R v Colic [2001] VSCA 172

5. Three of the four offences which the appellant admitted by her plea of guilt were serious offences and, notwithstanding her comparative youth and lack of prior convictions, were such as to justify what I would consider modest terms of incarceration in a youth training centre, which in fact, with full concurrency, amounted in all to only 18 months. The two counts of armed robbery were vicious examples of that too prevalent offence committed on persons in a residential building, in which not merely was there a threat to use a nasty and dangerous weapon in the form of an iron bar but in addition that threat was carried into effect in relation to both of the victims. Not only that but the robbery in the case of one victim was accompanied by a degrading and humiliating request from one of the co-accused, acceded to under the same threat of force, to remove his trousers and underpants ostensibly for the purpose of searching for drugs.

8. As I have said, each of the threats to use force was carried out, in one case leading to the count of intentionally causing serious injury and the other to intentionally causing only injury, but in each the iron bar was in fact used and applied to the body of each victim. Not only that but in one case there was a vicious blow to the face which resulted apparently in two broken teeth. Although in terms of serious injury the injuries inflicted on that victim might be seen to come towards the lower end of the scale, the participants' intentions were clear enough and, in any event, the two armed robberies were the most serious of the offences which the appellant admitted.

11. Nor do I think the appellant's participation in these offences took the case into a category where the learned judge's sentence should be seen to have been erroneous or excessive. By her plea she admitted that she participated in the offences and, in the absence of any explanation or any other material from her side to show that that participation was unwilling or adventitious, I have no difficulty in drawing the necessary inference to the appropriate standard that she was well aware of what her two co-accused were about that morning. Whether she was complicit in the sense that she was party to some earlier agreement or understanding or whether she joined them later but nevertheless aided and abetted them, is of no real consequence. Although she did not strike any of the blows herself or take any of the money, the evidence, as accepted by the sentencing judge, showed that she was clearly urging them on and threatening the victims with harm if they did not comply with her and her colleagues' wishes. Her plea also shows that she was party to the infliction of whatever harm or injury was necessary to effectuate their unlawful desires. I have no reason to believe that she was not aware of what they were about and how they would seek to achieve it. In each case, however, the infliction of injury was merely subsidiary to each of the two vicious robberies. By that I do not intend to suggest that the sentence for intentionally causing serious injury was itself excessive. Perhaps the armed robberies merited more stringent penalties; perhaps the sentence for the serious injury count was higher up the appropriate range. At all events the application of principles of totality and proportionality led to a not ungenerous sentence.

14. Furthermore I am not persuaded that either the appellant's plea of guilty or her later statements of remorse were inadequately taken into account. The plea was properly noted but this was a case where her aiding and abetting (at the least) of the co-accused extended over a series of incidents and there was evidence of her encouraging them which came from each of the victims. I see no reason why the learned judge should not see that evidence as inconsistent with counsel's assertions on the plea which were vaguely expressed and were otherwise unsupported.

17. Of course the courts, even in cases of armed robbery, will from time to time extend leniency particularly to youthful offenders and especially where there are real

prospects of rehabilitation.[1] Such rehabilitation as has been begun by the appellant seems not to have resulted from her arrest for these offences or from any resulting remorse but because of a severe illness, the symptoms of which became more obvious some months thereafter, which forced her to seek medical assistance which included a program for ridding herself of her drug habit. The judge was not obliged, having regard to the seriousness of these cases, to take such a benevolent view of the appellant's offending as to require him not to impose a custodial sentence on the appellant. Nor am I persuaded that the judge's order for 18 months in a youth training centre was outside the appropriate range. Indeed in many ways it seems lenient and can only be justified by reference to the judge's proper taking into account of the youth and possible rehabilitation of the appellant in the future.

26. I agree with the learned presiding judge. I do so only after careful consideration of the reasons written by Vincent, J.A., from which I differ with respect.

31. The appellant, who was aged 18 at the time of the offences, pleaded guilty in the County Court to two counts of armed robbery (counts 1 and 3), one count of intentionally causing serious injury (count 2) and one count of intentionally causing injury (count 4). The maximum custodial penalties are 25 years', 20 years' and 10 years' imprisonment respectively. She had only one previous conviction, for loitering with intent to commit an indictable offence in respect of which a small fine was imposed. The learned judge treated this conviction as irrelevant for sentencing purposes.

34. After hearing a plea for leniency on her behalf, his Honour sentenced the

appellant to 18 months' detention in a youth training centre on each of counts 1, 2 and 3 and to 12 months' detention in a youth training centre on count 4, making a total effective sentence of 18 months' detention. Orders were made by consent for the taking of an intimate sample and for compensation to each of the two victims for the amounts stolen.

38. Leave to appeal was granted on 27th July 2001 against the individual sentences and the total effective sentence imposed on four grounds, namely:

`1. The sentencing judge erred in that he failed to give any, or any sufficient weight to - (a) the applicant's plea of guilty, and the time at which it was entered; and (b) the applicant's remorse. 2. The sentencing judge erred in that he failed to give any, or any sufficient, weight to the applicant's personal circumstances including her - (a) youth; (b) prospects of rehabilitation; and (c) ill health (and its effect upon the applicant's incarceration). 3. The sentencing judge erred in that he gave too much weight to the suggested need for - (a) general deterrence; and (b) specific deterrence. 4. In all the circumstances - (a) the individual sentences on each count, and (b) the total effective sentence are manifestly excessive."

42. Although reliance has been placed in argument upon all of these grounds, essentially the single contention has been advanced that both the individual sentences and the total effective sentence imposed upon the appellant were manifestly excessive in the circumstances with grounds 1, 2 and 3 being treated as particulars of and explanations for the assertions contained in ground 4.

45. Before turning to counsel's submissions I shall say something briefly about the circumstances of the offences and the appellant's medical history to which reference is made in ground 2.

49. At approximately 11.48 a.m. on 19th September 2000 two men called Fitzgerald and Malcolm stepped into a lift in the entry foyer of a Ministry of Housing apartment block in Fitzroy. They were on their way to the third floor to visit a friend. A man with a small dog also stepped into the lift. Malcolm held the lift open for three other persons, a female and two males. They were the appellant and her co-accused, Arden and Lovett, who have entered pleas of not guilty and been committed for trial. For present purposes, I shall assume the accuracy of the Crown's summary of evidence and, for convenience, I shall refer to the appellant and the co-accused as "the defendants".

52. When Lovett entered the lift he was carrying a 750 mm. iron bar in his right hand, but by his side. Malcolm asked the defendants which floor they were going to. One of them replied "Seventeen" and Malcolm pressed the button for that floor. There was some further conversation before Fitzgerald and Malcolm alighted on the third floor. The lift continued upwards with the defendants and the man with the dog. The defendants stepped out on the fifth floor instead of proceeding to the seventeenth floor as they had indicated.

55. Fitzgerald and Malcolm found that their friend was not at home but had left a note saying that he would be back in half an hour. Shortly thereafter, they saw the defendants walking towards them. Lovett came forward brandishing the iron bar and demanded that they hand over their money and drugs. Fitzgerald handed over $15 and Malcolm $30.40, being the sums of money that they had with them at the time.

58. Fitzgerald then ran towards the stairwell. Lovett threw the iron bar at him, striking him on the back of his legs. The defendants pursued Fitzgerald and surrounded him before he reached the stairs. Arden punched him to the right cheek with his fist. Fitzgerald pleaded with his assailants to leave him alone. The appellant is said to have responded by saying, "Stop squealing or I'll hit you with the stick." I will return to this aspect. Lovett searched Fitzgerald's pockets and made him lower his trousers and underpants in a search for money and drugs.

61. The defendants then turned their attention to Malcolm, who had remained where he was as he did not wish to leave Fitzgerald alone. Lovett seized Malcolm by the arm and demanded more money. Malcolm said that he did not have any more. A struggle ensued, in the course of which Lovett punched Malcolm under the chin, breaking two of his teeth, and struck him with the iron bar across his back and across the back of his lower right leg. Arden assisted in the assault. The appellant stood nearby and told Malcolm to give them his money.

64. In the meantime Fitzgerald had fled down the stairs. Eventually Malcolm broke free, ran to a public telephone and called the police. All three defendants were interviewed. In her interview the appellant admitted knowing the co-accused and stepping into the lift with them. She said that it was by chance that they were there at the same time. She admitted stepping out on the fifth floor with the co-accused but said that she had gone her own way. She denied accompanying them to the third floor and denied any knowledge of the iron bar or the robberies and assaults committed against Fitzgerald and Malcolm. Later, however, as I have said, she pleaded guilty.

68. The appellant started smoking heroin at the age of 14. She soon became dependent and was using it intravenously by the time she was 16. At that age she was taken ill for the first time with infective endocarditis. She was in a coma for a period of two weeks but made a full recovery. In March 2001 she suffered a repeat of the infection. She required treatment in the intensive care unit of St Vincent's Hospital. Medical reports dated 6th and 10th April 2001, tendered at the plea, were to the effect that, although the appellant was still unwell, her prognosis was good. She still required constant medical care, including a blood test at least once a week, and it was likely that she would require ongoing treatment for the next few months. She had ceased using intravenous drugs and had been stabilized on a methadone maintenance programme. Her progress in that regard was also said to be good.

72. With respect to the role played by the appellant in these events, in his sentencing remarks the judge described her participation in the incident as follows:

"At all times this prisoner was by her actions and her verbalising encouraging Lovitt and Arden in the commission of these armed robberies and assaults. It matters not in my opinion that she did not in fact actually strike any blows, her presence, her actions and what she said during the commission of these crimes indicated a clear and unequivocal involvement in aiding and abetting and acting in concert with the two co-accused."

The "verbalising", to which he referred, consisted, as I understand the position, of the use of the expression "Stop squealing or I'll hit you with the stick" which was attributed to her by one of the victims.

77. The appellant maintained her denial of ever having had possession of the iron bar. However, her counsel had conceded in the course of the plea that:

"she may have said something along the lines of `Just give him the money or you will continue being assaulted', or words to that effect."

"It is clear that she herself was not the one who was inflicting physical harm on any person here and she very tragically, sir, got caught up with the wrong people and got caught up in an incident that was much more serious than she had ever anticipated. She has instructed me she didn't anticipate anyone being injured and clearly it has occurred, clearly her behaviour has provided assistance, or she has acted in concert, if you like, and as a result of that she is technically and legally responsible for the commission of the offences, but the issue is morally how culpable is she compared to the other co-offenders."

"She realises that she has taken part in a very serious incident where these two victims have suffered and suffered substantially. I do rely on the fact, Your Honour, that even though she was a party to this she didn't intend that they suffer these injuries and was really not thinking very clearly, was along with these other offenders caught up, if you like, in what they were doing. It's very hard to anticipate someone running off in a robbery and then being brought down with a missile after they have already got quite a distance from the offenders. That's an unusual happening and it is something that unfortunately occurred, but because she was assisting and she's as guilty of it as they are, Your Honour, however that doesn't mean that morally she is as quite responsible in all the circumstances."

"I haven't made any findings of fact at this stage and I don't think that it's particularly relevant in the overall picture of things whether she actually held the weapon or not. It's not going to make any difference to my ultimate decision in this case, because it just seems to me that she is an integral part of this whole unfortunate and very serious assault and armed robbery on each of these two victims and as such she's got to pay the consequences."

89. The judge made no reference to counsel's description of his client's role in his sentencing remarks other than to indicate that he adopted a global view of the incident that did not require analysis of her precise role or level of involvement in the offences and to advert to it in what appears to me to be a dismissive fashion when dealing with the question of remorse:

"Finally, remorse. She has expressed considerable remorse for her involvement and now states that she did not intend for either victim to be hurt. The prisoner according to the statements of each victim clearly played a part in the robbery encouraging the co-accused by her statements made during the course of the robbery. She may well be now suffering from considerable remorse as the criminal law grinds inexorably to its conclusion but no such remorse was demonstrated at the time."

93. I find these various statements of both the judge and her counsel to be somewhat troublesome in the circumstances. Whilst the appellant is to be taken by the entry of a plea of guilty to each of the offences to have admitted the presence of all of the elements of the offence involved, it is by no means clear on what factual foundation she was sentenced.

96. This aspect required greater attention in the particular circumstances before his Honour. The appellant was a young and drug-addicted person in the company of two significantly older males, each of whom had an extensive criminal history and, for what it is worth, neither of whom would in all probability have required any encouragement from her before engaging in the robbery of the two victims. For practical purposes, the appellant had no prior criminal history and specifically none indicative of a propensity to violence.

99. There would seem to be little room for doubt that the appellant was aiding and abetting or acting in concert with her two co-offenders when, armed with an iron bar, they approached their victims. It is reasonable to infer that her motive for doing so was the obtaining of any money or drugs that the victims might have had in their possession. As I understand the submissions of her counsel set out above, the appellant did not contemplate that there would be any injury at all, whether serious or minor, sustained by anyone. That may or may not have been the case. Nevertheless she participated in some fashion in the confrontation which followed. Notwithstanding the words attributed to her, were it not for the frank admission of responsibility constituted by her plea of guilty with respect to counts 2 and 4 on the presentment, on the basis of the material before this Court she may well have been acquitted on those counts had the matter proceeded to trial. This was not a case in which, in my opinion, the criminal law could be seen to have been "[grinding] inexorably to its conclusion" but one in which the appellant accepted responsibility in full measure for her involvement within five weeks of charges being laid against her. Little, if any, regard seems to have been taken of this aspect by the judge in his consideration of the significance to be attributed to the appellant's plea of guilty when assessing the weight to be given to her expression of remorse or her prospects of rehabilitation.

102. Nonetheless, the incident in which the appellant participated was correctly regarded as extremely serious by the judge. It involved an attack by three persons, one or more of whom at one stage or another was in possession of an iron bar. A substantial degree of physical force was employed and blows were struck using the bar and the fists of one of the assailants. Although the injuries encompassed by count 2 were at the lower end of the spectrum of serious injuries coming before the courts, they were significant. The offences were committed in a public access area at a block of Housing Ministry flats upon persons who were present for the innocent purpose of visiting a friend. Accordingly they were attended by a number of circumstances of aggravation. His Honour appropriately emphasized the significance of the humiliation to which the victims were subjected and the importance of general and specific deterrence as sentencing considerations in what he described as "crimes of this nature".

105. Attributing full weight to the various factors which could militate in favour of mitigation of the penalty to be imposed upon the appellant, it is evident that custodial disposition was called for. When regard is had to the appellant's age, lack of prior criminal convictions, history of drug addiction and her state of health, the decision by the sentencing judge that she should be detained in a Youth Training Centre was also, in my opinion, quite appropriate.

108. Nevertheless, I consider that he fell into error with respect to the length of the period fixed for the separate offences and the overall effective sentence.

111. It is repeatedly stated by this Court that whether a given sentence is regarded as manifestly excessive in all the circumstances does not admit of much argument. Ultimately, the question must be resolved by reference to the sentence itself, considered in the context of all of the circumstances and considerations relevant to its determination. It must also be borne in mind that this Court is not justified in setting aside a sentence simply because its members consider that it is more severe than the one that they would have imposed. Recognizing that there is a wide discretion reposed in a sentencing judge, the Court must be satisfied that the sentence falls outside the range of dispositions available in the proper exercise of that discretion.

114. I am so satisfied in the present case and would have allowed this appeal. However, in view of the fact that Ormiston and Callaway, JJ.A. have arrived at a different conclusion, I do not consider that I should indicate the sentence that I would have proposed should be substituted.

[1] In some circumstances the existence of youth will sometimes justify a more optimistic view of rehabilitation than is otherwise to be inferred from the evidence, but this was not such a case.