R v Beck [2005] VSCA 11

Court of Appeal (Vic)|2005-02-08|Before: VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.

Criminal law - Sentencing - Armed robbery - Applicant sentenced in respect of other crimes while awaiting trial in respect of subject offences - Total effective sentence in respect of subject offence of six and a half years with a non-parole period of five years not manifestly excessive but totality of sentences so imposed and earlier imposed in respect of other offences crushing - Appeal upheld - Re-sentenced to six and a half years with non-parole period of five years.

On 5 November 2003 the applicant was arraigned before Judge Neesham in the County Court at Melbourne on one count of attempted armed robbery (Count 1), to which he pleaded not guilty, and one count of intentionally causing serious injury (Count 2), to which he pleaded guilty, and one alternative count of recklessly causing serious injury (Count 3), which was permanently stayed. After a trial which concluded on 7 November 2003, the jury returned a verdict of not-guilty on Count 1 and were discharged and the judge thereupon remanded the applicant in custody to appear for sentencing on a date to be fixed. After hearing a plea in mitigation and receiving a pre-sentence report, on 11 December, 2003 the judge sentenced the applicant on Count 2 to a term of imprisonment of six and a half years, of which five and a half years were to be served cumulatively upon other State imposed sentences then being served, and his Honour set a new non-parole period of six years. The number of days of pre-sentence detention was declared as being 120 days.

On 20 August 2004, Buchanan, J.A. refused the applicant's application for leave to appeal against sentence pursuant to s. 582 of the Crimes Act 1958 and the applicant now seeks leave to appeal from this court.

The offence occurred on 14 September 2002 after the applicant had chased the victim, Mustafa Savran across a shopping centre car park at Springvale. Despite a conflict of evidence, the judge found in the applicant's favour that the applicant had undertaken the chase in the belief that Savran had stolen $50 from the applicant's girl friend. As his Honour observed, however, that did not justify the applicant's behaviour.

When interviewed by police following the commission of the offence, the applicant told them that:

"I was at Springie [meaning Springvale] and then some fucking swine stuck his hand in my fucking window and grabbed $50, done a bolt on me, right. And my girlfriend can't run because she's got a broken leg, so I jumped out of the car and sprinted after him. I just grabbed the first thing I see at my feet which happened to be a fucking knife, stupid idiot me, and then...he's screaming, and he was throwing shit everywhere. I don't know what he was throwing but he was throwing shit everywhere, left right and centre and then when I finally caught up to him in the car park I just - I stabbed him in the back, right ,'cos I couldn't, he was a big boy, he was a very big boy and there was no way I could take him on, you know what I mean, so I stabbed him."

The judge found that the victim was not someone who might properly be described as "a big boy"; even less "a very big boy".

Later in the interview, the applicant told police:

"Cos he's a big boy and I' telling you he just picked me up and I wasn't even going to stab him, that was just for intimidation, like, you know what I mean, like, give me my money back cunt, I'm going to cut your throat, you know what I mean. And then ... he's a big boy, he turned on me, you know what I mean, what more was I supposed to do. I had a knife, he's either going to take my knife off me and stab me with it or it was vice versa, you know what I mean, it was kill or be killed, sort of thing. So I just put one decent hole in him and just legged it. There was no way if one hole doesn't hold him down and he comes up and we're dead, you know what I mean. I've got my girl, she can't run, she's got a broken leg, you know what I mean."

Later still, police asked him the following questions and he gave the following answers:

Question: "I put it to you as you were angry that when you were stabbing him you were trying to actually do some serious damage?" Answer: "No, I just wanted to make sure he felt it." Question: "Then I put it to you that you actually wanted to kill him as you were angry with him?" Answer: " No...It wasn't, no, I just fucking mate I put it in him and then I twisted it to make sure he felt it. " Question: So you twisted the knife after you stuck it in?" Answer: "I didn't go for no crucial parts or nothing, I could have gone for the heart, lungs, liver, you know, I tried going somewhere high where it wouldn't cause too much trouble and that, you know what I mean, too much damage like. I didn't really want to hurt the bloke, but out of principle what he done to my girl. You know what I mean."

The content of that record of interview caused the judge so to question the appellant's mental balance that his Honour sought a psychiatric report upon it. The report was, however, that there were no abnormalities in thinking, perception or cognition. It was said that the applicant was well oriented in time, place and person. It was also noted that he had presented as having mild depression secondary to his imprisonment, but that he did not otherwise manifest features of a mental illness that would account for his crime. He was a man with anti-social personality traits and affected by chronic and acute effects of poly-substance abuse. Psycho-social factors including unstable childhood in a dysfunctional family setting and substance use since teenage years were also considered to be the factors contributing to his entrenched behaviour and consequences. The conclusion was that he knew right from wrong but that he did not have moral values sufficiently resolute to ward off temptation and live a socially acceptable and responsible role. Nevertheless, he had the mental capacity to cope with prison life and benefit from programs offered in prison.

The applicant has an extensive criminal record dating back to 1994, including multiple convictions on counts of theft and of theft of motor vehicles, causing wilful damage, discharging a missile to the danger of a person, going equipped to steal, failing to answer bail, multiple convictions on counts of recklessly causing injury, assault by kicking, possessing a regulated weapon, possession of cannabis and use of cannabis, use of heroin, two convictions for armed robbery, obtaining property by deception, possession of a firearm without a licence, multiple counts of being an unlicensed driver, two convictions for being a prohibited person in possession of a firearm, and resisting a police officer in the lawful execution of duty.

Thus the judge considered that there was an urgent need to deter the applicant from continuing along the violent criminal path which he had taken to the point of sentencing and in addition a need to deter others who might be tempted to follow the applicant's example, as well as punishing the applicant for his totally unacceptable behaviour.

His Honour also took into account that the applicant had admitted to police that he had stabbed the victim and also the applicant's plea of guilty to the charge of intentionally causing serious injury but his Honour noted that there was otherwise little that could be said in the applicant's favour except that he appeared now to have a determination to wean himself from illicit drugs.

a) The judge erred in his conclusion as to the severity of the injuries inflicted on the victim of the offence;

b) The judge gave insufficient weight to the applicant's prospects of rehabilitation;

c) The sentence fails to give weight to the "totality principle" of sentencing;

d) The sentence was in all the circumstances manifestly excessive.

Counsel for the applicant did not seek to maintain the first ground of appeal. Nor could she have done so. There was no error in the judge's conclusion as to the severity of the injuries inflicted on the victim. As his Honour observed, the injury was a stab wound to the back of the chest of the victim and the description of it and its treatment set out in the two medical reports contained in the depositions show that it was indeed a very serious and life threatening injury.

There is equally little substance in the contention that the judge gave insufficient weight to the applicant's prospects of rehabilitation. To be sure, there was evidence before the judge which suggested that if the applicant continued down the path of self improvement on which he had embarked while in custody, there were prospects of rehabilitation. But the applicant had before committing this offence been given opportunities for rehabilitation in the form of youth attendance orders and community based orders, which he squandered. Judged according to past form it was hardly an odds on chance that this time would be different. When then one adds in the psychological opinion that the applicant is a man with anti-social personality traits, affected by chronic and acute effects of poly-substance abuse, and for the time being lacking moral values sufficient to live a socially acceptable and responsible role, it is clear there was far to go.

I also reject the contention that the head sentence of six and a half years was manifestly excessive. With respect I share the views expressed by Buchanan, J.A. when refusing the application for leave pursuant to s.582. The crime was a serious one. The overtones of vigilante justice and revenge required weight to be given to the aims of general and specific deterrence. The applicant's apparent lack of concern for the victim was appalling and as the applicant's criminal history demonstrated, the crime was not an isolated aberration. In my judgment, the sentence imposed was well within the range.

That leaves, however, the contention that the sentence fails to give due weight to the totality principle of sentencing. As Ms Dixon for the applicant put that part of the application, it was that the extent of the degree of cumulation of the sentence upon the sentences being served at the time of sentencing was manifestly excessive.

The applicant had been in custody since 14 September 2002 (which was the date of his arrest) but in the intervening period he had received other sentences of imprisonment. On 14 March 2003 he was sentenced by the Magistrates' Court at Dandenong to an aggregate term of imprisonment of 10 months for thefts of and from motor vehicles and related relatively minor offences and on 10 June 2003 he was sentenced by his Honour Judge Ross in the County Court, on three counts of theft and two counts of damaging property, to a term of imprisonment of three years with a minimum term of two years, to be served concurrently with the sentence he was then serving. The combined effect of those sentences and that imposed by Judge Neesham was to produce a total effective head sentence of nine and a half years with a minimum term of seven years, with the result that the applicant is liable to remain in custody until 9 October 2011 and will not be eligible for parole until 13 August 2009. In Ms Dixon's submission that is manifestly excessive.

Ms Dixon called in aid in support of that contention the absence from Judge Neesham's sentencing remarks of any mention of factors relating to totality in respect of the period of imprisonment being served at the time of sentencing. She argued that the absence of any mention of the matter was an indication that the judge had given insufficient consideration to the way in which factors of totality should moderate the sentence to be imposed.[1] Ms Dixon also referred to an offer made by counsel for the applicant on the plea to hand up to the judge a copy of the sentencing remarks of Judge Ross and to the fact, as it appears from the transcript, that Judge Neesham refused the offer. Ms Dixon argued that it was incumbent upon the judge to have regard to the circumstances of the charges which were the subject of the sentence imposed by Judge Ross. It was, she said, a necessary part of the consideration of the aggregate of all of the offences for which the applicant was undergoing sentence, together with the circumstances of the instant offence, and in her submission such was necessary in order to come to a rational decision as to how long the applicant should remain in custody. Ms Dixon also submitted that when judged against the totality of the criminality of all the offences considered together, the effects of the order for cumulation were in any event crushing for a man of the applicant's age, unfortunate background and overall circumstances. And in support of that submission, Ms Dixon posed the rhetorical question of whether it is reasonable to suppose that the applicant would have received a head sentence of nine and a half years with a minimum of seven years if he had been sentenced by the one judge at the one time for all of the offences. In her submission it was inconceivable.

It has been said that the notion of a crushing sentence has never been adequately defined in this State[2], although it is generally conceived of as one that is imposed in such a way that it would provoke a feeling of helplessness in the applicant if and when he is released or as connoting the destruction of any reasonable expectation of useful life after release.[3] It is also accepted that if multiple sentences are so imposed as to make the totality of the prisoner's liability to incarceration crushing in that sense, some of the sentences should be modified by appropriate orders for cumulation in the application of the totality principle.[4] There are of course no hard and fast rules as to how one is to decide whether the totality of multiple sentences imposed at different times is crushing. As in so much of sentencing, each case depends on its own facts. But plainly enough Ms Dixon is right in saying that it is relevant to have regard to the nature and circumstances of all of the offences and to endeavour thereby to assess to totality of the criminality involved.

That having been said, I am not persuaded that the absence from his Honour's sentencing remarks of reference to totality considerations is an indication that his Honour did not turn his mind to those matters. To the contrary, the fact that his Honour made an order for only partial cumulation persuades me that his Honour did turn his mind to the matter, as indeed is only to be expected of a judge of his Honour's undoubted experience.

I also do not consider that his Honour erred by rejecting the offer of counsel to view Judge Ross's sentencing remarks. As it appears to me, counsel below was seeking to make use of the remarks only for the very limited purpose of assessing effective days of pre-sentence detention and in any event I am of the view that there was enough in the material that was before Judge Neesham, including the fact of the offences for which Judge Ross had sentenced the applicant, the penalty imposed and the contents of the psychological report tendered on the plea, for his Honour to gauge the gravity of what was involved.

In the end, however, and despite the absence of any specific error, I am persuaded that the degree of cumulation which his Honour ordered was so great as to be crushing. As it appears to me Ms Dixon is right in saying that if the applicant had been sentenced by the one judge at the one time for all of the offences concerned it is difficult to conceive that the judge would have imposed a total effective head sentence as great as nine and a half years with a minimum term of seven years; especially when one has regard to the applicant's plea of guilty and demonstrated co-operation and frankness towards the police. Moreover, and perhaps more importantly, the circumstances of the offences and the applicant's personal circumstances lead me to conclude that the total effective sentence is so long as to risk provoking within the applicant a feeling of helplessness and the destruction of any reasonable expectation of a useful life after release.

According to the information which was before the judge, the applicant was born to a teenage mother who could not care for him and who gave him away to her older sister when he was two years old. Thereafter he was passed between his grandmother, father and other relatives while his parents entered into subsequent relationships. Not surprisingly he never settled to school and he was moved around many times because of his living arrangements as well as unacceptable behaviour at school. He was suspended several times and expelled on more than one occasion. He ran away from home and was brought under the supervision of the Department of Human Services. Thereafter he stayed on at school until year 10 but his academic achievements are in fact much more limited than that standard would suggest. On leaving school he spent about 10 months in Queensland with his father, and he there worked in a few casual labouring jobs, and on his return to Melbourne he lived for a while with his grandmother and other relatives. But a significant amount of his time was spent in custody. One way or another his life had become consumed and controlled by substance abuse and activities to support his drug habit. He started smoking cannabis at about the age of 13 and until recently was smoking from ½ to ¾ oz a day. He drank alcohol and he abused amphetamines from about the age of 14 to the age of 19. He use to take about ¼ gram a day and it made him paranoid and psychotic. He began to use heroin at the age of 19 and to use it daily at the age of 21, and he has used other drugs including ecstasy and LSD. Car thefts dominated his teenage years and by the age of 15 he was working for a group involve in a car racket in order to support his drug habit. He was then apprehended with others and sent to a youth training centre and since then he has been in and out of custody in connexion with a litany of offences. At the age of 16 he began an eight year relationship with a woman whom he loved and over that period she bore him two children, and then he began to commit armed robberies at about the time of the birth of his second child six years ago, in order to get money to get his wife and children away from the sort of life that they were then living. He was apprehended and convicted and while he was in gaol in 1997 his wife was tortured and killed by persons whom he knew through drug use and other criminal activities. He was devastated by the loss of his wife. Upon his release from gaol in 1997 he felt adrift and helpless without her and he was emotionally overborne by his knowledge of the circumstances of her death. So afflicted he turned once more to illicit drugs and on more than one occasion he took overdoses with the intention of killing himself. His grief was further exacerbated by the death of his grandfather soon after his release, and his drug use and criminal behaviour thus continued. Since his most recent incarceration, however, he has come to realise that he will not get on with his life unless and until he overcomes his drug addiction and he is intent on beating it. He has undertaken several courses directed to overcoming his dependency and the acquisition of trade skills and he is in the throws of re-establishing his relationship with his two young children whom he loves. He speaks to them by phone and he lives for the day that he may be released in order help bring them up.

24 In my opinion, a total effective sentence of nine and a half years and a minimum term of seven years, although otherwise warranted, might well lead such a man to give up all hope and to abandon himself to despair, and a sentence of that kind is of no more benefit to society than it is to the applicant. Accordingly, and in the particular circumstances of this case, I consider that there is basis for this court to intervene.

In the result, I reach a different conclusion to that which was reached by the sentencing judge and by Buchanan, J.A. on the s.582 application. In my judgment the sentence is manifestly excessive by reason of the excessiveness of the order for cumulation. But I make plain that I have reached that view only with the aid of submissions on the point of which neither the sentencing judge nor Buchanan, J.A. ever had the benefit.

In my judgment the application for leave to appeal should be allowed and the appeal should be treated as initiated and heard instanter. I would quash the sentence the subject of appeal and in lieu thereof I would re-sentence the applicant on Count 2 to a term of imprisonment of six and a half years of which three and a half years are to be served cumulatively upon the sentences being served by the applicant as a 11 December 2003. I would further set a new non-parole period of five years and I would declare that the number of days of pre-sentence detention as of this day is 546.

I agree and do so for the reasons advanced by Nettle, J.A.

The application for leave to appeal in this matter is allowed.

The appeal is treated as having been instituted and heard instanter. The orders for disposal and confiscation made by the learned sentencing judge are confirmed.

The sentence imposed on Count 2 and order for cumulation made by his Honour are set aside.

A sentence of imprisonment for a term of six and a half years is reimposed. The Court orders that three years and six months of that term is to be served cumulatively upon the sentence which the applicant was undergoing at the time the sentence was imposed in the Court below.

The Court fixes a period of five years before the appellant becomes eligible for parole.

The Court declares that the period of 546 days which the appellant has served to date is to be reckoned as served under the sentence hereby imposed.

The Court directs that this declaration and its details be entered in the records of the Court.

[1] Postiglione v The Queen [1997] HCA 26; (1997) 189 C.L.R. 295 at 308; Mill v The Queen (1988) 166 C.L.R. 59 at 63_; R v Gordon_ (1994) 71 A.Crim.R. 459 at 466.

[2] Fox & Frieberg, Sentencing, 2nd Ed. at [9.620].

[3] R v Cowie, CCA 2/2 /78 unreported; R v Yates [1985] VicRp 3; [1985] V.R. 41 at 48.

[4] R v Adams (1979) 3 Crim.L.J. 302, D.P.P. v Saville CCA 2/3/84 unreported, R v Bowman (1993) 69 A.Crim.R. 530 at 539; R v Everett ( 1994) 73 Crim.R. 550.

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