R v Drinkwater [2000] VSCA 62

3. That his Honour gave too little weight to the applicant's youth.

4. That his Honour gave too much weight to general deterrence.

5. That his Honour failed to take into account, or sufficiently to take into account, the fact that the applicant had not previously served a term of incarceration.

18. The facts relating to the offence itself are within a short compass. Shortly before 1 p.m. on 15th June 1999 the applicant drove his own vehicle from his home in Mentone to a street a short distance from a shopping mall in the same suburb. He pulled up abruptly and got out of the car wearing a beanie and sunglasses. His behaviour was sufficiently suspicious to attract the attention of a bystander, who made a written note of the car's registration number, make and year. Meanwhile the applicant went to the post office inside the shopping mall, carrying a rolled-up newspaper that concealed an imitation automatic pistol. It came from a toy set, but the photograph in evidence shows that it was a realistic imitation.

21. The applicant approached the counter and, when a female member of staff came to serve him, either pointed the pistol at her or waved it about, saying words to the effect of "Give me the money". She was very frightened and ran to the rear of the premises, crying out, "He's got a gun". The franchisee, Mr. Dennis Connor, went into the public area of the post office and was himself threatened with the imitation firearm. The applicant, who had gone behind the counter, opened a cash drawer, removed $1,400 in notes and ran off.

24. He was seen by the same vigilant bystander to return to his car, this time without the beanie but carrying a newspaper against his chest. He drove straight home, hid the pistol in an air vent in his bedroom and secreted most of the money in a plastic bag under a piece of wood in the back yard. He retained a relatively small amount in his bedroom for his immediate wants that day. The police attended shortly afterwards and took him into custody. Initially he denied involvement in the offence but, when interviewed, was co-operative and made full admissions, saying that he had intended to use the money to pay off debts and buy heroin. The record of interview is transparently honest.

27. The plea, and Mr. Tehan's submissions to us, concentrated on the circumstances of the offender. He has always lived at home with a supportive, if perhaps somewhat demanding, family. He has an older and a younger sister. After completing his primary schooling in the State system he transferred to a private school, from which he had to be removed because of his father's ill-health and consequently reduced family circumstances. He returned to the public system and completed VCE. The psychological assessment was that he is a highly intelligent young man with widespread abilities. That his VCE results were not better is attributable to cannabis use, which began about the age of 14 and had become entrenched at 17. (It is also consistent with the effects of cannabis use beginning at 14 that, at primary school, he displayed none of the disruptive conduct that is often a precursor to persisting problems in adulthood.) He found employment after leaving school and holds an Advanced Certificate of Audio Engineering, the course for which he financed himself in 1998.

30. In 1997 the applicant formed a relationship with a woman eight years older than himself. When they met she had been stable on methadone for some six to 12 months but, within a couple of months, she had relapsed and introduced the applicant to heroin. His usage increased to monthly, then weekly, then daily. When he became aware of the extent of the problem, he underwent two home detoxifications. For two months prior to the armed robbery he had been compliant with a methadone programme, but it appears that the reduction was too rapid. Believing he could not cope with the withdrawal symptoms, the applicant relapsed into heroin. It was when he was sold something which he believed to be heroin, but was not, that he decided to commit the offence. The decision and its implementation were a spur-of-the-moment folly. That does not excuse them but it puts them in context.

33. After his release on bail the applicant resumed his efforts to free himself of his heroin addiction, spending nine days in Windana. The assessment co-ordinator there considered that he had demonstrated a strong conviction to change his lifestyle. A drug counsellor also gave evidence on the plea. His evidence satisfied the learned judge that the applicant had made a serious attempt to wean himself from drugs. The witness described the applicant's efforts as outstanding and his progress as extraordinary in comparison with others with whom he worked. He suffers from no psychiatric disorders, other than anxiety and purely reactive depressive symptoms. One of those symptoms has been serious, but it does not bear on the decision of this application and I say no more about it. His only significant physical disability is incurable tinnitus, resulting from a perforated left eardrum when he was 15.

36. Mr. Tehan made his usual thorough submissions, including reference to the impulsive and amateurish nature of the offence; the applicant's co-operation with the police, plea of guilty at the earliest opportunity and the recovery, except for $200, of the money that was stolen; and the applicant's work record, references and the personal history to which I have already referred, including the drug counsellor's evidence at the plea.

39. All these matters were clearly present to the mind of the learned judge but, his Honour explained, armed robberies on soft targets are a prevalent offence of great concern both to the community in general and small shopkeepers in particular. Referring to the plea, his Honour said:

"The submission that was made by your counsel yesterday, Mr Randles, was that [the mitigating] factors were sufficient to enable me to take the course that the sentence of imprisonment which he acknowledged must be imposed, could be wholly suspended. I have come to the conclusion that that is a submission that I cannot accept. It is not, in my opinion, a feasible option. My reason is the seriousness of the offence to which you have pleaded guilty. That is not to deny the power of the plea that was made on your behalf yesterday and the material that you were able to put before me. That material has made a difference, indeed a significant difference to the outcome of this case, but it has not brought about the outcome which Mr Randles suggested it ought to do. If the offence was not so serious as it is, it could well have made the difference between a custodial and non-custodial sentence."

43. I should say at once that I agree, with respect, that there had to be a sentence of imprisonment and that it should not be wholly suspended. I choose my words carefully. A sentence less than imprisonment would, I think, have been manifestly inadequate. Total suspension may have been within the range, but his Honour did not think it appropriate and nor do I. Moreover, it is notoriously difficult to persuade an appellate court that, where a sentence has been partly suspended, there should be an even greater partial suspension. In the present case we are not entitled to interfere with that aspect of the sentencing disposition either, unless the discretion is re-opened in some other way. That can only be if the head sentence of two-and-a-half years' imprisonment is manifestly excessive when the circumstances of the offender and the atypical circumstances of the offence are given full weight. The head sentence must be one which would be appropriate if unsuspended.[1]

46. It will be apparent from what I have so far written that I accept the bulk of the submissions made by Mr. Kayser for the respondent. I have borne in mind, too, that it is the duty of the Court not simply to substitute one sentence within the range that commends itself to us for another sentence within the range that commended itself to the learned judge. The discretion of the sentencing judge is basic to our system of criminal justice and not to be undermined, particularly, if I may say so, in the case of a very senior and experienced judge whose sentencing remarks carry so much weight.

49. It has often been said that there is little room for debate whether a sentence is, or is not, manifestly excessive. We reserved our decision in this case partly because the sympathies of each of us were engaged, but also for the reasons at [13]. On consideration, I am persuaded that two-and-a-half years' imprisonment is clearly, not just arguably, too severe in the circumstances that I have endeavoured to summarize in this judgment. In particular, the applicant was the wrong vehicle to send a powerful message to others minded to offend in a similar way. The offence was one of folly and ineptitude committed at the local post office where he would be, and was, readily identifiable. As the informant said, the applicant was "a long way from being the typical armed robber". His efforts to rehabilitate himself and the success he has achieved do not make general deterrence irrelevant but lessen its weight.

52. I would substitute a sentence of eighteen months' imprisonment, of which I would suspend 12 months for an operational period of two-and-a-half years from the date on which the original sentence was imposed.

56. I agree with the proposed orders for the reasons stated by Callaway, J.A.

[1] Sentencing Act 1991, s.27(3).