• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

2 On 18 February 2005, the judge sentenced the respondent on each count to 12 months' imprisonment to be served by way of intensive correction order. The maximum penalty for armed robbery is 25 years' imprisonment and for causing serious injury intentionally is 20 years' imprisonment.

3 The Director now appeals on the ground that the sentence is manifestly inadequate, the particulars claiming that the sentence failed to reflect adequately the gravity of the offences and general and specific deterrence, and gave too much weight to factors going to mitigation, and insufficient weight to the respondent's prior criminal history and subsequent convictions and the relevant maximum penalties.

4 The circumstances of the offences were as follows. Early in the afternoon of 4 January 2004, the victim, one Menicucci, boarded a city-bound train at Epping railway station. He was going to Victoria Park to meet friends. The respondent, Leigh Roe and Adele Burrows boarded the same train at Clifton Hill and the respondent sat next to the victim. The respondent then began a conversation with him and they discussed several matters including a mutual acquaintance, referred to as Vin. It transpired that both of them intended to "score" some heroin and that they were all going to leave the train at Victoria Park station. The victim, the respondent, Leigh Roe and Burrows duly alighted from the train at Victoria Park and walked into the foyer area of the station. The victim was the first to enter the foyer and the respondent was walking slightly behind him. As they entered the undercover foyer area of the station, the respondent seized the victim from behind, placed a knife at his throat and demanded money. A scuffle followed and the victim tried to gain possession of the knife from the respondent, which resulted in numerous cuts to his fingers and the front of his left hand. The respondent then threw the victim to the ground next to a ticket machine and kneeled on top of him, making further demands for money. The respondent then stabbed the victim twice in the upper left inner thigh and yelled, "Do you want another hole?" In response, the victim emptied his pockets and handed over two $20 notes. The respondent then told him to walk north along the platform and himself fled the scene. The victim staggered along the platform and out of the station and was taken to hospital by a passer-by.

5 On examination, the victim was found to have two separate stab wounds to his upper left thigh. The wound on the anterior thigh was approximately 1.5 cm long and 4 cm deep, and the wound on the medial aspect of the thigh was approximately 2.5 cm long and 4 cm deep. Both wounds were sutured.

6 Having been identified by video footage from the station, the respondent admitted his identity but otherwise made a "no comment" record of interview.

7 At the plea, defence counsel put the following matters to the sentencing judge. Reliance was placed on the respondent's plea of guilty and his comparative youth, he then being 25. It was argued that the respondent has some intellectual disability, with an IQ in the region of 75 to 79. He was said to be remorseful, to have made genuine attempts to rehabilitate himself and to have a real prospect of success in so doing. He was said to be addicted to heroin and that his offences had been committed in the context of heroin use. He was said to have come from a disadvantaged background, having suffered abuse and violence from a stepfather who had a problem with amphetamines. He had been introduced to heroin at the age of 16. His prior convictions were said to have stopped in the year 2000, at which time he had attempted to reform his life. He then served a sentence for robbery, after which he went to Sydney with an offer of a job from his natural father. In the three years that followed he had remained in employment, but unfortunately his father's business faltered and his father suggested that he return to Melbourne, giving him $15,000 as capital to set up in business. He attempted to start a business with his brother, but in the absence of his father the business was not a success. When his business in Melbourne failed, he met old friends and resumed his heroin use. He had, however, then formed a loving relationship with Adele Burrows, in the course of which she became pregnant. Unfortunately, the baby miscarried and it was shortly after this event that the present offences were committed, both of them being in great distress.

8 A dispute arose on the evidence before the judge as to the circumstances in which the respondent met the victim on the train. The victim claimed that he had not previously met the respondent, although they had a mutual friend, Vin. The respondent's counsel, however, claimed that the respondent was not a stranger to the victim, rather that a few days previously the respondent had provided the victim with $100 to get heroin for him, which had not been provided. The respondent's version was that he was annoyed with the victim and was demanding from him on the train either the return of his money or the agreed quantity of heroin. It was claimed that the events which followed on the railway station arose out of this dispute.

9 At this point in the plea, evidence was called from Mr Winther. Mr Winther said that he had met the respondent first in 1999 when he was referred to the Brosnan Centre program for supportive accommodation. He had continued with the program for 18 months until his exit from the program, when he returned to Sydney to work with his father. He was then a very troubled young man, with a significant heroin addiction. It was said that he had "a uniqueness around his honesty and his respect for himself and his respect for workers and also other young people in our program," and was "an informal peer leader". Mr Winther had then met the respondent again after he returned to Melbourne in November 2003. Thereafter, he had assisted the respondent in referring him to a program of the Brosnan Centre known as Teen Challenge. Mr Winther had continued in contact with the respondent and Adele Burrows and asserted that their relationship was very strong. Mr Winther said that in his view the respondent, since his experience with Teen Challenge, had maintained a genuine and honest approach, with resolve, and that the worst thing that could happen was for him to return to custody. He said that he thought that the respondent was now on the right path and that "this is his time". He said that if the respondent was given an opportunity of avoiding a further period of incarceration, he would be available to him to give advice and guidance.

10 Ms Matthews, in her report of 7 February 2004, said that the respondent had experienced a childhood of exceptional dysfunctionality, including abuse and exposure to drug use. However, in the last six months "he has tried very hard to gain control over these issues and make positive changes in lifestyle and how he relates to others". Ms Matthews also said that "the risk of further violent attacks on others is likely to be greatly reduced by rehabilitative involvement in addressing the impulse control issues of: substance abuse, gambling and management of anger". Ms Matthews thought that further incarceration was unlikely to further his rehabilitative progress.

11 In her sentencing reasons the judge dealt with the conflict in evidence of the circumstances in which the respondent and the victim met on the train. Bearing in mind that the onus lies on the prosecution to prove a matter of aggravation in sentencing[1], her Honour, after viewing train film footage, was not satisfied that the victim's version, that he had no previous acquaintance with the respondent, was correct. Her Honour said that the film footage suggested rather that the respondent's version was correct, and that it afforded some explanation for what then followed, notwithstanding that the respondent's attack on the victim remained extremely reprehensible and serious.

12 The judge accepted and placed considerable weight on the evidence of Mr Winther and Ms Matthews. Relying on the evidence of these witnesses, her Honour accepted that the respondent and Adele Burrows were intent upon obtaining normal lives, proper employment and starting a family. In so doing, her Honour also accepted that the risk of further violent attacks by the respondent was likely to be greatly reduced by rehabilitative involvement, and that the respondent had good rehabilitative prospects.

13 Relying on the view that the respondent had been assessed as suitable for an intensive correction order, her Honour then decided that the appropriate sentence was for a period of imprisonment for 12 months to be served by way of intensive correction in the community. That, of course, is the maximum sentence on which it is possible to make an intensive correction order.

14 In this Court, Mr McArdle for the Director of Public Prosecutions submitted that both the individual sentences and total effective sentence are manifestly inadequate. He argued that the gravity of the offences generally, and in the particular case, showed that immediate incarceration was essential. He argued that her Honour's sentence failed to take into account sufficiently, or at all, general and specific deterrence, general deterrence being important to deter others from attacking persons in a public place with a weapon such as a knife in broad daylight, and specific deterrence because of the respondent's prior convictions. Too much weight had, so the argument ran, been given to factors going in mitigation, these factors not being sufficiently balanced against other sentencing considerations applicable to the respondent. Insufficient weight, it was argued, had been given to the respondent's prior criminal history, which included a prior conviction for robbery and discharging a missile to injure. Furthermore, the present offences were inherently of a serious nature, and the maximum penalty in each case showed the seriousness with which the offences were regarded by Parliament. In all the circumstances, taking into account the matters in mitigation, the gravity of the whole of the offending should not have resulted, so it was said, in such sentences being served concurrently or by way of an intensive correction order. It was submitted that some cumulation at least should have been ordered.

15 As Eames, J.A. said in the very recent appeal by the Director of Public Prosecutions in the matter of Caine Michael Snell[2], "the sentencing task is never more difficult than when a sentencing judge discerns a faint hope of rehabilitation with a youthful offender with multiple prior convictions, who stands yet again to be sentenced on serious offences", an offender "who - unless rehabilitated - was likely to bedevil the community throughout what would no doubt be a shortened, and certainly wasted, lifetime of criminal behaviour interspersed with increased periods of imprisonment."

16 Here the respondent was sentenced on the basis that his attack was not on a stranger, rather he was said to have offended against a fellow heroin user to whom he had given $100 to supply heroin. This aspect of her Honour's findings was not challenged by Mr McArdle, although he expressed some mild scepticism as to them, and argued, in any event, that they were largely irrelevant, the seriousness of the offences not being in question.

17 Her Honour was entitled to place significant weight on the respondent's plea of guilty, relative youth, remorse, that he had spent almost seven months in custody, his successful participation in Teen Challenge, that he had not thereafter relapsed into heroin use or re-offending, his interaction with Mr Winther and obtaining of employment, all of which led her Honour to the view that he has "good rehabilitative prospects and the community is best served by your continuation on that path".