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[2005] VSCA 184
Court of Appeal (Vic)
2005-07-27
VINCENT and NETTLE, JJ.A. and HARPER, A.J.A.
Original judgment source is linked above.
Criminal law - Sentencing - Multiple counts - Total effective sentence of three years with a non-parole period of one year - Appeal against sentence imposed on one count only - Error in respect of sentence imposed on subject count - Re-opened sentencing discretion in respect of all counts - Re-sentenced to 24 months' imprisonment with non-parole period of 12 months.
1 I will invite Nettle, J.A. to deliver the first judgment.
2 On 8 September 2004 the appellant was arraigned before the County Court at Melbourne and pleaded guilty to one count of armed robbery (count 1), one count of blackmail (count 2), three counts of robbery (counts 3, 6 and 10), one count of common assault (count 4), two counts of false imprisonment (counts 5 and 9), six counts of obtaining property by deception (counts 7, 8 and 13 to 15) and one count of causing injury intentionally (count 11). After hearing a plea in mitigation the judge sentenced the appellant on count 1 to three years' imprisonment, on counts 2 and 3 to three months' imprisonment, on counts 4 and 5 to one month's imprisonment, on count 6 to six months' imprisonment, on count 7 to two months' imprisonment, on counts 8, 9 and 10 to one month's imprisonment, and on counts 11, 13, 14 and 15 to two months' imprisonment, making for a total effective sentence of three years' imprisonment, and his Honour set a non-parole period of twelve months.
3 The appellant committed the offences over a period of approximately two-and-a-half years, beginning when he was 16 years of age and concluding after he had turned 19 years of age. All of the offences were committed on the same victim - a boy of approximately the same age as the appellant - in effect by way of standover tactics designed to extract stolen moneys from the victim. To begin with, the offences were committed in order to get the victim to give up moneys which he had stolen on his own initiative by means of an internet scam. Later offences were to induce the victim to commit more internet scams in order to obtain more money for the appellant. The appellant also recruited a number of younger boys to assist him to bully and cajole the victim.
4 The circumstances of the offences are summarised in greater detail in the judge's sentencing remarks as follows:
"2. Count 1. On 11 May 2001 you approached [the victim] who was then aged 16 at Southbank and demanded his wallet and other 'shit'. You lifted your shirt exposing the handle of a knife and said to [the victim], 'if you fuck with me I'll stab you.' You stole his wallet worth $250, $20 cash, a credit card, a mobile phone worth $750, a jacket worth $300 and a watch worth $300. It appears that [the victim] was involved in an internet scam that was productive of money and that you became aware of it, and that that was behind your continued exploitation of him.
3. Count 2. You met [the victim] by arrangement and demanded $400 in return for some of the items stolen from him on 11 May 2001. [The victim] complied. The threat conveyed in a previous telephone call was that you would attack him, his house and family if he did not comply.
4. Count 3. In mid-December 2001 you told [the victim] you were aware that he was getting money from his internet scam and that you wanted some of it. When it became apparent that he was out of money at the time, you demanded and took his laptop computer.
5. Count 4. In January 2002 you demanded money from [the victim] and when he could not pay it you hit him twice on the arm causing bruising. You warned him that he had to give you some money soon or he'd be 'fucked up'.
6. Counts 5 and 6. On 22 May 2003, at the Surrey Hills Railway Station, you threatened to kill him with a machete which you said was in your car. You told him he had to remain with a co-offender and that he had to pay you protection money. You left the platform and rang him on the co-offender's phone demanding that he give you his mobile phone, cash and an ATM card.
7. Counts 7 and 8. On two different occasions on 23 May 2003, you used the stolen ATM card to obtain $800 and $40 respectively.
8. Counts 9, 10 and 11. Three days later, you met [the victim] when he knocked off work and demanded that he walk with you, or you and a co-offender would throw him in front of a car. You asked for his wallet and finding there was no cash in it, told him to hand his driver's licence to the co-offender. You told him because he had no money your friend would beat him up. He was then made to walk to a car park where, at your direction, the co-offender punched and kicked him before you told him to stop. You made further threats if [the victim] failed to pay you money in the future.
9. Counts 13, 14 and 15 relate to three unauthorised withdrawals from [the victim's] account by means of the stolen ATM card. The amounts involved were $15, $300 and $4.60 respectively."
5 The appellant now appeals against the sentence imposed in respect of count 1 on the sole ground that it is manifestly excessive. I agree that it is. At the time of the offence the appellant was only 16 years of age and without prior conviction. As has been seen, the circumstances of the offence, although serious, were not as serious as those which attend many other counts of armed robbery. I think that a sentence of three years' imprisonment would have been a stiff penalty if the offender had been of full age and maturity. Given the appellant's age and immaturity at the time of the offence, his plea of guilty and other considerations to which I shall later make reference, the penalty appears to me to have been manifestly excessive.[1]
6 That conclusion is assisted by consideration of what the position would have been had the appellant been apprehended and tried while still only 16 years of age, or shortly thereafter. In such circumstances it can scarcely be doubted, I think, that the sentence would have been much less than three years' imprisonment. Of course I do not say that the judge was bound to sentence the appellant as if he were still only 16 years of age and with the same antecedents and prospects for rehabilitation as he may have seemed to have at that time. The fact of the matter is that the appellant was not apprehended and tried until years after the offences, until after he had committed a spate of further offences, and the judge was entitled to treat those subsequent offences as throwing doubt on the appellant's prospects of rehabilitation and as evidencing a greater need for specific deterrence than might otherwise have appeared. In effect, the nature and scope of the appellant's subsequent conduct warranted a greater sentence than if he had turned away from crime and been able to demonstrate an obvious degree of maturation and rehabilitation.[2] But, even allowing for considerations of that kind, the penalty imposed on count 1 appears to me to be beyond the range.
7 I am confirmed in that view by the fact that the sentence imposed on count 1 considerably exceeds the sentences imposed on some of the other counts which were of similar or greater gravity, but which related to subsequent offences and therefore represented repeated and increasing criminality. The degree of disparity implies that the judge approached the matter on the basis that a total effective sentence of three years was appropriate to the total criminality of the appellant's conduct and then imposed the whole three years on count 1 for no better reason than that it was the first count on the presentment. That would be reason in itself to conclude that the sentencing process in respect of count 1 miscarried.
8 I am, however, persuaded by the submission made on behalf of the Crown that the sentence imposed on count 1 does not stand alone. As I see it, to the extent that the sentence imposed on count 1 is manifestly excessive, the sentences imposed on the other counts are in a number of cases and consequently manifestly inadequate. Therefore, in re-sentencing the appellant, it is necessary to deal with all counts afresh.
9 It was submitted for the appellant that inasmuch as the appeal is only against the sentence imposed on count 1 and not the sentences imposed on the other counts, there is no power in this Court to interfere with the sentences imposed on the other counts. I do not accept that submission. The error in the head sentence imposed on count 1 also affects the non-parole period fixed in relation to count 1[3] and, since the non-parole period was fixed in relation to the sentence imposed on each count and is therefore part of each such sentence,[4] I consider that the error vitiates the sentence as a whole and re-opens the sentencing discretion. The result may be contrasted with the situation dealt with in R. v. Gibb[5], where it was held that an appeal against conviction in respect of some counts did not call into question the manner in which the judge had exercised his discretion with respect to head sentences imposed on other counts. Evidently, the basis of the decision was the particular terms of s.569 of the Crimes Act 1958. That is not in issue here.
10 On re-sentencing the appellant, I would take as the starting point that the appellant was only 16 years of age and without prior conviction at the time of first offending, albeit that he continued to offend over a period of two-and-a-half years following the first offence and in the process committed offences of increasing seriousness. One need hardly cite authority in support of the proposition that rehabilitation is a principal consideration in the sentencing of young offenders.[6] It is also necessary to make due allowance for the appellant's plea of guilty and the appellant's entitlement to a discount upon the sentence which would otherwise have been imposed.
11 On the other hand, as the judge rightly observed, in a case of this kind there is a need for deterrence and denunciation which renders youthfulness and rehabilitation of less significance in the intuitive synthesis than might otherwise have been the case.[7] It is also material that the appellant's prospects of rehabilitation appear to be poor. The judge obtained a pre-sentence report which indicates a lack of appropriate empathy on the appellant's part and a lack of insight into the impact of his offending on the victim. The appellant was dealt with in the Magistrates' Court on 29 January 2003 on charges of trafficking and possession of heroin, for which he was placed on a 12-month bond, and in breach of that bond he committed the offences which are the subject of counts 5 and following. The pre-sentence report records that on 16 October 2003 the appellant came back before the Magistrates' Court on counts of robbery and trafficking in heroin, on which occasion he was sentenced to a community-based order. According to the report, the appellant displayed a minimal commitment to compliance with the community-based order and demonstrated a level of sophistication and premeditation in his offending which caused concerns for younger, more impressionable offenders in the youth training system. He did not meet the criteria stipulated in s.32 of the Sentencing Act 1991. It is further to be noted that while the appellant has had many opportunities for
professional intervention to assist him overcome his offending behaviour and to address his "drug abuse issues", he has not chosen to avail himself of those opportunities to the full extent and on some occasions has only participated to avoid further consequences. Thus, as it is put in the pre-sentence report, the appellant presents with a history of offending behaviour which he has not been willing to address in a meaningful manner and he is not willing to address his substance abuse problem beyond accessing the opiate maintenance programme.
12 With those considerations in mind, I would re-sentence the appellant as follows:
a) on count 1, to a period of imprisonment of 6 months.
b) on each of counts 2 and 3, to a period of imprisonment of 3 months.
c) on count 4, to a period of imprisonment of 12 months.
d) on each of counts 5 and 6, to a period of imprisonment of 6 months.
e) on each of counts 7 to 15, to a period of imprisonment of 8 months.
I would treat the sentence imposed on count 4 as the base sentence, and I would order that the following be served cumulatively on that sentence and on each other, namely, one month of the sentence imposed on count 1, one month of each of the sentences imposed on counts 2 and 3, three months of the sentence imposed on count 5, one month of the sentence imposed on count 6, two months of the sentence imposed on count 7, two months of the sentence imposed on count 9 and one month of the sentence imposed on count 13. That makes for a total effective sentence of 24 months' imprisonment and I would order that the appellant serve not less than 12 months of that period before being eligible for parole.
15 The orders of the Court are that this appeal is allowed. The sentences imposed in the court below are set aside and in lieu thereof the appellant is re-sentenced as follows:
On count 1 - six months' imprisonment;
On each of counts 2 and 3 - three months' imprisonment;
On count 4 - 12 months' imprisonment;
On each of counts 5 and 6 - six months' imprisonment;
On each of counts 7 to 15 inclusive - eight months' imprisonment.
Treating the sentence imposed on count 4 as the base sentence, it is ordered that one month of the sentence imposed on count 1, one month of each of the sentences imposed on counts 2 and 3, three months of the sentence imposed on count 5, one month of the sentence imposed on count 6, two months of the sentence imposed on count 7, two months of the sentence imposed on count 9 and one month of the sentence imposed on count 13 be served cumulatively upon the sentence imposed on count 4 and upon each other. That makes for a total effective sentence of 24 months' imprisonment, in respect of which a non-parole period of 12 months is fixed.
16 The order pursuant to s.464ZF(2) of the Crimes Act is confirmed, as is the forfeiture order.
17 It is directed that the period of 185 days' detention which the appellant has undergone to this date be reckoned as having been served under the substituted sentence and that this declaration and its details be entered in the records of the Court.
[1] R. v. SJK at [20].
[2] Cf. R. v. Nutter, unreported, 8 November 1995, BC9502582, at 6.
[3] R. v. Sener [1998] 3 V.R. 749 at 754.
[4] ibid.
[6] R. v. Mills [1998] 4 V.R. 235 at 241; R. v. Squires [2001] VSCA 199 at [20]; R. v. SJK & GAS [2002] VSCA 131 at [61].
[7] Cf. DPP v. Lawrence [2004] VSCA 154 at [22], per Batt, J.A.; DPP v. SJK [2002] VSCA 131 at [66].
R
Butter [2005] VSCA 184