Court of Appeal (Vic)|2011-04-05|Before: Redlich JA

Armistead v The Queen [2011] VSCA 84 (5 April 2011)

R v Armistead [2008] VCC 0437 (Judge Wood)

CRIMINAL LAW - Sentencing - Two counts of armed robbery - Whether double punishment for possession of firearm - Sentence on second count of possession manifestly excessive - Fresh evidence of provisional diagnosis of bipolar disorder - Whether relevant to substance abuse and gambling addiction and hence to prospects of rehabilitation - Re-opening of sentencing discretion - Material error on individual sentences - Quashing of conviction and sentence on one count and error in sentence on another count - Sentencing discretion re-opened with respect to non-parole period but not other individual sentences.

1 The appellant pleaded guilty in the County Court to two counts of armed robbery (counts 1 and 3) and two counts of possessing an unregistered firearm whilst being a prohibited person (counts 2 and 4). The primary questions raised in this appeal concern the validity of the conviction on the second count of possession of an unregistered firearm, whether the principle against double punishment has been infringed in the sentences imposed on the counts of possession and if so, whether the sentencing discretion should then be re-opened with respect to any of the other sentences imposed.

2 The conduct the subject of counts 1 and 2 occurred on 18 September 2007. The appellant drove to the Warrnambool Football Club in a vehicle bearing false numberplates. Wearing a black balaclava over his head and carrying an imitation handgun he entered the gaming area of the club. He repeatedly yelled at the nearest employee to get down on the ground, pointing the imitation handgun at him. He demanded money from another employee and was handed a cashbox containing $9700. The appellant then fled the premises in the vehicle, attracting the attention of witnesses who called the police.

3 The offences the subjects of counts 3 and 4 were committed two months later, on 19th November 2007, in Seymour. The appellant robbed the Goulburn Murray Credit Union with the same imitation handgun used in the previous robbery. Prior to the robbery, the appellant sat in his vehicle opposite the credit union and watched for between 30 minutes to an hour until there were no customers in the bank. The appellant then pulled the hood of his jumper over his head and entered the premises, confronting the first teller with the imitation handgun and demanding money. The teller placed $2700 from her drawer on the counter. The appellant took the money and, after hearing an alarm sounding, ran out of the credit union.

4 Witnesses who saw the appellant leave the bank provided police with his description. One witness recorded the registration number of his vehicle, leading to the appellant's arrest later that evening at a KFC outlet in Seymour. Upon his arrest the appellant informed the police that the gun he had used that day was not real and disclosed the location of the stolen money at a nearby motel. During interviews with police the appellant made full admissions in relation to the two robberies.

5 On 24 April 2008 the appellant was sentenced to six years' imprisonment on each of the counts of armed robbery, and two years' imprisonment on each of the two counts relating to his possession of the imitation handgun. The sentencing judge ordered that three years of the sentence imposed on count 3 be served cumulatively on count 1, and that the sentences imposed on counts 2 and 4 be served concurrently with the sentence imposed on count 1, making a total effective sentence of nine years' imprisonment. The sentencing judge imposed a non-parole period of six years. This Court granted the appellant leave to appeal.

Crown concession that conviction on count 4 should be quashed

6 In support of a submission that the conviction on count 4 should be quashed, counsel for the appellant referred to R v Paoletti,[1] in which the conviction and sentence on one of two counts of possessing a firearm was set aside. There was no suggestion of any discontinuity of possession between the two dates on which the possessions were pleaded. The first offence of possession of that firearm had been treated by the sentencing judge as an aggravating factor in relation to other offences committed at the same time. The present case is not dissimilar. While Paoletti did not finally decide the question whether it was impermissible to have charged the appellant with two offences of possession, in that case it was considered inappropriate to have laid the second count.

7 The Crown conceded that the appellant's conviction on the two counts of possessing the same unregistered firearm whilst being a prohibited person amounted to double punishment. There was no suggestion that there had been any interruption in the possession of the gun between the two offences. The Crown submitted that as there was a continuous period of possession of the same firearm, from 18 September 2007 to 19 November 2007, it was at least 'artificial', if not impermissible, to have charged two separate offences for the one period of continuing possession,[2] and that the appropriate course would have been to lay only one charge of possession between those dates. The Court was invited by both parties to allow the appellant an extension of time in which to seek leave to appeal against the conviction on the second count of possession (count 4), and to quash the conviction and sentence on count 4. For the reasons that follow, it is unnecessary to decide whether there may have been a basis upon which it was permissible to present the appellant on both counts of possession. Given the Crown's submission as to the appropriate course, and the other concessions to which I shall now turn, the conviction on count 4 should be quashed.

Conviction and sentence on count 2 (and count 4) in addition to counts 1 and 3 amounted to double punishment

8 The appellant submitted, under ground 3, that his conviction and sentence on each of the armed robbery counts and the (remaining) count of possessing an unregistered firearm whilst being a prohibited person amounts to double punishment. It was submitted that the sentences imposed on counts 1 and 3 included a component for using the imitation firearm.

9 The prohibition on double punishment is found in s 51 of the Interpretation of Legislation Act 1984, which prohibits an offender from being punished twice for the same act or omission.[3] Section 51 may not necessarily be infringed because an offender is sentenced on two offences where the same fact is an element of one and is also an element or a circumstance of aggravation of the other if the sentencing judge has taken into account the sentence imposed on the first offence and given credit against the sentence to be imposed on the second offence, to avoid punishing the offender twice for the same act.[4]

10 The sentencing task in the present case did not require such an approach, because the act of possession the subject of count 2 was not the act of possession at the time of the armed robbery. The appellant's use of the imitation firearm was an act constituting an element of the offences of armed robbery, and the sentences imposed on counts 1 and 3 were designed to punish the appellant for that use during the robberies. The offences of being a prohibited person in possession of an unregistered firearm, though committed on the same days as the robberies, were discrete offences, comprising the elements that the appellant was a prohibited person within the meaning of the s 3 of the Firearms Act 1996, and that at the time of being a prohibited person, he had in his possession an unregistered firearm.

11 The sentencing judge was therefore required to impose sentences on the possession counts that did not include any penalty for the possession or use of the firearm in the course of the armed robberies. The Crown conceded that to avoid punishing the appellant twice for the same act, the sentence on the surviving count of possession needed to be reduced to reflect both the fact that the appellant was not being punished on that count for the use of the firearm in either of the armed robberies, and that it was an imitation weapon and was therefore a less serious example of the offence of possession.

12 Sentences in the order of two years for the offence of possession of an unregistered firearm whilst being a prohibited person are usually reserved for cases where the firearm is in fact used in the commission of an offence, or is possessed for a specific criminal purpose,[5] or is 'associated with ongoing criminal activity'.[6] Cases in which the possession cannot be so characterised normally attract sentences considerably lower than two years' imprisonment. The sentence imposed has left me uneasy that his Honour treated the fact that the appellant used the imitation firearm in the armed robberies as establishing that the possession was for a specific criminal purpose so as to aggravate the offence of possession, and in that way an element of double punishment crept into the sentence. Having been punished for his use of the firearm in the armed robbery, the range of sentences open to the sentencing judge was not those for possession associated with criminal activity.

Error in imposing the same sentence on both counts of armed robbery

13 Under ground 2 the appellant submitted that the sentencing judge should have imposed a lesser sentence on count 1 than on count 3. After he was arrested for the robbery at Seymour he readily admitted to the armed robbery he had committed in Warrnambool. The sentencing judge had noted that 'but for those admissions [it] would have taken some considerable effort' to establish that offence was committed by the appellant. The appellant relied upon R v Ellis[7] and R v Marcus[8] as support for the proposition that the appellant was entitled to a discount on his sentence for count 1 by reason of his admission.

14 This argument rests upon the false premise that but for the appellant's disclosure of the offending the subject of count 1, the police would not have known or been able to establish that he had committed that offence. The authorities to which the appellant referred are cases in which the offenders volunteered their guilt to other offences of which the investigators were unaware or which they would not have attributed to the offender. In those cases additional clemency is warranted. This is not such a case. The police here stated at the very outset of their interview with the appellant that they wished to question him about the Warrnambool robbery. It was not submitted that the investigators would not have been able to prove that the appellant had committed the Warrnambool robbery without his admission. This ground of appeal fails.

Fresh evidence of appellant's diagnosis of bipolar disorder

15 Under cover of ground 1 the appellant sought to tender fresh evidence, in the form of a report by a psychiatrist who assessed the appellant while he was in custody. This report was said to shed new light on the mental condition of the appellant at the time of sentence. The appellant submitted that this Court should admit this fresh evidence and reconsider the sentences imposed below in light of what it reveals about the appellant's prospects for rehabilitation.

16 At the time of sentencing the judge had before him two reports by a psychologist that described the appellant's history of alcohol and drug abuse, depression and chronic gambling problem. The judge in his sentencing remarks stated that:

The only explanation for your offending offered was your need for money which was a consequence of your use of drugs, both legal and illegal, and predominantly your addiction to gambling and the attendant depressed state that you fell into.[9]

17 The sentencing judge commented that he considered the appellant's prospects of rehabilitation to be 'slim unless [he] can overcome [his] addictions.'[10] He noted that at the date of sentencing the appellant was still waiting for an appointment to consult with a psychiatrist.[11]

18 After being sentenced and while in custody, on 21 August 2009 the appellant was assessed by Dr Sullivan, a psychiatrist. Dr Sullivan reported that the appellant had a long history of polysubstance abuse involving alcohol, benzodiazephines and cannabis, and at the time of offending was significantly affected by substance abuse. He also noted the appellant's history of gambling problems, which he opined were associated with his offending. Dr Sullivan made the following comments:

Mr Armistead has a history of mood instability, with depressive episodes, and self-reported periods of elevation. His descriptions are not validated by external sources outside prison, but are likely consistent with a bipolar affective disorder type 2 ... It should be noted that Mr Armistead has not required hospital treatment and has not had significant contact with mental health services outside prison. In addition he has reported marked substance use problems and the diagnosis of bipolar affective disorder is constrained by the likely co-existence of drug and alcohol use.

He reports a strong family history of bipolar affective disorder and has been consistent in his descriptions to mental health professionals in custody. Nevertheless bipolar affective disorder type 2 is a provisional diagnosis as his descriptions are based on self-report, overlap with periods of heavy substance use, and have not clearly been associated with marked impairment on mental state.

19 Dr Sullivan reported that there was 'no indication' that at the time of the offending the appellant was suffering 'significant mood disorder or psychosis', but rather:

His actions were clearly affected by polysubstance use and underlying that was problem gambling. These disorders would have impaired his judgment and reduced his ability to think clearly and calmly.

20 The crucial passage of the doctor's report relied upon by both parties is the following:

A provisional diagnosis of bipolar affective disorder type 2 may have predisposed Mr Armistead to gambling and substance use problems. However there is no evidence suggesting that there is a causal association between mood disorder and his offending.

21 Dr Sullivan also noted in his report that there was 'no indication that he finds incarceration more onerous than others due to mental disorder.'

22 Counsel for the appellant accepted that, given Dr Sullivan's finding that there was no evidence of a direct link between the disorder and the offending or that the disorder would make prison more onerous, the appellant did not rely upon his diagnosis of bipolar disorder as enlivening the principles in R v Verdins.[12] However, it was submitted that it was relevant for the limited purpose of showing that his prospects for rehabilitation at the time of sentencing were more positive than the sentencing judge appreciated. The appellant submitted that the treatment of his (now diagnosed) disorder through appropriate medication would enhance the appellant's prospects of successfully addressing his gambling and drug and alcohol problems, which, the parties agreed, were causally related to his offending.

23 The Crown opposed the acceptance of the report as fresh evidence. It emphasised the provisional nature of Dr Sullivan's diagnosis that it was 'likely' that the appellant suffered from the disorder, and submitted that the report suggested that the symptoms described by the appellant were equally capable of being attributed to his substance abuse.

24 Further, the Crown submitted that, even accepting the provisional diagnosis was correct, Dr Sullivan's report was not relevant to the sentencing of the appellant, because it did not establish that there was a connection between the appellant's bipolar disorder and his gambling problems and alcohol and drug addiction, hence the diagnosis was irrelevant to the appellant's prospects of rehabilitation. The Crown submitted that Dr Sullivan's comment that the disorder 'may' have predisposed the appellant to gambling and substance use problems was merely a general statement about the nature of bipolar disorder, rather than a finding that this was in fact the case.

25 Because of the uncertainty of the diagnosis, the Court gave the appellant the opportunity to file a supplementary report from Dr Sullivan to further clarify his findings. In the supplementary report, dated 25 January 2011, Dr Sullivan said that '[i]f it is accepted that Mr Armistead can be diagnosed with bipolar type 2, then he would certainly be predisposed to developing problems with substance use and gambling.' Dr Sullivan amplified his reasons for a provisional diagnosis stating that, given the appellant's significant history of substance abuse, '[h]is reported mood symptoms during periods of time engaged in substance abuse are more likely to reflect intoxication or withdrawal than symptoms of mental illness.' He stated that there was no evidence of a causal association between the disorder and the offending:

On the information available, I did not consider that I was able to define a significant causal association between (a putative) bipolar disorder and Mr Armistead's offending. The presence of significant substance abuse problems means that substance abuse becomes the most likely and direct causal association with offending; any more distal factors which in turn predispose to substance abuse are considered of less relevance. Thus I did not consider it likely that Mr Armistead's putative bipolar disorder type 2 was of great salience in the offending.

26 Dr Sullivan further stated that bipolar 2 disorder, substance use and gambling are associated conditions, in that the prevalence of each other condition increases if one of the conditions is diagnosed. However, he reported that:

In Mr Armistead's case, his reported severe substance abuse makes it difficult to determine the relative role of a bipolar spectrum disorder ... the presence of significant substance use disorder would render this the more likely proximate cause of problem behaviours, even if a putative mood disorder predisposed to substance use disorder.

27 In relation to the question whether appropriate medication and treatment for the appellant's disorder would reduce the likelihood of him engaging in gambling and substance use in the future, Dr Sullivan stated:

If it is accepted that Mr Armistead's gambling and substance abuse are causally associated with a bipolar 2 disorder, the treatment may also reduce the risk of problem gambling and/or substance use.

However substance use and problem gambling may also exist separately, that is, not associated with mood disorder. In Mr Armistead's case, if it is accepted that he has a bipolar type 2 disorder, good control of mood symptoms may not prevent problem gambling or substance abuse, although the risk is likely to be reduced.

28 It is apparent from this supplementary report that the appellant's substance abuse made it difficult for Dr Sullivan to draw any firm conclusions about whether the appellant in fact was suffering from bipolar disorder, whether any such disorder was causally connected to his substance use and gambling problems, and whether his disorder (if accepted) could be said with any confidence to have contributed, even indirectly, to his offending, such that, if the disorder is properly treated, he is less likely to re-offend.

29 I am therefore not satisfied that Dr Sullivan's reports can be classified as fresh evidence. Because Dr Sullivan's conclusions are so heavily and necessarily qualified it cannot be said that such evidence demonstrates the true significance of facts in existence at the time of the sentence,[13] namely that the appellant suffered (and continues to suffer) from bipolar disorder, which if successfully managed would make it less likely that he would re-offend. The material now before the Court does not justify the conclusion that a different sentence should be substituted to avoid a miscarriage of justice.[14]

Is the sentencing discretion reopened in relation to the armed robbery counts?

30 During the hearing the appellant submitted that as the Crown had conceded that the sentence on count 4 must be quashed and had further conceded error in relation to the sentence imposed on count 2, the sentencing discretion was reopened in relation to all of the sentences imposed by the learned sentencing judge. The Crown disputed that this was so. The sentence here was governed by s 568(4) of the Crimes Act 1958, although nothing turns on whether it is a sentence under the old provision or the Criminal Procedure Act 2009.[15] The Crown submission, which is plainly correct, is that the sentencing discretion is not generally reopened unless the error made in sentencing on one count was material in relation to the sentences imposed on the other counts.

31 The appellant relied on R v Butter[16] as authority for the proposition that an error in relation to an individual sentence will re-open the sentencing discretion generally. In Butter the appellant was sentenced on some 14 counts, but only appealed against the sentence imposed on count 1 (on the basis it was manifestly excessive). There the Crown had submitted that if the Court re-sentenced in relation to count 1, it would need to re-sentence the appellant on all the other counts. It was plain in Butter that the sentence on count 1 had influenced the sentences on all of the other counts, such that the sentence on count 1 did not 'stand alone'.[17] In that context, Nettle JA, with whom the other members of the Court agreed, rejected the appellant's submission that as the appeal was only against the sentence imposed on count 1, the Court had no power to interfere with the sentences imposed on the other counts. He found that the error in the sentence imposed on count 1, affected each of the other sentences and the non-parole period. Butter was an usual case, and it is not authority for the proposition that the sentencing discretion in relation to all sentences is opened once error with respect to one sentence is established.

32 There is no ground of appeal that the sentences imposed on the counts of armed robbery are manifestly excessive, or that the order for cumulation or the non-parole period is manifestly excessive. As was explained in the joint judgment in Ludeman v The Queen,[18] an error with respect to an individual sentence, whether under the old or new sentencing regime, does not call for reconsideration of other sentences unless it is apparent that the error affected those other sentences. Here the errors in the sentences on counts 2 and 4 were not material to the individual sentences imposed on the counts of armed robbery, or the order for cumulation. The sentencing discretion is not re-opened with respect to these sentences. That said, the sentences imposed on counts 2 and 4 were not immaterial to the determination of the non-parole period. As the joint judgment states in Ludeman, an attack upon an individual sentence includes an attack upon a non-parole period fixed in respect thereof.[19]

33 Obviously, an error with respect to an individual sentence can justify the court reconsidering the non-parole period fixed in relation to that sentence.[20] This applies with equal force when the non-parole period relates to multiple sentences of imprisonment, because the non-parole period is informed by each of the individual sentences imposed.[21] It is also true, based on the same logic, that a successful attack on a non-parole period can justify interference with the individual sentence (or sentences) of which the non-parole period was a part.[22] In fixing the non-parole period, the sentencing judge was bound to take into account the totality of the appellant's offending. That included the two counts of possession of an unregistered firearm as a prohibited person even though the sentences on those counts were made concurrent with the sentence on the first count of armed robbery. The sentences fixed on the counts of possession of an unregistered firearm reflected the degree of the appellant's criminality. As the conviction on one of those counts must be quashed and the sentence on the other reduced, the errors were material to the non-parole period. The sentencing discretion with respect to the non-parole period is re-opened.

34 The conviction and sentence on count 4 should be quashed. I would re-sentence the appellant to six months' imprisonment on count 2, the sentence to be served concurrently with the sentence fixed on count 1. As the sentences imposed on the counts of armed robbery and the order for cumulation made by his Honour are not affected, the total effective sentence remains nine years' imprisonment. In fixing the non-parole period, I have had regard to his Honour's findings concerning the appellant's personal circumstances and also his history of alcohol and drug abuse, depression, and a chronic gambling problem which the sentencing judge classified as an addiction. In one of the psychologist's reports tendered on the plea, it had been stated that the appellant would require 'very strong supervision on release' due to his 'fragility' to alcohol, drugs and gambling. I would therefore fix a period of five years before the appellant is eligible to be released on parole.

35 It should be noted that the Return of Prisoners form wrongly records that the sentencing judge ordered three years' imprisonment imposed on count 3 to be served cumulatively on the period of six years' imprisonment imposed on count 2.

In fact the three years from count 3 was to be cumulated on the six years' imprisonment imposed on count 1. This is made clear by the reasons for sentence, the total effective sentence, and the sentencing judge's report.

[3] Note that the concept of 'punishment' for the purposes of s 51 includes the recording of a conviction: see Sessions v R [1998] 2 VR 304, 312 (Hayne JA) and s 7 of the Sentencing Act 1991 (Vic).

[4] Richard Fox and Arie Frieberg, Sentencing:State and Federal Law in Victoria (2nd ed, 1999) [1.410]; Moore v The Queen (1995) 79 A Crim R 247, 254 (Scott J).

[5] Hudson v R [2010] VSCA 332, [54]; R v Rudd [2009] VSCA 213; (2009) 23 VR 444, 464.

[6] R v Graham [2007] VSCA 252; (2007) 178 A Crim R 467, 470 (Vincent JA).