Mamonitis v The Queen [2011] VSCA 370

2 The appellant appeals[1] against the sentence he received. The grounds of appeal are:

(1) The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

(2) The learned sentencing judge erred by failing to place any or any sufficient reliance upon the connections between the commission of the offences, the appellant's mental illnesses, including his substance abuse disorder and his sexual abuse as a child.

(3) The learned sentencing judge erred in failing to place any sufficient weight upon the fact that imprisonment would be more burdensome for the appellant.

(4) The learned sentencing judge erred in failing to moderate the weight to be placed upon considerations of general deterrence and specific deterrence.

3 On Sunday 6 June 2010, the appellant and his co-offender, Matthew Green arranged to commit an armed robbery. They met at the Alamein train station, and the appellant brought a large kitchen knife with him.

4 The co-offender drove them to Burwood, where the co-offender removed number plates from a car parked in the street and attached its number plates to his car (charge 2 - theft).

5 The appellant and his co-offender drove to a Caltex service station in Burwood. The appellant walked into the service station, produced the kitchen knife he had concealed in his pants, held it on the counter and demanded cash from the service station attendant (charge 1 - armed robbery). The service station attendant gave the appellant all the notes in the till. A sum of $480 was taken. The appellant walked out of the store and ran to the car where the co-offender was waiting and they drove off. There was CCTV footage of the armed robbery.

6 The appellant and his co-offender then purchased heroin and cocaine. They drove to another street in Burwood where they removed the stolen number plates from the co-offender's car, used the cocaine and injected heroin.

7 In ground 1, complaint is made that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. In ground 3, complaint is made that her Honour failed to place sufficient weight on the fact that imprisonment would be more burdensome for the appellant. Ground 3 relates to the diagnosis of the appellant by a psychologist, Dr Cunningham, that the appellant manifested clinical symptoms of 'Major Depressive Episode and Generalised Anxiety Disorder'. In ground 4, complaint is made that her Honour erred in failing to moderate the weight to be placed upon the considerations of general deterrence and specific deterrence.

8 As was said in DPP v Terrick,[2] the proposition that too much or too little weight was given to a particular sentencing factor is almost always untestable because quantitative significance is not assigned to individual considerations. Grounds three and four fall to be treated as particulars of ground one, where complaint is made that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. That said, so far as ground three is concerned, it is to be noted that her Honour did take into account the fact that the appellant's depression and anxiety disorder would mean that a term of imprisonment would weigh more heavily on him.[3]

9 In support of the proposition that the sentences and non-parole period were manifestly excessive, the appellant relied on the following matters:

(a) the appellant's pleas of guilty were entered at the earliest opportunity;

(b) the appellant has demonstrated clear remorse (as evidenced in his record of interview and in a letter he wrote to the trial judge);

(c) the appellant is relatively young (being aged 25 years at the time of his offences);

(d) whilst the appellant had prior convictions for drug use and possession, he had no criminal record for violence or dishonesty;

(e) the testimonial evidence called on behalf of the appellant was impressive;

(f) there was undisputed expert evidence that the appellant suffered from mental illnesses which stemmed from his sexual abuse as a child which had not been adequately treated and which had led to depression and drug abuse;

(g) the appellant had made substantial rehabilitative efforts since being arrested (including engaging in a program at Odyssey House); and

(i) the fact that because of his mental illnesses, imprisonment would be more burdensome for the appellant.

10 All of these matters may accepted. However, the ground of manifest excess can only succeed if the Court is satisfied that:

A sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground, the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[4]

11 The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for theft is ten years' imprisonment. The sentence imposed by her Honour in respect of the armed robbery charge was less than 20% of the maximum sentence; in respect of the theft charge, the sentence was 5% of the maximum penalty.

12 In support of his submissions that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive, counsel for the appellant relied upon R v Broadbent,[5] the 32 cases referred to in the table attached to that decision[6] and sentencing snapshots published by the Sentencing Advisory Council in respect of the offence of armed robbery. It was submitted that when one took into account all of the matters in mitigation, the appellant's personal circumstances and current sentencing practices as disclosed in the authorities and statistics to which we have just referred, the sentence imposed was outside the available range.

13 It is to be remembered that sentences imposed in other cases are not precedents. Nor do sentences imposed for the same offence in other cases indicate that a term of imprisonment which is longer or shorter than any sentence previously imposed for the same offence is necessarily manifestly excessive or manifestly inadequate.[7] Further, it is to be remembered that what might be described as 'current sentencing practices' is but one of many factors which are relevant in the exercise of the sentencing discretion.[8]

14 The armed robbery committed in this case was an offence which was calculated to instil fear into its victim. The victim was an easy target, working late at night in a service station. Nevertheless, giving appropriate weight to all the mitigatory factors in the present case, and having regard to the authorities and statistics to which we have been referred, we are persuaded that the sentence on the count of armed robbery was outside the permissible range. That means the sentencing discretion in this case is re-opened and it is unnecessary to consider ground two.

15 In all the circumstances, it is appropriate to re-sentence the appellant to three years' imprisonment on the charge of armed robbery and four months' imprisonment on the theft charge. We will not order any cumulation, making a total effective sentence of three years. We will fix a non-parole period of two years' imprisonment.

1. In lieu thereof the appellant is resentenced on Count 1 to three years' imprisonment and on Count 2 to four months' imprisonment. The total effective sentence is three years' imprisonment. A nonparole period of two years is set.

Pursuant to s 6AAA of the Sentencing Act 1991 it is declared that but for the appellant's plea of guilty he would have been sentenced to a total effective sentence of four years and six months' imprisonment with a nonparole period of three years.

It is declared that the number of days already served under the sentence is 343 days not including this day and it is directed that the fact of the declaration and its details be entered in the record of the court.

[1] Pursuant to leave granted on 17 June 2011.

[2] [2009] VSCA 220; (2009) 24 VR 457, 459 [5].

[4] Hanks v R [2011] VSCA 7, [22] (Bongiorno JA).

[5] [2009] VSCA 320.

[7] Lau v R [2011] VSCA 324, [52].

[8] Russell v R [2011] VSCA 147, [57]-[61] (Kaye AJA).