DPP v Spiteri [2006] VSCA 214

2 For the reasons his Honour has stated, I agree with Coldrey, A.J.A. that the appeal should be allowed and the respondent be re-sentenced as his Honour proposes.

3 On 16 January 2006 Anthony Spiteri (the respondent) pleaded guilty in the County Court at Melbourne to three counts of armed robbery on presentment SO 1687430.1 ("the first presentment"), and one count of theft on presentment SO 1547991 ("the second presentment"). On 24 January 2006 the respondent was sentenced on the first count of armed robbery on the first presentment to 2 years and 9 months' imprisonment. He received 2 years' imprisonment on each of the remaining two counts of armed robbery. On the count of theft on the second presentment the respondent was sentenced to imprisonment of 1 year. It was ordered that 6 months of the sentences on counts 2 and 3 of the first presentment be served cumulatively upon each other and upon the first count on the first presentment. It was further ordered that 3 months of the sentence on the count of theft on the second presentment be served cumulatively upon all other sentences imposed. Accordingly, the total effective sentence was 4 years' imprisonment. A non-parole period of 3 years 2 months was fixed and pre-sentence detention, calculated pursuant to s.18 of the Sentencing Act 1991 (the Act) was reckoned at 560 days.

4 The maximum penalty for the offence of armed robbery is 25 years' imprisonment and for the offence of theft the maximum penalty is 10 years' imprisonment.

5 At the time of the commission of these offences the appellant was aged between 36 and 37 years and is currently 39 years old.

6 The respondent admitted 32 prior convictions from 10 previous appearances in the Magistrates' and County Courts between November 1985 and February 2001 including five counts of armed robbery, one count of assault with intent to rob and one count of robbery.

7 The Director of Public Prosecutions has appealed against the individual sentences imposed, the total effective sentence, and the non-parole period on the ground that each is manifestly inadequate. The particulars of that ground are as follows:

"In imposing the individual sentences and in making the orders with respect to cumulation and in fixing the non-parole period, the learned sentencing judge -

(a) failed to adequately reflect the gravity of these offences generally and in this case in particular;

(b) failed to take into account or sufficiently take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently take into account the aspect of specific deterrence;

(d) gave insufficient weight to the Respondent's relevant prior criminal history;

(e) gave insufficient weight to the fact that the Respondent was on parole when counts 1 and 2 on [the first presentment] and count 1 on [the second presentment] were committed;

(f) gave too much weight to factors going to mitigation;

(g) gave insufficient weight to the applicable maximum penalties for these offences ...; and

(h) gave insufficient weight to the effect of these offences upon the victims."

8 Before turning to consider this single ground of appeal it is convenient to outline the facts constituting the offences upon which the respondent was sentenced.

9 On 21 September 2003, about 4.00 p.m., the respondent entered a Baker's Delight store in Coburg, approached the counter and asked the 18 year old female sales assistant the cost of a particular item of food. When told this, he demanded that she open the register. He made this demand twice while holding a syringe above the counter. When the sales assistant opened the cash register, he demanded that he be given all the notes - a demand with which she complied. The respondent grabbed the notes, checked there were no more in the till and fled from the store on foot. This conduct constituted count 1 on the first presentment.

10 At about midday on 24 January 2004 the respondent observed an unattended cash register complete with key in Kendall's Fine Wine and Delicatessen on Toorak Road, South Yarra. He entered the store, used the key to open the register, and took $550 in notes. He then fled. The shop owner, who had been sitting at the rear of the shop, witnessed this incident and chased the respondent out of the shop screaming for him to stop. This alerted other shop owners and members of the public. The respondent was apprehended close by in the street where he had parked his car. He returned the money to the shop owner and was arrested by police shortly thereafter. At the record of interview he gave the monosyllabic reason for his theft as "drugs". This offence constituted count 1 on the second presentment.

11 At about 5.40 p.m. on 1 March 2004, the respondent entered a Baker's Delight store in Campbellfield. He approached the 19 year old female sales assistant and demanded that she open the till and give him all the notes. At the time he was holding a syringe. The sales assistant opened one of two registers at the counter and gave him all the notes. He then demanded that she open the other register and give him the contents. This she did. The respondent then ran from the store. This was count 2 on the first presentment.

12 At about 4.50 p.m. on 2 July 2004 the respondent entered the Cosmetics Hair and Beauty Shop in Coburg. The 23 year old female manager was about to close the two registers when the respondent approached her with a syringe. He said that there was blood on it, adding that, if she did not give him the money, he would stab her with it. He then jabbed the syringe towards her, reached into the register, took the notes, and ran from the shop. This was count 3 on the first presentment.

13 The total cash obtained from the three armed robberies was about $700. None of this money was recovered.

14 On 14 July 2004 the respondent was arrested and interviewed by investigating police. In his record of interview the respondent was asked his purpose in having a syringe on the occasion he entered each of the Baker's Delight stores and responded: "So that they would comply." Asked why he chose Baker's Delight he responded that this was because it was easy - less people and a smaller shop.

15 In relation to the armed robbery at Cosmetics Hair and Beauty in Coburg, the respondent admitted having a syringe and showing it to the shop assistant "to scare her".

16 His reason for committing the robberies was to gain money for drugs.

17 The sentencing judge had before him Victim Impact Statements from the victim involved in count 2 of the first presentment and from the shop manager involved in the theft count. The former wrote of being distressed for the week following the incident, including loss of sleep, stress upon returning to work and paranoia about another incident occurring during the remainder of her employment at Baker's Delight; the latter, under the heading "Emotional Trauma Suffered as a Result of the Crime" had recorded "Nil." Victim Impact Statements were not, apparently, received from the other victims.

18 In considering this matter, it is also pertinent to place the respondent's recent offending in context. On 2 December 1999, at the County Court at Melbourne, the respondent was imprisoned on an offence of armed robbery for a period of 5 years with a minimum non-parole period of 3 years and 4 months. This offence involved the use of a knife at a pharmacy.

19 On 14 October 2002 the respondent was released on parole for that offence. That parole period expired on 13 June 2004. Consequently, while on parole, the respondent committed the first and second offences of armed robbery and the offence of theft. The third offence of armed robbery was committed while the respondent was on bail for the offence of theft.

20 Additionally, on 13 October 2003, the respondent had been convicted of theft at the Magistrates' Court at Broadmeadows. On that occasion he was sentenced to a term of imprisonment of 3 months, wholly suspended for a period of 12 months. Accordingly, the second and third armed robberies and the offence of theft were in breach of this suspended sentence. Although it would notionally be open to the authorities to institute proceedings for breach of this suspended sentence pursuant to the provisions of s. 31 of the Sentencing Act 1991, no such proceedings have been commenced. Given the minimal length of the original sentence, and the lapse of time since any breach occurred, I regard it as highly unlikely that any proceedings will now be issued.

21 There was no material before the Court relating to any action taken by the Adult Parole Board upon the breach of parole. Clearly, if the respondent were to be required to serve the unexpired portion of his December 1999 sentence, this may involve imprisonment of up to 20 months. Accordingly, this circumstance could bring into operation s.16(3B) of the Act. That section requires, in the absence of exceptional circumstances, (and none were suggested) that any term of imprisonment imposed upon a person in the respondent's position be served cumulatively upon any period of imprisonment which he may be required to serve upon cancellation of the parole order. As the authorities make clear[1] this possibility must be factored in to any instant sentencing exercise in the application of the principle of totality.

22 As the particulars of the ground of appeal indicate, no specific sentencing error was identified. Rather, such particulars were generally couched in terms of a failure to adequately reflect the gravity of the offences or the aspects of specific and general deterrence; and the insufficiency of weight accorded to the respondent's prior criminal history, on the one hand, and the excessive weight accorded to mitigating factors on the other.

23 A reading of the judge's sentencing remarks make it clear that the sentencing judge regarded the offending as serious. He remarked:[2]

"In each case of robbery you threatened a young female shop assistant with a syringe. You chose vulnerable targets and terrified your victims. Your actions had lasting emotional and psychological consequences for at least two of those victims."

It is debatable whether those comments are a completely accurate reflection of the material before the Court from the young women involved, but it may be assumed that armed robberies such as these, by their very nature, have adverse emotional and psychological consequences for their victims.

24 His Honour went on to state:

"There is a need to deter you and others from such unfortunately frequent conduct."[3]

25 The sentencing judge also specifically referred to the respondent's very poor criminal record which extended from November 1985 to October 2003. He noted that at the time of the respondent's offending in the present matters he was on parole.[4]

26 As I have indicated this was not so in relation to the armed robbery of 2 July 2004 (count 3 on the first presentment).

27 The sentencing judge was alive to the effect of s.16(3B) of the Act on the exercise of the sentencing discretion. Indeed, he specifically stated that he would take it into account.[5]

28 In his sentencing remarks the trial judge had regard to the fact that the respondent had pleaded guilty and his entitlement, on this account, to a reduced sentence.

29 The sentencing judge also took into account matters personal to the respondent. These included his qualifications and initial employment as a chef with the possibility of gainful employment in this field in the future; his history of multi drug use over a period of about 18 years culminating in his dependence on heroin; his prior attempts at formal detoxification programs (albeit he was not prepared to undertake any methadone program); and specifically that in May and June 2004 he had attended Moreland Hall without success.

30 The trial judge accepted the evidence of a Ms Karen Hoffman, whose knowledge of the respondent was solely gleaned during visits to see her son in Port Phillip Prison, that he had indicated regret for his offending and had appreciated the impact of it upon his mother; that he had concerns about her welfare, she then being aged 76; and that, when not taking drugs, the respondent was a "gentle caring lovely person".[6]

31 The sentencing judge also had before him a report prepared on behalf of the respondent by a clinical psychologist, Ms Carla Lechner dated 22 December 2005, although his Honour does not appear to have relied upon this report to any extent. Indeed, in light of the respondent's criminal record, one may be sceptical about the value of a psychological report which proffers the view that: "Mr Spiteri does not evidence a history of violence or aggression." Ms Lechner expressed the opinion that the respondent presented with a dual diagnosis of heroin addiction (in remission) and mood disorder. She stated that bipolar disorder was feasible. This Court was informed that a subsequent psychiatric review by Dr Reuben, psychiatrist at Port Phillip Prison, had resulted in a diagnosis of a lesser form of that affliction - "bipolar 2." Consequently, he was under the care of Dr Reuben and also attending a psychologist once a week. The Court was informed that he was on two sets of medication, one an anti-depressant, the other a mood stabiliser.

32 The sentencing judge stated:[7]

"You are said to self-medicate on illicit drugs to overcome your disturbed mood. You are in need of an in-patient drug rehabilitation facility to address the psychological aspects of your addiction. You are not receiving treatment in prison."

33 The sentencing judge also took into account the circumstance that, having witnessed a stabbing in Fulham Prison and subsequently become the target of threats by a group of prisoners involved in it, the respondent would have to serve his sentence as a protected prisoner. Currently he was doing so in the Sirius West Unit of Port Phillip Prison. This limited his opportunity to undertake study and courses.

34 The final factor which influenced the sentencing judge in quantifying the sentence imposed was his opinion that the respondent was in danger, given his age and criminal record, of becoming institutionalised.[8]

35 As to the former observation, there is no doubt that a court, in sentencing a prisoner, may take into account that the service of a sentence of imprisonment in protection may make it more burdensome.[9] As to the latter, the Court has also recognised the relevance of the risk of institutionalisation upon sentence.[10]

36 The source of the view by the sentencing judge about institutionalisation can only be found in the respondent's criminal history. Whilst this indicates, on its face, that in the past 13 years the respondent has spent in the order of 8 years in custody, it is, I think, debateable as to whether this statistic alone raises the spectre of institutionalisation. Certainly no criminological evidence was placed before the sentencing judge to that effect. In any event, such a possibility could never constitute a primary sentencing consideration.

37 It was in the light of all these matters that his Honour imposed a sentence which, he noted, "could be viewed by some members of the community as lenient."

38 In passing sentence, the judge referred to count 1 on the first presentment as the "principal offence". Accordingly, he cumulated the other sentences upon it. It seems to me that the most serious of the offences was count 3 on that presentment where the respondent actually thrust the syringe towards the salesperson. That being said, it was not suggested on behalf of the appellant that the method of cumulation adopted constituted a specific sentencing error.

39 The appellant's submissions may be shortly stated. It was argued that, given the gravity of the armed robbery offences, involving as they did, the selection of vulnerable businesses staffed by young female salespersons, sentences far in excess of the 2 years 9 months for the first offence and the 2 years on the second and third offences were warranted. Indeed, the latter two sentences were 40% of the sentence the respondent had received for the same crime in December 1999. Moreover, the cumulation of only 6 months for each of the second and third counts was described as "less than moderate".

40 Insofar as general deterrence was concerned, it was put that insufficient weight had been given by the sentencing judge to the need to deter others from committing a crime against these types of target. Further, the sentences ought to reflect the denunciation of this type of offending against ordinary people going about their daily livelihood.

41 In relation to specific deterrence the respondent was on parole for the very same type of offending, namely armed robbery, at the time he committed the first two armed robberies. (This was also the case with the theft). This was an aggravating feature which was not reflected in the sentence imposed. Into that mix may be added that all of the offences, save the first armed robbery, breached a suspended sentence imposed on the respondent on 13 October 2003 and, that the final armed robbery was committed while the respondent was on bail.

42 Furthermore, five of the respondent's 32 prior convictions were for counts of armed robbery. In all these circumstances, it was necessary to accord specific deterrence considerable weight. It was asserted the sentencing judge had failed to do this.

43 For completeness I should add that in the course of argument reference was made on behalf of the respondent to R. v. Osenkowski[11] and specifically to the frequently quoted passage from the judgment of King, C.J.:

"It is 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 the 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. 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 or types of 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."

However, in that case King, C.J. went on to find that there were no significant mitigating factors and that it was a straightforward case of a 36 year old man in possession of packets of heroin designed for commercial use. The appellant also had a record of drug related offences. Indeed, his Honour went on to state:

"In these circumstances it is important that the Full Court should vindicate and uphold the level of penalties which it has established as appropriate to this type of crime."[12]

In the result a sentence of 4 years with a non-parole period of 16 months was increased to 6 years with a non-parole period of 2 years. The principle enunciated is, if I may say so with respect, unexceptionable, but as is clear its operation must depend on the facts of the individual case.

44 It has been remarked many times that manifest inadequacy, like manifest excess, is not a concept capable of attracting lengthy argument.

45 In considering this Director's appeal, I am also mindful of the comments of Callaway, J.A. in R. v. Bernath:[13]

"A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor, but that stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor into consideration. Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error ..."

46 Bearing this admonition in mind, I am nonetheless of the view that the sentencing judge, although he adverted to the relevant sentencing principles and purported to take into account all of the relevant factors both as to the circumstances of the offences and those personal to the respondent, ultimately produced individual sentences on the armed robbery counts and an aggregate sentence all of which were manifestly inadequate. In summary, I am persuaded by the arguments advanced by the appellant.

47 Accordingly, I would allow this appeal. In re-sentencing the respondent I take into account both the principle of double jeopardy and the potential for the respondent to serve some or all of the outstanding period of imprisonment for the December 1999 offence.

48 I would propose the imposition of the following sentences:

On count 3 of the first presentment, I would sentence the respondent to be imprisoned for 4 years. In tailoring the total aggregate sentence, I would impose the same penalty for counts 1 and 2 of that presentment. On the count of theft, on the second presentment, given that the money was retrieved virtually immediately and the lack of any trauma occasioned to the victim, I would sentence the respondent to 6 months' imprisonment. I would propose that 1 year of counts 1 and 2 on the first presentment be served cumulatively with count 3 on that presentment. This would result in a total aggregate sentence of 6 years. I would fix a non-parole period of 4 years.

[1] See for e.g. R. v. Orphanides [2002] VSCA 86; (2002) 130 A.Crim.R. 403; D.P.P. v. Reid [2004] VSCA 105 at [18]; and R. v. Sheen [2005] VSCA 296 at [7].

[2] See reasons for sentence para. [15].

[3] Para. [15].

[4] Para. [16].

[5] Para. [17].

[6] Para. [21].

[7] Para. [21].

[8] Para. [24].

[9] See R. v. Rostom [1996] VicRp 60; [1996] 2 V.R. 97 at 102 per Charles, J.A.

[10] See D.P.P. v. Stone and Uren [2003] VSCA 208 per Charles, J.A. at [20].

[11] (1982) 30 S.A.S.R. 212 at 212-213.

[12] Ibid p.213.

[13] [1997] 1 V.R. 271 at 277.