R v Dardovski [1999] VSCA 81

Court of Appeal (Vic)|1999-06-09|Before: CHARLES and CALLAWAY, JJ.A. and HAMPEL, A.J.A.

Criminal law - Sentence - Non-parole period - Prospects of rehabilitation - Whether offences out of character - Specific deterrence.

I will call upon Hampel, A.J.A. to give the first judgment.

On 30 June 1997 the applicant and two co-offenders hired a van and went to a house at Broadford occupied by a Ms King with her two year old son and occasionally her boyfriend, a Mr Nazifoeski.

At the trial the applicant relied on evidence of his younger brother that Mr Nazifoeski had failed to pay $2,000 worth of damage caused to the applicant's family hotel and that the visit to the house with his two companions was at his father's request to recover the debt or property as security.

When Ms King opened the door on that night she was confronted by the applicant who was wielding a sawn-off shotgun and demanding entry. That weapon was later found in the house, cocked, in working order and with two live cartridges. Ms King slammed the door and called to Mr Nazifoeski to get out and take the child. The applicant with his two companions then broke a side window and entered the house. He grabbed Ms King in the kitchen, brought her back into the loungeroom and told her to stay on the floor. The applicant asked Ms King how to get into the roof and was told of a manhole in the bathroom. They climbed into the roof and took hydroponic equipment and a crop of marijuana belonging to Ms King. During this incident there were a number of telephone calls to the house. One was from Ms King's mother. The applicant answered, allowed Ms King to speak to her mother but held a knife close to her face while instructing her what she should say.

In the meantime Nazifoeski, who had left the house, telephoned the police who intercepted the applicant at the scene.

In these circumstances the applicant was convicted of aggravated burglary and armed robbery. He admitted 27 prior convictions from seven court appearances between 1977 and 1989. These convictions included being armed with an offensive weapon, possessing firearms and assault. The applicant was sentenced to be imprisoned for four years for the aggravated burglary and four-and-a-half years for the armed robbery. The sentences were ordered to be served concurrently, making a total effective sentence of four-and-a-half years. A non-parole period of three-and-a-half years was fixed.

The two co-offenders were found guilty of burglary and robbery.

During the plea in mitigation evidence was called from a psychologist, whose report was also tendered, and from the applicant's sister. The thrust of the plea was that the applicant had good prospects of rehabilitation and was in the "lower risk" category for re-offending. This was based on a combination of factors. The applicant was 40 years of age and said to be at the crossroads of his life. His marriage was stable and he was a member of a close-knit family. He was now in full employment. He had responsibility for his wife, his widowed mother and five children. His last conviction was almost ten years ago and a gaol term would be his first experience of imprisonment.

In sentencing the applicant the learned judge referred to the role he played. He said:

"You were the one with the gun; you were the one who pointed it at the girl; you were the one who threatened her with a knife; you were the one who gave her instructions inside the house, and the others were clearly there to do your bidding. They performed the menial tasks of collecting and moving the property."

His Honour referred to the reason given for the applicant going to this house and said:

"I should make it perfectly clear that not for a moment do I accept, as the jury did not accept, that you, Mr Dardovski, were there to recover a debt or to take goods as security for a debt. You allowed your brother to tell the jury a cock and bull story that was transparently such a cock and bull story and that does you no credit. You, Mr Dardovski, were there to steal the crop and the equipment for gain, and you involved the other two to advance your purpose and you were prepared to use such force as necessary to achieve it. I repeat that the sawn off shotgun that you carried was loaded and cocked."

His Honour referred to the previous convictions and said that he did not accept that the present offences were out of character. He noted that the applicant had not been in trouble since 1989 until these events but went on to say, "You have shown no remorse for these offences and I am not satisfied that you have any real prospect of rehabilitation."

After noting the need for general and specific deterrence his Honour said:

"In fixing the relevant periods of imprisonment I have borne in mind the conclusions that I have reached as to the appropriate dispositions in respect of Mr Smith and Mr Porima. Although your role and theirs were quite different and the principles of parity of sentencing, therefore, are not strictly applicable, I have nonetheless sentenced you to lesser terms than I would have if I had not taken into account the dispositions that I think appropriate in the case of Mr Smith and Mr Porima."

Both Smith and Porima received sentences which were fully suspended.

The argument before us was that the sentencing discretion miscarried as is demonstrated by findings by the judge which are said not to have been open on the evidence. They were that the offences were not out of character, that there was not any real prospect of rehabilitation and that specific deterrence was a prominent sentencing consideration.

Mr Holdenson for the applicant submitted that the judge was bound to act on the evidence of the psychologist and the applicant's sister to the effect that the applicant was not a violent person despite the violent nature of the present offences and despite the numerous but old prior convictions. He further submitted that the evidence pointed one way, that is, towards good rehabilitation prospects and a low risk of re-offending, and that it was not appropriate therefore to give prominence to specific deterrence.

I am not persuaded that his Honour's language in the context of this case or the conclusions that he reached demonstrate error in the sentencing discretion.

Whether conduct which constitutes criminal offences is or is not in character is very much a matter of assessment by the sentencing judge on the basis of all the circumstances including the opinions of others, the person's background and the nature of the conduct under consideration. The issue is not often capable of precise definition and answer. By expressing himself in the negative, that is, not accepting that the conduct was out of character, his Honour cannot be taken to have disregarded what was put before him. This was not, after all, a case of a person who, after a life of exemplary behaviour, commits an offence. Here his Honour had to look at the number and nature of the prior convictions, the period over which they were committed, the nature of the crimes now committed, as well as the evidence of others as to the applicant's changed circumstances.

His Honour had all that before him and I am unable to conclude that he erred by not accepting that the conduct was out of character.

Similar considerations apply to the assessment of a person's prospect of rehabilitation and the related assessment of the need for specific deterrence. His Honour was not, in my view, bound to accept fully the opinion evidence about the prospect of rehabilitation and was entitled to be sceptical, particularly as there was no indication of remorse. His expression that he was not satisfied that there was any real prospect of rehabilitation cannot in context be said to amount to a finding of no prospect. In the end, the judge had to balance the need to facilitate such prospect of rehabilitation as he found there may be with the need to ensure that the punitive aspect of the sentence, for what, after all, were clearly very serious premeditated offences of their kind, was not unduly diminished.

Neither the sentences imposed nor the provision of a possible 12 months parole period can, in my opinion, be said to be outside the range available to the judge. I would therefore dismiss this application.

I will ask Callaway, J.A. to give the next judgment.

It was but faintly contended that the head sentences imposed by the learned sentencing judge were manifestly excessive. In my opinion both those sentences and the non-parole period were clearly within the range having regard not only to the circumstances of the offender but also to the aggravating circumstances of the offences to which Hampel, A.J.A. has referred.

This Court has recently re-stated some of the principles applicable to the fixing of a non-parole period in R. v. V.Z. [1998] VSCA 32. I do not repeat what was said on that occasion. Paragraphs 15 and 18 refer to the penal and deterrent aspects of a non-parole period and the need to ensure, in appropriate cases, that they are not undermined.

Much attention was focussed in the course of the argument before us on a passage in the sentencing remarks in which his Honour said:

" You have 27 prior convictions from seven court appearances between ages 19 and 31 or thereabouts. You have been in no trouble since 1989 until this event. Judging by what I was told of them and the penalties imposed, the prior convictions individually are of no great magnitude but four or five of them relate to possession of firearms and four or five of them relate to violence. You have shown no remorse for these offences and I am not satisfied that you have any real prospect of rehabilitation. In respect to the offences committed by each of you, the principle of general deterrence is prominent and in your case, Mr Dardovski, also that of special deterrence. These were bold and blatant offences in your case, and again in your case committed for gain, and offences which placed the lives of others at risk. I do not accept that they were out of character for you." (Emphasis added.)

His Honour was clearly not intending to convey that the applicant had no prospect of rehabilitation. That highly unlikely conclusion would not, I think, have been open on the evidence. Rather his Honour was saying that counsel for the applicant had not satisfied him that the applicant had a "real" prospect of rehabilitation. That word is not to be understood as a logician would understand it but as it is used in ordinary language. So much was recognised by Mr Holdenson when, in reply, without abandoning his alternative submissions, he contended that the learned judge was bound to find on the balance of probabilities both that the applicant had "good prospects of rehabilitation", particularly having regard to the change in his personal circumstances since the date of the offences, and that the offences were out of character.

Both that submission and the form in which his Honour expressed himself were in conformity with R. v. Storey [1998] 1 V.R. 359. Good prospects of rehabilitation and the offences being out of character for the applicant were circumstances of mitigation. In my view the learned judge was not bound to be satisfied that they were made out. Reference has already been made to the absence of remorse and to the applicant's permitting his younger brother to give a "cock and bull" story to the jury. Having regard to the gravity of the offences and the applicant's antecedents, it was open to his Honour to find the evidence led on the plea insufficiently persuasive.

The prosecutor's omission to cross-examine the applicant's sister, who had said that the offences were "definitely and absolutely" out of character for her brother, did not have the kind of significance that omission to cross-examine is apt to have at a trial. As Storey's Case makes clear, the nature of the proceedings on a plea is significantly different and it is not uncommon for character evidence to be received for what it is worth.

For these reasons and for those given by Hampel, A.J.A., I, too, would dismiss the application.

I agree that the application should be dismissed for the reasons given in both the preceding judgments.

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