Director of Public Prosecutions v Adajian [1999] VSCA 105

* The learned judge found that count 3 was premeditated. (His Honour stated, addressing the respondent, "It is difficult to see how, if you were to carry out such a robbery, you could do it in any way other than by shooting the people who knew you." The magazine of the pistol used by the respondent contained eight rounds, all of which were expended.)

* The learned judge found the facts of count 3 to be part of the "gruesome details" outlined to him by the Crown prosecutor. Those details were that the victim in the count, Mrs Pin, was seized by the respondent after he first presented the pistol at her husband and son. He then released her when he forced those persons to the safe in the premises. Mrs Pin went to another office where she was again seized by the respondent and brought back to the main office. Her husband and son were shot in her presence by the respondent. Then, while still holding her with his left hand, he shot her in the leg and breast. Neither of these shots were fatal. He then moved to the safe where the men had fallen to the ground and twice shot the son in the neck and twice shot the father in the left upper arm. At this point, each of the two men had been shot three times and Mrs Pin twice. The respondent started to remove some gems from the safe but then went to a doorway where Mrs Pin was lying on the floor. Using the pistol, he hit her on the head on ten separate occasions. So violently did he strike, that a piece of the butt of the pistol broke. After beating the two men with the pistol and removing gems, the respondent returned to where Mrs Pin was lying and struck her twice more with the butt of the pistol.

* The learned judge found that Mrs Pin suffered serious permanent brain damage and disability which required constant supervision. (There are three other children of the marriage.)

8. In my opinion, after giving proper weight to matters personal to the respondent, the sentence imposed on count 3, with the utmost respect, does not accord with the above findings. I agree with the other members of the Court that it is manifestly inadequate. Thus it falls to this Court to re-sentence the respondent on this count.

11. I agree with the sentence proposed by the other members of the Court but desire it to be clearly understood that I do so after giving full effect to the principle of double jeopardy.

14. I wish to add the following. In argument, stress was laid by counsel for the respondent on the circumstance that ten years' imprisonment was the highest sentence imposed in recent times for an offence of attempted murder. As I have had occasion to say before, past sentences and sentencing statistics should only be regarded as a very general guide. This must be so because of the very great variety of circumstances in the individual cases. Any implication that sentences for attempted murder are somehow "capped" at about ten years' imprisonment must be rejected. Quite apart from considerations of particular cases, such a state of affairs would, I am confident, offend reasoned public opinion. It is perhaps time to reaffirm that which the first Chief Justice of New South Wales, Chief Justice Forbes, wrote many years ago:

"I am no advocate for courting popular applause. But the good opinion of the public, over which one presides, is worth having..."

18. I also agree with the conclusions of Callaway, J.A. on the other grounds.

21. The re-sentencing of the respondent on count 3 provokes reconsideration of the non-parole period fixed. I agree, for the reasons advanced by Callaway, J.A. that the respondent's plea warrants little weight. However, I would be inclined to find, as did the learned sentencing judge, that the respondent's conduct in prison evidences a degree of remorse. The lack of prior convictions for crimes of violence is, of course, material. But so, too, is the conduct of the respondent in the aftermath of his crimes. Despite the enormity of his conduct, he showed himself to be a consummate liar and, even after being confronted by the film of his actions, he resorted to dissembling of a not unsophisticated nature. In my opinion, the non-parole period should be higher than 25 years but as I am in a minority on this matter, there is no point in saying more.

26. The respondent, who is now aged 43, pleaded guilty in the Supreme Court to two counts of murder, one count of attempted murder and one count of armed robbery. He had no relevant prior convictions. After hearing a plea for leniency on his behalf, the learned sentencing judge sentenced him to life imprisonment on each of the counts of murder, to ten years' imprisonment on the count of attempted murder and to seven years' imprisonment on the count of armed robbery. His Honour directed that the sentences imposed for attempted murder and armed robbery were to be served concurrently with each other and concurrently with the life sentences. A non-parole period of 25 years was fixed and a declaration made regarding 539 days' pre-sentence detention. The respondent sought leave to appeal against sentence but his application was abandoned, by leave, when the matter was called on. The Court had previously been advised that an application for leave to abandon would be made.

29. The Director of Public Prosecutions appeals against the sentences on the following grounds:

"1. The sentence imposed in respect of count 3 [attempted murder] was manifestly inadequate.

2. In fixing a term of 10 years imprisonment in respect of count 3, the sentencing judge -

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) gave too much weight to factors going to mitigation.

3. The sentence imposed in respect of count 4 [armed robbery] was manifestly inadequate.

4. In fixing a term of 7 years imprisonment in respect of count 4, the sentencing judge -

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) gave too much weight to factors going to mitigation.

5. The sentencing judge erred by fixing a non-parole period.

6. In fixing a non-parole period, the sentencing judge -

(a) failed to adequately reflect the gravity of the offences generally and in this case in particular;

(b) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(c) gave too much weight to factors going to mitigation."

47. Before turning to counsel's submissions, I shall say something about the offences. The three victims were born in Cambodia. Lean Thoeun Pin was aged 49 at the time of his death; his son, Virayuth, was aged 21 at the time of his death; and Siveng, Mr. Pin's wife, was aged 44 at the time she sustained her injuries. There are three other children from the marriage. The family arrived in Australia from Cambodia in 1983. Mr. Pin was a gem dealer and founded a family business, Pin Gems, which he operated at first from his home and later from premises in Swanston Street, Melbourne. His wife and son worked in the business too. They dealt mainly in small diamonds and semi-precious coloured stones.

50. The respondent was born in Syria in 1955. He migrated to Canada from that country and obtained Canadian citizenship, arriving in Australia in 1990 on a visitor's visa. He returned to Canada in 1995 and re-entered Australia in July 1996. He was a jeweller and his business premises were in the same building in Swanston Street. Business was slow after his return from Canada. The rent was in arrears and he was being threatened with eviction. At the time of the offences the respondent had debts of approximately $535,000 and, it may be said, was under great financial pressure. He had for many years used drugs, mainly marijuana, but in the months leading up to the commission of these offences he had been taking cocaine and heroin as well as drinking heavily. In mid to late 1996 he was placed on a methadone programme.

53. On three separate occasions in July and August 1996 the respondent obtained polished diamonds on consignment from Pin Gems. The total value of the diamonds was $28,990. The Pin family approached him several times with a view to either being paid or having the diamonds returned to them. In August 1996 he repaid $5,000 of the debt and in September signed a document agreeing to transfer title to his house to Pin Gems if the debt were not repaid within three days. Only small amounts were in fact repaid and by 4th December 1996 the respondent still owed the Pin family about $23,000.

56. I have already referred to the financial pressure that the applicant was under. I do not think that it is necessary to refer to the entire history contained in the Crown's summary of facts, but some of the events proximate to the offences should be mentioned. On 31st October 1996 the Commonwealth Bank wrote three letters of demand to the respondent. One required payment of his outstanding overdraft of $52,918.16. It threatened legal action in default. The other two letters related to the respondent's housing loans and demanded payment of outstanding arrears in the sum of $13,442. The respondent's total debt to the Bank was $217,318.36. He had other debts as well, including a judgment debt in the County Court for $85,000 plus interest and costs. He endeavoured to obtain refinance in November 1996 but was unsuccessful. On 26th November 1996 a Sheriff's officer executed a County Court warrant of seizure and sale addressed to the respondent and his wife. A week later, the night before the offences, the same Sheriff's officer again visited the respondent and told him that his two motor vehicles would be seized if payment were not made. The respondent promised to pay $10,000 in cash by the end of the week. The same day he gave one Orlando Oliva a cheque for $3,000 post-dated to 4th December 1996.

59. On that day the respondent telephoned Mr. Oliva at about 11 a.m. and told him that he was going to get some gold from a Chinese friend. He asked Mr. Oliva to meet him at his business premises at about midday. He then visited a diamond setter, Fahya Ssaryan, in the building next door. He asked Mr. Ssaryan whether he knew anyone who wanted to buy stock, which he described as "big stuff". A subsequent search of the respondent's home and office failed to find stock of any significant value.

62. At about 12.05 p.m. the respondent went to Pin Gems, armed with a Tokarev 7.62 mm pistol fitted with a magazine containing eight rounds. Once inside the office, he sat down and had a conversation with Virayuth Pin. In the course of the next few minutes he became aware that all three members of the family were present. That did not cause him to relent. He produced the pistol, pointed it towards Mr. Pin and his son and seized Mrs. Pin. Virayuth pressed a hold-up alarm. The respondent released Mrs. Pin and forced the two men to the safe at the rear of the room. Whilst her husband opened the safe, Mrs. Pin went into a second office and again pressed the hold-up alarm. The respondent followed her, grabbed her and brought her back into the main office. He then shot Mr. Pin in the abdomen and Virayuth in the back. Whilst still holding Mrs. Pin with his left hand, he shot her in the leg and breast. Neither of those shots was fatal. Having moved over to the safe, the respondent shot Virayuth in the neck and his father twice in the left upper arm. He then shot Virayuth again in the neck. The respondent started to remove gems from the safe. Mrs. Pin had fallen to the floor in the doorway between the two offices. As there were no more rounds in the pistol, he hit her on the head with the butt on ten separate occasions and with such force that part of the butt broke off. He also used the gun to club Mr. Pin and his son. He completed the robbery, taking gems valued at between $1.5m and $2m. In the course of doing so he went back to where Mrs. Pin was lying and hit her twice again on the head. He also stole some cash and the office keys from Mr. Pin's pocket.

65. When the respondent attempted to leave he could not locate the button to open the electronic lock on the front door. Meanwhile the police had reacted to the alarm. When they eventually forced entry to the premises the respondent was still there. He claimed that two Asians had come into the office, pinched him on the back of the neck and caused him to lose consciousness. He said that he had heard screaming and shooting but had not seen anything else. He maintained that story in the course of his record of interview until he learned that the entire incident had been recorded by the video surveillance equipment installed in Pin Gems' offices. The tape was viewed by the Court in the course of the appeal.

68. Mr. Pin and his son were killed. As a result of being shot and hit with the butt of the pistol, Mrs. Pin remained in the Alfred Hospital until mid-March 1997, when she was transferred to a rehabilitation centre. She underwent a number of neurosurgical procedures, as well as surgery for the wounds to her right breast and thigh. After a stringent programme of rehabilitation, she was discharged into the care of her family about eight months after the attack. She still had severe cognitive and physical disabilities, requiring 24-hour supervision and assistance with most aspects of daily living. In addition to the support of her family she required attendant care services five hours a day. The rehabilitation centre reviewed Mrs. Pin in January 1998. She still demonstrated severe cognitive and physical disability. Her left arm had limited movement and was of no functional use. She was walking a few steps with a stick but needed very close supervision and required a wheelchair for general mobility. She had reduced feeling on the left side of her body and had lost part of her vision. Although she was able to feed herself, she was dependent on others for all other aspects of personal care and needed assistance from a carer two or three times each night. It is clear that her disabilities are permanent. It is expected that she will continue to require 24-hour care on a long-term basis, together with therapy to prevent complications. She is also at some risk of post-traumatic epilepsy and may require anti-convulsant medication.

71. The appellant's outline of submissions stated that the appeal was brought to establish: (a) the appropriate principles of sentencing to be applied in cases involving multiple deaths associated with the commission of other serious crimes of violence; and (b) the principles to be applied in determining whether the nature of an offence is such as to make the fixing of a non-parole period inappropriate. Having regard to the conclusions I have reached, I do not think that we should accede to either of those invitations, especially as the latter task has already been essayed, at least in part, in R. v. Coulston [1997] 2 V.R. 446 and R. v. Lowe [1997] 2 V.R. 465. See also R. v. Beckett [1998] VSCA 148 at [21].

74. Mr. Rapke argued grounds 5 and 6 first and then turned to the sentences imposed on counts 3 and 4 and the implication that they might have for the non-parole period. The notice of appeal does not assert, and counsel did not argue, that the length of the non-parole period in itself warranted appellate intervention. The submission was that, if error could be shown in relation to the sentences imposed for attempted murder or armed robbery or both, that would re-open the non-parole period as part and parcel of re-sentencing the respondent on those counts. Accordingly the appellant undertook the difficult task of persuading the Court that it was not open to the learned judge to fix a non-parole period or, to put the matter another way, that his Honour was bound to consider that the nature of the offences or the past history of the respondent made the fixing of a non-parole period inappropriate. The question is not whether, had this Court been exercising at first instance the power reposed in the sentencing judge, it would have reached a different decision: see Mitchell v. R. [1996] HCA 45; (1996) 184 C.L.R. 333 at 347.

77. The learned judge encapsulated his reasons for fixing a non-parole period in the following paragraph of his sentencing remarks:

"Mr. Rapke drew my attention to some of the extreme cases where life sentences were imposed without parole periods. They included Taylor, Edmunds, Coulston and Lowe. I have considered these cases carefully and your case as well. I think it is significant that you have pleaded guilty, you have no previous convictions except one for drug use, there is nothing in your past which indicates a tendency to violence or dishonesty. All this, I think, tends to support the view that these crimes were contributed to by the build-up of the extreme stress which you were experiencing as a result of your problems. Your life in prison so far shows signs of rehabilitation and a positive attitude; that is, by work, study, drug rehabilitation and a degree of remorse. Despite the crimes which you committed, for which a life sentence is the only appropriate one, I am not persuaded that the sentence should be without an opportunity for parole. The fixing of a [non-] parole period, of course, does not mean that the person is released at the end of the non-parole period. It means that the matter is left to the discretion of the Parole Board."

81. Although this case may be distinguishable from those to which his Honour referred, that is by no means conclusive. In R. v. Coulston the Court said at 463:

"The criminal who kills not one but two, three or four human beings can be given no longer sentence than the killer of a single victim. Two, three or four life sentences, served, as they must be, concurrently, are of the same duration as a single one. Differentiation is possible only as regards the non-parole period - by increasing that period or by refusing to fix one at all. Of course, everything depends on the circumstances. The perpetration of multiple killings may in a given case not even warrant the imposition of a life sentence, let alone the further momentous step of denial of the possibility of parole. We wish only to make it plain that, while everything depends on the circumstances of the particular case, those who kill a number of victims in horrendous circumstances, where no substantial factor pointing towards clemency is present, must in general expect to be seriously considered for the possible imposition of life sentences unmitigated by the hope of parole."

85. The learned judge did not fall into the error of thinking that his task was complete when he had compared this case with Taylor, Edmunds, Coulston and Lowe. His Honour went on immediately to identify other factors to be taken into account. The first was the respondent's plea of guilty. As I have previously mentioned, he maintained his innocence until confronted by the video recording. A plea of guilty was then almost inevitable. It is a matter to be taken into account, but in the circumstances of this case it is entitled to little weight. I would add that the word "usually" was employed advisedly in propositions 1 and 9 in R. v. Duncan [1998] 3 V.R. 208 at 214-215 and the reference to "the wide discretion conferred on a sentencing judge" was deliberately made. Those pages contain, as the Chief Justice said in R. v. Le and Ngo (unreported, Court of Appeal, 19th March 1998) at 7, a convenient summary of the principles. Their application depends on the facts: see, for example, R. v. Tang, Dang and Quach [1997] VICSC 50; [1998] 3 V.R. 508 at 529-530; R. v. Hewitt [1998] 4 V.R. 862 at 870 and R. v Ferman and Stoforo [1999] VSCA 76 at [19].

88. The other mitigatory factors that the learned judge identified were the respondent's antecedents, the stress that he was experiencing as a result of his financial problems and his prospects of rehabilitation. Mr. Rapke submitted that each of those matters had been overvalued: the respondent's motivation was greed, as evidenced by the amount that he attempt to steal and the way in which he carried out his criminal enterprise; neither alcohol nor drugs played a significant part in the commission of the offences, the respondent having drunk only one-and-a-half glasses of wine with Mr. Ssaryan and taken a single dose of methadone earlier that morning; and the brutality of his crimes afforded proof of the violent side of his character far more eloquent than his absence of relevant prior convictions. The second of those submissions must be qualified by Professor Mullen's opinion that the combination of methadone and alcohol may well have induced a degree of inhibition and impaired the respondent's judgment.

91. Section 11(1) of the Sentencing Act 1991 provides:

"(1) If a court sentences an offender to be imprisoned in respect of an offence for -

the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make [sic] the fixing of such a period inappropriate." (Emphasis added.)

98. As the Court explained in R. v. Lowe at 488, s.11(1) does not render irrelevant considerations other than the nature of the offence and the past history of the offender but only two kinds of adverse facts will warrant a determination not to fix a non-parole period. There is nothing significant and adverse in the past history of the respondent and I am not persuaded that the learned judge was bound to consider that the nature of the offences made the fixing of a non-parole period inappropriate in his case. Life sentences were clearly called for, but it was open to his Honour to give the weight he did to the respondent's antecedents and the measure of rehabilitation he had already achieved in prison. Had I been of a different opinion, it would have been necessary to consider whether the principle of double jeopardy might entail, either generally, or in this particular case, that the hope of parole once extended to a life prisoner should not be taken away on a Crown appeal, but that point need not be pursued.

101. I turn next to the sentence imposed on count 3. The maximum penalty for attempted murder at the relevant time was 20 years' imprisonment. As we have seen, the respondent repeatedly tried to kill Mrs. Pin and succeeded in permanently and severely disabling her. He acted with great brutality. The victim impact statements are moving testimony, if such were needed, of the harm that he has done both to the victim and her family. As in the case of Mrs. Pin's husband and son, the respondent's motive was to kill the witnesses to the armed robbery. He stood to be sentenced on this count as a "serious violent offender" within the meaning of the Sentencing Act as it stood prior to the Sentencing and Other Acts (Amendment) Act 1997, but it was not contended that that was significant for the purposes of this appeal. His Honour gave no separate reasons for imposing the sentence that he did.

104. Mr. Tehan reminded us that ten years' imprisonment was the highest that had been imposed for attempted murder in recent years. It was the sentence imposed in R. v. Cengiz [1998] 3 V.R. 720, where an application for leave to appeal against what at first sight seems a lenient sentence was dismissed. The only other comparable case was R. v. Yaldiz [1998] 2 V.R. 376 where, on a Crown appeal, a sentence of eight years' imprisonment with a non-parole period of six years was imposed. Winneke, A.C.J. said at 382:

"On any view of the facts, this was a very serious example of the crime of attempted murder. It was premeditated and vicious and carried out upon a defenceless woman, in a public place, in the presence of the terrified children of both the respondent and the victim."

Counsel submitted that, even if this Court would have passed a heavier sentence, a sentence could not be described as manifestly inadequate which was equivalent to or comparable with the sentences imposed in those two cases

109. In R. v. Kasulaitis [1998] 4 V.R. 224, however, Batt, J.A., in whose judgment the Chief Justice and I concurred, said at 233-234:

"I do not wish to part from the present case without expressing the firm view that a sentence of 10 years' imprisonment should not be treated as the practical ceiling for sentences for attempted murder even when committed by persons with no prior convictions for offences of serious violence (whom I shall call 'effectively first offenders') and even when the applicable maximum penalty is 20 years' imprisonment. In my view, it is open to impose a more severe punishment in a bad case. It all depends upon the circumstances. That 10 years' imprisonment must not be treated as the ceiling in practice is shown by the fact that longer terms of imprisonment have been imposed for the offence of intentionally causing serious injury or its predecessor. In R. v. Mallinder (1986) 23 A.Crim.R. 179, for instance, the sentence as reduced on appeal was 13 years' imprisonment with a minimum term of 11 years. Attempted murder is a more serious offence in the criminal calendar**,** as is shown by the different maximum penalties provided by Parliament and by the necessity for an intention to kill in the case of attempted murder. Where the recently increased maximum of 25 years' imprisonment is applicable, 10 years' imprisonment will clearly be unsustainable as a practical ceiling even for effectively first offenders." (Emphasis added.)

That case was decided five days after the present respondent was sentenced on 26th May 1998, so it was not available for the consideration of the learned sentencing judge.

114. Sentences are not precedents which must be applied unless they can be distinguished and the paramount duty of the Court is to do justice in individual cases. Yaldiz was suffering from a psychiatric illness which, the Court held, should moderate the objective of general deterrence. The circumstances were in fact distinguishable from a cold-blooded plan, carried out after an opportunity to withdraw, to commit an armed robbery and murder witnesses who had no reason to suspect a person well known to them. Mrs. Pin saw her husband and son killed before she herself was attacked again. I differ with reluctance from the learned and very experienced sentencing judge, but I think that the sentence imposed on count 3 was manifestly inadequate. Ground 1 is therefore made out and I would uphold ground 2 at least in part. In my opinion a sentence of 13 years' imprisonment should be substituted. In proposing that sentence, I take account of the principle of double jeopardy applicable to a Crown appeal. I do not stay to consider what the position might have been if the respondent had foolishly persevered with his own application for leave to appeal against sentence.

117. Mr. Rapke submitted that the sentence imposed on count 4 also warranted appellate intervention. The sentence was merciful, but I do not think it was manifestly inadequate, for there was a danger of double counting. (It is not an answer that all the sentences are to be served concurrently, for the length of the total effective sentence is not the test. See R. v. Boucher [1995] VicRp 7; [1995] 1 V.R. 110 at 116 lines 28-30; R. v. Lomax [1998] 1 V.R. 551 at 562-564; Director of Public Prosecutions v. Grabovac [1998] 1 V.R. 664 at 676-681 and Pearce v. R. [1998] HCA 57; (1998) 72 A.L.J.R. 1416 at [44-48]; cf. Heryadi v. R. (1998) 19 W.A.R. 383 at 388-389.) This was a murderous armed robbery but the murders and attempted murder had been punished by the sentences imposed on the first three counts. That does not mean that the sentence on count 4 was to be imposed on an artificial basis: the respondent was not, for example, to be sentenced as if the pistol was unloaded: but he was not to be punished again for the killings or his attack on Mrs. Pin.

120. My conclusions on the first two grounds require me to reconsider the non-parole period. The principles were recently examined by this Court in R. v. V.Z. [1998] VSCA 32: see especially [3], [10], [12-15] and [22]. R. v. Demarco [1999] VSCA 69 heralds no departure from them. Directing myself in accordance with those paragraphs and the authorities to which they refer, I would not alter the non-parole period fixed by the learned judge. I do not overlook or minimize the seriousness and brutality of the offences, the motive for which the two murders and the attempted murder were committed or the degree of premeditation. Prominent among my reasons are other comparable sentences for murder imposed in recent years, the constraints attendant upon a Crown appeal, his Honour's favourable finding with respect to the respondent's prospects of rehabilitation and the extreme difficulty of long range predictions: see R. v. Lowe at 489 and the cases cited at lines 21-24.

125. I have had the benefit of reading the draft judgment of Callaway, J.A. I agree with his Honour's conclusions and his reasons for reaching them and with the orders he proposes. Like Callaway, J.A. I am conscious that we differ from a very experienced sentencing judge as to what is the appropriate sentence that should be imposed in relation to the count of attempted murder. It is true that 10 years' imprisonment was the highest that had been imposed for attempted murder in recent years, but as Callaway, J.A. has shown, the cases cited by Mr. Tehan in this context differ relevantly from the present case and that in any event, sentences are not precedents to be applied slavishly. The paramount duty of the court is to do justice to those concerned, being principally the convicted person and the community, having regard to sentencing principles including those stated in the Sentencing Act 1991.

128. In my opinion, the respondent's conduct in relation to Mrs. Pin was heinous. It involved a plan hatched by him to rob the Pins and kill any witnesses. He deceived them into believing that he came to see them for business purposes whilst in truth, he was there to commit the crimes referred to. His murder of Mr. Pin and his son and his attempt to murder Mrs. Pin were extremely brutal and cruel. There is no basis for believing that he was anything but fully aware of what he was doing. Notwithstanding those acts and his inability to escape from the premises, he had sufficient presence of mind to endeavour to deceive the police, first at the premises and then during the early part of his record of interview until he was shown the video of his merciless acts. Those acts resulted in Mrs. Pin being left with little or almost no quality of life and in the shattering of the lives of the remaining Pin children. They were deprived of a happy and loving home, of their father, brother and mother as they knew her. Such conduct calls for a sentence which manifests very strong deterrence and denunciation. In my opinion, this would not be adequately reflected in a sentence of 10 years' imprisonment. In the circumstances of this case, including the mitigating factors referred to by Callaway, J.A., a term of imprisonment of 13 years is more appropriate.