DPP v Crow [2003] VSCA 104

5. On 31 May 2001 the respondent drove with his female friend, one Gaylene Meier, to a house in Laverton which was occupied by Gregory Sultana, his partner, Linda Maresceaux, and their young child. The respondent and his friend carried with them a sawn-off rifle which has never been recovered. The evident purpose of their visit was to ask for, and if necessary take, amphetamine based tablets which were in the possession of Sultana and his partner for the treatment of their son who suffered from an attention deficit hyper activity disorder. It would seem that Meier wished to have these tablets, or at least some of them, for a purpose other than that for which they were prescribed. The respondent and Meier were obviously known to, but not liked by, Sultana and his partner. Indeed, as the respondent and his friend approached the house, Sultana's partner exited via the back door. Meier had previously demanded from her the drugs which Meier apparently was desperate to obtain. It appears that Sultana resisted the efforts of the respondent and Meier to secure the tablets. The respondent left the house and took the rifle from the car. He then returned to the house, pointed it at Sultana and demanded all the tablets which he had. When Sultana refused, the respondent fired the gun in his direction, the shot passing through a chopping board on a cabinet in the kitchen, striking a door hinge which shattered. Shrapnel struck Sultana in the back of his hand and forearm. The respondent continued to abuse Sultana, demanding the tablets whilst pointing the gun at him. He then struck Sultana in the face with its barrel. Whilst this was occurring, it appears that Meier was in the bathroom. Thereafter she returned, suggesting to the respondent that they leave. This they did, and it became apparent after they had left that the bottle of 50 tablets had been taken from the bathroom cabinet.

8. The respondent and his co-accused Meier were subsequently arrested and charged with the offences of armed robbery (s.73A Crimes Act 1958) and unlawfully and recklessly engaging in conduct (namely the discharge of the firearm) placing a person in danger of serious injury (s.23 Crimes Act 1958). The former offence carries a maximum of 25 years' imprisonment; the latter 5 years. On 15 July 2002 they were arraigned before a jury in the County Court at Melbourne. It appears that the respondent pleaded guilty to the "reckless conduct" count but not guilty to the armed robbery, even though the transcript of the proceedings suggests that each of them pleaded not guilty to both counts. After a trial of three days the jury convicted the respondent of the armed robbery count and thus he fell to be sentenced on both counts. By direction, the jury entered a verdict of "not guilty" against Meier on the "reckless conduct count". She, too, was convicted on the count of armed robbery. The sentencing process appears to have started on 18 July 2002 following the return of the verdicts. His Honour noted at the outset of that process that the respondent had pleaded guilty to the "reckless conduct" count and that he proposed to sentence him on that basis. In this Court we have been concerned only with the "Director's appeal" against the sentences imposed upon the respondent.

11. Following the recording of the jury's verdicts, the sentencing process took a somewhat unusual course. His Honour announced that he "had it in mind to seek a pre-sentence psychiatric report" and suggested to counsel for the respondent that it might be better to wait until that report was forwarded before the plea proceeded. His Honour said that he thought it was "appropriate" that "given the length of antecedents of Mr. Crow ... to resolve what might be the cause of these ... ". His Honour expressed the view that it was "a problem to break the cycle because they become institutionalized and dependent upon the institutions". When counsel for the respondent suggested to his Honour that the situation of the respondent was "tragic", his Honour responded:

"I have an understanding of that situation but ... I mean, the cycle has to somehow be broken."

17. The sentencing process resumed on 24 October 2002 when his Honour announced that he had received the pre-sentence report. He said that he regarded that report "as bare as my cupboard", that he "could have guessed" most of what had been reported because "I said at the time the man has obviously been institutionalized, and that's all he [i.e. the author of the report] said." The report to which his Honour was referring was a report dated 17 October 2002 from Dr. Senadipathy from the St. Vincent's Correctional Health Service at Port Phillip Prison. The doctor had reported (inter alia) that the respondent was "pleasant and co-operative and impressed ... as a frank person in detailing his life story and circumstances of the offence. He spoke coherently. The mood was euthymic and the effect was reactive. There was no evidence of disorders of thinking, perception or cognition." His Honour went on to say that he was not assisted by the report. Counsel suggested that he should call for another one. Counsel further suggested to his Honour that the offence of armed robbery of which the respondent had been convicted was "at the lower end". His Honour responded:

"Very low, among the lower end, I mean I'm quite aware of that."

The proceedings of 24 October 2002 ended with his Honour saying he would seek a further report from Dr. Barry-Walsh. The matter was then adjourned until 19 December 2002.

22. When the matter resumed on 19 December his Honour referred to the history of the sentencing process saying that he had previously had a report regarding the respondent which "was considered unsatisfactory" and that he had made "a special request - in fact I spoke to him in person - of Dr. Barry-Walsh to deal with the matter because I was concerned, given the man is 34, that he has become addicted to institutional life." Respondent's counsel informed his Honour that the respondent was in custody serving his time for breach of parole and that his "earliest release date" was in August 2003. Counsel explained that the respondent was taken back into custody early in June 2001 and that the unexpired portion of parole, together with the term required to be served for the offence constituting the breach of parole, was something in excess of two years. [In fact, counsel was in error. The respondent's parole had been cancelled by the Adult Parole Board on 23 March 2001, when the warrant for his arrest was issued. He was taken into custody on 4 June 2001 at which time he commenced to serve the outstanding period of parole "owed" - namely 1 year 11 months and 30 days. He was subsequently sentenced to 14 months for the "breaching offence" of which 6 months was ordered to be served concurrently with the sentences then being served. At that time his "earliest release date" was 29 January 2004. That was the respondent's situation when he fell to be sentenced on the offences with which we are concerned.]

25. At the conclusion of the hearing on 19 December 2002 his Honour remanded the respondent to a date to be fixed in February 2003. Before doing so, his Honour was asked by counsel to consider the fixing of a sentence without a parole period so the respondent could look forward to "his definite date of getting out". Counsel submitted that the controls of the Adult Parole Board were too strict to enable the respondent "to get on with his life once he's released" and that it would be more appropriate if he was left to the control of community based prisoners' aid groups.

28. On 14 February 2003 his Honour imposed sentence on the respondent as follows:

Count 2 ("reckless endangerment of persons") - 2 years' imprisonment

His Honour directed that the terms of imprisonment imposed were to be served concurrently with each other and concurrently with all other sentences presently being served, thus producing an effective term of two years. His Honour ordered that 12 months of the term imposed would be "suspended for two years". In providing his reasons for imposing the sentences which he did, his Honour referred to a report which had been obtained by the respondent's solicitors from Mr. Ian Joblin, a forensic psychologist, dated 15 December 2002. His Honour said:

"... [Mr. Joblin] points out, and rightly so, that your taste of liberty has been very limited. You have become thoroughly institutionalized and, he says, the fact that you are described as a `model' prisoner is a cause for concern in that it indicates a value system bred of custodial survival. In this context I sought a psychiatric report from Dr. Barry-Walsh, consultant forensic psychiatrist. What emerges from that report is the concern as to how to provide you with proper support and guidance upon release from custody. I have requested Mr. Karl Jenkins of ACSO to interview you whilst you are still in custody. There is no doubt that the residual issues of substance abuse and an inability to adjust to the community need to be addressed if you are going to avoid further offending."

After his Honour had imposed the sentences referred to, respondent's counsel asked whether it was his Honour's intention that the 12 months' sentence to be served was to start from that date, namely 14 February 2003. Counsel indicated that it was his understanding that the sentence that was currently being undergone by the respondent was to finish "in or about September 2003". His Honour responded that that was not the figure he was given but that he had been advised by "Central Records" that the sentence currently being undergone by the respondent would finish in January 2004, [that, in fact, was correct,] and that his purpose was "to get him [i.e. the respondent] out on a suspended sentence ...as ... quickly as we can". In expanding upon his stated intention, his Honour went on to say:

"... It was put to me on the plea that he'd had enough of parole officers, and I can understand that, so what it does, of course, is put him on notice that if he offends he would have to come back and do more time in custody. I am concerned, and this is why I've arranged for Mr. Jenkins to see him, that there be some support for him because in the light of all those reports, it is clear that the processes have worked their way with him."

38. By notice dated 12 March 2003 the Director of Public Prosecutions, pursuant to s.567A of the Crimes Act 1958 (Vic.), appealed against the sentences imposed by his Honour. The ground of appeal was that:

"The individual sentences imposed and the orders as to concurrency and the suspending of 12 months of the total effective sentence imposed, resulted in the imposition of a sentence which is manifestly inadequate."

The Director, in his notice, gave particulars of the grounds relied upon which included assertions that the sentences imposed failed to adequately reflect the gravity of the offences, failed to sufficiently take account of the aspects of general and specific deterrence, gave too much weight to mitigating factors and erroneously concluded that the effects of institutionalization justified the imposition of a lesser period of imprisonment than would otherwise have been the case.

43. The Director submitted to this Court, in support of the appeal, that the sentences which his Honour imposed are manifestly inadequate and have no proper relationship to the offending or the antecedents of the respondent. It was submitted that the history of the sentencing process disclosed that his Honour had determined, at an early stage of the proceedings, that the respondent was "institutionalized" and that a sentence involving very little actual time served and freedom from the rigours of parole should be ordered. In fact, the sentencing disposition of his Honour - as was clearly intended - meant that the actual time served for these offences was about two weeks. Such a disposition, it was submitted, was one of unwarranted mercy which took no account of the gravity of the respondent's offending or the appropriate sentencing principles including general and specific deterrence. In essence, it was submitted, that his Honour's sentencing disposition was little more than "experimentation" to give effect to an idiosyncratic view that the respondent might better respond to the prospect of community support, which might or might not be available while serving out a suspended sentence, than he would if released on parole. The concentration on the interests of the respondent had deflected, so it was put, his Honour's attention from the appropriate countervailing interests of the community and the circumstances of the offences which fell to be punished. These were fundamental errors, so it was submitted, which had given rise to a sentencing disposition which was so manifestly inadequate that this Court should have no hesitation in interfering.

46. On behalf of the respondent, Mr. Priest, who appeared with Mr. Russell, acknowledged that his Honour's sentencing remarks were "tissue thin", but that such deficiency should not be permitted to obscure the worth of the sentencing disposition itself. It was submitted that the individual sentences imposed by his Honour in respect of each count, although lenient, were "within the range". It was submitted that his Honour was entitled to find on the material before him that the respondent had become "institutionalized" and that a different approach to the process of sentencing the respondent, other than that which had been previously adopted and which had created his "prison dependency", was justified. It was submitted to the Court that the community clearly had an interest in the reclamation of offenders and that the Court should be slow to interfere with the exercise of the trial judge's sentencing discretion which was clearly designed to enhance the respondent's rehabilitation. It was further put on the respondent's behalf that his Honour was correct to conclude that the offence of armed robbery was "low in the scale of armed robberies" and that the sentence of one year imprisonment for that offence was within the range. Mr. Priest reminded the Court of the observations of King, C.J. in R. v. Osenkowski [1] that:

"It's important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. ..."

This is a passage which is not infrequently cited to this Court in "Director's Appeals". In the context of the present appeal it is pertinent to note that the Court in Osenkowski's case, increased the head sentence from four years to six years. King, C.J., immediately after the passage cited, said:

"The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

52. For my own part, I am not in doubt that the sentences which his Honour imposed upon the respondent are manifestly inadequate and fail to reflect the gravity of the offending. The manifest inadequacy is, in my view, to be found in the sentence imposed for the armed robbery (reflecting his Honour's view that it was "low in the scale of armed robberies"), in the failure to cumulate, and in the intention to release the respondent into the community on suspension as early as possible following the completion of the custodial orders currently being served. There may well be circumstances where experienced trial judges might legitimately impose a merciful sentence with the primary object of reclaiming an offender; but, in my view, this was not such a case. The circumstances of the respondent's offending were far too serious to warrant the merciful disposition which his Honour gave, particularly having regard to the fact that there does not appear to be any basis for his Honour's confidence that the respondent would come under any form of control when released into the community on the suspended sentence. The fact that his Honour had requested Mr. Karl Jenkins of ACSO to interview the respondent whilst in prison does not ensure adequate supervision upon release. Furthermore, there was very little material to support his Honour's view that the ultimate release of the respondent under the supervision of the Adult Parole Board would be antipathetic to his interests.

55. Perhaps more significant, in my opinion, is the manifest inadequacy of the sentence imposed for the armed robbery; a sentence which appears to reflect his Honour's view that the crime was far from a serious example of its type. That characterisation of this crime was, in my opinion, an erroneous one. This was a case where the respondent and his co-accused had gone to the premises of the victim, uninvited, intending to secure certain drugs which they knew existed at the victim's house. The respondent took with him a loaded firearm and, when the victim resisted the respondent's request for drugs, took the firearm from the position where it was hidden in the car and threatened the victim with it. When the victim further resisted the demands of the respondent, the latter discharged the firearm in close proximity to the victim for the purposes of reinforcing his demand. It is difficult to understand how those circumstances led his Honour to the view that this was a benign example of the offence of armed robbery. The gravity of the offence of armed robbery is not to be measured by the quantity, quality or value of the object of the intended theft. The essence of armed robbery is the instilling of fear into the victim, by the use of force and arms, so that he or she will give up the object which the perpetrator intends to steal. In this case there was no doubt but that the circumstances of this armed robbery instilled great fear into its victim and also his young son who, so the evidence established, was terrified by the events which occurred.

58. Nor do I share his Honour's view that the discharge of the firearm was to be considered discretely from the armed robbery and to be considered as an offence more culpable than the armed robbery. It was, in fact, part and parcel of the armed robbery - albeit an aggravating feature of that armed robbery. Nevertheless, the differential treatment which his Honour gave to the two offences proved, further explains the manifest inadequacy of the sentence on count 1. There were, in my view, no redeeming features of the armed robbery which justified the minimal sentence which his Honour imposed. The respondent pleaded not guilty to that count in the hope that he could secure an acquittal on a technicality. He had shown absolutely no remorse for his conduct. He had made no admissions. On the contrary he had told the police during the lengthy record of interview a medley of lies. Furthermore, he had, as I have already indicated, a criminal history which included convictions for armed robbery and reckless conduct endangering life. There was, so far as I can see, absolutely no basis for the extremely lenient sentence which his Honour imposed.

61. For the reasons given, I am of the view that the Director's appeal should be allowed and the sentences imposed by his Honour set aside. Bearing in mind the restraints, arising from principles of double jeopardy, which are imposed upon this Court in re-sentencing the respondent, I would substitute for the sentences which his Honour imposed, the following sentences:

Count 2 (reckless endangerment of persons) - 2 years' imprisonment

I would further direct that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The total effective sentence, which I propose, is therefore one of three years and three months. I would order that the respondent serve two years of that sentence before becoming eligible for parole. It is unnecessary to consider the submissions of Mr. Priest that the provisions of s.16(3B) of the Sentencing Act 1991 do not apply to the respondent's offending because, like his Honour, I would be disposed not to order that the sentences which I would substitute be served otherwise than concurrently with the custodial orders and sentences he is presently serving. Section 16(3B) of the Sentencing Act requires that every term of imprisonment imposed upon a person for an offence committed whilst released on a parole order made in respect of other sentences of imprisonment "must, unless otherwise directed by the court because of exceptional circumstances, be served cumulatively on any period of imprisonment which he ... may be required to serve in custody in a prison on cancellation of the parole order". It was Mr. Priest's submission that the provisions of that sub-section could not be applied in this case because the parole of the respondent had been cancelled before the date when these offences occurred. Although I do not necessarily accept Mr. Priest's submission that the mere fact that these offences were committed by the respondent after his parole had been cancelled (but whilst he remained at large) rendered the provisions of the sub-section inapplicable, I am nevertheless of the view that the circumstances warrant the partial concurrency which his Honour ordered. By the time his Honour imposed sentence on 14 February 2003, the applicant had served about 1 year 8 months of the sentences in respect of which he had been paroled. His Honour was correct to conclude that this was time served in custody for offences which were totally unrelated to the offences for which he was standing for sentence before his Honour, and that - accordingly - the provisions of s.18(1) of the Sentencing Act in relation to "pre-sentence detention" did not apply[2]. Thus, at the time when his Honour imposed sentence in February of this year, the respondent had served all but three months of the period which he "owed" to the Parole Board. It is true that a period of a further eight months had been added to the former period. But that was the product of the exercise of discretion of another court which, following the commission of these offences, "partially cumulated" a sentence imposed for another offence committed by the respondent whilst on parole. It would have been erroneous for his Honour to have cumulated the sentences imposed by him upon any period of custody required to be served by the respondent other than the period to be served as a consequence of the breach of parole. For these reasons, it seems to me that the circumstances which confronted his Honour were sufficiently exceptional to justify the order for partial concurrency which he made.

67. 16 If the other members of the Court agree that this appeal should be allowed, and that the substituted sentences should be as I have proposed, those sentences will take effect from the date upon which his Honour's orders were made; namely 14 February of this year.[3] The result will be that the total effective sentence of 3 years and 3 months will commence on that date and the respondent will be required to serve from that day a minimum period of 2 years before becoming eligible for parole. An appropriate order in respect of pre-sentence detention will need to be made.

72. I agree with the President. There are occasions when a sentencing judge adopts an innovative approach, or takes a risk with an offender, with which this Court should not interfere[4], but, with respect, this was not such a case. The disposition was simply not open in all the circumstances of the offences and of the offender.

77. For the reasons stated by the President I agree that the appeal should be allowed and the respondent re-sentenced as his Honour proposes.

[1] (1982) 30 S.A.S.R. 212 at 212-3.

[2] cf R. v. Jennings [1998] VSCA 69; [1999] 1 V.R. 352 at 373-4 per Phillips, J.A.

[3] cf. R. v. Jennings, supra, at 369-70 per Brooking, J.A.; at 371-2 per Tadgell, J.A.

[4] Compare R. v. Osenkowski (1982) 30 S.A.S.R. 212 at 212-213 per King, C.J.; Director of Public Prosecutions v. Leach [2003] VSCA 96 at [15] per Vincent, J.A. and [48] per Eames, J.A. and Director of Public Prosecutions v. Rzek [2003] VSCA 97 at [33] per Eames, J.A.