R v Beruschi [2007] VSCA 232

Court of Appeal (Vic)|2007-10-11|Before: NEAVE and KELLAM JJA and CURTAIN AJA

Criminal Law - Sentencing - Total effective sentence of five years and three months imprisonment for attempted armed robbery (three counts), intentionally causing serious injury, trafficking in a drug of dependence (ecstasy) and using a firearm in a dangerous manner, as well as ancillary firearms and drug offences - Appellant aged 19 at time of offences - Whether sentencing judge erred by giving insufficient weight to offender's youth and immaturity - Whether orders for cumulation produced a total effective sentence which was manifestly excessive - Appeal dismissed.

2 The appellant was sentenced to the following periods of imprisonment:**

Count 1 - attempted armed robbery: two years and six months;

Count 2 - attempted armed robbery: two years and six months;

Count 3 - attempted armed robbery: two years and six months;

Count 4 - intentionally causing serious injury: two years and six months;

Count 6 - possessing an unregistered firearm: six months;

Count 7 - trafficking in a drug of dependence: twelve months;

Count 8 - possessing a drug of dependence: $200; and

**3 The appellant was also sentenced to three months' imprisonment on each of the summary counts, namely, of using a firearm in a dangerous manner and storing a firearm in an insecure manner while unlicensed.

4 The learned sentencing judge ordered six months of the sentences imposed for counts 2 and 3, twelve months for count 4 and six months for count 7, together with three months of the sentence imposed for the summary offence of use of a firearm in a dangerous manner, were to be served cumulatively on count 1. This resulted in a total effective sentence of five years and three months' imprisonment. His Honour ordered a non-parole period of two years and nine months' imprisonment.

5 On 2 March 2007 a judge of this Court granted leave to appeal against the total effective sentence and the non-parole period. In doing so, he indicated that the only ground which was reasonably arguable was that the orders for cumulation had produced a total effective sentence that was manifestly excessive.

6 The appellant is now 21 years old. At the date of the offences he was around 19½ years old. He has no prior convictions. The offences occurred in the following circumstances.

7 Some time before committing these offences the appellant began trafficking in ecstasy. On 30 December 2005 the appellant and an unidentified co-offender made arrangements to sell a number of ecstasy tablets to one of the victims, Jacob Hopley, for $2,000. A meeting was arranged for Montague Park in Frankston at 2.30 am that morning.

8 At the arranged time, Jacob Hopley went to the park with the other victims, James Wilson, Shane Toekeplew and Jacob's sister, Gabrielle Hopley. When the four of them arrived, Jacob Hopley got out of the car. He was confronted by the appellant and the other offender, who were waiting in the park. They were both wearing black clothing and masks. The appellant was armed with a loaded 12-gauge shotgun (count 6) and the other man was armed with a meat cleaver. The other offender has not been identified.

9 The appellant approached Hopley, pointed the gun at him and asked where the money was (count 1). He said, 'In the car.' The three men went back to the car. There the appellant pointed the gun at James Wilson's head and demanded the money. Wilson replied, 'What money?' (count 2). After that, the appellant approached Shane Toekeplew, who had been seated in the car, waved the gun at him from a metre or two away and said, 'Where's the money? I want the fucking money.' Toekeplew replied, 'I don't know what the fuck is going on. I think Jacob's got the money' (count 3). At this stage, Gabrielle Hopley tried to call the police. The appellant approached her, told her to hang up the phone and not to call 'the fucking police' (count 5).

10 While the appellant was in the car, presumably searching for the money, the other man made Jacob Hopley get down on his knees and held the meat cleaver to his face. When the appellant returned, he again demanded the money, telling Hopley he wasn't fucking around. He then opened the shotgun, showed Jacob Hopley that it was loaded, and fired a shot into the air (summary count of using a firearm in a dangerous manner).

11 At around that time, Hopley was hit in the face with something hard and flat. He also felt pain in his right arm and leg (count 4). The appellant and the co-offender then left the scene.

12 When Hopley returned to the car, he found that he had severe lacerations to his right tricep and his right thigh. He was taken to hospital, where the wounds were sutured. He was not released from hospital until 3 January 2006.

13 At around 2.50 pm on 30 December 2005, the police executed a search warrant on the appellant's home. In the bedroom they found a double-barrelled shotgun (the summary count of storing a firearm in an insecure manner while unlicensed), three plastic bags containing pills, one plastic seal-top bag containing white powder, and a plastic seal-top bag containing foil, electronic scales and other empty seal-top bags. The substances were identified as 149 grams of ecstasy pills, which were 44 grams pure (count 7), and small amounts of amphetamine (count 8) and cocaine (count 9).

14 As I have indicated, a judge of this Court granted leave to appeal on the ground that the total effective sentence was manifestly excessive. The appellant maintains his first ground of appeal, which was that the learned sentencing judge erred by giving insufficient weight to the appellant's youth and immaturity.

15 In support of ground 1, counsel for the appellant relied on the psychological assessment by Mr Joblin which was submitted on the appellant's behalf. In his report, Mr Joblin said that the appellant:**

had 'an extremely fatuous and childlike presentation'
'was able to indicate that the offences are bad and serious, but ...his understanding of all that in terms of the impact on the victims is somewhat limited. This is not because he is an antisocial personality but more because he is so childlike.'
'believed he belonged to an environment that demanded demonstrations of serious criminal activity and thus, in an extremely childlike manner he participated in these offences.'
'wanted extra money and believed this type of behaviour was what he should be doing.' Mr Joblin noted that 'given his childlike presentation and his serious immaturity, that scenario has some credence.'

Mr Joblin also said that because of his immaturity there was a concern that the appellant would easily be influenced by stronger others he may meet in the prison system.

**16 It was submitted on behalf of the appellant that the learned sentencing judge did not give sufficient weight to these matters. Although his Honour referred to Mr Joblin's report in his reasons, counsel for the appellant contended that the learned sentencing judge had not specifically referred to the effect of the appellant's immaturity on his level of moral culpability. The appellant had no prior convictions and, despite the violence involved in the offences, the mitigating effect of his youth was not outweighed by considerations of general and specific deterrence.

17 Counsel for the Crown submitted that the seriousness of the three counts of attempted armed robbery and the single count of intentionally causing serious injury justified the sentences imposed for these counts and the total effective sentence. It was apparent from his Honour's reasons that he had taken account of the appellant's youth and immaturity. His Honour was entitled to consider the fact that the appellant was of normal intelligence, that he had demonstrated ingenuity in sourcing the drugs which he sold, and that the offences were premeditated.

18 My opinion, like that of the judge of this Court who heard the application for leave to appeal against sentence, is that the first ground of appeal should be rejected. The learned sentencing judge said in his reasons that he had given weight to the appellant's youth. He specifically referred to Mr Joblin's assessment that the appellant's makeup was childlike, and to the concern expressed by Mr Joblin that the appellant's level of maturity is such that he would easily be influenced by stronger others he would meet in the prison system. The youth of an offender is, of course, a very important sentencing consideration.[1] However, in my view, the learned sentencing judge gave adequate weight to the appellant's youth and immaturity both in terms of its effect on his moral culpability and in terms of the emphasis which should be placed on the appellant's rehabilitation.

19 In Director of Public Prosecutions v Lawrence, which was a Director's appeal against a sentence imposed for intentionally causing serious injury, the learned President said:**

Whilst the offender's youth is a matter which will always fall for consideration by a sentencing judge faced with the prospect of sentencing a young offender to a term of imprisonment, it should be recognised that this type of offence is often the province of young offenders and in many cases the offender's youth will have to give way to other sentencing principles, such as general and specific deterrence and protection of the community. [2]

**20 In my view, this is also such a case. Further, I note that the shorter than usual non-parole period imposed by his Honour gave some recognition to the appellant's youth and immaturity.

21 The third ground of appeal was that the orders for cumulation had produced a total effective sentence which was manifestly excessive. Counsel for the appellant conceded that a sentence of imprisonment in an adult prison was required in the circumstances of this case, but submitted that the total effective sentence gave insufficient weight to the appellant's age and immaturity, lack of prior offending, his good prospects of rehabilitation, his expression of remorse, and the fact that he had been led into the offences by an older, more experienced offender who was the principal offender in relation to count 4.

22 It is apparent from the learned sentencing judge's reasons that he considered all these matters. As I have already said, his Honour gave weight to factors relevant to the appellant's culpability, including his age and immaturity. His Honour also took account of Mr Beruschi's guilty plea and of matters relevant to his prospects for rehabilitation, including his favourable character references, the fact that he had been offered a job after his release, and the support he had been given by family members.

23 On the other hand, the learned sentencing judge noted Mr Joblin's assessment that the appellant was of normal intelligence and Mr Joblin's concern that the appellant 'may well believe that being presented in the County Court on such serious offences [was] a matter of some admiration in the criminal population'.

24 His Honour considered that the element of planning meant that the attempted armed robberies were at the serious end of the scale. He noted that Mr Hopley's wounds were caused by the other man with whom the appellant was acting in concert, but said that the appellant's discharge of the gun he was carrying was likely to have terrified the victims.

25 I have already found that the learned sentencing judge gave adequate weight to the appellant's youth and immaturity. It is not submitted that the learned sentencing judge took account of irrelevant factors in fixing the total effective sentence. In R v Bernath, Callaway JA said that:**

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 sentencing error. [3]

**26 His Honour was required to undertake the difficult task of balancing the appellant's immaturity and other mitigating factors against the aggravating factors to which he referred in his reasons. While the total effective sentence imposed was at the higher end of the range of total effective sentences imposed for attempted armed robbery,[4] these were serious offences. The attempted armed robberies were premeditated acts. The appellant waited at the park to rob the victims, armed with a loaded 12-gauge double-barrelled shotgun, a potentially lethal weapon, and with a co-offender who carried a meat cleaver. Both men wore masks and dark clothing. While Mr Hopley was kneeling on the ground with a meat cleaver held to his face by the appellant's co-offender, the appellant fired into the air.

27 Although counts 1 to 6 covered offences which occurred on the same occasion, it was necessary for his Honour to take account of the fact that there were three different victims of these offences, and that the threats with the gun involved separate acts by the appellant. In Director of Public Prosecutions (Vic) v Gany,[5] the Court of Appeal said that:**

In the eyes of the criminal law, it is the existence of the separate obligations owed to the several victims of the one criminal act which in part defines the acts or omissions constituting the different offences arising from that act.[6] Thus, consequences to two separate victims arising from a single event are to be distinguished from the common law principle where multiple offences arise from substantially the same act.

28 In R v Izzard[7] Callaway JA commented on the desirability of moderating and cumulating sentences in appropriate cases, rather than imposing a higher sentence

on the most serious count and directing that sentences on all the other counts be served concurrently. He said that:

There are at least three reasons why, within the limits of common sense, judges are well advised to moderate and cumulate in appropriate cases. First, moderation is a virtue in itself. Secondly, other victims are not left to feel that the offences committed against them are meaningless statistics.[8] Thirdly, a sentence structured that way is less vulnerable on appeal. Attention is focused on the merits and the discretion is not re-opened simply because the total effective sentence imposed on one count was manifestly excessive for the offence which was the subject of that count considered on its own.[9]

**29 Mr Hopley spent six days in hospital as a result of his injury. He and his sister said in their victim impact statements that their relationship had been affected as a result of the incident. Although the injury was actually inflicted by the co-offender, it was not inappropriate for his Honour to order twelve months' cumulation in relation to count 4. The factors set out in ss 5(1)(a), (b), (c) and (d) of the Sentencing Act 1991 also warranted some cumulation of the sentences imposed for counts 1 to 3 and 4. It was necessary for his Honour to give both general and specific deterrence considerable weight in the circumstances of this case. The trafficking offence was not part of the events occurring on the evening of the armed robbery and was at the serious end of the scale.

30 The summary offence of using the firearm in a dangerous manner was committed after the attempted armed robberies had been completed, and I note that the discharge of the firearm occurred in a public place, which potentially placed people other than the direct victims in danger. Moreover, I note that no cumulation was ordered in respect of the sentences imposed for the other two firearms offences possessing an unregistered firearm and storing an unlicensed firearm in an unsafe manner.

31 The learned sentencing judge is the Chairman of the Youth Parole Board and has many years' experience in dealing with young and youthful offenders. Although**

the total effective sentence of five years and three months was stern, it was not, in

my opinion, manifestly excessive. The non-parole period imposed was only slightly more than half the total effective sentence and was also appropriate in the

33 I gratefully adopt the learned presiding judge's summary of the facts and the submissions made by counsel before us. Whilst the fact that the appellant was a youthful offender with no prior convictions at the time of the commission of the offences is a matter of significance, the offences committed by him were of considerable seriousness. As the very experienced sentencing judge observed, the attempted armed robbery was planned and committed in the company of another. The appellant was armed with a loaded shotgun and his co-offender was armed with a meat cleaver. Both the appellant and his co-offender wore masks and dark clothing. It was intended to steal moneys to the value of $2,000. In the course of events following the attempted armed robberies, most serious injuries were caused by the co-accused to one of the victims. As his Honour observed, although the gravity of those injuries was within the control of the co-offender, the appellant was acting in concert with him and both were armed with deadly weapons. The appellant discharged his shotgun in the presence of the victims. This can only have been calculated to cause them great fear. In addition, the trafficking offence was by itself a serious offence.

34 In all the circumstances, the principles of general and specific deterrence, as was conceded by the appellant's counsel on the plea, called for a sentence of imprisonment. The individual sentences imposed cannot be said to be excessive and counsel for the appellant does not contend otherwise before us. Notwithstanding that the appellant's offending all occurred on the one date, it was appropriate for his Honour to partly cumulate the sentences. There were three separate victims of the attempted armed robbery. The appellant pointed the shotgun at each of them. In one case he pointed it directly at the head of a victim. Demands for money were made separately to each of them. After having made such demands of all three**

victims of the attempted armed robbery, the appellant returned to the first victim, who by that stage was on his knees with a meat cleaver being held to his face by the appellant's co-offender. The appellant said to that victim, 'I am not fucking around with you.' The appellant opened the shotgun to show the victim that it was loaded and then discharged the shotgun into the air. Immediately after this, the co-offender struck the victim in the face with the meat cleaver and inflicted serious wounds to the right arm and right leg of that victim. These circumstances justified part cumulation of the sentences, as did the separate criminal activity of trafficking in a drug of dependence, which, as I have said, was by itself a serious offence.

**35 It is clear that the sentencing judge was well aware of the youth of the appellant and the necessity to give weight to it. He said as much. Clearly, however, his Honour regarded the circumstances of the offending to be of such seriousness that the fact of the youth of the appellant had to be subjugated, to some degree, to other sentencing principles.

36 In all the circumstances, I do not consider that the total effective sentence of five years and three months' imprisonment, although stern, can be said to be manifestly excessive. This was a difficult sentencing task for the judge. He had to deal with the tensions which so often arise between the necessity to deter others and the necessity of encouraging such prospects of rehabilitation of the appellant as may have been possible. His Honour gave emphasis to the appellant's youth and prospects of rehabilitation by fixing a non-parole period which allowed for the possibility of two years and six months conditional release of the appellant.

38 The sentences imposed, the orders for cumulation and the fixing of the non-parole period, in my view, all appropriately addressed the nature and gravity of the offending conduct and the matters which mitigated the appellant's conduct,**

including his youth and immaturity. In my view it was appropriate to order cumulation in respect of the summary offence of discharging a firearm because although the attempted armed robbery was committed with the use of the firearm, the discharge of it was totally extraneous to that offence, and it did warrant a degree of cumulation to mark the gravity of that conduct. I otherwise, with respect, adopt the reasons of the learned presiding judge and I too would order that the appeal be dismissed.

39 The order of the Court is that the appeal should be dismissed.**

[1] See for example R v Mills [1998] 4 VR 235.

[4] Sentencing Advisory Council, Sentencing Snapshot, Sentencing trends for armed robbery in the higher courts of Victoria, June 2006, Figure 14.

[6] R v Bekhazi [2001] VSCA 178; (2001) 3 VR 321 [14].

[8] Compare DPP v Solomon [2002] VSCA 106; (2002) 36 MVR 425, 429 [19] (Winneke P).

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