R v Deering [2000] VSCA 181

Court of Appeal (Vic)|2000-10-17|Before: WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.

Criminal law - Sentence - Armed robbery, theft and obtaining property by deception - Co-offenders - No manifest disparity in sentences - Different sentencing regimes - Sentence of two years and six months' imprisonment for youthful offender not excessive.

I will invite Buchanan, J.A. to deliver the first judgment in this appeal.

On the afternoon of 16 November 1998 two men entered a milk bar at Hallam. One of the men hung back by the shop window while the other approached the proprietor of the milk bar, seized him by the wrist and produced a syringe which he held near the proprietor's wrist and told him to "Get the money" The order was obeyed and money from the till was placed on the bench. The assailant then dragged the proprietor by the wrist to the back of the store where he released him. The men escaped from the shop with between $380 and $400. They were later identified as the appellant and one Derryn Riley.

Riley and the appellant were employed as plasterers by Tony Tomic. Tomic gave the appellant and Riley a Makita screw-gun to use on a plastering job to be performed the following day. Neither the appellant nor Riley appeared for work and Tomic has never set eyes on them again. The appellant pawned the screw-gun at a Cash Converters store.

On 8 February 2000 the appellant pleaded guilty to a presentment containing one count of armed robbery, one count of theft and one count of obtaining property by deception. The second and third counts arose from the pawning of the screw-gun. The appellant was sentenced to a term of two years and six months' imprisonment on the count of armed robbery and to a term of one month's imprisonment on each of the counts of theft and obtaining property by deception. The sentences were made concurrent, producing a total effective sentence of two years and six months' imprisonment. A non-parole period of 18 months was fixed.

The appellant was granted leave to appeal by me pursuant to the provisions of s.582 of the Crimes Act 1958.

The appellant is now 27 years of age. He has seven prior convictions arising from cultivating, possessing and using cannabis. In respect of four of the charges the appellant was released without conviction upon entering into a recognisance to be of good behaviour, and in respect of three of the charges he was fined a total of $900.

The appellant comes from a respectable and supportive family. His father, who is a retired taxi-driver, conducts a horse-riding business near Tocumwal. His mother is a housewife. The appellant has two elder brothers and a sister, none of whom have come to the attention of the police. The appellant left school after passing Year 10 and completed a four-year apprenticeship as a fibrous plasterer. He lived at home with his parents in Dandenong until he was 22 years of age, when his parents moved to Tocumwal, while the appellant remained in Dandenong. In late 1997 the appellant began to use heroin, and became addicted to it. Attempts to wean himself from his addiction were unsuccessful. The offences in respect of which the appellant was sentenced were committed in order to obtain money to buy heroin.

The appellant was assessed by Mr Joblin, a forensic psychologist. Mr Joblin was of the opinion that the appellant did not suffer from depression, was not psychotic, was of good intellect and came from a good family. He described his degeneration into drug use and crime as the product of the conditions in which he lived in 1998 and 1999, when the appellant stopped work, was associating with others in a community environment of drugs and had a girlfriend who also used drugs. According to Mr Joblin, the arrest of the appellant had led him to review his life and he had now considerable motivation to straighten it out. The appellant impressed Mr Joblin with the strength of his professed motivation to remain drug-free, and his insight. Mr Joblin concluded:

"In my opinion Mr Deering does have the essentials for successful rehabilitation in that he is intelligent, he has motivation and insight and importantly he reports that he has the support of his family to assist him."

On the other hand a pre-sentence report given to the court by Community Correctional Services concluded that it was not suitable to make a community-based order in respect of the appellant. In part this opinion was based upon the appellant's hitherto unsuccessful attempts to combat his addiction to heroin, and in part upon his failure to meet the requirements of a community-based order which was imposed upon the appellant on 12 January 1999 in respect of offences committed in March and October 1998.

In respect of Riley, the co-offender, the sentencing judge made a community-based order and adjourned the proceedings relating to some five charges of theft on Riley entering into a bond to be of good behaviour. The principal condition of the community-based order was that Riley perform 400 hours of community work. Riley was only 18 years old when he was sentenced and had no prior convictions. Unlike the appellant, Community Correctional Services had expressed the opinion that Riley was a suitable candidate for a community-based order.

There are some 11 grounds of appeal. Two of the grounds concern the appellant's complaint that the sentencing judge failed to observe the principle of parity having regard to the sentence imposed upon Riley. I do not understand the appellant's counsel to deny that it was appropriate that Riley should be treated differently from the appellant by reason of the relative ages of Riley and the appellant, Riley's lack of prior convictions and the report that Riley was a suitable candidate for a community-based order. Rather, it was contended on behalf of the appellant that these distinctions did not warrant the gap between a community-based order and two-and-a-half years' imprisonment having regard to the fact that the appellant was treated as playing a role equal to that of Riley in the robbery, both were heroin addicts and neither had been previously imprisoned.

I do not agree. Riley's age and the assessment that he was a suitable candidate for a community-based order were critical factors that justified the different treatment of each of the co-accused. The fact that circumstances personal to Riley warranted the imposition of a non-custodial sentence did not entail that the appellant be sentenced in a manner that was not appropriate to the seriousness of the crime and his circumstances, that is, to a sentence that was less than the crime and his personal position warranted. The basis of the principle of parity is avoidance of a justifiable sense of grievance. A sense of grievance is not justifiable unless it would be shared by an objective observer. In my view such an observer would readily understand the distinctions between the positions of the appellant and Riley and the consequences of those distinctions, in particular that they led to different sentencing regimes where it is difficult to draw comparisons. It may be said that the fact that a community-based order was imposed on Riley should have led to a more lenient sentence being imposed on the appellant, but having regard to the sentence which in fact was imposed upon him, I consider that it may well be that the sentencing judge followed the course which I have described.

Another ground of appeal contends that the sentencing judge should have found the appellant was not the person who wielded the syringe. That ground, however, was not pressed.

A number of the grounds of appeal stemmed from the course which the plea took. At an early stage in the plea the sentencing judge suggested that evidence be given by the appellant and his parents as to the position of the appellant and drugs, whether the appellant and his parents intended that he should live in Tocumwal and the prospects of his obtaining work there. As a consequence evidence was given as to these matters by the appellant, his parents and his sister. The sentencing judge then adjourned the proceedings in order that a psychological report could be obtained and the appellant's suitability for a community-based order could be assessed. It appears that the unfavourable assessment by Community Correctional Services led his Honour to reject the suggestion of a community-based order, and the fact that Mr Joblin was of the view that the appellant's drug problems were not resolved and he was "quite fragile" caused him to decide against a suspended sentence.

The appellant complains of the sentencing judge's rejection of the suggestions of a suspended sentence and a community-based order. Lying behind the complaints appears to be a feeling of grievance that the judge should have raised hopes of a disposition other than one involving immediate custody and dashed those hopes by imposing a term of imprisonment. In my opinion there were adequate grounds for the conclusions reached by the judge, and I am not persuaded that he fell into error in these respects. The fact that his Honour explored other courses than immediate incarceration could not oblige him ultimately to choose such a course.

While it is true that the appellant's prior convictions were for offences of a different character, unrelated to the current offences save in so far as use of cannabis may be a precursor to harder drugs, that the appellant had never been imprisoned before, that his parents, whom his Honour described as impressive witnesses, were willing and able to support him, and he appeared willing to accept their help, nevertheless I am of the opinion that a sentence of two-and-a-half years' imprisonment does not show that the sentencing judge failed to accord sufficient weight to the prospects of the appellant's rehabilitation. The minimum term might have been slightly lower, as counsel for the respondent conceded, but I do not consider that the term fixed betokens error. It is not open to this Court to make a small adjustment to the non-parole period.

I agree that the appeal will have to be dismissed, for the reasons given by Buchanan, J.A. The task which faced the sentencing judge in this matter was a very difficult one. He had to balance the seriousness of the crimes, particularly that of armed robbery, committed by the appellant against the powerful circumstances of mitigation which were placed before him on the appellant's behalf.

This Court has frequently stated that the offence of armed robbery, committed on "soft targets" such as the shopkeeper in this case, is a serious offence which has to be met with an appropriate degree of punishment. It also has to be said that the seriousness of the offence of armed robbery, notwithstanding that the perpetrator is fuelled by drugs or alcohol, can only be met by the imposition of a sentence which appropriately reflects elements of general deterrence and, in circumstances such as these in particular, specific deterrence. As long ago as 16 October 1997, in the case of Orkowski, the Court said this:

"One has to be careful, I think, in entertaining applications against sentences of this sort, not to allow too readily the personal circumstances of the offender to mask the features of this crime [armed robbery] which require the sentencing judge to properly regard principles of general and specific deterrence as important features of the exercise of the sentencing discretion. The crime is one which is perpetrated usually upon defenceless members of the community whilst those persons are going about their business, often in circumstances of isolation."

The sentence here imposed, of two-and-a-half years, was in my view, if anything, a lenient sentence and reflects the sentencing judge's own view of the powerful circumstances of mitigation which he has clearly taken into account.

The only real issue which has given me some pause for thought in this appeal has been the issue of the length of the non-parole period. Clearly his Honour was concerned, in fixing the non-parole period, to give an opportunity to the appellant to use his own powers of motivation to try and free himself of the drug problems which he had. I am pleased to say, from what I have heard here this morning, that it seems that the appellant has been well motivated and has been able, at least to this point, to wean himself off both his drug of preference and indeed the methadone programme which he has undertaken. His Honour clearly fixed a minimum term with those circumstances in mind. I can see no reason, myself, for suggesting any error in the minimum term which his Honour fixed.

As we have said earlier, the difference between the task of this Court and the task of the sentencing judge needs to be noted. This Court can only interfere with a sentence imposed by a sentencing judge if it is satisfied, upon argument made to it, that there has been some specific error in the sentencing process below, or is otherwise satisfied that the term of the sentence is manifestly excessive, either as to head sentence or minimum term fixed. Against the background of those principles, I cannot be satisfied that the sentence imposed by his Honour is manifestly excessive.

For those reasons I too must dismiss this appeal.

I agree that the appeal should be dismissed for the reasons given by the other members of the Court.

The formal order of the Court will be that the appeal is dismissed.

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Judgment (28 paragraphs)

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