DPP v Save [2008] VSCA 163

2 On the evening of 18 April 2006 Jeffrey Armstrong and his partner Susan Lawrence were in bed in their house. Mr Armstrong was asleep. Ms Lawrence was reading. This peaceful domestic scene was ended by the sound of smashing glass. They got up. Mr Armstrong went to the hallway to find the front door of the house had been broken down by the respondent and he was confronted by three men, led by the respondent, who was wielding a piece of wood.

3 The respondent hit Mr Armstrong on the head and legs repeatedly with the piece of wood. His companions joined in the attack. Mr Armstrong's injuries included lacerations to his knee and forehead, a fractured patella, multiple bruises and abrasions to his back and torso and a broken hand. Surgery was required to reduce and fix the fractured patella.

4 One of the offenders went into the bedroom and, as a consequence of threats of violence, Ms Lawrence took some $1,000 from the pocket of Mr Armstrong's jeans and handed it to one of the offenders. Her mobile phone, a video camera and a wallet were also stolen. The offender who threatened Ms Lawrence also demanded that she remove her underpants. There was no finding that this offender was the respondent.

5 The respondent later told the police that he had been recruited to assist in the burglary a couple of weeks before. He was promised money as a reward. He said that he did not know the victims. The respondent received $400 from the proceeds of the robbery and gambled it away.

6 Victim impact statements reveal that the effects of the brutal treatment meted

out to the victims have been profound, both physically and mentally.

7 The respondent was arraigned in the County Court and pleaded guilty to a presentment containing one count of aggravated burglary (count 1), one count of intentionally causing serious injury (count 2) and one count of armed robbery (count 3). The maximum sentence for aggravated burglary and armed robbery is 25 years' imprisonment. The maximum sentence for intentionally causing serious injury is 20 years' imprisonment.

8 After a plea, the respondent was sentenced to be imprisoned for a term of three years on each of the counts of aggravated burglary and armed robbery and to a term of three years and six months on the count of intentionally causing serious injury. With a measure of cumulation, a total effective sentence of five years was imposed and it was ordered that the respondent serve a term of three years' imprisonment before he was to be eligible for parole. It was also ordered that the respondent pay $3,000 by way of compensation to Mr Armstrong.

9 Although the respondent was sentenced as a serious violent offender pursuant to the provisions of Part 2A of the Sentencing Act 1991, the sentencing judge did not purport to impose a disproportionate sentence in order to protect the community from the respondent.

10 The Director has appealed against the sentence on the ground that it is manifestly inadequate. In the particulars of that ground, the Director has alleged that the sentence failed to adequately reflect the gravity of the offences and the need for general and specific deterrence, gave too much weight to mitigating factors and insufficient weight to the maximum penalty applicable to the offences, the effect of the offending upon the victims, the need to punish the offender and denounce the respondent's conduct and the respondent's prior criminal history.

11 The respondent had a remarkable record of violent crime. He had some 39 prior convictions from 12 court appearances, including convictions on three counts of assault, two counts of causing injury intentionally or recklessly, two counts of assault with a weapon, assault by kicking, two counts of causing injury recklessly, causing injury intentionally, and intentionally causing serious injury. He also had a prior conviction for aggravated burglary. When the present offences were committed, the respondent was on parole after being sentenced for intentionally causing serious injury.

12 After the imposition of the sentence the subject matter of this appeal, the Parole Board determined to cancel the parole breached by the commission of these offences. The unexpired period of parole the respondent must now serve is two years, two months and 30 days. The Court was informed that the Parole Board has decided to assess the respondent's suitability for parole in mid-2010.

13 The respondent is 38 years' old. He was adopted by a couple, who separated when he was one year old. The respondent lived with the woman who adopted him. She had two later partners, one of whom was violent towards the respondent. The respondent has had a series of relationships with women, three of which have produced five children.

14 The respondent left school in year 11 and, save for periods of imprisonment, has been steadily employed in various jobs. The respondent began drinking alcohol at the age of 15 years. It appears that his episodes of violence were often associated with alcohol. The respondent was a heavy gambler. He told a psychologist that he had ingested the amphetamine called 'ice' on the night of the offences. The psychologist reported to the sentencing judge that the respondent had a borderline personality disorder characterised by poor impulse control and inappropriate intense anger, 'whilst retaining both empathy and remorse for the effects of his behaviour on others.'

15 As the psychologist noted, there are two sides to the respondent. He has an extremely violent disposition. On the other hand, he has been a good worker, was a well behaved prisoner, who was appointed to the coveted position of a peer education worker, willingly engaged in counselling and, as the sentencing judge found, displayed remorse by his plea of guilty and frank admissions to the police.

16 The respondent was entitled to a discount for his plea of guilty, which was made at an early stage, and his cooperation with the police. Notwithstanding these matters and factors such as remorse and a good working record, the offences themselves, committed by a man with the respondent's record, while he was on parole, required condign punishment. The invasion of the dwelling house, which had been planned for some time, and in which the respondent played a leading role, the unprovoked, cowardly attack by three men upon its occupants, who were not known to the respondent, and the robbery of their possessions constituted serious examples of the offences in respect of which the respondent was convicted. General and specific deterrence and denunciation are important sentencing considerations in this case.

17 This Court approaches appeals by the Director with some circumspection. Manifest inadequacy alone will not be sufficient to warrant intervention. As Redlich JA held in DPP v Bright:

The inadequacy of the sentence must be "clear and egregious", the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and "undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes".[1]

18 This was a brutal, unprovoked attack upon a defenceless man, whose house had been invaded. The respondent may have been affected by his ingestion of amphetamine, but I do not consider that a mitigating factor. The offences of aggravated burglary and armed robbery were premeditated. The crimes themselves represented serious examples of violent offences committed by a man with many prior convictions for violent offences. While the respondent's record does not itself call for the imposition of a greater penalty, it does bear upon the respondent's moral culpability, his prospects of rehabilitation, specific deterrence and protection of the community.

19 In my view the sentence imposed upon the respondent would shock the public conscience. The requirements of general and specific deterrence, denunciation, just punishment and community protection demanded a sentence greater than that which was imposed upon the respondent to an extent which implies that there has been error in principle and the sentencing discretion miscarried.

20 In addressing the question whether the sentence was manifestly inadequate, I have not had regard to the cancellation of parole and the extra period of imprisonment thereby imposed upon the respondent. The sentencing judge could not take into account the possibility that the respondent's parole might be cancelled, and I do not think that this Court should have regard to the consequences of the cancellation of parole in reviewing the exercise of her sentencing discretion. The cancellation of parole and extra period of imprisonment imposed upon the respondent is relevant, however, to the question whether this Court should exercise an overriding discretion which may lead it to decline to intervene, even though it has come to the conclusion that error has been shown in the original sentencing process. In the present case I do not think it appropriate to exercise that discretion.

21 The cancellation of parole and the extra period of imprisonment imposed upon the respondent is also to be taken into account in determining the appropriate sentence to be imposed by this Court in re-sentencing the respondent.

22 In determining the appeal and in re-sentencing the respondent, I bear in mind the consideration that the respondent has been exposed to double-jeopardy, which applies to each of the components of the sentence, including the individual

sentences.[2] I would set aside the sentence passed below and re-sentence the respondent to be imprisoned to a term of five years on count 2 and to a term of four years on each of counts 1 and 3. I would cumulate one year of each of the sentences on counts 1 and 3 on each other and on the sentence imposed in respect of count 2, producing a total effective sentence of seven years' imprisonment. I would order that the respondent is to serve a term of four years and six months' imprisonment before he is to be eligible for parole.

23 I agree with Buchanan JA that the cancellation of parole after the sentence was imposed, should not be taken into account in considering whether that sentence was manifestly inadequate. It is relevant to the questions whether this Court should intervene and if so, as to the sentence that should now be imposed.

24 For the reasons given by Buchanan JA I agree that the sentence imposed is so disproportionate to the objective gravity of the offence as to be indicative of error in principle. I would allow the appeal and re-sentence the respondent as his Honour proposes.

[1] [2006] VSCA 147; (2006) 163 A Crim R 538, 542 (Redlich JA) (citations omitted).

[2] Counsel for the respondent drew this Court's attention to the apparent difference in the approach of courts in this and other states in re-sentencing offenders after successful Crown appeals. In this state, the new sentence is to be somewhat less severe than that which the Court should have imposed at first instance. See, for example, R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522; DPP (Vic) v Ellis [2005] VSCA 105; (2005) 11 VR 287, 296 (Callaway JA); DPP (Vic) v VH [2004] VSCA 180; (2004) 10 VR 234, 238 (Callaway JA), 242 (Eames JA). In Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, 341, Kirby J said that the appellate court should impose a substitute sentence 'towards the lower end of the range of available sentences'. See also R v Tait (1979) 46 FLR 386, 387-8 (Brennan, Deane and Gallop JJ). In my opinion this case is not the appropriate vehicle to resolve that controversy.