Darcie v The Queen [2012] VSCA 11

Court of Appeal (Vic)|2012-02-09|Before: Mr J, Ms J, Buchanan JA

R v Darcie (Unreported, County Court of Victoria, Judge Allen, 12 April 2011)

CRIMINAL LAW - Sentencing - Armed robbery, attempted armed robbery, theft and handling stolen goods - Sentencing judge concluded that other victims had experiences similar to those of victim who made a victim impact statement - Relevance of deportation - Recognition of real risk of deportation - Likelihood of deportation a matter of speculation -Total effective sentence of 6 years' imprisonment with a minimum term of 3 years and 6 months' imprisonment not manifestly excessive - Appeal dismissed - No point of principle.

Mr C Hyland, Solicitor for Public Prosecutions (Ms S Aridas)

2 The appellant has been given leave to appeal against sentences imposed upon him in the County Court on 12 April 2011.

3 He was sentenced to 1 month's imprisonment for handling stolen goods (charge 1), 1 month's imprisonment for theft (charge 2), 3 years' imprisonment for armed robbery (charge 3), 2 years and 6 months' imprisonment for attempted armed robbery (charge 4), 3 years' imprisonment for a second armed robbery (charge 5) and 2 years and 6 months' imprisonment for a second attempted armed robbery (charge 6), as well as one month's imprisonment for a second theft (charge 7).

4 The total effective sentence was 6 years' imprisonment and a non-parole period of 3 years and 6 months was fixed. The sentencing judge declared under s 6AAA of the Sentencing Act 1991 that, but for the plea, he would have imposed a total effective sentence of 7 years and 6 months' imprisonment with a non-parole period of 5 years.

5 The maximum penalty for handling stolen goods, contrary to s 88 of the Crimes Act 1958, was 15 years' imprisonment, for theft, contrary to s 74(1) of the Crimes Act 1958, was 10 years' imprisonment, for armed robbery, contrary to s 75A(1) of the Crimes Act 1958, was 25 years' imprisonment and for attempted armed robbery, contrary to s 75(1) and s 321 of the Crimes Act 1958, was 20 years' imprisonment.

6 On 13 September 2010 a set of registration plates bearing the number QMN 843 was stolen from a car parked at Gladstone Park Community Centre. The appellant affixed the stolen registration plates to his father's Toyota Camry motor

7 On 21 September 2010, he drove that car to a service station. He put petrol, worth $50, into the car and drove off without paying for it (charge 2).

8 On 23 September 2010 at 8.30 am, the appellant demanded money from Li Wang at a 7 Star Mini Mart at Gladstone Park. Ms Wang was standing behind the counter at the store. The appellant wore a hood and had a cloth over his face. He pointed something covered by a dark cloth at Ms Wang. Ms Wang thought it was a gun and also noticed that he had a knife in the left front pocket of his pants. The appellant again demanded money. Ms Wang gave him about $300 in cash (charge 3).

9 At 12.40 pm on the same day the appellant demanded money from Rong Fu at a milk bar in Airport West. The appellant had his top zipped up to cover his face. He held his right hand, covered by his sleeve, as though he were pointing a gun at Mr Fu. He repeated his demand. Mr Fu picked up a slab of drinks and threw it at the appellant who ran from the store. Mr Fu took up a can of drink and chased him. The appellant got into his car. Mr Fu threw the can of drink, hitting the back of the car as it drove away (charge 4).

10 The appellant then went to another milk bar in Airport West, less than a kilometre away. He had his hood over his head and a dark cloth covering his face. He approached the cash register and said to Xun Kang 'I want money from there' pointing to the cash register with his left hand. His right hand was covered in a black cloth and pointed at Mr Kang. It appeared to Mr Kang to be shaped like a gun. Mr Kang's family was at the back of the shop where they lived. Mr Kang was fearful for his family's safety. The appellant repeatedly demanded money. Mr Kang opened the till and threw cash towards him. The appellant demanded $50 more and Mr Kang complied. He left the shop with approximately $300 (charge 5).

11 Four days later, on 27 September 2010 at about 6.35 pm, the appellant entered a milk bar in Tullamarine. Lei Chen walked from a back room into the milk bar. The appellant was wearing a baseball cap. His face was covered with a dark cloth. The appellant pointed something in his hand, which was covered by a dark cloth, at Mr Chen. He said, 'Give me money or I'll shoot you'. Mr Chen went behind the service counter to the cash register. The appellant kept the object covered by the dark cloth pointed at him. Mr Chen picked up a wooden club and held it out in front of him. He said, 'If you can win this club I will give you money'. The appellant replied, 'I will shoot, I will shoot'. They faced each other for about 20 seconds before Mr Chen called out to his wife. The appellant ran from the store (charge 6). Mr Chen then chased him outside. The appellant got into a white station wagon driven by a friend.

12 On 3 October 2010, the appellant drove his father's car, bearing the stolen registration plates, to a Coles Express petrol station. He put petrol worth $73 into the car and drove off without paying (charge 7).

13 Only one of the three victims, Li Wang, made a victim impact statement. She said that she had had high blood pressure and heart problems since the robbery and that the event was ever present in her mind. She no longer felt safe and scrutinised every customer warily, hesitant to serve them. She was afraid of people dressed in black (as the appellant had been at the time of the offence). She felt worthless and had lost interest in life. The crime had impacted adversely on her business and she claimed that she had lost $1900 as a result.

14 The sentencing judge stated that he had no doubt that the appellant's conduct had had a similar effect on the other victims.[1]

15 The appellant was examined on 22 March 2010 by Dr Simon Kennedy, a clinical and forensic psychologist, who prepared a report for the sentencing court. The appellant acknowledged to Dr Kennedy that he had terrified the victims of his offences. Counsel for the appellant also told the sentencing judge that he had viewed CCTV footage of the events and expressed the view that there was no doubt that the experience had been a terrifying one for them.

16 The appellant was born on 17 September 1972 in England, into an Anglo-Indian family. He is 41 years' old and was aged 38 when he offended in 2009. His parents purchased the South London council flat in which he grew up.

17 When he was 15, his family moved to a more middle class area of Somerset which was marked by some racial intolerance. The appellant, nevertheless, completed his secondary education successfully and started studies for a Diploma in Business and Finance at a Surrey technical college. Although he dropped out of that course, he had steady employment right up to the time of his April 2009 offences. He worked in England as a shop assistant and then as an installer of fibre optics. For many years afterwards, he was employed in the kitchen construction industry as a kitchen planner and sales person. He became a kitchen designer in 1998 and was very successful in that role.

18 The appellant's parents emigrated to Australia in 1996 and he followed in about 2000 or 2001. He was living with them in Gladstone Park when he was arrested in relation to the subject offences. At that time, the appellant's father, who had worked in logistics, was 82 years' old and his mother, a former accountant, was 66 years of age. His 48 year old sister, who had come to Australia in 1992, was married with two children and living in Melbourne. The appellant has a brother, suffering from spina bifida, who remains in the United Kingdom in supported accommodation.

19 The appellant came from what the sentencing judge described as 'a close-knit, decent, law-abiding family with strong religious commitments, who are highly spoken of by those who know them'.[2] His parents were strict and it was after they left him in England that he began to use drugs. He told Dr Kennedy that he had begun using cocaine on a recreational basis after his parents' departure in 1996. This was not a significant problem. In Australia, he began using amphetamine in about 2007 and used methamphetamine in 2008 and 2009.

20 In about 2007, the appellant began a relationship with a woman who was a heroin user and it was then that he started using that drug. He was addicted to heroin by 2009, when the woman moved to Sydney and he followed. His daily use of heroin was at a cost of up to $50. His partner moved away and he was left isolated in Sydney, working in temporary jobs. He became depressed and his heroin use increased. He attempted a buprenorphine program.

21 The appellant's family helped him return to Melbourne, but he continued to use heroin. In Melbourne, he tried another drug program, but was starting a new job and remained addicted. The appellant was often using heroin twice a day and attributed his criminal acts directly to the funding of his addiction.

22 Dr Kennedy concluded that the appellant suffered from a dysthymic disorder, with vulnerability to depression interposed with periods of normality. He had no marked antisocial tendencies. It was likely that the appellant had used drugs as medication for his condition. Dr Kennedy concluded that the appellant had clear insight into his offending behaviour and was genuinely remorseful.

23 The appellant's family continued to support him with regular visits to the prison. He planned to return to the family home, where his maternal aunt would also live and give him support.

24 The appellant's prior convictions were for relatively minor offending. In Victorian Magistrates' Courts he was convicted of possession and use of amphetamine and methylamphetamine and possession of weapons on 2 April 2008 and of similar offences (involving only amphetamine) on 4 September 2009. He was also convicted of drug possession, driving and traffic offences and possession of goods suspected of being stolen in NSW local courts, on three occasions between 21 October 2009 and 9 December 2009. The penalties for his various offences were fines and bonds.

25 I note that members of the appellant's family and friends supplied references as to his general good character before he started suffering from the adverse effects of drug abuse.

Ground 1: The sentencing judge erred in finding the impact of the offending on the victims was equally serious

26 The appellant submits that the sentencing judge erred by stating that he had no doubt that the offending had an impact on other victims similar to that described by Ms Wang, the victim in relation to charge 3. He contends that this conclusion was not open, particularly in relation to the victims of the attempts who resisted the appellant's demands for money.

27 I agree with the respondent that the judge's satisfaction that the offending had a similar impact on the other victims of the appellant's offences was unremarkable. It was reasonable to assume that most victims of this type of armed robbery would experience fear and apprehension[3] at the time of the offence, as well as ongoing consequences similar to those experienced by Ms Wang. It would be to read too much into the sentencing judge's statement to conclude that he was suggesting that they would have been the same.

Ground 2: The sentencing judge erred in not finding that there was sufficient evidence that the appellant would lose the opportunity to live in Australia at the end of his sentence

29 The prosecutor conceded that the appellant's risk of deportation could be taken into account on the basis that it might well make the burden of imprisonment greater for him than for someone not facing that risk. In that context, the sentencing judge concluded that there was 'little doubt that [the appellant was] at risk, real risk' of deportation when his sentence finished.

30 His Honour referred to the Court's decision in R v Guden[4]. There, after a review of relevant authority,[5] the Court held that the prospect of deportation was a factor personal to the offender, which might bear on the impact of the sentence, during its currency and upon release, and was a relevant sentencing consideration.[6] Significantly, for present purposes, the Court concluded:

... subject always to the state of the evidence before the sentencing court, the prospect of deportation of the offender is a proper matter for consideration in determining the appropriate sentence. ...
As the Crown conceded on this appeal, the fact that an offender will serve his/her term of imprisonment in expectation of being deported on release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the New South Wales Court of Criminal Appeal in Kwon ([2004] NSWCCA 456) that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the Court there did, this may well be viewed as a serious 'punishing consequence' of the offending.
Of course, as this Court made clear in Griffiths, (Unreported, Court of Appeal, 29 April 1998 (Tadgell, Phillips and Kenny JJA)), the sentencing court cannot be asked to speculate. If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed - as in Griffiths - as 'a completely speculative possibility'.
What Nettle JA said in R v Tabone ((2006) [2006] VSCA 238; 167 A Crim R 18, [14]) in relation to the comparable question of the risk of confiscation of property following a conviction, applies with equal force here. That is, in the absence of evidence or an appropriate concession by the Crown there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order to properly assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship. (Emphasis added)

31 The sentencing judge quoted the italicised first sentence from para [27] of the joint judgment in Guden, before going on to make the statements upon which the appellant relies in relation to this second ground of appeal :

In this case, the learned prosecutor ... conceded that I could take the risk of deportation into account on that basis. The court [in Guden] went on to say that the sentencing court may take into account the fact that the offender will lose the opportunity of settling permanently in Australia. I do not take that into account in your case because I am not satisfied on the evidence that there is any certainty that you will be deported. However, I am satisfied that there is such a degree of risk that your concern and fear of being deported upon serving your sentence will be real and will make your imprisonment more burdensome than it would have otherwise been.

32 Deportation is regulated by the Migration Act 1958 (Cth). Section 501(2) of that Act provided that the Minister might cancel a visa if the Minister reasonably suspected that the person with the visa did not pass a 'character test'. Under sub-ss 501(6) and (7), a person sentenced to imprisonment for 12 months or more did not pass the character test.

33 The applicable Ministerial Direction (no 41), relating to visa refusal and cancellation under s 501, was before the sentencing judge. The direction applied to decision makers other than the Minister.[7] It set out 'primary considerations',[8] which the decision maker was obliged to take into account in every case, and 'other considerations',[9] which should be taken into account where relevant.[10] The direction stated that the other considerations generally were to be given less weight than that accorded to primary considerations.[11]

34 Primary considerations included the protection of the community from serious crime and, particularly, violent crime, and other harmful conduct[12] or the threat of it.[13] The risk of harm was to be assessed by reference to the seriousness of the relevant conduct, the likelihood of its repetition,[14] the sentence imposed and the offender's criminal history.[15] A recent history of convictions was to be considered indicative of increased risk of reoffending.[16] The length of time the offender had been in Australia was also a primary consideration.[17]

35 Other considerations included disruption to family ties in Australia,[18] hardship to immediate family members[19] and links to the country to which the visa holder would be returned.[20] The absence of significant family ties or support in that country might be considered in the person's favour.[21]

36 At the request of the sentencing judge, the appellant's solicitor had made an affidavit as to her attempts to ascertain from the Commonwealth Department of Immigration and Citizenship the likelihood of the appellant being deported as a result of his offending. Although she did discover that her client held a visa granted under the Skilled Migration Program, she found out little more as to the processes than what was apparent from the Migration Act and the direction. Essentially, officers of the department refused to comment about the prospects of the appellant's visa being cancelled.

37 The appellant's solicitor had also consulted a solicitor and migration agent. The solicitor had advised that, after notification of the visa holder's sentence, the department first considered whether to issue a notice of its intention to consider cancelling the visa under s 501 of the Migration Act. Any such notice was served towards the end of the sentence and the visa holder was given the opportunity to respond before the decision about cancellation was made.

38 The solicitor took the view that a person who pleaded guilty to charges such as those to which the appellant was to plead guilty would almost certainly fail the character test. In her opinion, the appellant was at risk of deportation if sentenced to 12 or more months' imprisonment for crimes which targeted vulnerable people and were particularly abhorrent to the community. The decision maker would have regard to the sentence, information from the sentencing remarks and material such as psychological reports and parole assessments, as well as the appellant's rehabilitation prospects.

39 The appellant's solicitor had also been told, by the appellant's mother, that age and ill-health would prevent her and the appellant's father from travelling to visit him, if he were deported to the United Kingdom.

40 The appellant criticises the judge's approach to the issue of deportation on two bases. He first argues that his Honour's reference, in para [48] of his sentencing remarks,[22] to not being satisfied that there was 'any certainty' that the appellant would be deported, showed that he erred by requiring too high a level of satisfaction in relation to the mitigating factor of his prospect of deportation.[23]

41 I am not persuaded that the judge erred in this way. The discussions between his Honour and counsel for the appellant in the plea indicate that he was well aware of the applicable standard of proof in relation to mitigating factors which could be taken into account in the exercise of the sentencing discretion.[24]

42 In so far as the appellant maintains that the conclusion reached by his Honour as to whether he would be deported indicates that he applied the wrong standard of proof, I reject that submission. There is no indication that the judge failed to take the relevant evidence into account. He stated that he had had regard to the evidence about the departmental processes and had noted the contents of the direction and the matters to which it referred, including the primary considerations of the seriousness of the offence and its effect on the victims.[25] There was also relevant discussion with counsel of the various applicable considerations during the plea.[26]

43 Indeed, I consider the ultimate outcome of the Migration Act process to have been only a matter of speculation on the evidence before the sentencing court. That is because the exercise of discretion, in accordance with the direction, would have involved the weighing up of numerous considerations, including some which, it would seem, could not be taken into account, such as any parole assessment or future response by the appellant towards the end of his sentence. Such evidence as there was before the sentencing judge regarding matters such as the nature and circumstances of the offending, the appellant's personal circumstances and criminal history, his familial ties in Australia and in the United Kingdom and the likely effect of deportation on his parents indicate the complexity of the balancing task involved in the exercise of the discretion by the decision maker.

44 Any determination as to whether the appellant would be deported would also have involved the court's assessment of the probable outcome of any federal, rather than state, administrative and judicial review process.[27] The analysis might have been further complicated by the fact that the direction was not applicable to a decision made by the Minister (as opposed to a delegate). Significantly, too, the department had declined to give any indication as to the appellant's prospects of deportation after an exercise of the discretion.

45 The Court in Guden emphasised that a sentencing court cannot be asked to speculate[28] and, in my view, the sentencing judge would only have been in a position to speculate about whether the appellant would be deported. He did not err, as the appellant suggests, by failing to put himself in the position of the decision maker and decide, on the balance of probabilities, what decision would have been made and the eventual outcome for the appellant.

Ground 3: The sentencing judge erred in characterising the offences as 'serious' examples of the offence of armed robbery

47 In support of this ground, the appellant, uncontroversially, submits that the Court's decisions in Queen v Kittson[29] and Queen v Crossley[30] indicate that there are armed robbery crimes of differing degrees of seriousness.

48 He argues that the sentencing judge must have erred in this case by characterising the offending conduct as serious, after accepting his submission that the offence had been 'low grade and rudimentary in the way it was carried out'.[31] He also relies upon the judge's finding that the weapon was a spectacle case, hidden under a dark cloth, incapable of causing harm and not intended to do so. He points out, too, that the judge found that, when the appellant met resistance, he left rather than engaged in 'actual violence'.[32]

49 I am not persuaded that the sentencing judge erred in his assessment of the seriousness of the appellant's offences. His Honour took into account the facts cited by the appellant, but also had regard to the facts that his conduct was premeditated, that he used his father's car with false number plates at various premises on different occasions, that he disguised himself and that he was in possession of what purported to be a pistol. The judge also noted that, on at least two occasions, the appellant threatened to shoot his victims and that one had been fearful for the safety of his family, who were on the premises.

50 In any event, the sentencing judge's view of the seriousness of the offending behaviour is perhaps most clearly indicated by the relatively moderate sentences imposed in the context of the applicable maximum penalties.

51 No error is established and ground 3 should also fail.

Ground 4: In all the circumstances both the head sentence and the non-parole period are manifestly excessive

52 The appellant submits that the total effective sentence was manifestly excessive, in the context of current sentencing practice, given:

his offer to plead guilty;
the impressive character evidence;
his excellent employment history;
his low-grade depressive disorder and self-medication by illicit drugs;
the link between his offending and the drug addiction and his recent efforts to deal with the addiction at the time of offending;
his attempts to obtain employment and completion of courses whilst on remand;
his first experience of imprisonment being additionally difficult because of his personal circumstances;
his clear insight, remorse and empathy for the victims;
his minimal or low risk of re-offending;
his minor prior conviction;
his real risk of deportation, making prison more burdensome; and
his family support.

53 The sentencing judge took into account all the mitigatory factors to which the appellant refers.

54 The respondent contends that all sentences fell within the permissible ranges, noting the objective seriousness of the offending behaviour, the number of victims, the impact on victims, the use of disguise, the threats and pretence that the appellant had a firearm. The respondent cites the applicable sentencing principles of just punishment, general deterrence, denunciation and community protection.

55 The respondent argues that general deterrence is a primary consideration and that this Court has consistently regarded prevalent armed robbery offences, and particularly those involving 'soft targets' such as milk bars and convenience stores, as deserving of stern punishment.[33]

56 I note that the prosecutor had submitted that the appropriate sentencing range for the total effective sentence was between six and seven years' imprisonment with a non-parole period of between four and five years.

57 I agree with the respondent that, in all the circumstances and taking into account the matters to which the respondent refers, the sentences imposed are moderate and do not fall outside the range of those which might be imposed in the reasonable exercise of discretionary judgment for these offences, notwithstanding the mitigating factors recognised by the judge.

[1] R v Darcie [2011] VCC 626, [11].

[3] Queen v Kittson [2008] VSCA 77 [22] (Forrest AJA (Warren CJ and Redlich JA agreeing)).

[5] R v Chi Sun Tsui (1985) 1 NSWLR 308; R v Shrestha [1991] HCA 26; (1991) 173 CLR 48; R v Griffiths (Unreported, Court of Appeal, 29 April 1998); R v Kwon [2004] NSWCCA 456; R v Qin [2008] NSWCCA 189; and R v Pham [2005] NSWCCA 94.

[6] [2010] VSCA 196 [25] (Maxwell P, Bongiorno JA and Beach AJA).

[7] Minister for Immigration and Citizenship, Direction [no 41] - Visa refusal and cancellation under s 501, 3 June 2009, [6(1)] ('the direction').

[23] Citing R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA).

[24] Transcript of proceedings, R v Darcie (County Court of Victoria, CR 11-00016, Judge Allen, 12 April 2011) 44.

[26] Transcript of proceedings, R v Darcie (County Court of Victoria, CR 11-00016, Judge Allen, 12 April 2011) 45 - 48.

[27] A decision of a delegate of the Minister is reviewable by the Administrative Appeals Tribunal under s 500(1) of the Migration Act 1958 (Cth).

[28] [2010] VSCA 196 [28] (Maxwell P, Bongiorno JA and Beach AJA).

[33] Citing The Queen v Pratt [2003] VSCA 186 [20] (Eames JA (Winneke ACJ and Phillips JA agreeing)); The Queen v Kittikhoun [2004] VSCA 194 [15] (Chernov JA (Vincent JA and Gillard AJA agreeing)); The Queen v Hatfield [2004] VSCA 195 [14] (Chernov JA (Vincent JA and Gillard AJA agreeing)).

At a glance

Court

Decision date

Before

Source

Judgment (81 paragraphs)

Parties

Cases Cited (2)