R v El Hajje [2003] VSCA 48

Court of Appeal (Vic)|2003-04-10|Before: CALLAWAY and BATT, JJ.A. and CUMMINS, A.J.A.

CRIMINAL LAW - Sentencing - An armed robbery, numerous robberies and thefts, and like offences committed against "soft targets" and cars - Offender at time a 26-year-old drug addict with bad record - Guilty plea - Whether effective plea made - What s.5(2) of Sentencing Act 1991 required of judge - Whether rehabilitation undervalued - Neither 4 years' imprisonment for armed robbery nor a total effective sentence of 7 years with minimum of 5 years manifestly excessive.

The appellant, Fedi El Hajje, is aged 27 years, having been born on 4 July 1975. On 6 February 2002 he pleaded guilty in the County Court at Melbourne to thirteen counts of theft, ten counts of robbery, two counts of attempted robbery and one count each of attempted burglary, burglary, armed robbery, common assault and attempted theft. The maximum custodial penalties for those offences were imprisonment for the following terms: 25 years for armed robbery, 15 years for robbery, 10 years for each of burglary, attempted robbery and theft and 5 years for each of attempted burglary, attempted theft and common assault.

The appellant admitted 115 previous convictions, being 18 findings of guilt and 97 convictions, from 16 court appearances between 5 March 1992 and 13 March 2001. They include numerous convictions for robbery, some for burglary and very many for theft and other associated offences of dishonesty, as well as some convictions for assault and other minor offences of violence. The appellant has, in his previous convictions, received almost every sentencing disposition available to the courts, including on some nine occasions imprisonment, either in the initial disposition or ultimately as the result of some breach, the maximum term imposed on him appearing to be nine months.

On the same day, the County Court judge heard a plea in mitigation of penalty and on the following day, 7 February, he sentenced the applicant to various terms of imprisonment ranging from two days to four years on each of the 30 counts. The term of four years was imposed for armed robbery (count 11). Next in severity were terms of three years and six months imposed on counts 13, 14, 17, 18, 21 and 29, which were all counts of robbery, being cases where the appellant, in his Honour's words, "specifically threatened violence". (This is because, as I understand it, they were cases where the appellant had a hand inside his jacket or jumper and pointed it at the victim as though it were a firearm, or held his hand behind his back as though he had a firearm in it. There was one other robbery count where the appellant had his hand in his jumper, namely, count 24.) His Honour directed that six months of the sentences imposed on the six last-mentioned counts were to be served cumulatively upon each other and upon the sentence imposed on count 11. This resulted in a total effective sentence of imprisonment for seven years. His Honour fixed a non-parole period of five years, declared that the period of 162 days' pre-sentence detention was to be reckoned as already served under the sentence, and made, by consent, certain orders for compensation, for restitution and for the taking of an intimate sample.

The appellant appeals pursuant to leave granted by a single Judge of Appeal on 31 May 2002 on the following six grounds, substituted by order of the Registrar made on 19 March 2003, namely:

1. No effective plea in mitigation was made before the learned sentencing judge. This led the learned sentencing judge into error in that he did not have regard to the factors in s.5(2)(d), (f) & (g) of the Sentencing Act when sentencing the appellant. 2. By reason of the matters in paragraph 1, the learned sentencing judge erred in his orders of accumulation in respect to counts 13, 14, 17, 18, 21 & 29. 3. The total effective sentence of seven years with a minimum term of five years to serve is, in all the circumstances, manifestly excessive. 4. The sentence of four years imposed in respect to count 11 is manifestly excessive. 5. The learned sentencing judge was led into error in that the full circumstances of the appellant's prospects for rehabilitation were not placed before the court. 6. In the event that error is made out, leave is sought from this Honourable Court to refer to the affidavit of Fida El Hajje who deposes as to: (a) the circumstances personal to the appellant; (b) the appellant's drug history; (c) efforts at and prospects for rehabilitation.

Before those grounds can be considered it is necessary to explain the facts of the offences as well as to indicate his Honour's reasons for the sentence he imposed. The information the judge was given about the appellant will appear in the discussion of ground 1. Because of the number of counts and the details of the facts, I append to my reasons the summary, slightly edited, of the evidence relating to the offences contained in the depositions, which, I might say, it is apparent his Honour had read in detail, prepared by the respondent and accepted as accurate on behalf of the appellant.

In essence, it may be said that, between 24 July and 29 August 2001, the appellant went on a rampage of offending by way of theft, robbery and the other crimes to which he pleaded guilty. The offending occurred principally, but by no means exclusively, in the northern and western suburbs and environs of Melbourne. In particular, the appellant stole several Ford motor cars that had been parked by their owners in the street or in an open car park for shoppers and committed robberies of money from attendants at service stations and associated shops and at convenience stores, and from proprietors of small businesses, all being what it is fashionable, and meaningful, to call "soft targets". The motor cars stolen were used for the appellant's own purposes before being abandoned. The principal such purpose was transport to and from the scene of offences.

The sentencing judge, in setting out the detailed facts of each offence, quoted from the vivid statements of victims, but before doing that his Honour gave, as it seems to me, a perceptive overview of the offending, from which I quote:

"The robberies, and attempted robber[ies], took place at varying times, some in the small hours of the morning, some in broad daylight. All were upon what have become known as soft targets. Some robberies were preceded by careful [reconnaissance]. One, at least, was spontaneous. Most involved ... the implication that, if necessary, a weapon would be used. In fact, the Crown alleges that in one case only was a weapon carried, count 11, and I accept that that weapon was a socket wrench being carried not as a result of premeditation, but, rather, because it had just been used in an unsuccessful attempt to remove security bars. There was a measure of sophistication about many of the robberies in that you actually took with you from the premises the surveillance video film, or attempted to do so. In at least one other instance there was a preliminary [reconnaissance]. In a number of cases you were not deterred by the appearance of others upon the scene. In most cases you were not deterred by the appearance of others upon the scene. In most cases you used a stolen car to get to and from the crime scene.

...

Your present crimes were committed over a period of some five weeks. You reaped in that period a sum of the order of $12,000 certain. That sum does not include the proceeds of five robberies where the amount taken does not appear from the material."

His Honour noted that each of the crimes was committed during the currency, that is, the operational period, of a suspended term of imprisonment, which was an aggravating factor. His Honour also noted that the appellant was a drug addict and that his current drug of addiction was heroin. His Honour stated that, given the appellant's record, it was hard to avoid the conclusion that crime was for the appellant a way of life. He did, however, "accept for what it is worth that the crimes that bring you before me were motivated in large part by a need to purchase heroin. That, however, is no excuse; it is merely an explanation". Towards the end of his sentencing remarks his Honour recorded that, following his arrest, the appellant had been cooperative with the police, readily admitting what he had done, and had pleaded guilty at the earliest possible moment. That plea, his Honour said, had certainly saved the community the cost of a number of trials and the appellant's victims the trauma and inconvenience of reliving their experience. It was difficult, the judge went on, to attribute much remorse to the plea, having regard to the appellant's criminal past, but there were, he said, indications that the appellant was not yet, at least, a hardened criminal, referring to answers in his record of interview. Nevertheless, the fact was that the appellant had had innumerable opportunities to mend his ways and had not done so. There was a real need to deter him as far as might be from continuing to behave as he had done in the past. There was a need to deter others from following his example. Small shopkeepers had become particularly vulnerable to violent crime and it was the plain duty of the court to afford them what protection it could. His Honour then proceeded to impose the sentence stated earlier.

In assessing the effectiveness of the plea for the purposes of ground 1, regard must be had to the fact, which was obvious from his Honour's opening remarks to the prosecutor, that his Honour was conversant not only with the depositions but with the details revealed by them, and also the fact that, as counsel no doubt knew, his Honour was a very experienced judge in this area of the law and well aware of the essential requirements of the Sentencing Act 1991.

Counsel for the appellant began his plea before the judge by referring to the fact that his client was supported by his family in court: his mother, his sisters and, he thought, a cousin. He then turned to the most serious count (count 11) and sought to make it clear that the weapon in question in that count, a socket wrench, had been used by the appellant in an attempt to force entry into the premises, which accounted for its availability to him for use in what became the armed robbery. Counsel then offered a frank assessment of the offending and stated that, as the record of interview was said to show, the appellant then had, and had had at the time of offending, a heroin addiction. It did not excuse but it explained the offending. (The transcript's version, "doesn't explain", seems from the context a clear error.) He was desperate for heroin and stole to support his habit. Counsel told the judge that his client, then aged 26, had had the problem since at least the age of 16, starting with cannabis and speed, or amphetamines, and moving at the age of 24 to heroin. He had had from various courts dispositions of short imprisonment and with a drug treatment component, but had always relapsed into drug abuse. The appellant had told him (counsel) that he was not confident of being able to deal with the problem upon release. It was up to the appellant when released, with "the very great support of his family", to try and beat the habit, said counsel. There were no guarantees, but a long period of parole, which the judge had suggested was likely, would give him a chance under supervision. Counsel then said, "He has been in custody since 29 August and he has used that time, he has stayed out of trouble and he has done at least one course in drug awareness through Moreland Hall ... it's a participation course, relapse prevention ... He was to enrol in another course but there's some problem with getting into the actual courses." A certificate from Moreland Hall was then received in evidence as Exhibit A. It is described in the transcript as "Certificate from Moreland Hall re Drug Awareness Course". It contains references to drug-related matters and certifies to attendance by the appellant at all sessions of a twelve-hour group programme over nine days in October 2002.

In opening the appeal, Mr Lyon, who did not appear below, said that the real essence of the complaint was that the appellant had been sentenced to a long term of imprisonment essentially on the papers. He had had counsel and there was plea material. But none was put. In the plea, at pages 7-10 of the transcript, virtually nothing was put, and, if anything was put, it was put without depth. His Honour could only glean information from the depositions, which, it was implicit, did not deal with the personal facts relating to the appellant save so far as they appeared from the record of interview. Notwithstanding that in his report to this Court his Honour had said that he had regard to all the matters set out in s.5(2) of the Sentencing Act, his Honour could not have done so. Mr Lyon further submitted that if the matters deposed to in the affidavit referred to in ground 6 had been put on the plea, a different light would have been shed. It was clear, he submitted, that his Honour had had a most difficult task without a proper plea.

Counsel instanced, as a matter not mentioned by counsel below or the judge, the fact that on 20 September 2001, after the appellant had been in custody for 21 days, the police re-attended and he confessed to offences which, though they knew of their commission, the police did not know the appellant had committed. That was a reference to counts 3 and 4. I may say immediately that, although his Honour did not refer to the confession to counts 3 and 4 in his sentencing remarks, it is clear, from his asking the prosecutor where the evidence on those counts was and from the prosecutor's taking him to the relevant portion of the record of interview, that he must have been aware when sentencing on the following day that the evidence came solely from the appellant.

Although cases relating to the admission of evidence of events subsequent to sentencing were cited in the outline on behalf of the appellant, Mr Lyon agreed during argument yesterday morning that the principle which he was really seeking to invoke in order to rely, in support of ground 1, on the affidavit sworn on 13 March 2003 by the appellant's sister, Fida El Hajje, was that referred to in R. v. Babic[1], whereby evidence of events occurring prior to sentence, even though the new evidence is not fresh evidence, may be received on appeal in order to avoid a miscarriage of justice. R. v. Bishop[2], on which Mr Lyon relied, though concerned with the content of a plea, proved on examination not to be an example of the application of that principle. Having been asked immediately before the luncheon adjournment what was the critical information that the sentencing judge should have been, but was not, told and of which his ignorance resulted in a miscarriage, Mr Lyon, on resumption, very responsibly informed the Court that, although he was able to identify five pieces of information which could have been put or better put, they would not, either individually or collectively, enable him to contend that there had been a miscarriage of justice. Accordingly, the oral application for the reception of the affidavit in support of ground 1, and, it may be, ground 5, was not persisted in. Mr Lyon contended, as he was entitled to do, that, if the Court should come to re-sentence the appellant, the affidavit was admissible.

Mr Lyon still relied on ground 1 in what he called its bare form. He submitted that the plea was bare, so that his Honour could not have regard to the factors listed in paragraphs (d), (f) and (g) of s.5(2) of the Sentencing Act, and therefore error occurred. Those factors are: the offender's culpability and degree of responsibility for the offence; the offender's previous character; and the presence of any aggravating or mitigating factor and any other relevant circumstance. It was submitted that the sentencing judge did not take into account the factors personal to the appellant because none was put nor sought from counsel by the judge during the plea and that accordingly his Honour was unable to assess properly the appellant's background and personal circumstances; family situation, support and responsibilities; and drug dependence and efforts at rehabilitation.

I do not accept either that no effective plea in mitigation was made or that the judge did not, as required by s.5(2), have regard to the factors listed in those paragraphs. First, s.5(2) does not impose upon a sentencing judge the task of searching out the full facts on each of the factors listed. Rather, it requires the judge to have regard to the factors so far as they are known to him or her. His Honour had information bearing on all the factors in question and had regard to them. It may be that more information could have been placed before his Honour, but that does not bear upon the question of his obedience to the command in s.5(2). It was then said that it bore on the question whether there was an effective plea. In my view, ground 1 comes down, and must come down if its assertion is to constitute error, to an allegation of incompetence on the part of counsel appearing for the appellant on the plea. That is a serious allegation. We were told that counsel had not been informed of the allegation. Be that as it may, the summary of the plea which I have earlier given shows, I consider, that a real plea was made. It is true that it was relatively brief, though brevity of itself is not a vice. It may be, or may well be, that it could have been better and could have contained more information. It did not, for instance, as many pleas do, address the early life of the appellant, though I venture to think that that particular matter would not have been of great assistance to his Honour. It did deal with matters personal to the appellant, including the support of his family, the existence and development of his drug problem, his attendance at the Moreland Hall drug awareness course and the desire to enrol in another course.

It is convenient to take next ground 5. As a result of the abandonment of reliance on the affidavit except on any re-sentencing, Mr Lyon asked the Court to understand this ground as essentially alleging that the sentencing judge had given insufficient weight to rehabilitation of the appellant. So understood, the ground alleges specific error. Whilst counsel conceded that he could not say that the sentencing judge did not have regard to the exhibited Moreland Hall certificate at all, he pointed out, correctly, that there was no reference in the sentencing remarks to rehabilitation as such. Nevertheless, after anxious consideration I have come to the conclusion, essentially for the reasons which follow, that this ground is not made out.

The ground has to be determined in the light of the plea and the information known to the judge. Counsel below had, as has already appeared, not put to the judge an optimistic view about the appellant's rehabilitation or prospects of rehabilitation. His Honour did, however, refer towards the conclusion of his sentencing remarks to matters favourable to the appellant, such as that he had been cooperative with the police, readily admitting what he had done, and had pleaded guilty at the earliest possible moment, and that there were indications that the appellant was not yet, at least, a hardened criminal, supporting that statement by reference to answers in the record of interview displaying insight into the appellant's offending. Those matters all bear on, amongst other things, prospects of rehabilitation. It is true that his Honour did not refer to the appellant's disclosure of the fact that he was the offender in what became counts 3 and 4 or to the Moreland Hall certificate, but he could not have been unaware of those matters. Nevertheless, his Honour's statement immediately before imposing sentence, that the appellant had had innumerable opportunities to mend his ways and had not done so, showed that he was not sanguine about the appellant's prospects of rehabilitation. In my view his Honour was entitled to be of that mind, having regard to the number and nature of the counts on which the appellant stood before him for sentence, the appellant's antecedents as revealed by the further presentment, the far from optimistic statement by counsel on rehabilitation, and the fact that the subject offences were committed during the operational period of a suspended sentence of imprisonment. Since, on the material before the judge, the appellant's prospects of rehabilitation were weak, I consider that his Honour did not fail to give sufficient weight to rehabilitation in referring merely to the favourable matters I have mentioned.

It is convenient to take next ground 4, alleging that the sentence on count 11 is manifestly excessive. In support of it, reliance was placed on the circumstances that the use of a weapon was not premeditated; that the appellant's explanation of the offending, namely that it was by chance that he had the weapon and that the weapon was not an offensive one in itself, suggested that the offence should be classified at the lower end of the scale of seriousness; and that he made full and frank admissions. Whether a sentence is manifestly excessive is, as has been said many times, a question that does not admit of much argument. The question is not whether the appellate court might itself have imposed a lesser sentence, but whether the sentence actually imposed was within the range of sentences reasonably open to the sentencing judge in the exercise of a sound discretionary judgment.

Notwithstanding the matters relied on, I consider that the sentence of four years on count 11 was within that range. I say that having regard to the maximum sentence provided for by Parliament and to the facts that this offence was committed on a vulnerable person in the early hours of the morning, that the victim was frightened by it, that the primary sentencing purposes for all the subject offences, including this one, were general deterrence and specific deterrence, and that the commission of this particular offence manifested a continuing attitude of disobedience to the law, illuminating the appellant's moral culpability and showing the need to protect society[3].

Ground 2 and ground 3, so far as it relates to the total effective sentence, may be taken together. With regard to cumulation, it was submitted that the extent of it was excessive having regard to the facts that the offences were committed over a relatively short time-span, were generally of a similar nature and were all motivated by the desire to purchase heroin. Whilst that last consideration is entitled to some weight, the six offences the sentences on which, and on which alone, were partially cumulated were all discrete offences betokening additional criminality. For those reasons, and for the reasons given in relation to the sentence on count 11 that are not specific to the facts of that count, I am of opinion that ground 2 and ground 3, so far as it relates to the total effective sentence, fail. In those circumstances, since there was no material warranting a greater differential between the total effective sentence and the non-parole period than two years, ground 3, so far as it relates to the non-parole period, in my view, also fails.

In view of my conclusion on grounds 1 to 5, ground 6 does not require consideration.

For the foregoing reasons I would dismiss this appeal.

On Tuesday 24 July 2001, at about 12.15 a.m., the appellant attended at 30A Bonwick Street, Fawkner. A witness who knew the appellant watched as the appellant used a tyre lever to try and force open the front door of the building. The appellant broke the deadlock on the door but was unable to open the door and left the area. Approximately 15 minutes later, the appellant returned to the premises and used the tyre lever to smash the front display window. The appellant was unable to gain entry to the building because steel security bars had been fitted behind the glass. The appellant stated during a tape recorded interview that he was going to steal mobile telephones from these premises. The broken window and deadlock was valued at $700.

On Thursday 2 August 2001, at about 3.05 a.m., the appellant parked a vehicle a short distance away from a service station, in Sydney Road, Coburg. The appellant waited until the attendant was outside the store and then entered the store. The appellant entered the office area and removed approximately $2,500 from a money drawer that was below the cash register. He then went to the video surveillance recorder and removed the tape. He left the service station with the money and the video surveillance tape. As the appellant was leaving the store, the attendant observed the appellant and began to walk towards him. The appellant then ran from the service station and got into his vehicle and drove away.

On Sunday 5 August 2001, at about 3.30 a.m., the appellant attended at a service station in Sydney Road, Fawkner, in a vehicle with an associate who has not been identified. The associate asked the attendant for assistance with pumping up the car tyre. While the attendant was outside the shop doing this, the appellant removed the louvres from a toilet window and entered the service station through this window. The appellant went behind the service counter and removed a cash box. He took the cash box and left the store via the toilet window. The cash box and money was valued at $1,110.

On Monday 6 August 2001, at about 12.40 p.m., the victim's car, a 1986 Ford sedan, registration number CRZ 742, was parked in Lytton Street, Carlton. Between this time and 4.30 p.m., the appellant entered the vehicle using a piece of packing tape. The appellant started the vehicle with the dipstick and drove away. The appellant abandoned the vehicle in Heidelberg South and it was located there by police on 10 August 2001. The vehicle was valued at $2,000.

On Wednesday 8 August 2001, at about 4.25 p.m., the appellant drove into the service station, the subject of counts 3 and 4, in a stolen vehicle, registration number CRZ 742. The appellant filled the car with $10.00 of petrol and then drove away without paying for the fuel. The appellant did not make any attempt to pay for the fuel. The fuel was valued at $10.00.

On Sunday 12 August 2001, at about 1.00 p.m., the victim parked his Ford motor vehicle, registration number NJJ 006, in Coventry Street, South Melbourne. The victim locked the car and took the keys with him. Between this time and 2.00 p.m., the appellant broke into the vehicle by using a piece of packing tape. He then used the dipstick to start the vehicle and drove away. The appellant later abandoned the vehicle in St Albans, where it was recovered by police on 13August 2001. The vehicle was valued at $3,000.

On Sunday 12 August 2001, at about 9.00 p.m., the victim parked his Ford motor vehicle, registration number PTS 385, at the front of a residential premises in George Street, St Albans. The victim locked the car and had the keys with him. Between this time and 12.30 a.m. on 13 August 2001, the appellant broke into the locked vehicle using a piece of packing tape. The appellant started the vehicle with the dipstick and then drove away. The appellant later abandoned the vehicle in John Street, Eltham, where it was located by police on 14 August 2001. The vehicle was valued at $8,000.

On Tuesday 14 August 2001, at about 10.30 a.m., the victim parked her car, a 1987 Ford sedan, registration number QHG 340, in the car park of the Eltham child care centre. The victim locked her car and took the keys with her. Between this time and 6.15 p.m., the appellant broke into the car using a piece of packing tape. He started the car with the dipstick, and drove away. The appellant later abandoned the car in Southbank, where it was located by the police on 20 August 2001. The vehicle was valued at $5,000.

On Tuesday 14 August 2001, at about 10.30 p.m., the appellant drove a stolen car, registration number QHG 340, to a Kentucky Fried Chicken store in Richmond. He entered the store, approached the attendant and asked him for change. When the attendant opened the cash register, the appellant leaned over the counter and forcefully pushed the attendant in the chest. The attendant stepped backwards and the appellant reached into the cash register and removed money. He then ran from the store and used the stolen vehicle to escape. Before escaping, however, the appellant was caught by the pursuing store manager and a struggle developed. Eventually, the appellant made good his escape. The attendant and the store manager were not injured. The money stolen was valued at $365.

On Wednesday 15 August 2001, at about 6.20 a.m., the appellant went to the service station the subject of count 2. He had with him a socket wrench and was in the process of removing the security bars from a rear window. The attendant heard the appellant removing the bars and went outside to find the source of the noise. At this point, the appellant followed the attendant into the service station. The appellant told the attendant that someone was following him and asked if he could wait in the service station. The appellant knocked over a compact disc rack and then jumped over the service counter. According to the victim, the appellant then took a screwdriver (however, it was rather the socket wrench) from his pocket and put it near the attendant's throat and made a demand for money. The appellant stole cash from a drawer and two cash registers. The appellant then threatened the attendant again to open another drawer, but the attendant was unable to open this drawer. The appellant removed the video surveillance tape from the recorder. The appellant also stole 20 cartons of cigarettes and left the service station. The appellant returned to the service station approximately one minute later, leaned over the counter and told the attendant to open a second drawer. This drawer was unable to be opened and the appellant finally left the service station. The attendant was not injured, but was very frightened. The victim thought he might have been stabbed if he did not comply with the appellant's demands. The cash and cigarettes stolen were valued at $1,000. In his record of interview, the appellant denied using a screwdriver. He admitted to having in his possession a socket wrench. He further denied putting the weapon to the throat of the victim.

On Saturday 18 August 2001, at about 3.00 p.m., the victim parked his 1982 Ford sedan, registration number NZO 977, in the car park of the Gladstone Park Shopping Centre. The victim locked the car and took the keys with him. Between this time and 4.00 p.m., the appellant entered the vehicle using a piece of packing tape. The appellant started the vehicle with a dipstick and drove away. The appellant later abandoned the vehicle in Gladstone Park, where it was located by the police on 19 August 2001. The vehicle was valued at $2,000.

On Saturday 18 August 2001, at about 4.05 p.m., the appellant drove a stolen Ford sedan, registration number NZO 977, to a general store and post office just outside the metropolitan area. The appellant entered the post office and climbed onto the counter. The appellant then placed his right hand in his jacket and said to the attendant, "I'll stab ya, I'm not kidding, I'll stab ya." The appellant demanded the attendant open the safe. The appellant then entered the rear office and took cash from a safe and a money drawer and then returned to the front counter. The appellant demanded that the attendant open the till. The appellant then stole cash from the cash register. The appellant pulled the telephone out of the wall. Before leaving, the appellant demanded that the attendant "come with him", however, the attendant refused. The appellant then left the post office, driving the stolen car. At the time of the robbery, the attendant was not injured but feared for his safety. The amount of cash stolen was valued at $1,500.

On Monday 20 August 2001, at about 11.00 a.m., the appellant entered a florist shop in Sydney Road, Fawkner. The appellant walked to the counter and said to the female attendant, "I want you to open the till. I don't want to have to hurt you." The appellant had his left hand in his pocket. The attendant tried to open the till but couldn't. The appellant said, "Just open the fuckin' till, I don't want to have to hurt you." The appellant then opened the till and removed approximately $150. The appellant entered the staff office and emptied the contents of the attendant's handbag. The attendant then ran out of the shop and the appellant followed. The appellant ran from Sydney Road and into Lorne Street. The attendant was not injured but felt really sick and scared. She feared that she was going to be assaulted. The cash stolen was valued at $150.

On Monday 20 August 2001, at about 2.50 p.m., the appellant entered a pawnbroker premises in Sydney Road, Brunswick. The appellant asked to look at two gold bangles. The attendant removed two gold bangles from the display counter and was showing the appellant. The appellant then asked to hold the bangles and was given them. The appellant then said, "Thank you," and ran out of the shop with the two bangles. The bangles were valued at $1,760.

On Tuesday 21 August 2001, at about 8.30 p.m., the victim parked his 1982 Ford sedan, registration number ORJ 472, in Station Street, Box Hill. Between 8.30 p.m. and 10.40 p.m., the appellant used a piece of packing tape to unlock the car and then used the dipstick to start the car. The appellant drove away in the car, which was located in Mont Albert on 22 August 2001. The vehicle was valued at $2,000.

On Tuesday 21 August 2001, at approximately 10.55 p.m., the appellant drove a stolen Ford sedan, registration number ORJ 472, to a Shell service station in Whitehorse Road, North Balwyn. The appellant entered this store and approached the counter. After a short conversation with the attendant, the appellant laughed and entered the area behind the counter. The appellant had his right hand in his jacket pocket and pointed at the attendant and said, "Open the register." The attendant opened the register and the appellant removed cash from the register. The appellant then demanded to know where the security video was kept. He was told it was in the office. The appellant went to the office door, which was locked, and said to the attendant, "If you don't open it up, you're dead." The appellant and the attendant then kicked open the locked door to the office and the appellant attempted to remove the video surveillance tape. The appellant was unable to do this and returned to the service area, where he opened a drop safe and removed more cash. The appellant then left the service station and drove away in the stolen car. The attendant was not injured but was very afraid during the incident. The amount of money stolen was $700.

On Thursday 23 August 2001, at about 12.15 a.m., the appellant entered a service station at Taylors Lakes. The appellant had a short conversation with the attendant and turned to leave. However, he immediately returned and said, "I've got a blade and I'm going to stick it in ya if you don't do what I say." The appellant had one of his hands up his jumper. He then entered the counter area, where the attendant was standing. The attendant was told to open the cash register, which he did. The appellant removed cash from this register and then unsuccessfully attempted to open a second cash register. The appellant then entered the office area and tried to remove the video surveillance tape. The appellant searched the office area thoroughly for more money. The appellant became agitated because he had not obtained enough money and said to the attendant, "This is not going to be enough." The appellant then left the service station. The attendant was not injured but suffered from shock. He stated he was in fear for his safety. Although the attendant stated that he saw the appellant holding something shiny in his hand, an object similar to a paint scraper, this was denied by the appellant (and not pressed as part of the Crown case against the appellant). The appellant stated in the record of interview that he had his mobile phone in his hand. The cash stolen was valued at $120.

Counts 19 & 20 Theft of Motor Vehicle & Theft

On Thursday 23 August 2001, at about 2.45 a.m., the victim's vehicle, a 1984 Ford sedan, registration number CHF 342, was parked outside residential premises in Bamford Avenue, Westmeadows. Between this time and 6.15 a.m., the appellant entered the locked vehicle using a piece of packing tape and then started the vehicle with the dipstick. The appellant used the vehicle until he abandoned it in Moonee Ponds, where it was located on Monday 27 August 2001. The appellant removed the stereo, speakers and a mobile telephone from the vehicle. These items were not recovered and were valued at $2,000. The vehicle was valued at $4,000.

On Thursday 23 August 2001, at about 3.15 a.m., the appellant drove a stolen motor vehicle, registration number CHF 342, to a service station in Sunshine. The appellant entered the service station and approached the attendant. The appellant asked for phone cards and the attendant produced them. The appellant then placed the hood of his jacket over his head and held his hand behind his back and said, "Why don't you give me all the money if you don't want your head bashed in." The appellant demanded all the money. The attendant opened the cash register, and then walked into the office and locked the door. The appellant removed the cash from the register and climbed over the counter. The appellant continued to search the counter area and then went to the door to leave. This door was locked and the appellant tried to smash the glass door. The appellant went back to the counter and climbed into the roof. The appellant could not get out through the roof and climbed back into the counter area. He said, "Open the door and let me out, you prick." The appellant then returned to the front door and forced it open. He then left the service station in the stolen vehicle. The attendant was not injured. The amount of cash stolen was $2,000.

On Friday 24 August 2001, at about 11.15 p.m., the appellant drove a stolen vehicle, registration number CHF 342, to a service station in Balwyn North. Three hours earlier the appellant had attended and used the telephone and sought directions from the attendant. The appellant entered the service station and approached the attendant and said, "Mate, I'm not mucking around, open the till." The attendant opened the till and the appellant walked behind the counter and removed the cash from the till. The appellant then said, "You can't tell me this is all you've got." The appellant then opened the change safe and removed cash from there. The appellant asked about another safe but the attendant did not have the ability to open this safe. The appellant also forced the attendant to take all the 2 dollar coins from the till and hand them over. The appellant then left the service station in the stolen vehicle. The attendant was not injured. The cash stolen was valued at $1,400.

On Saturday 25 August 2001, at about 8.00 p.m., the victim parked his 1987 Ford sedan, registration number NSZ 504, outside a residential premises in Gaffney Street, Pascoe Vale. Between this time and 12.15 a.m. on 26 August 2001, the appellant used a piece of packing tape to enter the locked vehicle and then used the dipstick to start the vehicle. The appellant drove away in the vehicle and later abandoned it in Northcote. The vehicle was valued at $1,000.

On Sunday 26 August 2001, at about 12.25 a.m., the appellant drove a stolen car, registration number NSZ 504, to a service station in Tullamarine. The appellant waited outside until there were no customers in the service station. The appellant then approached the attendant and said, "Give me all the cash, or else I will jump the counter and do something." The appellant had his right hand under his jumper at this stage. The appellant then entered the area behind the counter and took the money from the till. The appellant then demanded more money and searched through the drawers in the service area and the office. The appellant demanded that the safe be opened, but the attendant did not have the keys. The appellant then left the service station in the stolen vehicle. The attendant was not injured, but was scared that he would be hurt. The money stolen was valued at $300.

On Sunday 26 August 2001, at about 12.35 a.m., the appellant drove a stolen vehicle, registration number NSZ 504, to a motel and convention centre in Attwood. The appellant entered the reception area and had a short conversation with the attendant. The appellant then said, "Look, we can do this the hard way or the easy way, all I want is cash, I've got a knife in my pocket." The appellant had both of his hands in his jacket pocket. The attendant then picked up a torch and held it over his head. The appellant turned and walked out the door and drove away in the stolen vehicle. The attendant was not injured, but he was frightened and now feels jumpy and anxious as a result of the incident.

On Sunday 26 August 2001, at about 8.45 a.m., the appellant drove a stolen vehicle, registration number NSZ 504, to a service station in Reservoir. The appellant put some petrol in the vehicle and entered the service station. After the appellant paid for the petrol, he said to the attendant, "Give me all the money you have. Open the drawers where you have the money." The attendant replied he did not have the keys to the middle drawers. The attendant stood back from the counter when the appellant became angry and began swearing. The appellant jumped up on the counter and removed cash from the drawer and till. The appellant then left the service station in the stolen vehicle. The attendant was not injured. The amount of money stolen was valued at $810.

Counts 27 & 28 Attempted Robbery & Common Assault

On Tuesday 28 August 2001, at about 10.00 a.m., the appellant caught a taxi in Brunswick Street, Fitzroy, and was then taken to a newsagency in Carlton North. The appellant told the taxi driver to wait outside the newsagent. The appellant entered the newsagent and approached the attendant, where they had a short conversation. When the attendant was not looking, the appellant walked to the edge of the counter and said, "Open the till." The appellant had his left hand in his jacket pocket. The attendant picked up a stool and held it against the appellant, to stop him from being attacked. The attendant said that "he was not getting anything". The appellant punched the attendant to the left side of his face, causing the attendant's glasses to break and fall off. The attendant yelled that the police were on the way. The appellant ran from the store and into Nicholson Street. The taxi picked him up a short distance away and drove him to Fawkner. The attendant received a mark on his nose where the appellant punched him.

On Thursday 30 August 2001, at about 9.00 a.m., the appellant went to a convenience store in Box Hill. The appellant approached the service counter and then walked behind it. The appellant said, "I've got a weapon, give us all your money." The appellant had his left hand in his pocket. The appellant then opened the till and removed cash. The appellant asked the attendant to open the other till but the attendant was unable to do so - the appellant became agitated as a result. The appellant also took bags of coins from the counter and then stated that he wanted the video surveillance tape. A customer entered the store and then the appellant left the store and walked east in Canterbury Road. The attendant was not injured, but was afraid and concerned for his safety. The amount of money stolen was valued at $200.

On Wednesday 29 August 2001, at about 3.45 p.m., the appellant entered a milk bar in Fawkner. The appellant selected some items, approached the attendant and handed him a Commonwealth Bankcard and stated that he also wanted to withdraw $150. The attendant swiped the card and removed $150 from the till. The attendant was waiting for the transaction to be accepted when the appellant reached over the counter and grabbed the money from the attendant's hand. The appellant then tried to leave the shop. The attendant grabbed the appellant and a struggle ensued. An associate of the appellant entered the store, took the money from the appellant and returned it to the victim. The appellant and his associate then left the store. The attendant received a sore cheek from the struggle.

I regret that I am unable to agree in the conclusion expressed by my learned brethren. I am indebted to Batt, J.A. for his comprehensive statement of the evidence and respectfully adopt it.

I consider the sentences imposed, individually and together, would have been appropriate had there been no evidence of prospects of rehabilitation. On the one hand, in all but one count (count 11), there was no weapon used or present; in that one, the weapon, a socket wrench, was not taken to the premises for purposes of assault; in none was significant physical violence inflicted on the victims (a push in count 10, a punch to the face in count 28, a struggle in count 30). On the other hand, in nearly all the personal offences, the victims were threatened (a serious matter) and traumatised (a serious matter, the threat with the socket wrench being particularly serious); the victims were persons the courts should protect by proper and not ineffectual sentencing; the offences were manifold and continuous (30 offences over five weeks from 24 July to 30 August 2001); the appellant had numerous relevant prior convictions and had been given constructive non-custodial dispositions previously by the courts; and the offences were committed during the operational period of suspended imprisonment. His Honour correctly stated that heavier sentences should be imposed where violence to the person was threatened by the appellant. All in all, the sentences imposed, individually and together, would have been appropriate had there been no prospects of rehabilitation.

I consider there was substantial material in evidence before the judge that there were prospects of rehabilitation. That material was the following. First, the appellant's age. He was born on 4 July 1975 and was aged 26 at the time of the offences and at the date of sentencing (7 April 2002). It is well known that many heroin addicts mature, if they do so, in their late twenties, ten years after most young persons do. The appellant was approaching that critical period - to mature or not to mature. He was not beyond the age of the flowering of maturity and of responsibility but rather was about to enter it. Chronologically, the soil may have been ready for the seed of rehabilitation. Second, the appellant's insight. The record of interviews of the appellant are replete with insight into his own parlous moral and psychological state (important for rehabilitation) and into the suffering of his victims (important also for that end). When asked, "Do you get a buzz out of doing stuff like that?" he replied, "No, I hate it. I hate the very fact of hanging out. I hate the fact that I have to rob people for my stupid habit." Further, unlike many offenders, he was not egocentric. These were very clear harbingers of rehabilitation. Third, although the appellant had been given numerous constructive non-custodial dispositions previously by the courts and limited terms of imprisonment (the longest hitherto being 15 months' imprisonment with a minimum of 9 months), the rehabilitative potential of a substantial term of imprisonment but less than that here imposed, had not been shown to be sterile. Fourth, the appellant was a heroin addict committing constant offences of limited danger to victims over a very short period (although, of course, he had many prior convictions and many prior constructive chances). Fifth, the appellant fully cooperated with the police, initiated information which became counts 3 and 4, was not opportunistic in his police dealings, pleaded guilty at the earliest opportunity and was remorseful. Sixth, the appellant in custody had already commenced to attempt to defeat his heroin addiction, as evidenced by the Moreland Hall report of 31 January 2002, being Exhibit 1 on the plea, on the Drug Relapse Prevention programme. He wished to undertake a further course. There was no reason to suppose that that would be the totality of the appellant's future constructive efforts at personal rehabilitation. Finally and importantly, the appellant had the support of his family, plainly a decent and loving family. His family were loyally present throughout the court proceedings (as indeed they have been here). In matters of rehabilitation, a good family is a support and base on which a person of good intent but personal vulnerability can stand - "the ever fixed marke, which looks on tempests and is never shaken".

All of these matters were known to the sentencing judge. In his reasons, he acknowledged many of them (cooperation with police, plea of guilty, insight shown in police interview, and some remorse). He did not in terms acknowledge others (the appellant's family and the Moreland Hall programme). Although he did not acknowledge those latter matters, it can fairly be assumed he had them in mind, as they were evident.

30 The question, then, comes to this: did His Honour give those important matters due weight? I am guided by the prudential principle stated by Callaway, J.A. (in whose judgment Winneke, P. and Brooking, J.A. agreed) in R. v. Bernath[4], where his Honour said that the Court "must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error", where there is a question of the sentencing judge having given excessive or inadequate weight to a factor.

With due respect to the learned and experienced sentencing judge, I am compelled to conclude that his Honour fell into reasoning error in that he failed to give the matters of rehabilitation I have inadequately expressed their proper and due weight. There is nothing in the reasons for the sentence about the future, except the need for special deterrence and the expressed, saturnine, view that "there are indications that you are not yet, at least, a hardened criminal". The reasons for sentence are about the past. I have already said I agree with his Honour about the past. But his Honour's reasoning was not enlivened by the future, by the positive, by the potential, by the constructive. Unless the person is beyond hope - and demonstrably there was hope with this appellant - the principle of rehabilitation is always important, both for the offender and for society. On this material it was demonstrably so. Of course, there was a real question whether the appellant would achieve rehabilitation. His counsel acknowledged that. But there was an amplitude of material to warrant the punitive and deterrent elements of sentencing, which were properly applied by his Honour, being moderated by the constructive and therapeutic element of rehabilitation. Nothing in his Honour's expressed reasons or by implication show such an address by his Honour. Nor does the total sentence. It is a sentence without the leaven of rehabilitation.

I regret to say that I thus consider his Honour fell into sentencing error in this case and that the proper total sentence and minimum term is a sentence of lesser duration, both as to head sentence and non-parole period, than that imposed. As I am in the minority opinion in this Court it is inappropriate that I specify that which I consider the proper sentence. I would allow the appeal.

The Court directs that the affidavit of Fida El Hajje affirmed on 13th March 2003, which was proffered yesterday, be returned to counsel for the appellant.

[3] Veen v. The Queen. [No.2] [1988] HCA 14; (1988) 164 C.L.R. 465 at 477.

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