Camblin v The Queen [2013] VSCA 1

2 The armed robbery in question took place on the morning of Friday, 27 January 2012. The applicant robbed a pharmacy which he had previously attended as a customer. At the time of the robbery, he was wearing a beanie which had been fashioned into a balaclavalike disguise, with eyeholes cut into it, and a hooded top. He was armed with a carving knife.

3 He attended the pharmacy and approached a staff member there, demanding money. He had the carving knife in his hand when he did so. He fled after being given money and was apprehended in the carpark.

4 The applicant seeks leave to appeal on two proposed grounds.

5 The first proposed ground is that the sentence imposed does not reflect what is said to have been the sentencing judge's expressed intention with respect to the nonparole period. The submission is that in his sentencing remarks, the judge had said that the applicant would benefit from 'a relatively lengthy period of parole'. It is submitted that a nonparole period of four years on a sixyear sentence does not provide for a relatively lengthy period of parole and that the judge has not given effect to his stated intention. The applicant conceded that a nonparole period of four years on a sixyear sentence is well within the permissible sentencing range.

6 What the judge actually said was that he found the applicant would benefit from a relatively long period of parole and that in considering the minimum term and in fixing that term, he kept in mind a number of matters, of which that was one. I do not consider that there was any failure to give effect to a stated intention. In the circumstances here, two years could properly be seen as a relatively long period on parole.

7 In my view, this proposed ground is not reasonably arguable.

8 The second proposed ground is that both the sentence and the nonparole period are manifestly excessive. In relation to that ground, it is submitted that the sentence fails to give adequate weight to the applicant's prospects of rehabilitation. The submission is that while the applicant has an extensive criminal history, attention should have focused on the fact that he had stayed out of trouble for a fiveyear period prior to this offence, and that during that period he had taken what were described as real and effective steps to become a useful and normal member of society. It is submitted that the applicant has demonstrated a genuine desire and a real ability to reform.

9 In support of this proposed ground, it is also submitted that the sentencing judge gave too much weight to the applicant's prior criminal history. The submission is that while the applicant does have a bad criminal history, including prior convictions for 12 armed robberies, as well as convictions for burglary and theft, at the time of this offence he had not engaged in any criminal conduct for approximately five years and had completed a period of three and a half years of parole in relation to prior convictions. It is submitted that he demonstrated a change in his habits and lifestyle which was remarkable when contrasted with his prior history.

10 Finally, in support of this proposed ground, it is submitted that the sentencing judge did not give sufficient weight to the fact that the applicant had, in his 40s, for the first time broken the cycle of heroin addiction which had otherwise dominated his life, at least for a period. It is submitted that he had a very sad personal history, having spent a large proportion of his teenage and adult years in institutions and having spent much of his adult life addicted to heroin. The fact that he was able to get on top of that addiction, at least for a time, is said to be a very significant factor.

11 In that context, it is submitted that his relapse into drug use arose as a result of a back injury which he suffered at work and of the prescription of a particular painkiller which, it is said, constituted the 'pathway' that led him back to heroin addiction.

12 I observe in relation to the last point that the sentencing judge did not accept that as an explanation, and I do not consider that there are grounds to conclude he made any error in that respect.

13 It is also submitted that this particular armed robbery, whilst involving a weapon and whilst being on what might be described as a 'soft target', was, within the scheme of armed robberies generally, of low range or low gravity.

14 The applicant's life has been plagued by drug abuse since he was a young teenager. Prior to this offending he did apparently successfully address that abuse for a time.

15 The applicant has committed many offences over his life, has come before the courts on many occasions, and has served many periods of incarceration. Most importantly, he has 12 prior convictions for armed robbery. In 1993 he was sentenced to substantial terms of imprisonment in the County Court for six armed robberies and in 2003 he was sentenced to further substantial terms of imprisonment in the County Court for four armed robberies.

16 Notwithstanding the matters put on behalf of the applicant, which were ably and cogently put, both here and before the sentencing judge, and all of which the sentencing judge did take into account, in my view it is simply not arguable that the sentence in this case is manifestly excessive. It is less than the total effective sentence which was imposed in 1993, and almost the same as the sentence that was imposed in 2003.

17 The applicant has a bad criminal history and a history of prior armed robberies. He brandished a knife at innocent staff members in a public place. The application for leave to appeal should be refused.

18 I agree. I would add only this. So far as ground 1 is concerned, it should be emphasised that it will be a very rare case in which the Court will be persuaded that what a judge did with respect to a nonparole period simply did not give effect to that judge's stated intention. Almost invariably this Court will infer that what the judge actually did was what the judge intended to do. Whatever adjectives might have been used to describe the intended length of the nonparole period, or the parole period, the Court will take a lot of persuasion before concluding that the intention has relevantly miscarried, such that this Court should step in and do what the judge intended to do but failed to do.

19 Secondly, so far as the ground of manifest excess is concerned, this Court has been at pains to emphasise in recent years that this is a ground which is very difficult to make good.[1] So often it is advanced as a ground of appeal and it fails much more often than it succeeds, for the reasons that we have repeatedly set out. That is, this is not a court of rehearing. The Court will only interfere on the ground of manifest excess where the sentencing judge has gone obviously or badly wrong.

20 Counsel for the applicant put submissions which might have persuaded a different sentencing judge to take a different view of the relative balance between prospects of rehabilitation on the one hand and the need for specific deterrence and community protection on the other. Again, however, the Court has said repeatedly[2] that where that balance is struck is a matter for sentencing judges. The law of Victoria commits that decision to sentencing judges, not to the Court of Appeal, and we will continue to resist attempts to reargue a plea in mitigation.

21 As Whelan JA has said, this judge carefully considered all of the matters properly advanced on the applicant's behalf and reached conclusions which were palpably open to him on the material. Those who are considering whether there is an arguable ground of appeal against sentence must appreciate that the manifest excess ground is reserved for cases where there is demonstrable miscarriage in the exercise of the sentencing discretion, not for cases where there may be room for debate as to precisely where a particular judge might end up.

22 The order of the Court is: application for leave to appeal refused.

[1] Clarkson v The Queen [2011] VSCA 157; (2011) 212 A Crim R 72, 95 [89]; DPP v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14, 44 [127].

[2] See, eg, R v Wyley [2009] VSCA 17, [22]-[23].