R v Cotry [2002] VSCA 13

5. On 8 February this year this Court granted leave to the appellant to appeal against the sentence imposed.

8. Before turning to the grounds of appeal it is necessary to refer briefly to the circumstances of the robbery.

11. On 4 March 2001 the appellant was 21 years of age. On that day, at about 10.15 in the evening, he was in the vicinity of the Glen Waverley railway station with a friend, whom he declined to identify in his record of interview with the police. They were in search of a target to rob so that they could get money to satisfy their drug addiction. He had in his possession a syringe. The victim they chose was, as I have said, a 15-year-old boy who had been to a restaurant with friends and who was relieving himself behind the toilets of the railway station. The victim was accosted and threatened and eventually handed to the appellant his wallet, which contained $100. He was also robbed of a mobile phone which he had in his pocket. The appellant was identified from surveillance tapes taken from security cameras in operation at the station. He later confessed his participation in the robbery to the police and attributed his conduct to his need for drugs.

14. On the plea, the appellant's counsel recognised that a sentence of imprisonment was appropriate but contended that, taking into account the appellant's background and youth and the surrounding circumstances, the sentence should be wholly suspended. The surrounding circumstances relied upon included the appellant's addiction to heroin and the very tight and supportive family from which he came. The family had been concerned to wean the appellant from the substances which he had been using over a substantial period and to remove him from the influence of the company into which he had fallen. These efforts were apparently of little avail until after the appellant was apprehended for this crime. It was apparent to his Honour that the appellant was reasonably intelligent and, despite his addiction, was able to complete his VCE.

17. It is apparent from his Honour's sentencing remarks that this was a case in which he had to balance the seriousness of the offending against the youth and prospects of rehabilitation of the appellant. His Honour concluded that, having regard to the period during which the addiction had continued, the difficulty which the appellant had had in breaking his habit and the failure to reform after the previous conviction, he could not completely embrace what he described as the "rosy view" which had been painted for him of the appellant's future. Accordingly he imposed the sentence which he did. I simply note that it was not open to his Honour, having regard to the age of the appellant, to sentence him to detention in a youth training centre, so that if incarceration was to be the appropriate penalty, it had to be in an adult prison.

20. In this Court, everything which could be said on the appellant's behalf has been put before us in eloquent terms by his counsel, Mr Allen. Particular emphasis has been laid upon the appellant's relative youth, his serious efforts to reclaim himself from his addiction, his lack of convictions for "serious prior offences" and what are said to be his strong prospects of rehabilitation. In essence, counsel submitted that his Honour must have, and indeed has, failed to attribute sufficient weight in the sentencing process to the appellant's youth and his demonstrated efforts at reclaiming himself and has given too much weight to the deterrent aspects of punishment. It was put to us that the sentencing remarks do not, at least on their face, suggest that his Honour has fully recognised the impact of the matters to which I have referred. Mr Allen relied upon statements made by courts in this and other jurisdictions which generally embrace the principle that, with youthful offenders, the community's protection can be advanced by catering for the offender's rehabilitation if the prospects are strong. Mr Allen further contended that the judge had under-estimated the efforts which the appellant had made to reclaim himself from his "difficult addiction". In essence, the submission was that his Honour had fallen into error in failing to give these matters, in the circumstances of this case, proper weight.

23. 8 As I said during the course of the hearing in this Court, this is a case, like many which come before us, which presented the sentencing judge with a very difficult sentencing task. Our courts are all too commonly being called upon to deal with relatively young drug-addicted offenders who threaten and rob law-abiding citizens at the point of a syringe. The judges who carry out these difficult tasks must always weigh in the balance competing sentencing principles of deterrence and protection of the community on the one hand and youth and rehabilitation on the other. They must also bear in mind sentencing principles which this Court has, from time to time, stated for their guidance. In cases of armed robbery of citizens with the use of syringes, this Court has frequently said that a primary purpose of punishment must be deterrence. I refer in particular to the statements made by this Court in the case of R. v. Roy[1]. The point has been made that syringes, whether blood-filled or not, are particularly fear-producing, and provide a cheap and effective weapon for robberies of "soft targets". Nor can sentencing judges lose sight of the fact that Parliament has been increasing the maximum penalties for armed robbery and that the maximum now stands at 25 years.

26. Whilst the matters put before the sentencing judge were powerful factors of mitigation, there is nothing that I can see in his Honour's sentencing remarks which persuades me to the view that he has failed to give them adequate weight in the difficult sentencing process which confronted him. It was not in issue that the appellant's offence had to be met with a sentence of imprisonment. The only issue was whether it should be suspended. Suspension of sentences in these circumstances, in contrast to a sentence of imprisonment with a period of parole, is not always the best option, as this experienced judge would have known. Those who are drug addicted are always at risk of breaching their suspension orders when unsupervised, thus imperilling the purpose for which the order is made. The suspension or otherwise of a sentence is a matter which is exquisitely within the discretionary function of the judge. It is not a function which will be lightly interfered with by this Court, which is a court of review; and, as we are often at pains to point out, we are without power to interfere with a judge's discretion unless it can be shown to have been vitiated by error. For the reasons which I have stated, I am not persuaded that it has been. His Honour was well aware of the appellant's relative youth and the significance of rehabilitation in the sentencing process, whether he mentioned it in the course of his reasons or not. The entire plea was directed to these matters, and it is obvious from the transcript that the judge gave them full consideration, but ultimately was not prepared to embrace in full the "rosy picture" which the evidence was calculated to paint. He was, therefore, not prepared to suspend what otherwise can only be described as a very moderate sentence for a very serious crime. I am not persuaded that his Honour's approach was erroneous, or that the sentence imposed was excessive, and therefore I must dismiss the appeal.

37. The appellant was a youthful offender. Although he had offended before, he had never been convicted of an offence and, of course, had never previously been incarcerated. There was in evidence a favourable report provided by a forensic psychologist, Ms Elizabeth Warren, and the appellant's sister had testified in the witness box to the wholehearted support which the family were giving to the rehabilitation of the appellant and to assist him to overcome his addiction. Rehabilitation was clearly a primary consideration in sentencing him, but the circumstances of the offence demonstrated, as the President has said, that it was a very serious one, and the appellant's counsel during the plea conceded that a sentence of imprisonment was appropriate, asking merely that it be suspended.

40. I agree that the judge had a very difficult task in sentencing this appellant. In my view there was a considerable case to be made for the view that it would have been appropriate in all the circumstances to suspend the sentence of two years' imprisonment, but, as the President has said, it is not the function of this Court to impose a different sentence merely because a member of the Court might have done so. I agree with the reasons the President has given for saying that no error appears in the judge's sentencing reasons and that the sentence cannot be said to be beyond the permissible range.

[1] [2001] VSCA 61, particularly at [7] and [9].