DPP v Doherty [2002] VSCA 213

Court of Appeal (Vic)|2002-12-19|Before: ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Sentencing - Appeal by DPP against a total effective sentence of two-and-a-half years and a minimum term of 15 months for armed robbery, theft of a motor car and arson - Principles of parity and double jeopardy considered - Sentence manifestly inadequate - Error of law made in that the sentencing judge omitted to cancel the respondent's driver licence.

Although I agree in the disposition of this appeal proposed by O'Bryan, A.J.A., I do so with some reluctance. I find it especially strange that it should be argued that we are constrained by the so called principles as to parity and disparity to impose a sentence so low as that in fact imposed on the respondent by comparing it with that imposed on his co-offender Chand, in each case for armed robbery, theft and arson of a motor car. To my mind each of the sentences imposed by the learned sentencing judge was wholly inappropriate, certainly the two-and-a-half year total effective sentence imposed in the case of the respondent and almost certainly the three-and-a-half year total effective sentence in the case of Chand. Because of the manifest inadequacy of the sentence in the case of Chand, as I perceive it, I would have preferred to say that the respondent could not have had a sense of grievance, in the eyes of the observer, if he had been dealt with on a far stricter basis, having proper regard to the objective circumstances relating to the crimes and his criminality.

However, the argument was not presented in that way by the appellant who sought to justify a failure to bring a like appeal in the case of Chand by saying that he could not submit that that sentence was so far outside the range of permissible sentences as would justify that course and thereby to say that the sentence on Chand could not be characterised as wholly inappropriate. I therefore propose to take the course suggested in the well-reasoned judgment, if I might say so, of Chernov, J.A. in Scott Anthony Wilson[3], so as to characterise the sentence on Chand as inadequate to an extent which would permit this Court to impose the sentences proposed by

O'Bryan, A.J.A. That would enable the Court to impose a significantly higher sentence overall, although it would not otherwise be objectively considered sufficient. This may be justified upon the basis that, although a considerably higher sentence ought otherwise to have been imposed, this Court's order on a Crown appeal should be tempered by reducing what would otherwise be appropriate to a level which would also have some regard to the principles of parity and disparity, by decreasing but not wholly eliminating any apparent disparity. Moreover, although it would otherwise be appropriate to cumulate some part of the sentence for arson of the motor car, it is here necessary to make the sentences all concurrent to achieve the required end.

Nevertheless, in my opinion, having regard to all the relevant factors, as set out in the judgment of O'Bryan, A.J.A., and, in particular to the extremely serious nature of these offences, the careful planning that went into their execution and the fear engendered in the victims by the use of gun and knife and by the violent threats made, the respondent ought not to have any sense of justifiable grievance at what will still be a lenient sentence, namely a total effective sentence of 5 years, if one has regard to the opinion of any reasonable observer. Dismissal of the appeal, as contended for by counsel for the respondent, would not merely deny any justifiable sense of grievance in the respondent, but would also fairly give rise to an expression of derision that the courts will only acquiesce weakly in an artificially mathematical equivalence (or worse) to an unreasonably low sentence on the co-offender to whom different factors were clearly and inevitably applicable.

Sentencing judges should, however, appreciate that the sentence now to be imposed on the respondent is not that which would otherwise be adequate for this seriousness of offending.

I have had the advantage of reading in draft the reasons for judgment prepared by O'Bryan, A.J.A. I agree in them and in the orders that his Honour proposes.

On 12 April 2001 the respondent, then aged 25, together with Robert John Chand (Chand) committed an armed robbery at the cash and settlement offices of Coca Cola Amatil, Clayton (Coca Cola) (count 1), the theft of a motor vehicle (count 2) and the destruction of the motor vehicle by fire (count 3).

The respondent and Chand were arrested on 14 September 2001 and interrogated about the three offences. Each one made admissions of guilt, but in doing so placed more blame on the co-offender for planning and executing the offences than he accepted for himself.

Chand pleaded guilty in the Magistrates' Court on 7 December 2001 and was sentenced in the County Court on 1 March 2002. On count 1, a sentence of imprisonment for three-and-a-half years was imposed. On count 2, a sentence of one year was imposed. On count 3, a sentence of two years was imposed. No order for cumulation was made. The total effective sentence was three-and-a-half years. A minimum term of two years was fixed before Chand would become eligible for parole.

The respondent reserved his plea in the Magistrates' Court on 7 December 2001 and a presentment containing three counts was filed in the County Court on 4 July 2002 to which the respondent pleaded guilty. Following a plea, the respondent was sentenced on 4 July 2002 by the judge who had sentenced Chand as follows: on count 1, to be imprisoned for two-and-a-half years; on count 2, to be imprisoned for nine months; on count 3, to be imprisoned for 18 months. No order was made for cumulation. The total effective sentence was two-and-a-half years. A minimum term of 15 months was fixed before the respondent would become eligible for parole.

On 30 July 2002, the Director of Public Prosecutions filed and served a notice of appeal against the sentence imposed upon the respondent in which five grounds are specified:

"1. The sentence imposed in respect of count 1 is manifestly inadequate with respect to both the head sentence and the non-parole period. 2. In fixing a term of two-and-a-half years in respect of count 1 and two-and-a-half years as the total effective sentence, and in fixing a non-parole period of 15 months the sentencing judge: (a) failed to adequately reflect the gravity of the offence generally and in 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; (d) failed to have regard or sufficient regard to the need for just punishment. 3. The sentencing judge erred in his application of the principles of parity. 4. The sentencing judge failed to order any cumulation in respect of counts 2 and 3. 5. The sentencing judge failed to order the cancellation and disqualification of the respondent's driver's licence pursuant to s.89(4) of the Sentencing Act 1991."

As a brief statement of facts will show, the offending, particularly in regard to counts 1 and 3, was most serious. A number of victims of the armed robbery were traumatised by their experience and the car owner lost her vehicle.

The respondent was employed by a company as a driver of a delivery truck delivering Coca Cola products to various shops in the suburbs and collecting cash payments from the shopkeepers. At the end of the day he would return the cash payments to the "Cash and Settlement" office of Coca Cola in Clayton. In his position the respondent gained information about the practices and procedures of the Coca Cola staff in relation to the receipt and disposition of cash amounts and the security arrangements.

The respondent met Chand in an hotel and disclosed to him the nature of his work, the means of access to the "Cash and Settlement" office and the large amount of cash located there at the end of the day. In their respective records of interview, Chand and the respondent give differing accounts of how the plan to rob Coca Cola came into existence and the role each one played. Chand blamed the respondent as the principal offender and the respondent blamed Chand. The Crown said that the respondent revealed to Chand details of the office and the cash takings and Chand willingly agreed to become involved in a robbery. Extensive planning took place and the respondent proposed Easter Thursday (12 April 2001) as an appropriate day for the robbery as he expected there would be more money in the office than normal. It was the Crown case that the two offenders were equally involved in the planning and execution of the robbery. This was disputed by the respondent. The respondent contended that he became less enthusiastic than his partner about carrying out the robbery and was opposed to the choice of a gun as a weapon. On the way to the premises the respondent said he showed considerable reluctance to go any further and had to be persuaded to go on by his more dominant partner.

As part of the planning they had suitable disguises and weapons. Chand had a .22 rifle which he cut down using the respondent's hacksaw. The respondent said in his police interview he told Chand that a firearm would be unnecessary. The respondent armed himself with a knife.

On 12 April at about 7 p.m. the two men met and proceeded in the respondent's car to the Riviera Hotel in Seaford where Chand stole his aunt's Mazda sedan parked in the hotel's car park. Chand had a key to the vehicle cut in order to effect the theft. From Seaford the two men drove in separate vehicles to Springvale where the respondent parked his vehicle and travelled to a business park in Clayton in the stolen Mazda. To enter the park and gain access to Coca Cola's offices, two padlocks on two security gates had to be cut. This was done with bolt cutters.

At about 7.30 p.m. Chand, masked and carrying a sawn-off firearm, and the respondent, wearing a balaclava and armed with a knife, entered the office area of Coca Cola on the first floor of the building. The two men confronted three female staff engaged in reconciling the day's cash takings. One of the females was in the cash office which could only be accessed by a security tag. The other two females were threatened by the firearm and told by Chand to get down on the floor. They were very scared and frightened someone might be shot. Chand then threatened the female in the cash office and she was compelled to open the door. The two men wanted her to open the safe, but she did not have the key. The threats and menacing with the firearm by Chand continued for several minutes. Then the two men became aware that a sum of cash money was spread over a desk in the office area. Chand gathered the money amounting to about $92,000 and again threatened the female in the cash office.

The two men drove the stolen vehicle to the location of the respondent's car. Before departing, the respondent set fire to the stolen vehicle using petrol he had purchased earlier in the evening as an accelerant. There is a dispute between the respondent and Chand as to whose idea it was to burn the vehicle. Chand said the respondent made the decision, bought the petrol and started the fire. The respondent said Chand told him to "do something about that car". Both the respondent and Chand told the police they each received $30,000 from the robbery. Chand said he divided the money equally and left $30,000 under the front seat of the respondent's vehicle. It is likely that the proceeds of the robbery was the amount Coca Cola found to be missing and it is probable that Chand took a larger and unequal share of the proceeds. The proceeds of the robbery were squandered by the two men.

When the two men were arrested, the respondent made full admissions in a taped record of interview and signed a confessional statement implicating both himself and Chand.

Before turning to the Director's submissions in the appeal concerning the respondent, it is desirable to say something about the sentence the judge imposed on Chand on 1 March 2002, four months before he imposed the sentence on the respondent for the same offences. On 30 January 2002, Chand was arraigned after his counsel informed the judge: "I don't think an issue about fitness to plead or anything, would raise itself up". The reason for this remark was that Chand's counsel was aware that Chand had abused drugs and alcohol in the past and had been held in the Acute Assessment Unit in the Melbourne Assessment Prison for four weeks. Counsel told the judge that he had spoken to Chand that morning and he seemed bright and quite alert. Both the judge and counsel wanted to access Chand's prison medical history, but the prison authority had not produced a report. The court adjourned the plea hearing and resumed the hearing on 1 March. In the interval, the judge was provided with a medical report which he said he had read when the hearing resumed. The details of the report included recommendations that should he receive a custodial sentence he would need to be monitored carefully because of his ongoing suicide risk and should continue anti-depresssant medication indefinitely. Importantly, it was the opinion of the psychiatric, Dr. Ian Katz, that Chand presented some risk of dangerousness to the community both in relation to his personality profile, alcohol and substance abuse and the possibility of an incipient paranoid illness. The report revealed Chand's background for his Honour said:

"He's had a shocking background, it seems, by reference to the inadequacy of his parenting and in respect of sexual abuse and lack of support, no doubt, that led to a life of drugs and alcohol."

The judge considered that, in the light of his psychiatric state, Chand qualified for some leniency in relation to general deterrence having regard to his mental condition and age and applying the principles stated in R. v. Anderson[4] and R. v. Tsiaras[5]. The Court of Appeal in Tsiaras held that serious psychiatric illness not amounting to insanity is relevant to sentencing in a number of ways. A court may take into account the offender's mental condition as reducing the moral culpability of the offence and requiring the court to give less weight to general deterrence, such an offender not being a proper medium for making an example to others. General deterrence is to be sensibly moderated.[6]

When Chand was sentenced, he was aged 25. Even allowing for Chand's mental condition, the sentence was very lenient for what the judge described as a well-planned and audacious armed robbery.

During the respondent's plea, a report from a psychologist was tendered. Mr Joplin considered that at the time of the offences the respondent was vulnerable and depressed and had sought to answer his depression with alcohol and amphetamine. He met Chand whilst drinking in a bar and discussed the opportunity of gaining substantial financial reward by robbing Coca Cola. Mr Joblin considered that the only explanation for his offending was that he had lost his way and was attracted to the considerable financial reward offered by the prospect of a robbery.

The judge described the offending in the following remarks during the sentence:

"This was not just a minor criminal infringement. It was a real planned and audacious armed robbery where, in many ways that have been referred to today, planning took place in terms of diagrams and organising the stealing of a car and working out the best way to do it when the money would be at its maximum and working out the tools that were necessary to take and the weapons, then the disposal of the various equipment afterwards. All those things took a degree of planning over some days, if not weeks, before the event."

The judge said he recognised that in providing information to Chand about the inside runnings of Coca Cola, and when the money would be at its greatest, and who was there and where it was, added to the respondent's criminality because he was breaching the trust imposed by his employee/employer relationship. The judge made a finding that it was highly likely that Chand was the dominant force behind the armed robbery which, he said, justified departing from "the general rule ... if all things are equal co-offenders get the same penalty".

The judge gave as further reasons for departing from the principles of parity of sentencing the difference between the prior convictions of the two men and the prospects of the respondent for rehabilitation being better than the prospects of Chand. Taking all those matters into account, his Honour proceeded to impose a sentence on the respondent somewhat less than that imposed on Chand.

The principles which govern "Director's appeals" are stated in a number of authorities.[7] In Clarke, Charles, J.A. stated the relevant rules in five propositions to which I need not refer in detail for they are well-known.[8] Relevant to this appeal are the following matters:

(1) To succeed in the appeal the Director must show judicial error in sentencing principle or material error of law or fact.

(2) The error must reveal manifest inadequacy which requires the court to interfere with the sentence.

(3) Should the Court interfere with the sentence it must give recognition to the element of double jeopardy involved by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

In arguing the first ground - the manifestly inadequate ground - the Director concentrated upon the four paragraphs in the second ground as explaining why the head sentence imposed in respect of count 1, the total effective sentence and the non-parole period are manifestly inadequate. The first paragraph concentrates upon the gravity of the offending in respect of the armed robbery and arson of the car used in the robbery. The armed robbery was a very serious example of armed robbery, the Director submitted, for the target was chosen by the respondent as a place where the proceeds of the robbery were likely to be considerable and the respondent had disclosed the target to Chand in breach of trust; the respondent selected the date for the robbery knowing the cash in the office would be more than usual on the eve of Easter and considerable planning was carried out by the respondent and Chand before the robbery. The robbery was executed by the two men in a professional way, disguises were used, weapons of a threatening kind were taken along, the two offenders presented themselves to female staff as a team, security was breached to enter the premises and the office where the cash was held, a car was stolen and used in the robbery and then destroyed to remove evidence which could identify the offenders.

In my opinion, the sentences imposed on the respondent failed to adequately reflect the gravity of the offences. The level of sentence imposed upon the respondent after due allowance is given to factors going to mitigation and discounted for appropriate reasons indicates to me that the judge commenced at a significantly lower level than can be accepted as just and appropriate in all the circumstances.

When sentencing the respondent, the judge fixed the sentence by reference to the discounted sentence imposed upon Chand, a discount to which the respondent was not entitled, which produced a low sentence. The sentence imposed on the respondent was reduced for three particular reasons. First, because the judge considered Chand was the dominant force. Second, because Chand's criminal history was worse than the respondent's. Third, because the judge found that the respondent's prospects for rehabilitation were excellent and he was unlikely to offend again. The judge then imposed on the respondent on count 1 a sentence which is about 30% less than he imposed on Chand. It would appear that the judge started the sentencing process for the respondent from an unreal and inappropriate base.

Mr Tehan for the respondent conceded that the sentence he was defending was very low, but argued that no challenge was made by the Director to the judge's findings of fact and Chand's sentence was not appealed by the Director. The failure of the Director to appeal Chand's sentence is not fatal to this appeal for the Director is required by s.567A of the Crimes Act 1958 to be satisfied not only that a different sentence should have been passed upon Chand, but also that an appeal should be brought in the public interest. It is inappropriate for the Court to inquire into the "public interest" matters considered by the Director before he determined not to appeal the sentence imposed on Chand.

The judge found that Chand introduced the gun to the plan and organized the theft of his aunt's vehicle. He also made findings that on the day of the robbery Chand was "the more enthusiastic participant" and was "the ruling force who took all the money, did the dividing up, got himself a car to go home and got [the appellant] to do the cleaning up as it were". He also found that the appellant was "far less dominant and far less enthusiastic" than Chand and that Chand had more "know how" than the appellant.

It is correct that the Director did not seek to disturb those findings. Nevertheless, in finding that Chand was "the dominant force" behind the armed robbery, the judge did not overlook the appellant's role for he observed:

"As has been quite rightly conceded by your counsel your role in providing information about the inside running of Coca Cola and when the money would be at its greatest and who was there and where it was and all those sorts of details, the provision of that sort of information adds to your criminality because that is breaching the trust you had with your employer."

It is beyond argument that the appellant formulated the plan, sharing his knowledge about Coca Cola with Chand, but became half-hearted on the way to the premises. Nevertheless he went ahead and participated in the robbery armed with a weapon of his choosing, shared the proceeds and covered up the evidence by burning the vehicle. The respondent may have been the less dominant force but his criminality was no less than that of his partner.

The judge considered that the difference he perceived in the roles played by the two offenders was enough in itself to justify different sentences. As I have indicated, I consider the judge was not justified in concluding that the respondent's criminality was less than that of his partner Chand. There were other matters which the judge took into account to justify departing from the principles of parity. First, he regarded Chand's criminal history as more significant than the respondent's history. Chand had 24 convictions from three court appearances. The respondent had four convictions from one court appearance. However, Chand's last conviction was in October 1996 and the respondent's was in April 1995. Nearly all Chand's criminal history is concerned with offences of dishonesty. He had no prior conviction for armed robbery. Second, he considered that the respondent's prospects for rehabilitation were excellent and that it was highly unlikely he would offend again.

Mr Tehan submitted that these two matters explain and justify the nine months difference in the minimum terms imposed by the judge on Chand and the respondent.

The judge was clearly troubled about the level of sentencing for he remarked before announcing the sentence:

"There are indeed many factors that mitigate your wrongdoing, but unfortunately for you I come back to where I started and that is the enormity of the criminal offence and your role in it even if it was as a secondary party ...." (Emphasis added.)

The Director's submission under ground 1 extended to paragraph (b), failing to take into account sufficiently, or at all the aspect of general deterrence; (c) giving too much weight to factors going to mitigation; and (d) failing to have sufficient regard to the need for just punishment.

Mr Tehan argued strenuously that the mitigating factors were very strong in the respondent's case, particularly remorse, rehabilitation and the finding that he was unlikely to offend again. In a written submission, Mr Tehan referred to the following matters: reluctance in committing the crime, being in a vulnerable state, the offending being out of character and providing assistance to Coca Cola about unrelated criminal matters. These matters were developed in oral argument.

I am clearly of the opinion that there was too much differentiation drawn between the culpability of the respondent and Chand. The sentencing judge erred in his application of the principles of parity as a consequence of finding they played different roles. There was no true distinction to be drawn on this issue.

In drawing some distinction between the respondent and Chand on account of their criminal history, it appears to me that the judge did not have regard to the fact that Chand's last offending saw him released from prison on 4 February 1997 and that he did not offend again for four years.

I agree with the Director that the sentence did not take into account sufficiently the respondent's culpability and degree of responsibility for the offences, general deterrence and denunciation by the court of the type of conduct in which the respondent engaged. Armed robbery is a prevalent crime in the community and courts have a considerable responsibility to send a clear message to the public that an armed robbery, whether committed on a "soft" target or a "substantial" target such as a bank or place where cash money is likely to be found, is likely to be visited with a stern and fitting custodial sentence. Certainly, the respondent had good prospects for rehabilitation, but I fear that the judge gave undue weight to this factor.

The respondent was given a head sentence for count 2 about 30 per centum less than Chand. The judge must have commenced to consider the sentence from too low a base and for some reason did not recall that Chand's sentence had been discounted on account of his psychiatric condition. The respondent was not entitled to the discount given to Chand for he did not have a psychiatric condition.

The claim that a sentence is manifestly inadequate does not admit of much argument once the facts of the offending and the circumstances of the offender are established. As I have already explained, it cannot be denied that the circumstances of the offending were very serious, causing the female staff great fear and lasting memories of a terrifying experience. The circumstances of the offender justified mitigation of the otherwise appropriate sentence, but not to the extent that the sentence on count 1 was two-and-a-half (2½) years or 10 per centum of the maximum sentence prescribed by Parliament.

The judge recognized that destroying the vehicle used in the robbery was a serious matter for he imposed a sentence of 18 months, double the sentence imposed for stealing it, but less than the sentence imposed upon Chand. The Director submitted that the judge erred in not cumulating a portion of that sentence with count 2. I agree that some cumulation was required in the circumstances that the vehicle was incinerated by the actions of the appellant. I disagree with the remarks of his Honour that cumulation was not called for because he regarded count 3 "as being all part of the one enterprise". The theft of the vehicle was for use in the armed robbery but the burning of the vehicle by the respondent added to the overall criminality of the offending and normally cumulation of part of the sentence would be ordered on count 3. Because of totality and double jeopardy no cumulation should be ordered, in my opinion.

Section 89(4) of the Sentencing Act 1991 makes it mandatory for the sentencing judge to cancel an offender's driver licence if a person is convicted of stealing a motor vehicle. No such order was made by the sentencing judge. The prosecutor did not remind him of the need to do so. It falls to this Court to correct the sentencing error. Section 89(4) also provides that, if the Court thinks fit, it shall disqualify him or her from obtaining one for such time as it thinks fit; or suspend that licence for such time as it thinks fit. As the respondent was the holder of a driver licence, it will be cancelled, effective from 4 July 2002. I consider it is appropriate to disqualify the respondent from obtaining a driver licence for a period of two-and-a-half years, effective from 4 July 2002. I have taken into account that the respondent's usual occupation requires a driver licence and that his prospects of gaining employment upon release will be diminished if he cannot obtain a licence. I would uphold ground 5.

The sentencing discretion is re-opened and it is necessary for the Court to sentence the respondent on count 1. I propose that a sentence of five years' imprisonment should be imposed on count 1, an unusually lenient sentence for a most serious armed robbery. The Court has to have regard to Chand's sentence, lenient as it may be, otherwise a marked discrepancy in the sentences imposed on the applicant and Chand could give rise to a justified sense of grievance in the applicant and a concern in the mind of an objective bystander that justice has not been done.[9] The relevant circumstances to which I have referred explain why the Court is compelled by principles of parity and double jeopardy to impose a lenient sentence upon the respondent. But it cannot be used as a precedent because the appeal process requires the Court to impose a sentence that is considerably less than the sentence it considers should have been imposed in the County Court. The total effective sentence will now become five years.

A new minimum term must be fixed before the respondent will become eligible for parole. I propose to the Court a term of two-and-a-half (2½) years.

For these reasons I consider the appeal should be allowed.

[1] The doubt arises from the fact that the judge gave but two pages of reasons for the sentences imposed on Chand, making it exceptionally difficult for this Court to form any true view as to what all the relevant factors were. We were assisted, to a small extent, by the transcript and, eventually, by a copy of an obscurely expressed psychiatric report relating to Chand. But these difficulties are not uncommon, especially for sentencing judges, even though appellate courts from time to time seem to ignore them.

[2] It was equally inappropriate to impose the sentences for armed robbery (which were identical to the total effective sentences) and likewise the minimum terms to be served before eligibility for parole, which were 15 months and 2 years respectively.

[6] R. v. Champion (1992) 64 A.Crim.R. 244 at 254-5; R. v. Giles [1999] VSCA 208; R. v. Williams [2000] VSCA 174.

[7] Everett v. R. [1994] HCA 49; (1994) 181 C.L.R. 295; R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520; DPP v. Whiteside and Dieber [2000] VSCA 142; (2000) 1 V.R. 331.

[9] R. v. Wilson (23000) [2000] VSCA 202; 116 A.Crim.R. 90 at [15]; DPP v. Bulfin [1998] 4 V.R. 114 at 117.

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Judgment (65 paragraphs)

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