Dowe v The Queen [2012] VSCA 39

1 The appellant, Tyrone Dowe, pleaded guilty in the County Court at Melbourne to a series of offences contained in two separate indictments. He was sentenced on 18 May 2011.

2 The first indictment (C0907193.1) contained three charges, each of robbery, contrary to s 75(2) of the Crimes Act 1958. The appellant was sentenced to three years' imprisonment on each of those charges.

3 The second indictment (Y03527543.1) contained two charges - one of attempted armed robbery, and one of intentionally causing injury. The appellant was sentenced to twelve months' imprisonment on the first of those charges, and two years' imprisonment on the second.

4 The sentencing judge treated the first three year sentence on the first indictment as the base sentence. He ordered that nine months of the second of those charges and nine months on the third of those charges, together with three months upon the charge of attempted armed robbery and nine months upon the charge of intentionally cause injury, be cumulated upon each other and upon the base sentence.

5 That made a total effective sentence of five years and six months' imprisonment. His Honour fixed a non-parole period of three years and three months.

6 The background facts need not be set out in any great detail.

7 The three robberies that were the subject of the first indictment all occurred on 13 January 2009. The first robbery took place at 11:58am, and was committed at the Camberwell West Post Office and Newsagency. Two offenders, wearing sunglasses and a cap or beanie, entered the premises. When all the customers had left the store, one of them approached an employee and demanded money. The amount taken was $4,890.

8 The second robbery took place about half an hour later, at the South Yarra Newsagency in Toorak. The facts were much the same. On this occasion, some $5,500 was taken in total.

9 Finally, the third robbery took place at 1:55pm. On this occasion, the Niddrie Post Office was robbed. The amount taken was $8,600.

10 The second indictment involved offences committed some five months later, on the evening of Saturday, 20 June 2009, and the early hours of the following morning.

11 The appellant attended his girlfriend's 18th birthday party at the Retro Club in Fitzroy. Also present were the victim, Ryan Strawbridge, who was there with his girlfriend, Melissa Terrick. Ms Terrick happened to be the appellant's girlfriend's cousin.

12 At one stage during the evening, Strawbridge was looking for Terrick. He went outside and approached a group of males, one of whom was the appellant. He asked the group if they had seen Terrick. The appellant held a knife to Strawbridge's neck, and said to him, 'stay out of my business'.

13 Terrick then told the appellant to leave Strawbridge alone. Strawbridge returned to the club. The appellant approached Strawbridge, and told him to accompany him to the top of the stairs. There, the appellant once again produced the knife, this time holding it next to Strawbridge's back, and piercing his skin. He said to Strawbridge, 'give me all your money, give me all your drugs, give me everything you've got'.

14 Strawbridge told the appellant that he had nothing on him. The appellant then plunged the knife into Strawbridge's arm, near his shoulder. Strawbridge was subsequently treated at the Emergency Department at Frankston Hospital. His wound was cleaned, and a drain inserted. He remained in hospital for three days.

15 On 11 August 2009, the appellant was arrested and interviewed by police. He took part in a 'no comment' record of interview.

16 As it transpired, the appellant was on parole at the time of the offending in both January and June 2009. By reason of reclaimed parole, and a sentence of three months' imprisonment imposed upon him on 5 October 2010 for unrelated offending, he could claim only a small portion of the 19 months or so that he spent on remand as pre-sentence detention. It was that fact that prompted Harper JA to grant leave to appeal against sentence in this matter. His Honour was concerned that the appellant, by reason of the sentences imposed for unrelated offending, would have to serve approximately four and a half years before being eligible for parole. In his Honour's view, it was reasonably arguable that the principle of totality had been given insufficient weight in the circumstances. It should be noted, in that regard, that the appellant was born in August 1998, and was aged only 20 at the time of the offending.

17 As indicated, there is but one ground of appeal. It reads as follows:

The sentence imposed did not sufficiently or at all take into account the 'totality principle', in as much as the significant time [the appellant] had already served at the time [he] came to be sentenced for these offences should have resulted in a lesser period of time to be spent in custody.

18 It appears that, as matters stand, the appellant will not be eligible for parole until February 2014, a little over four and a half years from the time that he was arrested, in August 2009. That is a lengthy period of imprisonment for one so young, particularly given that this is his first time in an adult gaol.

19 It is true that the appellant has a large number of prior convictions. During the course of the plea, his counsel described his background as being 'as deprived and as difficult as one can imagine'. As will be seen, that was an entirely apt description.

20 The offences that are the subject of this appeal were, of course, all serious. Robbery carries a maximum of 15 years' imprisonment, attempted armed robbery 20 years' imprisonment, and intentionally causing injury 10 years' imprisonment. It would be tempting to conclude that someone with the appellant's record of offending must have poor prospects of rehabilitation.

21 If one has regard to the individual sentences imposed in the present case, and to the orders made for cumulation, in isolation, it would be difficult to contend that the appellant has received any more than his just deserts.

22 There is, however, another side to the story. The appellant is a young man, still aged only 23. He is of indigenous background. His parents separated when he was aged about two. His mother moved to Warrnambool, where she was born. He had very little contact with her, or her people. He was constantly shunted between his mother, and his father's relatives who lived in Gippsland.

23 From a very young age, the appellant lived on the streets. He was introduced to drugs at about the age of nine. He also began to drink heavily at that stage. Within a short period, he had become a chronic alcoholic. He never held a job, apart from helping his father, for a short time, in some landscaping work.

24 Despite all this, there was some evidence, led on the plea, of the appellant's maturation. He could have remained in a youth training facility, but chose instead to go to an adult prison. Remarkably, he had better opportunities for training, and greater freedom, in that environment than in youth training.

25 The appellant has maintained his relationship with his girlfriend. In December 2009, she gave birth to a son. There was evidence led to the effect that this had had a profound effect upon the appellant, and had provided him with the motivation to undertake various courses whilst in custody. Although the appellant left school in year 7, he now aspired to further studies and hoped, one day, to complete VCE.

26 Several character witnesses gave evidence on the plea. The sentencing judge was told that the appellant had prospects of employment in the building industry once he had served his sentence for these offences. Importantly, the appellant's girlfriend's father was particularly supportive of him and of his relationship with his daughter.

27 The sentencing judge was, of course, made aware of the amount of pre-sentence detention for which the appellant would be given credit. His Honour noted, in his sentencing remarks, that this came to 180 days. He was also made aware of the fact that the appellant had been in custody for far longer than that, by reason of his breach of youth parole, and also by reason of his having been sentenced to a term of imprisonment in October 2010 for unrelated offences.

28 This case presented the sentencing judge with a most difficult sentencing task. It must be said that his Honour approached the matter with great care, and considerable sensitivity. He was cognisant of the seriousness of these offences, and of the impact that they had had upon the victims. He had to balance these factors against the various mitigating circumstances that were present. In that regard, he referred specifically to the appellant's plea of guilty, noting that it had been proffered at an early stage. He also referred to the appellant's remorse, which he found to be genuine, and to his personal circumstances, which I have briefly outlined above. He also referred to the principles that govern the sentencing of indigenous offenders,[1] particularly those who suffer from alcohol and drug abuse. He emphasised the need to reflect, in any sentence imposed, the public interest in the appellant's rehabilitation.

29 Plainly, his Honour was obliged to have regard to the principle of totality in sentencing for these offences. That principle is best articulated in the following passage from Mill v The Queen:[2]

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences".[3]

30 Counsel who appeared for the appellant on his plea, and also on the appeal to this Court, submitted that the totality principle had not been given sufficient weight when it came to the fixing of the non-parole period. He confined that submission to the non-parole period, accepting that the total effective sentence was unimpeachable, even having regard to totality.

31 Counsel submitted that the requirement that the appellant serve a total of just over four and a half years before being eligible for parole failed to reflect the appellant's circumstances, and the need to give proper weight to the principle of totality. He urged the Court to fix a lower non-parole period than the three years and three months imposed below.

32 In my opinion, counsel's submission should be accepted. I note that the sentencing judge did not refer to the principle of totality in his sentencing remarks. Although there is no obligation upon a sentencing judge to set out specifically every matter that he or she regards as relevant to the sentencing task, the principle of totality was of fundamental importance in the particular circumstances of this case, and would ordinarily have been expected to have been discussed. With respect, it seems to me, from the length of the non-parole period fixed, and from the failure to mention totality in the sentencing remarks, that his Honour did not give that principle due weight.

33 I would allow this appeal. I would set aside the non-parole period of three years and three months fixed below. In lieu thereof, I would fix a non-parole period of two years and three months. The effect would be that the appellant would become eligible for parole not in February 2014, but rather one year earlier, in February 2013. By then, the appellant will have served some three and a half years' imprisonment.

34 A period of custody of that length seems to me amply to meet the needs of this case. It operates as both a specific and general deterrent, and it constitutes appropriate punishment. At the same time, it allows for the appellant to be released before he becomes institutionalised, and gives weight to his prospects of rehabilitation.

35 I would otherwise confirm all other orders made by the judge below, including the individual sentences imposed on each count, and the orders made for cumulation.

[1] R v Fernando (1992) 76 A Crim R 58; and R v Fuller-Cust [2002] VSCA 168; (2002) 6 VR 496.

[2] (1988) 166 CLR 59.