Johnson v The Queen; Morgan v The Queen [2011] VSCA 348

2 The appellant Johnson pleaded guilty to counts of armed robbery, aggravated burglary, theft and being a prohibited person in possession of an unregistered firearm. The appellant Morgan pleaded guilty to counts of receiving stolen goods, aggravated burglary and theft.

3 Pleas were conducted on behalf of the appellants.

4 The appellant Johnson was sentenced to be imprisoned for a term of 10 years on count 1, on the count of robbery, for a term of 7 years on the count of aggravated burglary, for a term of 3 years on the count of theft, and for a term of 4 years on the count of being a prohibited person in possession of an unregistered firearm. Some cumulation was ordered, creating a total effective sentence of 16 years' imprisonment. A minimum term of 13 years' imprisonment was fixed.

5 The appellant Morgan was sentenced to be imprisoned for a term of 3 years on the count of receiving stolen goods, for a term of 6 years on the count of aggravated burglary, and for a term of 3 years on the count of theft. With a measure of cumulation, a total effective sentence of 8 years' imprisonment was fixed and it was ordered that the appellant serve a minimum term of 6 years' imprisonment before he was to be eligible for parole.

6 The appellants have appealed against the sentences.

7 A woman, her 15yearold daughter and a 15yearold friend of the daughter were in a motor vehicle parked at McDonald's in Doveton. Johnson and an unknown accomplice terrorised the occupants of the vehicle with a semiautomatic handgun. Johnson pressed the handgun against the woman's head. Her daughter was grabbed and punched twice by Johnson's accomplice. Threats to kill or shoot the woman and her daughter were made.

8 Several hours later, the appellants drove in the stolen car to a house in Craigieburn. They believed that the house was occupied by a drug dealer, whereas in fact the occupants of the house were a quite respectable couple asleep in their own house.

9 The appellants forcibly entered the property. Johnson entered the bedroom of the occupants and pointed his handgun at the husband. The appellants searched the property and stole a number of items of personal property valued at, in all, in excess of $25,000.

10 The victim impact statements disclose that the elderly victims of the crime were badly affected by waking to find intruders in their bedroom, one of whom wielded a handgun.

11 Johnson is 38 years' old. His father died when he was some six years of age. The appellant was educated to Year 10 level at a technical college and engaged in brief employment as a concreter. For most of his life, the appellant has been engaged in criminal activity, with consequent periods of imprisonment.

12 Johnson began taking amphetamine, cannabis and prescription medicines at the age of 15 years. He has 167 prior convictions from 25 court appearances between 1991 and 2006. At the time he committed the offences the subject matter of this appeal, the appellant was serving two suspended prison terms in respect of the offences of being a prohibited person in possession of a firearm, burglary and theft. Johnson's previous convictions included convictions for offences of dishonesty and violence.

13 In 1994, the appellant was convicted on a charge of causing injury intentionally and affray and sentenced to be imprisoned for a term of 16 months. In 1999, the appellant was sentenced to an effective term of imprisonment of six years on five counts of armed robbery. A number of these offences involved robbing persons in their houses.

14 The appellant Morgan is 39 years' old. He attended school to the end of Year 9 and left as a consequence of experiencing learning difficulties. Morgan worked as a cabinet maker and fencing contractor. Morgan began using drugs at the age of 20 years and since then has had little employment, other than as a casual labourer.

15 The appellant used cannabis, amphetamine and heroin.

16 Morgan also has an extensive record of prior convictions. He has 84 previous convictions from 17 court appearances between 1996 and 2006. The sentencing judge said that his history was consistent with a long drug addiction. Morgan had numerous convictions for offences of dishonesty and drug offences but only one prior conviction for an offence of violence, namely, unlawful assault and hindering members of the police force, in 2004.

17 Morgan had served only relatively short periods of imprisonment compared with Johnson.

18 The sentencing judge accepted that while Morgan was in custody in 2006, he took steps to deal with his heroin addiction. He embarked on a methadone course, which was apparently successful, and had been drug free from late 2006 until his arrest for these offences.

19 Morgan suffers from epilepsy and took a prescribed medicine, Rivotril, in order to control his condition. The appellants used Rivotril on the day they committed the offences. The sentencing judge remarked that it could be seen from the depositions that Morgan was in a drugged state at the time he was apprehended by the police.

20 The sole ground of the appeal by Johnson is that the sentence imposed on the count of armed robbery, the total effective sentence and the nonparole period are manifestly excessive.

21 The maximum sentence for armed robbery is 25 years' imprisonment. Counsel for Johnson contended that the sentence of 10 years' imprisonment was generally restricted to the worst type of case. Counsel pointed out that the sentencing judge accepted that the offence, though serious, did not amount to the worst case.

22 The submission that the sentence for the offence of armed robbery was manifestly excessive was buttressed by statistics, which identified only one higher sentence for armed robbery in the period from 2004 to 2009 and comparisons with nine cases said to be comparable. Counsel also relied upon certain particular mitigating factors: a delay of three and a half years between the commission of the offence and sentence; the fact that it was likely that the appellant will serve his sentence in solitary confinement for extensive periods; and the plea of guilty.

23 None of the cases cited by counsel for the appellant were on all fours with the present case. In each case, the circumstances of the offence and the personal circumstances of the offender differed, so that the process of comparison involved adjustments, deducting or adding to compensate for the differences. Such an exercise has evident drawbacks. It is generally impossible to identify all the relevant factors that determine the sentences in other cases. Accordingly, sentences imposed in other cases are not to be treated as precedents which apply unless distinguishable.[1]

24 Other cases and sentencing statistics constitute material which may be taken into account in the instinctive synthesis that constitutes determination of a sentence but are not to dominate the question whether a particular sentence is manifestly excessive. The sentence imposed upon Johnson was not shown to be outside the range of a reasonable sentencing discretion because another case is arguably more serious and the same penalty was imposed or because a seemingly equally serious case attracted a lesser penalty.

25 In the present case, there were significant factors which, in my view, preclude the conclusion that the sentence, which was 40 per cent of the applicable maximum sentence, was one which a reasonable sentencing judge could not impose in the exercise of a sound discretion. The armed robbery was a serious example of the offence. The appellant made the robbery with an accomplice, used a loaded firearm and robbed victims who were vulnerable, a woman and two children. Two of the victims were physically assaulted and physical violence was threatened. The gun was pressed against the mother's head. The victim impact statements reveal that the victims have suffered significant psychological damage.

26 The appellant had a record of serious offences over a considerable period of time. In my opinion, the sentencing judge was warranted in observing that the appellant had not been specifically deterred by prior gaol sentences, his prospects of rehabilitation were effectively nil, and the community needed to be protected from him. His Honour expressly took into account the mitigating factors relied upon by the appellant in this Court.

27 Nor do I think that the total effective sentence and the nonparole period were crushing, in the sense that they were calculated to extinguish hope on the part of the appellant for the future. The sentencing judge paid due regard to the principle of totality but was clearly constrained by the circumstances of the offending and the circumstances of the offender.

28 Counsel for the appellant submitted that when it was considered that stern sentences on both the counts of armed robbery and the count of aggravated burglary were cumulated to the extent ordered by the sentencing judge, it was apparent that the total effective sentence offended the principle of totality. Such an approach is perhaps a useful check. The position remains, in my view, that the sentence was not out of proportion to the offending when viewed as a whole.

29 Although the nonparole period constituted 81 per cent of the head sentence, I think it was reasonably open to the sentencing judge to conclude that the nonparole period was the minimum that justice required the appellant to serve in all the circumstances of the case. There is a penal element in fixing the nonparole period and general and specific deterrence have a part to play. Prospects of rehabilitation are a significant consideration, which hardly avails this appellant, for the sentencing judge found that he had no obvious prospects for future rehabilitation, a conclusion which was clearly open to him.

30 For the foregoing reasons, I am of the opinion that the appeal by Johnson should be dismissed.

31 The grounds in the appeal by Morgan are as follows:

1. 1. The individual sentences, the total effective sentence and the nonparole period are manifestly excessive.
2. 2. The sentences imposed on the counts of aggravated burglary and theft offend the principle of parity.

32 Pursuant to the first ground, counsel for the appellant pointed out that Morgan and his cooffender made a mistake as to the identity of the occupants of the house, the appellant was not the person who wielded the firearm and he had no memory of the offences until he was arrested later that day, due to his consumption of prescription medicine.

33 Counsel said that the sentence on the count of aggravated burglary was three times the median term of imprisonment for the offence in the period between 2004 and 2009.

34 It was said that the appellant could rely on a number of significant mitigating factors: his plea of guilty, genuine remorse, which was accepted by the sentencing judge, a period of delay of three and a half years between offending and sentencing, the fact that the appellant did not have prior convictions for offences of serious violence, and the existence of reasonable prospects of rehabilitation, in that he had a supportive family, the availability of employment on release and had remained drug free for over three years.

35 The ground of manifest excess is one which is not easily established. The principle that a sentence will only be set aside if no reasonable sentencing judge could have imposed this sentence on this offender for this offence and the circumstances attending it, are a result of the basic principle that sentencing is a matter for judges at first instance, not courts of appeal.

36 The aggravated burglary was a serious example of the crime. It was committed in company. The appellant and his cooffender forced entry into a house in which the victims were asleep. A loaded pistol was wielded and used to frighten the victims. The offenders ransacked the house and took a significant quantity of property. In the light of this behaviour, it is hardly to the point that the offenders initially thought that the house was occupied by a drug dealer.

37 Notwithstanding that I consider that the sentence of six years' imprisonment can be viewed as severe, I think it was within the range of sentences available to the sentencing judge in the exercise of a sound sentencing discretion, having regard to the circumstances of the offence and the circumstances of the offender.

38 The mitigating factors relied upon in this Court by the appellant were all canvassed by the sentencing judge and I do not consider that the sentence which he imposed reveals that he did not give them sufficient weight.

39 It does not appear to me that the sentencing judge was unduly influenced by the maximum sentence of 25 years' imprisonment, in that it could be said that he aimed at it rather than steering by it.[2] His Honour did not look first at the maximum penalty and make a proportionate deduction from it.

40 As to parity, counsel for the appellant pointed out that Johnson was sentenced on the count of aggravated burglary, to a term one year longer than the appellant and that on the count of theft the appellant received the same sentence as Johnson. It was submitted that a greater differentiation should have been made. The appellant

had the benefit of positive findings as to his prospects of rehabilitation, whereas Johnson had no prospects; the appellant was found to be remorseful, which was not accepted in the case of Johnson; and the appellant's prior convictions were for offences that were not as serious as those of Johnson, whose prior convictions included an offence resembling the offending the subject matter of this appeal and, finally, that Johnson was the prime mover in the offending.

41 In my opinion, the sentences imposed upon the appellants did not reveal a disparity which would engender a justifiable sense of grievance on the part of Morgan. The findings of remorse and 'guarded but reasonable prospects for future rehabilitation' did not, in my view, call for the imposition of a significantly lesser sentence upon Morgan. Although the appellant's prior convictions do not include convictions for offences of violence, which were comparable with Johnson's prior convictions, the appellant did have prior convictions for eight offences of burglary and a significant number of offences of dishonesty. The fact that Johnson was in possession of the firearm is hardly a material distinction. Both offenders forced their way into the house, wearing balaclavas, and both ransacked the house and stole items of property. It should not be forgotten that Johnson, unlike Morgan, is likely to spend the bulk of his sentence in solitary confinement.

42 Even if I may not have exercised the sentencing discretion in respect of the offenders in precisely the same way as the sentencing judge, I do not think that the sentences which he imposed breach the principle of parity. Accordingly, I would dismiss the appeal.

44 The order of the Court is, in each case, that the appeal is dismissed.

[1] Hudson v R [2010] VSCA 32, [26]-[37].

[2] Cf DPP v Aydin & Kirsch [2005] VSCA 86, [12] (Callaway JA).