DPP v Mobbs; DPP v Elliott [2003] VSCA 148

Court of Appeal (Vic)|2003-09-19|Before: PHILLIPS, C.J., VINCENT, J.A. and ASHLEY, A.J.A.

Criminal Law - Sentence - Crown Appeal - Armed Robbery - Whether sentence manifestly inadequate - Respondents with no prior criminal histories - Whether sentences imposed adequately reflected level of criminality and importance of general deterrence - Appeal allowed.

In this matter I have had the advantage of reading the judgment of Justice Vincent in draft form. I agree with his Honour's conclusions and I would subscribe to his reasons therefor.

I desire to add that victims of crime and those who seek to assist them would be gratified to note the meticulous detail in which his Honour dealt with the Victim Impact Statements provided in this matter.

On 15 April 2003 each of the respondents to this appeal pleaded guilty before the County Court to six counts of armed robbery committed between 18 April 2002 and 19 June 2002 (counts 1 to 6).

The respondent Elliott also pleaded guilty to one count of handling stolen goods (count 7) and one count of possession of a drug of dependence (count 8).

The crime of armed robbery is punishable by the imposition of a maximum term of imprisonment of 25 years, that of handling stolen goods by a maximum term of imprisonment of 15 years, and the possession of a drug of dependence by the imposition of a maximum term of imprisonment of 12 months and/or a fine.

After hearing submissions in mitigation of penalty, on 23 January 2003 the learned sentencing judge sentenced the respondents as follows:

Darren Mobbs: On each of counts 1 to 6 - three years' imprisonment. His Honour directed that six months of each of the sentences imposed in relation to counts 2, 3, 4, 5 and 6 was to be served cumulatively with the sentence imposed on count 1.

These orders created a total effective sentence of five years and six months in respect of which a non-parole period of two years and nine months was fixed.

Steven Elliott: On each of counts 1 to 6 - three years' imprisonment. Again, his Honour directed that six months of each of the sentences imposed on counts 2, 3, 4, 5 and 6 was to be served cumulatively upon the sentence imposed on count 1. On count 7 - His Honour imposed a sentence of two months, one month of which was to be served cumulatively upon the sentences imposed upon counts 1 to 6.

These orders created in the case of this respondent a total effective sentence of five years and seven months' in relation to which a non-parole period of two years and ten months was fixed.

The Director of Public Prosecutions has appealed, pursuant to s.567A of the Crimes Act 1958, against the individual sentences, the total effective sentence and the non-parole period fixed in the case of each respondent on the ground that, in each respect, the sentences imposed were manifestly inadequate in that they:

(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 take into account the aspects of general deterrence; and

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

I should add, however, that no argument was advanced by the Director with respect to the sentences imposed upon the respondent Elliott on counts 7 and 8.

The Offences

The following description of the various offences and the respective roles of the respondents in their commission has been taken from the summary of evidence with which the Court has been provided. I do not understand that there is any dispute concerning the accuracy, or adequacy for present purposes, of what has been there set out.

"The first armed robbery occurred at about 5.25 pm on 18 April 2002 at the Brew and Hydroponic Store in Oakleigh. The respondents drove to the store in Mobbs' car, which was fitted with false numberplates. They had disguised themselves with sunglasses and baseball caps and carried a sawn off shotgun, cable ties and packing tape with them. Only one shop assistant, Thomas O'Malley, was working in the store at the time they entered the store and Mobbs pointed the firearm at O'Malley at a distance of about 3 to 4 centimetres from his chin and ordered him to the floor. He threatened O'Malley that if he lifted his head from the floor he would blow it off. Mobbs tied O'Malley's hands behind him by tying his thumbs together with the cable ties and he taped his mouth with the packing tape. Elliott took $1400 from the register as well as a mobile phone. The second armed robbery occurred at about 3 pm on 10 May 2002 at the All Season Hydroponic Store in Springvale. Again, the respondents were disguised with sunglasses and baseball caps and carried a firearm, cable ties and packing tape. They entered the store as customers. Mobbs ordered a specialist light glove from the sole shop assistant, Andrew Birthisel. While Elliott locked the front door, Mobbs produced the firearm and pointed it close to Birthisel's head and ordered him to the floor. He tied his hands behind him by using the cable ties around his thumbs and he taped up his mouth. He demanded Birthisel's wallet and told him he would take one of his licences so he would know where he lived. He took Birthisel's shooters licence and told him to think about the compensation he would get. Elliott took $180 in cash from the register and $290 worth of goods, which Mobbs later used, at his home address. The third armed robbery occurred at about 8 pm on 17 May 2002 at a liquor store called Mt Eliza Cellars in Mt Eliza. The respondents waited outside the store for about half an hour until all the customers had left before entering. They disguised themselves by wearing stockings over their heads and baseball caps. The proprietor, Richard Predl, was the only person in the store at the time. Mobbs placed the firearm against his chest and ordered him to stop looking at him, to kneel down behind the counter and not to follow them. This time they took $1500 from the register. The fourth armed robbery occurred at about 9.45 pm on the same day, 17 May 2002 at another liquor store, Dawsons' cellars, in Ormond. The proprietors, Mr and Mrs Dawson, were in the store at that time. The respondents were disguised with stockings over their faces and baseball caps. As they entered the store, a customer named Graham Ching also entered. Mobbs ordered the Dawsons and Ching to the floor and said, "get your fucking faces on the floor and don't make eye contact". He kept repeating, "keep your fucking face on the floor". Meanwhile, Elliott took $430 from the register and patted the pockets of the Dawsons. The robbery was video taped. The fifth armed robbery occurred at about 8.50 pm on 8 June 2002 at the Elwood Wine and Spirits' Liquor Store in Elwood. The respondents waited until only the proprietor, Michael Predl, and a shop assistant, Timmy Stannard, were in the store. They then entered, wearing baseball caps. They also had stockings under the caps, which they pulled down over their heads once they were inside. Mobbs produced the firearm and ordered Predl and Stannard to lie down and not look up. Elliott attempted to open the cash register but was unable to. Predl was then ordered to open it. They took $780 from it. This robbery was also video taped. The sixth and final armed robbery occurred at 7.05 pm on 19 June 2002 at Raynor Cellars in Noble Park. The shop assistant, Timothy Casagee, was alone at the time. The respondents again disguised themselves by wearing stockings over their heads and hooded jackets. Mobbs produced the firearm and ordered Casagee to lie on the ground, then to open the till and then to lie on the ground again. $1100 was taken from the cash register. On 8 August 2002 the police executed a drug warrant on Mobbs' home address. They found a hydroponic cannabis plant set up, as well as the goods stolen from the All Seasons Hydroponic Store. On 13 August 2002 Mobbs attended the Frankston Police Station to be interviewed about the goods. In that interview he said that the goods had been purchased through the Trading Post from an unknown male but he was unable to recall the details of the transaction. He said that he did not own a firearm. Meanwhile, Elliott, who was under covert police surveillance, was seen removing a package from Mobbs' car. This was found to be the stolen numberplates. On 14 August 2002 the respondents were arrested and interviewed by the police. Each admitted involvement in the armed robberies. Mobbs admitted that the firearm was loaded at the time of the robberies and that the safety catch was on. When Elliott was arrested he was found to have in his possession 5.73 grams tablets of an anabolic steroid, a prescribed drug of dependence which he said he used for muscle growth."

The principles to be applied by the Court in the consideration of appeals of the present kind has been the subject of attention in a number of cases and need not again be recited.[1]

In support of his contention that the learned sentencing judge fell into error in the determination of the sentences imposed in the case of each respondent, reliance has been placed by the Director upon the following considerations.

* First, it has been pointed out that the seriousness of the crime of armed robbery has been emphasized by the legislature which has enacted a maximum penalty of 25 years which can, in appropriate circumstances, be imposed upon perpetrators.

* There were features present in the particular case which rendered the conduct of the two respondents as serious examples of the crime and, accordingly, of a kind that should have attracted penalties in the higher range. They included the use of a loaded .22 calibre sawn off rifle to menace victims either by touching their heads or chests or placing the weapon close to them, the forcing of victims to the floor and the making of threats against them.

* With respect to the conduct encompassed by counts 1 and 2, victims were also bound and gagged. One of the victims of the second armed robbery had his drivers licence taken and a specific threat made as to knowledge of his address.

* Not surprisingly, the unfortunate persons who were subjected to these behaviours were severely traumatized by what had happened.

* The robberies, which were carried out in a premeditated and professional fashion.

* They took place over a period of two months and involved the taking of $5,390 in cash as well as $290 in goods.

* Finally, the decision to embark upon these activities was a consequence, it was asserted, of the reckless lifestyle that the two respondents had chosen to pursue and the affect upon them of the abuse of a variety of illicit substances.

There was a need, the Director submitted, in spite the learned judge's finding that the respondents were unlikely to offend in that fashion again, to impose sentences for the individual offences that appropriately reflected their very serious character and which were directed to deterring not only the respondents but, more importantly, others from engaging in this kind of criminal activity.

With respect to the total effective sentence imposed, he contended that by reason of the gravity and separate character of the various offences, the high level of culpability of the respective respondents, the relatively lengthy period of time involved in their commission, the number of quite separate victims, each of whom had been subjected to violence of a significant order, the orders for cumulation made by the learned sentencing judge was manifestly inadequate.

In response, on behalf of each of the respondents, the submission has been advanced that his Honour was well aware of the seriousness of the offending involved. In the course of the proceeding, the use of disguises and the loaded firearm was brought to his attention by the prosecutor. The judge himself adverted to the respondents' drug usage at the time and the fact that a loaded firearm was employed. In his reasons for sentence, he specifically found the offences to have been premeditated and planned. He referred to and read from the victim impact statements and undoubtedly appreciated the impact upon the victims of what had happened. It was open to him to find, as he did, that the respondent Mobbs, who had possession of the firearm, did not intend to discharge the weapon to hurt anyone. In short, his Honour, it was said, directed his attention to all of the aspects of aggravation addressed by the Director.

It is also apparent, the argument was advanced, that the learned sentencing judge formed the view that there were considerations militating powerfully in mitigation of penalty in the case of each of the respondents. They included their pleas of guilty, the assistance that each provided to the police, and very significantly, the fact that neither of them had any prior criminal history.

With respect to the respondent Mobbs, it was pointed out that there was evidence, which his Honour accepted, that this respondent was, until the commission of these offences, a person of good character and reputation. The offences occurred when Mobbs, who was aged 35 years, was experiencing a period of substantial personal instability and were properly viewed by his Honour within that context. The respondent was unemployed after the collapse of his business and marriage and was abusing alcohol and drugs. It was open to his Honour to find, as Mr Joblin the forensic psychologist observed in a report tendered to the Court, that Mobbs was in a disturbed psychological state at the relevant time. His background, and in particular the lack of prior convictions, counsel for this respondent submitted, provided the judge with an adequate foundation for accepting as he did that his client was unlikely to re-offend. Of significance in this context were his Honour's findings that Mobbs had demonstrated genuine remorse and that he was a man of good intellect, well motivated to work and with a desire to establish his own business. Further, the respondent had demonstrated an appropriate level of responsibility to his two children and was described by one of the witnesses as a good father who did "not waiver from his responsibilities as parent or provider for his family". Finally, this respondent had set about rehabilitating himself whilst in custody. He had undertaken courses, had sought psychological counselling, abstained from drugs and alcohol and participated in a prisoner listener scheme.

With respect to the respondent Elliott, it was pointed out that there was material before the sentencing judge which indicated that this respondent, who was aged 43 years, was also able to claim the presence of features militating powerfully in favour of mitigation of penalty. He had evidenced shame and repulsion concerning his offending, co-operated with the police and entered his plea of guilty at the earliest opportunity. There were personal circumstances, leading up to and at the time of his offending, which possessed relevance to the development and understanding of his conduct. He was a man with strong family support and of previous good character He had throughout his life been involved in constant employment until he sustained a knee injury at work. This led to the development of a degree of clinical depression, impotence, the presence of suicidal thoughts and the breaking up of a relationship. He had encountered the other respondent at a gymnasium that he was attending in an endeavour to effect physical rehabilitation but, unfortunately for both of them, during a period in which each was unsettled and vulnerable. They became close friends and ultimately led each other into engagement in activities which were quite out of character for either and, finally, brought them before the Court. Elliott, too, had demonstrated whilst in custody a resolve to rehabilitate himself and assist young prisoners.

Counsel for each of the respondents submitted on behalf of their respective clients, as I understand the thrust of their arguments, that there was no contention advanced by the Director that the learned sentencing judge fell into error in any identifiable respect and there were a number of features present that distinguished their situations from that generally encountered in relation to offences of the kind under consideration so that the significance of general and specific deterrence in their individual cases could be seen to be reduced. In those circumstances, sentencing error could not be inferred from the dispositions themselves.

It is, as counsel for the respondents have pointed out, unusual for men of the ages and antecedents of their clients to embark on a criminal rampage of the kind in which they engaged for a number of months. It was clearly open to his Honour to find that each of the respondents was going through a period of severe personal disturbance and instability as each had encountered a series of substantial setbacks and disappointments and that they had interacted in a fashion that led them to the adoption of a lifestyle and the engagement in criminal activity that otherwise would have remained quite foreign to them. Against that background, he was also entitled to conclude that they were unlikely to re-offend and to extend some leniency towards them.

Nevertheless, this Court has on a number of occasions emphasized the seriousness with which the commission of a crime of armed robbery will be viewed. As Winneke, P. pointed out in Orlikowski[2]:

"One has to be careful, I think, ... not to allow too readily the personal circumstances of the offender to mask the features of this crime which required the sentencing judge to properly regard principles of general and specific deterrence as important features in the exercise of the sentencing discretion. The crime is one which is perpetrated upon usually defenceless members of the community whilst those persons are going about their business, often in circumstances of isolation. The crime is one which instils terror into its victims."

There is virtually nothing which can be perceived as extenuating in the circumstances of the various robberies perpetrated by the respondents and much that can be placed on the other side of the ledger.

In my opinion, when regard is had to the seriousness of the separate activities in which the respondents engaged which, it must not be forgotten, included the brandishing of a loaded firearm, the number of offences committed and the number of separate victims who were subjected to fear and violence, the individual sentences, the total effective sentence and the non-parole period fixed in the case of each of them were all manifestly inadequate. Neither the criminality involved in their activities nor the importance to be attributed to general deterrence as a sentencing consideration in cases of this type is properly represented in the dispositions upon which the judge decided.

I would allow these appeals and set aside the sentences imposed in the Court below.

In the case of the respondent Mobbs, I would substitute the following sentences:

On each of count 1 and 2 - 4 years and 6 months' imprisonment with 12 months of the sentence on count 2 to be served cumulatively on the sentence imposed on count 1.

On each of counts 3, 4, 5 and 6 - 4 years' imprisonment with 6 months of the sentence imposed on each of those counts to be served cumulatively upon each other and the sentences imposed on counts 1 and 2.

This would create a total effective sentence of 7 years and 6 months' imprisonment. I would fix a non-parole period of 3 years and 9 months. This would reflect the judge's view that what could be described as a lower than usual non-parole period should be fixed in the particular circumstances of this matter.

In the case of Elliott, I would substitute the same sentences, that is:

On each of counts 1 and 2 - 4 years and 6 months' imprisonment with 12 months of the sentence on count 2 to be served cumulatively on the sentence imposed on count 1.

On each of counts 3, 4, 5 and 6 - 4 years' imprisonment with 6 months of the sentence imposed upon each count to be served cumulatively upon each other and the sentence imposed on counts 1 and 2.

On count 7 - I would re-impose the sentence of 2 months and the order for cumulation of 1 month upon the sentences imposed upon counts 1 to 6.

This would create a total effective sentence of 7 years and 7 months in respect of which I would fix a non-parole period of 3 years and 10 months.

I would also emphasize that regard has been had in arriving at these dispositions to the principles of double jeopardy and accordingly propose the substitution of sentences that I would otherwise regard as unduly lenient.

I agree in the disposition of these appeals proposed by Vincent, J.A., and with his Honour's Reasons.

[1] See R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522 per Charles, J.A.; DPP v. Whiteside and Dieber [2000] VSCA 142; [2000] 1 V.R. 331 at 335-336 per Winneke, P.; Dinsdale v. The Queen [2000] HCA 54; (2000) 202 C.L.R. 321 at 339-340 per Kirby, J.

[2] Unreported Victorian Court of Appeal 16 October 1997 at 4.

At a glance

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Judgment (51 paragraphs)