. The appellant stole some $400.

6 A short time later the appellant's car collided with a tree. The car became wedged between the tree and a brick fence. The appellant was unable to move it, and left the car, carrying the white plastic bag and the rifle. The appellant hailed a taxi. When the taxi was stationary at traffic lights it was surrounded by police and the appellant was arrested.

7 The appellant was presented in the County Court and pleaded guilty to all the charges to which I have referred, together with four summary offences. The maximum penalty for armed robbery was 25 years' imprisonment and the maximum penalty for false imprisonment and theft was 10 years' imprisonment. The appellant was sentenced to a term of three years in respect of count 1, 18 months for count 2, 12 months for count 3 and two years and six months for count 4. The sentencing judge ordered that 18 months of the sentence imposed in respect of count 4 be cumulated on the term imposed in respect of count 1. The total effective sentence was four-and-a-half years' imprisonment. A non-parole period of two years was fixed.

8 This appeal is one against the sentence. The sole ground of appeal is that the sentence is manifestly excessive. No appeal is brought from the sentences imposed in respect of the summary offences.

9 The appellant is 30 years of age. He has been assessed as having an intelligence quotient of 77, having an average ability to solve perceptual tasks but, according to a psychological report of his intellectual functioning, "his ability to complete tasks that require language skills is in the borderline range of functioning". In other words, the appellant's ability to understand and express himself and to think and reason using language is very poor. The appellant was educated to Year 10, and left school at the age of 15 years. He has worked in a succession of jobs, as an automobile repairer, in a bicycle shop, as a nurseryman, as a hotel worker, a tree-lopper, and as a kitchen-hand.

10 In the course of the plea a report by a social worker was tendered which described the appellant's intellectual functioning and noted that he had expressed remorse and could not fully understand his offending behaviour. A report by a psychiatrist was also tendered. In the psychiatrist's opinion the appellant suffered from a chronic depressive disorder precipitated by the death of his father and grandfather and exacerbated by employment and financial difficulties. According to the psychiatrist, the appellant was probably in a state of suicidal depression when he committed the offences. He could find no rational explanation of the crimes. They did not appear to be driven by any financial need. The psychiatrist, too, noted that the appellant was remorseful. The sentencing judge also had before him a psychological report describing the results of various tests as to the intellectual functioning of the appellant. In the course of the plea the appellant's elder brother gave evidence of the appellant's speech impediment, which led to social difficulties as a child, and to ongoing problems at work as an adult. He said that the appellant suffered migraines and shaking, and had attempted suicide several times. The sentencing judge adjourned the hearing of the plea and called for a pre-sentence report. He did not, however, rely on the report, describing it as "of limited assistance".

11 The crime of armed robbery perpetrated against defenceless, isolated persons late at night is serious and calls for condign punishment in order to deter others. The seriousness of the offence in the eyes of Parliament is marked by the maximum sentence prescribed for it. In R. v. Orlikowski[1], Winneke, P., speaking of the attempted armed robbery of a service station by a youth wielding a knife, said:

"One has to be careful, I think, in entertaining applications against sentences of this sort, not to allow too readily the personal circumstances of the offender to mask the features of this crime which required the sentencing judge to properly regard principles of general and specific deterrence as important features in the exercise of the sentencing discretion. The crime is one which is perpetrated upon usually defenceless members of the community whilst those persons are going about their business, often in circumstances of isolation. The crime is one which instils terror into its victims ..."

In my opinion those remarks are equally applicable to the facts of the present case.

12 In his able argument, counsel for the appellant emphasised the early plea of guilty, the appellant's previous good character, his depression and limited intellectual faculties and the physical dangers to which he was exposed in prison, from himself and others. Each of those circumstances constituted a mitigating factor. The sentencing judge referred to those matters and analysed them with some care.

13 Having regard to the circumstances in which the crimes were committed and the importance of the need for general deterrence, I am unable to characterise the sentence as manifestly excessive, notwithstanding the personal circumstances of the appellant and the powerful mitigating factors found in those circumstances. The manner in which the armed robberies were committed, apparently designed to instil the greatest fear in the victims, made them bad examples of a serious crime. The abduction of the service station attendant increased the terror which he experienced. The sentence overall, and particularly the minimum term, were obviously moderated to reflect the personal circumstances of the appellant. The extent to which the principle of general deterrence is to be moderated by reason of an offender's mental condition depends upon the nature of that condition. In R. v. Yaldiz[2], Winneke, A.C.J. said:

"It is true that courts in those cases expressed the view that serious

psychiatric illness falling short of legal insanity is relevant to sentencing because, inter alia, a person suffering from such an illness is not an appropriate vehicle for general deterrence" - [and his Honour referred to the case of R. v. Tsiaras.] But it must be remembered that in each of the cases to which I have referred the accused was suffering either from schizophrenia or a schizophrenic-type illness which obscured the mental intent to commit the crime with which he had been charged. It is not appropriate to simply fasten on the words "recognised psychiatric disorder" and then, without reference to the symptoms and the consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process."

The appellant was not suffering from a serious psychiatric illness which obscured his mental intent. That is not to say that his depressive condition and intellectual disability did not justify moderation of the principle of general deterrence. In my view, however, the sentencing judge appears to have moderated the sentence which he might otherwise have imposed, and has done so appropriately. Accordingly, I am unable to say that the sentence was outside the range of sentences that was available to the sentencing judge.

14 I would dismiss the appeal.

CALLAWAY, J.A.:

15 I am sorry for the appellant, having regard to his personal circumstances and otherwise impeccable record, but I can detect no error in the sentence. I, too, would dismiss the appeal.

COLDREY, A.J.A.:

16 I also would dismiss the appeal.

CALLAWAY, J.A.:

17 The order of the Court is:

Appeal dismissed.

[1] Unreported, Court of Appeal, 16 October 1997, at p.4.

[2] [1998] 2 V.R. 376, at 383.

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